Malakoff v R

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: Sir Vincent Floissac, C.J.
• Judgment Date: 25 October 1993
• Neutral Citation: MS 1993 CA 8
• Docket Number: Criminal Appeal No. 1 of 1993
• Date: 25 October 1993

Malakoff

and

R

Floissac, C.J.; Liverpool, J.A.; Singh, J.A.

Criminal Appeal No. 1 of 1993

Court of Appeal

Evidence — Appellant convicted of obtaining property by deception and sentenced to 9 months imprisonment — During trial fresh evidence adduced which amounted to a confession by appellant — Whether circumstances of admission of fresh evidence rendered conduct of trial unfair and constituted material irregularity aggravated by trial judge's failure to put defence fairly and adequately to jury.

Appearances:

Mr. John C. Kelsick & Mr. Jean E.H. Kelsick for the Appellant.

Mrs. Gertel U. Thom (Attorney General) and Miss Vera Mendes for the Respondent.

Sir Vincent Floissac, C.J.

1 The appellant was charged with the offence of obtaining property by deception contrary to section 218(1) of the Penal Code of Montserrat. The particulars of the offence charged are that:

“Mary Louise Malakoff on the 13th day of October 1992, dishonestly obtained from the Bank of Montserrat Ltd the sum of EC$1,315.72 with the intention of permanently depriving the Bank of Montserrat Ltd. thereof by deception, namely by falsely representing that she, Mary Louise Malakoff did not sign a cheque made payable to J. Belemjian in the sum of EC$1,315.72 nor did she authorise the payment of that cheque to J. Belemjian and that someone else had signed the cheque without her permission.”

2 On 23rd July 1993, after a trial by jury presided over by Redhead, J., the appellant was convicted of the offence charged and was sentenced to imprisonment for a term of 9 months. The appellant has appealed against her conviction.

3 It was never disputed that the appellant represented to the bank that she did not sign that cheque. Nor was it ever disputed that the amount of that disavowed cheque was credited to the appellant's account on the faith of her representation. The question in dispute was whether the representation was false with the result that the appellant obtained the amount of the cheque by deceit. The representation was false if the appellant in fact executed the cheque. Accordingly, the authorship of the disavowed cheque was the central issue at the trial.

4 On that issue, the prosecution relied on the testimony of De Rende Durr (the appellant's fellow medical student and estranged former co-tenant or sub-tenant) and on the expert opinion of Superintendent Lionel Belle (a forensic document examiner attached to the Criminal Records Office at the Central Police Station in Bridgetown, Barbados). The appellant relied on her own testimony and on the expert opinion of Janet Masson (a forensic document examiner practising in Houston, Texas in the United States of America).

5 Durr testified as follows:

“I went into the kitchen. On the kitchen table was a white envelope. I picked it up, opened it. There was a cheque inside, made out to the Belenjain's account. The amount was for the phone bill for August up to that date the August phone bill was not paid. I did not put that cheque on the table. I did not write that cheque. It had Mary Lou Mailman on there, so I figured it was from Mary. I have seen cheques written by the Accused before that way. I would be able to recognise the cheque if I see it. It was written for I think $1,357.74. I am not absolutely sure.”

6 The appellant testified that she had two bank accounts. She had a local bank account which was opened with the Bank of Montserrat in her maiden name (Mary Louise Malakoff) and which she operated under the signature “Mary L. Malakoff” She also had a foreign joint Bank account in Houston in her maiden name as well as her marital name (Mary Louise Mailman or Mary L. Mailman) and in her son's name (Dennis M. Mailman). She stated that she had been married for 23 years and that the foreign bank account was opened in her marital name. She explained that: “The account in Houston, I had for many years. My signature on that account was Mary Louise Mailman. The Court gave me the right to use my maiden name.” She also stated that “I had signed my name Mary L. Mailman from 1960 to 1991. That was the only signature I had.”

7 The appellant's defence was that although recently she had occasionally absentmindedly used her customary marital signature “Mary L. Mailman”, she had never signed “Mary Lou Mailman” (as shown on the disavowed cheque) and would never have so signed even absentmindedly. Her defence is encapsulated in 3 short sentences in her testimony where she said: “I absolutely deny that I wrote that cheque. That's not the form of my cheque even when I sign Mailman absentmindedly. But I will never sign Mary Lou absentmindedly”.

8 The appellant went further than was necessary when she suggested that the disavowed cheque was probably written and signed by Burr. The suggestion was based on the facts that (1) Durr had previously used a cheque from the appellant's numbered local cheque book without the appellant's authority (2) the appellant had previously drawn cheques in favour of Durr on the appellant's foreign account and under the appellant's marital signature and (3) the appellant believed that Durr was probably the only person in Montserrat who knew the appellant's marital name.

9 The conflict between Durr's and the appellant's testimony was intensified by the inconsistency of the evidence of the experts. On the one hand, Belle concluded as follows:

10 “The following are my findings that there is a very high probability that the words 1 and 3, the name of J Belemjian and the signature Mary Lou Mailman in the Bank of Montserrat Limited cheque which I marked I for identification were written by the same person who wrote the specimen writing attributed to Mary Lou Mailman a.k.a. Mary L. Malakoff which I marked 2–2.1 for identification.”

11 On the other hand, Masson concluded as follows:

12 “In my opinion the handwriting on the cheque made payable to J. Belemjian and signed by Mary Lou Mailman was not written by the same person who wrote the specimen writing of Mary L. Malakoff. L.B.2. It was probably written by the same person who wrote the specimen writing of Miss Burr L.B.3.”

13 Later Masson said:

“Because of these similarities that I have pointed out, in my opinion the cheque in question was probably written by Miss Durr. It is my very strong opinion that this cheque was not written by this accused.”

14 So far, the evidence for the defence would have equipoised the evidence for the prosecution and but for a curious development, the jury's verdict would have been nothing less than startling. That development was by way of evidence (fresh evidence) which was adduced by Durr and which amounted to evidence of a virtual confession by the appellant. In examination-in-Chief, Durr said:

“Kevin, my fiance and I spoke to the Accused three days after I found the cheque at the house. Kevin asked the Accused why she took the money from his wallet. She said it was for my part of the Bill and she left the cheque on the table.”

15 Under cross-examination, Durr said:

“I did not say before the Magistrate that the Accused took money...