1. Eric Williams 2. Austin Howe 3. Clement Cassell Appellants v The Queen Respondent [ECSC]

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: MATTHEW, J.A. (Ag.),Chief Justice,ALBERT REDHEAD,Justice of Appeal
• Judgment Date: 22 November 1999
• Judgment citation (vLex): [1999] ECSC J1122-3
• Docket Number: Criminal Appeal No. 1 of 1999
• Date: 22 November 1999

[1999] ECSC J1122-3

IN THE COURT OF APPEAL

Before:

The Hon. Mr. C.M.Dennis Byron Chief Justice

The Hon. Mr. Albert Redhead Justice of Appeal

The Hon. Mr. Albert N.J. Matthew Justice of Appeal (Ag.)

Criminal Appeal No. 1 of 1999

Between:

1. Eric Williams

2. Austin Howe

3. Clement Cassell

Appellants

and

The Queen

Respondent

Appearances:

Mr R. Francis for Appellant No. 1;

Dr. H. Browne for Appellant No.2;

Mr. D. Hamilton for Appellant No.3;

Ms A. Weekes Q.C. and Mr. C. Meade for the Crown.

1 MATTHEW, J.A. (Ag.) The Appellants were convicted by a Jury before Saunders J. on February 22, 1999 for offences in relation to the disappearance of a quantity of Eastern Caribbean Currency from the Barclays Bank vault in Plymouth belonging to the Eastern Caribbean Central Bank.

MATTHEW, J.A. (Ag.)

2 Eric Williams, the first Appellant, was convicted of the offence of conspiracy to burgle. The particulars of that offence state that Eric Williams, Austin Howe, Clement Cassell, Raphael Herbert, Ronald Irish and Cyril Daley between the 31^st day of October 1997 and the 11^th May 1998, conspired together and with other persons unknown, to enter as trespassers, the archives room and vaults of Barclays Bank, Plymouth in the Colony of Montserrat, with intent to steal. Williams was sent to prison for a term of 15 months.

3 Austin Howe and Clement Cassell, the second and third Appellants respectively, were convicted of the offence of burglary. The particulars of that offence state that Eric Williams, Austine Howe, Clement Cassell, Raphael Herbert, Roland Irish and Cyril Daley on a day between the 31^st day of October 1997 and the 11^th day of May 1998 having entered as trespassers, part of a building namely the archives room and vaults of Barclays Bank, Plymouth in the Colony of Montserrat, stole therein a quantity of Eastern Caribbean Currency approximately $922,000.00 in face value.

4 These two offences or counts were put to the Jury in the alternative. They considered the burglary count first and found Appellant No.1 not guilty but found Appellants No.2 and No.3 guilty. They then proceeded to consider the conspiracy count and found Appellant No.1 guilty. Appellants No.2 and No.3 were each sent to prison for a term of 2 years.

5 Each of the Appellants filed notices of appeal against their convictions within the stipulated time and although there has been some collaboration between learned Counsel for the Appellants, each has presented a substantial case for his client. This judgment will, of necessity, have to deal with each Appellant separately.

6 But before doing so, it is necessary to give a brief background to this episode. The Eastern Caribbean Central Bank in St.Kitts is the monetary authority for the Islands of the Organization of EasternCaribbean States (OECS). They issue new notes to the different Islands. In Montserrat their representative was Miss Alfreda Meade. The Central Bank would send new notes to Miss Meade for use by the Commercial Banks in Montserrat and these were kept in the Barclays Bank vaults. These notes would have serial numbers which would be recorded by Miss Meade. It is pertinent to state that Miss Meade would also redeem money from the local banks for onward transmission to Headquarters.

7 The evidence is that of the $922,000.00 stolen from the bank $805.000.00 were new notes, $75,000 were not new notes and $42,000 were coins. The money was kept in safes which have combination locks. According to Miss Meade there are really two safes but each has four compartments. There are two combination locks on each compartment. In order to get to the cash in the compartments they must be opened by a Barclays Official and Miss Meade at the same time. Miss Meade received a batch of cash on May 15, 1997 and she issued cash to three banks in Montserrat on May 21, 1997 and she checked the remainder of cash that was left in the vaults.

8 Before one gains entry to the vault where the safes with the money are kept, one has to enter a door which is secured by two sets of keys one for the top, the other for the bottom and then has to go through a grill door which is secured by keys as well. This is the normal entry to get to the cash. There is also another room close by called the archives room and the allegation as indicated in the indictment is that entry to the vaults with the money was not through the regular entry but by way of the archives room and jack-hammering through a partition wall and then jumping down into the area where the safes were located. It is a matter of some debateas to whether the chubb door on the archives room is secured by a combination as the first Appellant hotly contests alleging further that he does not know the combination, or whether it is secured by keys to which the first Appellant has daily access as the Prosecution contends. There is also a grilled door secured by a padlock in the archives room.

9 Joy Field-Ridley, the Bank's Operations Manager, states that owing to increasing volcanic activity, Barclays Bank transferred operations to Antigua on 1^st September 1997 but before that it had long left Plymouth. Appellant No.1 who was an employee of Barclays was transferred to Antigua on that date. On 31^st October 1997 P.C. Albert Williams made a check at Barclays and saw the right section of the Eastern door smashed leaving a space 24"x24" wide enough so that anyone could have entered the bank. He and other Police personnel entered the bank and he made a complete check inside the bank. He said all the interior doors were intact. This same Officer had occasion to visit the bank on May 11, 1998 and there he met the main door which leads to the archives room opened as well as the chubb door which leads to the emergency exit to the treasury vault.

10 One notes that the dates on the indictment relating to the particulars of the offences coincide with the visits of P.C. Albert Williams to the bank.

Eric Williams

11 In his directions to the Jury the learned Trial Judge rightly told them that a conspiracy was an agreement to do something unlawful. He asked them to consider the count of conspiracy after they hadconsidered the count of burglary and only against such accused that they had acquitted of burglary. He told them that the entire evidence of Neville Blake was relevant to the conspiracy charge, evidence which if they accepted it shows evidence of a plan, a scheme, to burgle the bank. Blake had named Howe as the chief conspirator and Cassell was mentioned as the person who revealed to him that the purpose in digging the wall was to work towards some money. The entirety of Irish's evidence, subject to the requirement for its corroboration, also supports the existence of a scheme to burgle the bank. As the learned Judge states: "The evidence and one's own commonsense would indicate that a huge operation was involved, that included the use of heavy equipment, planning, the recruitment of skilled personnel and a certain amount of intimate knowledge of the bank's layout."

12 The case for the Prosecution against Eric Williams is purely circumstantial. As stated earlier there seems to be no doubt that the burglars gained entry through the archives vault and Joy Field-Ridley, the Officer who had the responsibility of managing the bank in Montserrat, under cross-examination stated that the keys to the archives room in Plymouth were not control keys, they were not kept in the Treasury in Antigua, they were kept by a member of management but Mr. Williams had almost daily access by uplifting the keys.

13 As the learned Trial Judge put it, on the basis of the above evidence, the Prosecution was inviting the Jury to draw a number of inferences. They were asking them to conclude that (a) the Barclays burglars were given keys by someone in order to open the chubb door and the grill door that permitted entry into the archivesroom or that someone with access to those keys entered the Bank and opened those doors for the burglars (b) that the burglars had inside information. They knew exactly what they were about, they did not go jack-hammering their way to every locked room in the bank. They took a purposeful route to where the ECCB safes were; and (c) that the burglars would not have mounted such a precise and elaborate operation unless they had very good reason to believe that there was money in those safes. The Prosecution's case is that all these are circumstances which point to Eric Williams. The learned Trial Judge said if the Prosecution's case had ended there, the Jury and himself would be entitled to say that those circumstances were wholly insufficient.

14 It was the submission of Mr. Francis that since there is a combination on the door to the archives vault or room and his client said he had no knowledge of the working of the combination he could not give access to the burglars and therefore the case should have ended there. This was certainly a view of the evidence which the Jury could take. Obviously they believed otherwise.

15 But as the learned Trial Judge indicated there were other circumstances surrounding the Appellant which the Jury had to deliberate upon. The evidence is that the bank was burgled in January or February. On February 28 a bag belonging to the Appellant containing $9,000 made up of $100 and $50 new Eastern Caribbean currency notes was found. There was no direct evidence that this $9,000 was issued or re-issued money but the Prosecution was inviting the Jury to consider this evidence against the background that Williams is a banker. At the time he was working in Antigua as a Grade 3 Officer having been transferred since September 1, 1997 when Barclays ceased operations inMontserrat. The Jury would have considered whether such a person would be carrying around that amount of cash with him and in Montserrat during the volcanic crisis.

16 The Appellant gave a statement to the Police and in...