(2) The defendant’s impression of Mr Samuel Lewis in November 2002

45. At paragraph 8 of his witness statement the Defendant says that
    
    “When I arrived at the Claimant’s property in order to carry out the work, I became concerned about the Claimant’s state of health as he appeared to be extremely confused and would frequently ask me and other contractors who were present at the property what we were doing at his home. In fact, I enquired with the Claimant’s next door neighbour, a man named Simon, as to the Claimant’s state of health.”

46. At paragraph 15, he said:
    
    “I understand that the cash withdrawals were made from the Lloyds Bank which is near to the Claimant’s house. I never saw the Claimant go to the bank – in fact, I never saw the Claimant leave his house as he appeared very reluctant to do so. When I wanted to alert the Claimant as to the additional works to be carried out (the £400 job) I asked him to come outside the back of his house to see what needed doing and he refused to do so, as he did not appear to want to go outside."
    
    (3) The defendant’s whereabouts at material times

47. There is of course no burden on the defendant to prove anything. I rejected the submission tentatively made on behalf of the Claimant that once a certain amount of evidence tended to show the defendant’s presence at the home of Mr Samuel Lewis, the burden shifted somehow to him. That is not the law. On the other hand, an absence of evidence is unlikely to weigh heavily in the balance against credible affirmative evidence. The defendant said that he was not at the house on the 4th, 5th or 6th of December, and that a break-down would have prevented him, but he produced no documentary evidence of the break-down to his van, nor called any evidence from any workmen or others to confirm his account. Significantly, when he gave evidence he said that he had at one time had records relating to his employees and relevant times, dates and places, but he no longer had these in his possession. His attention was drawn to his own List of Documents certified and signed by himself dated as recently as 11 December 2007, where no such absence of documents is mentioned in the space specifically reserved for such matters: instead there is a completely blank space (see pp. 221-223.) He can be shown to have been at the house long after the 6th December 2002 when Mr Hoolachan’s men finished: indeed he admits having been there until the 18th December. He denied having been at the house at all in January, apart from an occasion when he came to remove the scaffolding, but was later shown to have been at the house on 29th January (on an occasion when he was not removing scaffolding but purporting to do work which he had already been paid for by Dr Lewis and which he had led him to believe was already completed) when Dr. Lewis happened to telephone his father, intending to tape-record a summary of the information his father had given him two days before.
    
    (4) What Mr Samuel Lewis told Dr Julian Lewis on 27th & 29th Jan. 2003

48. I have already made reference to the memory handicap from which Mr Sam Lewis suffered, and what Dr Lewis frankly said about it. Moreover, the evidence of Mr Samuel Lewis has been admitted as hearsay by reason of Mr Lewis’s condition. It has not been tested in cross-examination. Unlike most hearsay statements, however, the court has been able to hear the tape-recording of the maker of the statements at a time very close to the material events, and his response to questions from his son, albeit that some of those questions are in leading form. Whilst bearing in mind in these circumstances the special need for caution before relying upon the evidence, it seems to me that it would be both unrealistic and wrong to leave it out of account altogether. The weight which may be given to it is a matter for decision in the light of such cogency, or of such intrinsic weaknesses, as it has, bearing in mind all the other evidence in the case.

49. On 27 January 2003, after receiving the call from Mrs Matthews at Lloyds Bank, Dr Julian Lewis rang his father and spoke to him about the withdrawals of cash. It should be borne in mind that this conversation took place on the same day as the last of the cash withdrawals. Dr Lewis made a contemporaneous note – p. 63. That note reads as follows:

“Daddy             Hazel Matthews Lloyds Bank
                        [phone number given]

P. Grey             [1^st phoned]       27-01-03

14 Nov  -           800       }

                                       } Mr P Grey

18 Nov -            1000     }

                                                                    Notes taken 27-1-03

                                                 Same man

                        Mr Grey            4 Dec –   500 – CASH
                                                 6 Dec –   400
                                                [7 Dec – 1400]
                                               16 Dec – 1,200
                                               20 Dec – 1,000
                                                  7 Jan  –   800
                                                  9 Jan – 1,000
                                                24 Jan – 1,200
                                                27 Jan – 1,400”

50. Dr Lewis explained that the “horizontal notes” (i.e. those set out above are notes of what his father had told him, whereas certain vertical notes and notes in different ink were not (I have not reproduced these notes.) He said that his father had told him that his cheque book showed that he had made out cheques to Mr Grey for £800 on 14 November 2002 and for £1,000 on 18 November 2002. He had then used cheques to make cash withdrawals to pay Mr Grey the sums shown above from 4 Dec to 27 January 2003 inclusive. The cheque for £1400 on 7 Dec was never presented to the bank as it was drawn on a Saturday when the bank was closed.

51. In order to be able to make a better record of what his father had said, Dr Julian Lewis decided to tape-record his call on 29 January: see pp. 93-100. I have listened in full to each of the audiotapes supplied to me for this and subsequent conversations between Dr Julian Lewis and Mr Sam Lewis, and also of those between Dr Julian Lewis and Mr Paul Grey. On 29 January the conversation begins with Mr Samuel Lewis giving, without hesitation, his Swansea telephone number. He is plainly able to understand each question he is asked. Without being critical, Dr Julian Lewis demonstrates in this and other conversations (especially those with the defendant) a tendency to come in rather quickly if an answer is not given immediately, and he appears not to be the most patient of listeners. The conversation begins as follows:
    
    JL: Right, Daddy, I need to have another talk to you about the question of all the money that you gave to that builder.
    
    SL: Yes.
    
    JL: The cash that you gave him.
    
    SL: Now that was for the umm ...
    
    Before his father could complete his answer Dr Julian came in as follows:
    
    JL: Well I don’t think it was for anything. I think it was money he took from you he wasn’t entitled to.
    
    SL: I don’t know Julian.

52. Dr Julian Lewis then asked his father to go through the cheque-book record entries, but before doing so asked if there were anyone there. Mr Samuel Lewis said “I’ve got a builder” who had done work for him quite a number of times “over the years.”
    
    JL: Who is this? Mr Paul Grey?
    
    SL: To tell you the truth, I can’t remember his name, actually.
    
    Mr Sam Lewis was, however, clear about the work that he was doing, the guttering over what you (i.e. Julian) would call “my bedroom.”
    
    When told to put the cheque book away before letting the man into the house, Mr Sam Lewis said in a lively way “Oh, I’ve got the cheque book in my pocket don’t worry.”
    
    Mr Grey then came into the house and spoke to Dr Julian Lewis, as already mentioned at paragraphs 35 and 36 above.

53. After that, Dr Lewis decided not go through the cheque-book with his father until the following day: see transcript of call on 30 January 2003 at pp 101-111. Mr Samuel Lewis consulted the cheque record sheet and said “November. Yes a chap by the name of Grey was here.” He confirmed it was Paul Grey when that name was put to him by Julian. He said (contrary to his memory of it the day before) that he was not someone he had seen before November 2002. But he went on to deal with payments after 18th November as follows:
    
    “SL: I’m working through the counterfoils. Most of the money I took out for him after that I took out for myself. It’s under “Self” because I gave him the cash. …
    
    JL: Why did you give Mr Grey the cash rather than giving him cheques?
    
    SL: Well, that is what he wanted.
    
    JL: I see. But it was definitely the same man Mr Grey as –
    
    SL: I think so.”
    
    Later, he said the man would wait outside the bank while he, Mr Lewis, went in to obtain the cash, and that the man would then come with him into the pathway of the house where Mr Lewis would give him the money. He said “It was only one fellow, actually.”
    
    “JL: Yes. The same man who’s been working at the back of the house?
    
    SL: That’s right ...
    
    Later (p. 104)
    
    JL: Now this happened quite a few times didn’t it?
    
    SL: Oh yes.
    
    JL: Yes, quite a lot. And it was always the same man?
    
    SL: Oh yes. It was the chap who did the work.
    
    JL: At the back of the house?
    
    SL: Yes.
    
    JL: Yes. This Mr Grey?
    
    SL: That’s right.”
    
    Later, at p.106:
    
    SL: … these are all for Grey – I didn’t have anybody else.
    
    And at p. 108:
    
    SL: There were just two more. 24 January was £1,200 and 27 January was £1,400.
    
    JL: And there’s been nothing since then, Daddy?
    
    (Adding, ruefully as it seemed to me,)
    
    SL: - so he was a pretty expensive chap.
    
    At p. 110:
    
    JL: Mr Grey hasn’t done any work inside the house, has he?
    
    SL: No, he’s done all the work outside.”
    
    Sadly, shortly after this, after showing signs of clear distress, Mr Sam Lewis collapsed. He was, fortunately, able to make a good recovery after being taken to hospital.
    
    (5) The completion of the record of cheque payments by Mr Samuel Lewis

54. I accept Dr Julian Lewis’s description of his father’s method of completing these records as “meticulous.” That is reflected in the document itself, which, although shakily written, is indeed meticulously completed with correct dates, cheque numbers and amounts. It corresponds with an earlier example some two years previously, (p. 212) when no serious issue is said to arise over Mr Samuel Lewis’s powers of concentration. No evidence was given, and perhaps none could be given, as to whether it was the Claimant’s practice to complete the record before actually writing out the cheque. I am satisfied, however, that the Claimant, when he began to write out that entry was as entirely rational as he was described to be by Dr Lewis when engaged in actually doing anything – as distinct from when trying to remember having done something afterwards. He wrote “P. Grey” (in my judgment) because that was the name of the person whom he was intending to pay. He crossed it out either because he was asked by Mr Grey to pay in cash, and it was his invariable practice to write “self” when writing out a cheque to be cashed, or, possibly, because he had remembered his son’s injunction in the letter not to write out any more cheques to builders. In my judgment the first of these possibilities is much the more likely on the evidence, and indeed is very much the probability. I do not consider the matters properly urged by Miss Collins regarding inaccuracies in the Claimant’s accounts on the telephone affect this point: they go to memory, not to the Claimant’s presence of mind when engaged in a transaction. It follows that I find that Mr Grey was indeed present on 4 December 2002.
    
    (6) Telephone calls between Dr Julian Lewis and Mr Paul Grey

55. On 23 February Dr Julian Lewis telephoned Mr Paul Grey and tape-recorded the call: see transcript at 112ff. He referred to the cash payments, and Mr Paul Grey denied he had received any such payment. It was, “Rubbish. Absolute rubbish.” (p. 118) It was definitely not one of his men, either, he said, because they were with him every day. Even when he agreed that the roofer Joe Edwards was not with him every day, he denied that it could have been him. He refused to give Julian Lewis any of Joe Edwards’ contact details. At p. 136, when Julian Lewis re-dialled, after Mr Paul Grey had put the phone down after telling Dr Julian Lewis to “fuck off,” he said “you fucking find [Joe Edwards]” and hung up again. At p. 137, after Dr Lewis had reconnected again, Mr Paul Grey said how do you know it wasn’t [Mr Hoolachan’s] boys?”

56. It was some long time after this conversation that the Ferret programme was aired on TV. The defendant then began to make a series of late-night nuisance calls to Dr Julian Lewis, the last of which, on 3 April 2004, was tape-recorded. In that call, which lasted 28 minutes, the defendant (who was plainly to some extent under the influence of drink or drugs) used obscene language throughout, and insulted and abused Dr Lewis in such disgraceful terms, including the use of gross anti-Semitic abuse, that he was later prosecuted and convicted of a criminal offence under the telecommunications legislation. It is, however, necessary to separate the scandalous content of the call from such evidence as may be relevant to the issues in the case, and to ignore the fact that the defendant behaved so badly when attempting to decide whether any of the material in the transcript at pp 140ff assists in a determination of the issues in the case. In my judgment there is material which does so assist.

57. At pp. 140-141 the defendant admits swindling another elderly gentleman named Meehan for whom he had agreed to do building work. Whilst continually denying swindling Mr Samuel Lewis, the defendant nevertheless admitted at p. 142 that “I know who fucking took [the money] … a cunt in a white Escort ..” whose details he refused to divulge. He agreed he had swindled Dr Julian Lewis of a few hundred pounds in respect of the £400 he had received from him (p. 143.) At p. 144 he said “I never tell the fucking truth.” At p. 147, he said he had £2,000 that week from “some poor unfortunate cunt” and hadn’t finished the work for him Asked why, he said “Cos I’m able to get away with it.” At p. 153 he said “I’m brighter than the people I take from.” At 154, when Dr Julian Lewis said “You’re a bully and you con old people” the defendant said “Yeah, but there’s fuck all you can do about it.” At p. 158 he purported to offer descriptions of the two people he said had stolen the money from Mr Samuel Lewis, but when asked “who are these people?” He replied, “Do you fucking think I’m going to tell you?” At p. 161 he admitted swindling Dr Julian Lewis’s aunt of “more fucking money than you could ever fucking believe.” Asked, “you’re really good at this, [i.e. swindling people] aren’t you?” he replied, “best in the fucking business”.

58. In evidence, the defendant said that all of this was untrue: it was drunken bravado designed to provoke and annoy Dr Julian Lewis. I have little doubt that it was indeed intended to have that effect. I do not accept, particularly in the light of the independent evidence that both Mr Meehan and Dr Julian Lewis himself were indeed cheated by the defendant, that the admissions of swindling were untrue. The theme which ran through the whole lengthy call was how clever the defendant was and how Dr Julian Lewis could do nothing about it. An admission of swindling Mr Samuel Lewis would have been a step too far, as it would have provided the one link in the chain of evidence which Dr Julian Lewis still lacked. The whole telephone call was an extended bullying taunt. (The defendant did not have it all his own way, as Dr Lewis, far from being cowed by the insults, obscenities and taunts, managed to return some with interest.) Whilst I have little doubt that the defendant was disinhibited by drink, I do not accept that his intoxication caused him to make false admissions of his own dishonest conduct in respect of old and vulnerable people.
    
    The other candidates for identification as the fraudsman
    
    It will be recalled that the only other candidates were as follows:
    
    (1) One or more workmen employed by the Defendant;
    (2) Mr Eddie Hoolochan of HI Construction;
    (3) Workmen employed by Mr Hoolochan.
    
    As to (1) there is no evidence of any of the defendant’s men having any personal dealings with Mr Sam Lewis. The defendant himself, if he were innocent and considered there was the slightest possibility of any of his men being involved had every opportunity to identify them. He has continually refused to do so and was conspicuously obstructive in giving contact details of the roofer, Joe Edwards. His conduct in so doing is equally explicable by his wish not to expose himself to the use of his men as material witnesses as to times, places, and opportunities he may have had to be alone with Mr Samuel Lewis in the way mentioned by the latter to his son.
    
    As to (2) and (3) I heard Mr Hoolachan give evidence, and observed that he stayed to listen to the whole of the rest of the evidence in the case. He was, in my view an entirely honest witness, whose evidence that he and his men finished work at Mr Samuel Lewis’s address on 6 December 2002 was entirely credible and was in no way contradicted by any other evidence. Neither he nor his men had any opportunity to take the cash from Mr Samuel Lewis.

59. There remains the possibility of some other independent fraudsman somehow spotting an opportunity to pose to Mr Samuel Lewis as a builder when he had never done any work for him at all, and to persuade him on eight separate occasions to part with hundreds or thousands of pounds. I regard such a possibility as fanciful, and (with respect to Miss Collins’s submissions) as entirely speculative.

60. It would in my view be highly improbable that any person other than the defendant was responsible. For that to be the case, a most improbable coincidence would have been involved: Mr Samuel Lewis would have had dealings with (1) a builder who had a criminal record, who performed some work for him and swindled his son, and later was able to boast at how successful he was at swindling old people (the defendant), but who did not defraud him; and (2) a previously unknown confidence trickster, who did no work at all at the house, but persuaded Mr Samuel Lewis that he had done, and somehow gained his confidence, and, realising Mr Samuel Lewis’s memory problems returned time and again without ever being seen by anyone, and who actually did defraud him. That seems to me to be entirely fanciful.

61. In my view the defendant alone was responsible for the appropriation of this money under false representations as to work having been done for its value.
     

His Hon. Judge Patrick Curran QC

14 January 2008

Order: Judgment for the Claimant in the sum of £7,500 with interest in the agreed sum of £2,262.77, with costs to be assessed under a detailed assessment. Defendant to pay the sum of £12,000 on account of costs.