Eugene Walwyon Appellant v The Queen Respondent [ECSC]

• Jurisdiction: Saint Kitts and Nevis
• Judge: BISHOP, J.A,Chief Justice
• Judgment Date: 10 October 1986
• Judgment citation (vLex): [1986] ECSC J1010-1
• Docket Number: CRIMINAL APPEAL NO. 2 of 1986
• Court: Court of Appeal (Saint Kitts and Nevis)
• Date: 10 October 1986

[1986] ECSC J1010-1

IN THE COURT OF APPEAL

Before:

The Honourable Mr. Justice Robotham—Chief Justice

The Honourable Mr. Justice Bishop

The Honourable Mr. Justice Moe

CRIMINAL APPEAL NO. 2 of 1986

Between:

Eugene Walwyon

Appellant

and

The Queen

Respondent

Appearances:

Lee Moore and Dr. Henry Browne for Appellant

Carl Hudson Phillips, Q.C. along with N. Butler and H. Rawlins for the State.

BISHOP, J.A., delivered the Judgment of the Court

1 This is an appeal by Eugene Walwyn, who was convicted at the Criminal Assizes in February 1986 for that he "on the 25th day of November 1982 at Basseterre in the parish of Saint George in the island of Saint Christopher in Saint Christopher and Nevis, with intent to defraud obtained from Delfin Rodriquez Favale a valuable security to wit a cheque in the sum of $55,000.00 United States currency, on account of the Bank of Commerce, by falsely representing to the said Delfin Rodriguez Favale that a Certificate of Deposit numbered 3054, with a face value of $587,500.00 United States currency, was a valid certificate."

2 The main facts relied upon in proof of the offence were as follows:

3 Sometime in 1982, Gustavo Freyere and Delfin Rodriquez Favale discussed the sale by the former to the latter, of a Single Maturity Certificate of Deposit issued from the Bank of Commerce St. Kitts and Nevis in Trust and Savings Association Ltd., on the 6th July 1982. That certificate was numbered 3054, if indicated maturity date as July 7, 1983 and the total amount to be paid as $587,500.00 United States currency. Delfin Rodriquez Favale was advised that there was a loan of $55,000.00 United States currency guaranteed on the strength of that certificate. In anticipation of the completion of the sale, Delfin Favale obtained a number of cheques to a total amount of $305,000.00 United States currency, the agreed purchase price, from a bank in Puerto Rico. One of these cheques, dated 24th November 1982, and numbered 000169, wasdrawn on Caynas Federal Savings and Loan Association, for the sum of $U.S. 55,000.00, payable to the Bank of Commerce, St. Kitts. The sale was not completed in Puerto Rico because Delfin Favale wanted to be satisfied that the amount stated thereon would be paid on the date stated. So he went — accompanied by Gustavo Freyere — to the said Bank of Commerce in St. Kitts, on the 25th November 1982. There, they met and spoke with Eugene Walwyn in bis capacity as President of the Bank.

4 It was the Crown's case that Eugene Walwyn was shown Certificate of Deposit, numbered 3054, and asked if it was valid or not. He assured Favale that it was a valid document and that the amount stated therein would be paid on the date of maturity mentioned, in the currency of the United States of America and wherever it was requested to be paid. Eugene Walwyn confirmed what Freyere had told Favale in Puerto Rico, namely, that a loan of $U.S.55,000.00 was guaranteed by the Certificate of Deposit. He also advised that if the amount of the loan were paid to the Bank by the person interested in the certificate, then he would accept the transaction. It was upon Eugene Walwyn's assurances that Favale subsequently took steps to complete his purchase of the Certificate of Deposit numbered 3054 for the agreed price, which included the amount of the loan. He handed over to the President of the Bank who accepted on behalf of the Bank, the cheque numbered 000169 for $U.S.55,000.00 payable to the Basnk of Commerce — to pay off the loan alleged. The other cheques were handed to Freyere, who in turn delivered to Favale the Certificate of Deposit. Favale asked Eugene Walwyn to indicate the name of the owner of the certificate by adding his (Favale1s) name on the back; and he went a step further by asking that the names of his wife and daughter be added, so that in the event that he was unable to collect the money when the time came to do so, then either of them would collect it. The names were typewritten on the back and Favale asked Walwyn to sign his own name under those which were typewritten, to authenticate what was added. Walwyn signed and the seal of the Bank (which was used to lend validity to documents) was affixed to the certificate. Walwyn indicated to Favale that the Bank of Commerce would wish to have on record the signatures of his wife and daughter and he gave Favale cards on which to obtain such signatures. Favale and Freyere left St. Kitts the same day. Favale took with him the Certificate of Deposit numbered 3054 and the cards for signatures. Walwyn, as President of the Banmk of Commerce, had the cheque numbered 000169.

5 On the 14th June 1983, Delfin Rodriquez Favale wrote and registered a letter to Mr. Walwyn at the Bank of Commerce in which he reminded of the maturity date of his Certificate of Deposit numbered 3054 and advised that he intended to collect the entire sum personally. He ended that letter,"thanking you in advance for arrangement payment of said Certificate of Deposit on mature day when I expect to see you again." There was no reply.

6 Another registered letter was transmitted on the 16th July 1903; and among other things he recalled that he had made numerous telephone calls requesting payment of the money due on his Certificate of Deposit since 7th July 1983, without results. He ended the letter: "Now I demand from authorised bank officer to answer my last and this letter, categorically, when the bank will honour this obligation, making full payment of same. The letter was copied to the Treasury Department. Again there was no response from Eugene Walwyn.

7 Delfin Favale and Custavo Freyere went to St. Kitts on 11th August 1983. Eugene Walwyn was expecting Favale at the Bank.

8 It was the Crown's case that Favale presented his Certificate of Deposit and asked for payment. Walwyn examined the certificate and said that he was not paying, that it was an invalid certificate, it was not issued by the Bank of Commerce, it was not a form used by that Bank, and as he wished to remove it from circulation, he would keep it. In the course of discussion the events on their earlier visit were recalled by Favale and Freyere; and Favale asked Walwyn whether the signature on the back was his signature, authorising the names which were above it. Walwyn looked at it, paused, and then said that the Bank would pay the sum stated. However, he confessed that the Bank of Commerce did not have enough money at that moment to do so. He advised that the Bank would sell some of its valuable real estate and within 30 days it would honour the obligation. text In addition Walwyn advised that he would retain certificate numbered 3054 and issue a proper certificate on the form used by the Bank, in its place. The President of the Bank then drafted, in manuscript, a Multiple Maturity Certificate of Deposit and gave instructions to the assistant cashier to check it and have a typewritten certificate prepared from the draft. Shortly after, Walwyn signed and handed to Favale a typewritten Certificate of Deposit, numbered 143, dated 11th August 1983 and maturing 30 days later. Favale left for Puerto Rico with that certificate. Walwyn kept certificate numbered 3054 (which was later — in November 1983 — found in a vault at the Bank)

9 Four days later Walwyn wrote Favale a letter in which he stated among other things, that Favale had sought collection on the 11th August on a fraudulent Certificate of Deposit and that the matter had been put in the hands of "the Proper Authorities". He also advised that the Multiple Certificate of...