By FARRAH JOHNSON
Tribune Staff Reporter
THE Court of Appeal recently quashed the conviction of a man who was accused of stealing over $7,000 from his employer.
This came after the appellant argued the guilty verdict imposed on him was based on speculation and inferences from conflicting theories which were not supported by the evidence brought before the court.
In late 2017, Elvardo Farrington was employed at Bahamian Brewery & Beverage Co. His role required him to maintain the cleanliness of the company’s store, keep the shelves stocked and help any customers in need of assistance. Just before closing on November 7, 2017, the store’s manager gave Farrington a deposit drop to place in the establishment’s safe. When the accounts were being reconciled the next day, a deposit drop in the amount of $7,650.15 was discovered missing. Farrington was subsequently arrested and charged with stealing by reason of employment. During his trial, he was found guilty and ordered to repay $ 7,650.00 and perform 80 hours of community service on or before May 31, 2018. At the time, Farrington was told if he failed to comply he would be faced with a fine or a 12 month custodial sentence.
Farrington appealed his conviction after arguing the guilty verdict was unreasonable and could not be supported having regard to the evidence. Last week, Justices Michael Barnett, Brian Moree and Milton Evans set aside the appellant’s conviction and sentence after concluding the prosecution did not prove that Farrington was guilty “beyond a reasonable doubt and suspicion”.
According to a judgment posted on the court’s website, after the appellant returned from placing the money in the safe that day, the store manager, Anell Walkes, asked him if he made the drop and locked the safe. In response, he told her: “Yes of course did you think I’m stupid.”
Dickenson Orville, a cashier with the company, also testified that he had made several cash drops on November 7, 2017. Still, he said the following day he discovered the first deposit, which was about $4,390.00 cash and $3,560.00 in cheques, was missing. During the trial, Mr Orville said he was “not present the following Monday when the safe was reopened”.
“The evidence of Clayton Russell was that he was aware that at about 6:15 pm on November 7,2017, the appellant was given a cash drop and deposit slip to put into the safe,” the court documents continued. “Mr Russell said he saw the appellant enter the customer service office and about 45 seconds to a minute later, he exited the office. He said that the appellant asked that he (Russell) confirm that he (the appellant) had locked the safe. They went into the office and confirmed that the safe was locked. Mr Russell further testified that Mr Orville’s deposit was in the safe prior to the appellant asking him to go into the office with him to confirm he had locked the safe.”
A complaint was made to the Central Detective Unit on November 8, 2017. A week later, Farrington was interviewed by Sergeant 2461 Deveaux. During the interrogation, the appellant confirmed he was given a bag to place in the safe and also said he saw other bags in it while doing so. He denied removing any of the deposit bags. He also said he went to the freezer to get a shot after locking the safe because he did not want the boss to see the bottle. During the interview, Farrington also denied stuffing the deposit bag under his shirt to steal it.
“The evidence of W/Sgt 2461 Deveaux was that she viewed the video recording (of the events). She testified that she observed Anell Walkes giving a deposit bag to the appellant who then called Mr Russell to where he was in the office,” the court documents read. “Mr Russell exited the office leaving the appellant in the office. She said that when the appellant exited the office there was a noticeable bulge under his clothing which was not visible when he entered the office. Further, she saw that the appellant walked to the area of the cooler and stayed there briefly then walked to the bathroom area and left the store along with other employees as the store closed for that day. She also stated that she observed Dickenson Orville taking a deposit bag into the office where the appellant was when he called Mr. Russell over to him.”
In his argument, Farrington’s counsel noted the fact that the store’s safe remained open until the end of business day and shift meant anyone had the opportunity to access the money inside. He further argued the “noticeable difference in the appellant’s clothing entering and exiting the office as a standalone circumstance would require a leap to find that the bulge was the missing cash drop.”
In his ruling, Justice Evans noted the case was based on circumstantial evidence. He also highlighted the fact that the prosecution was not able to produce any witness who actually saw Farrington remove the cash drop from the safe. He said the fact that the video recording did not show the appellant removing the drop from the safe caused him to doubt the safety of the verdict.
“In my view, the learned magistrate fell into error in failing to appreciate the significance of the prosecution not being able to show when the cash drop went missing,” he stated. “This was a coexisting circumstance which in my view weakened if not destroyed the inference of guilt which the prosecution sought to prove. The magistrate found that the appellant’s behavior was suspicious.
“However, the burden on the prosecution is always to prove its case beyond a reasonable doubt and suspicion, even great suspicion will not suffice. In the circumstances, as I have found them, I am of the view that the conviction of the appellant is unsafe and is not consistent with the evidence. I would therefore quash the conviction and set aside the sentence imposed. I would not order a retrial as in my view there was insufficient evidence on which to base a conviction.”