By Peter Polack

The Cayman Islands has the distinction of being the benchmark for prosecutorial excess throughout the Commonwealth by the Privy Council  decision of the 2002 Cayman Islands criminal case of Randall

B.V. RANDALL v. R. 16-April-2002 (judicial.ky)

[2002 CILR 254]

B.V. RANDALL v. R.

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL (Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hutton, Lord Hobhouse of Woodborough and Lord Rodger of Earlsferry): April 16th, 2002

Criminal Procedure—fair trial—role of prosecutor—prosecutor’s role to act as minister of justice, not to obtain conviction—to present all relevant and credible evidence before court in firm but fair manner

Criminal Procedure—fair trial—conduct of counsel—counsel not to interrupt oral evidence or judge’s summing-up (unless factual error, quickly corrected), or address jury other than at prescribed times—contentious objections to be made in absence of jury, especially if concern merits of case—not to intimidate or insult witnesses or other counsel—to confine any disparagement of witnesses to closing speech—not to disclose existence of prejudicial matters not before jury

Criminal Procedure—fair trial—role of judge—trial judge to ensure proceedings conducted in orderly and fair manner—to monitor and correct behaviour of counsel, in absence of jury if necessary—to refrain from disparaging accused or defence counsel—personal opinions to be presented in balanced and moderate way in summing-up

    The appellant was charged in the Grand Court with theft and obtaining a valuable security by deception.

    The appellant, a professional trustee, was charged with three counts of theft in respect of large sums stolen from a pension trust fund, which he then used as security for loans, one count of the theft of money placed on deposit with his company by an individual client, and one count of obtaining funds for investment in a company by misrepresenting the identity of the company’s shareholders. The appellant’s defence was that he had not acted dishonestly and had believed himself to be entitled in law to do what he had done. He was convicted by a jury after a lengthy trial, and sentenced to 4½ years’ imprisonment. The court made compensation orders in respect of one of the theft counts and the deception count, each with a consecutive term of imprisonment in default of payment.

    On appeal to the Court of Appeal, the appellant submitted that his trial had been unfairly conducted. He alleged, inter alia, that the trial judge had allowed Crown Counsel to make comments and speeches in the

2002 CILR 255

presence of the jury that were prejudicial to his case, on the pretext of summarizing evidence or responding to issues raised by the defence, and the judge himself had made prejudicial comments during defence counsel’s examination of the witnesses and in his summing-up to the jury. A large number of examples of such comments were cited in the notice of appeal, but only a few were elaborated on by the appellant’s counsel, and fewer still seriously pursued.

    The Court of Appeal dismissed the appeal. It ruled that Crown Counsel’s interventions had sometimes been unnecessary and inappropriate and that the trial judge had failed to curb debate between counsel, but that defence counsel appeared to have retaliated in kind, and that the jury were unlikely to have drawn adverse conclusions. It concluded that the trial judge’s comments did not disclose any bias against the appellant so as to render his trial unfair.

    On further appeal to the Judicial Committee, the appellant submitted that (a) the transcript of the Grand Court trial contained numerous examples of prejudicial comments made by Crown Counsel during his own and defence counsel’s examination of the appellant and other witnesses; (b) the trial judge had not only permitted lengthy, unnecessary exchanges between counsel relating to the appellant’s evidence and their questioning of him, but had also supported Crown Counsel’s intolerance of the appellant and his counsel by echoing his complaints; (c) with the apparent approval of the judge, Crown Counsel had alluded to undisclosed prejudicial evidence which he had threatened, before the jury, to reveal; (d) Crown Counsel had also accused defence counsel of disgracing the legal profession and dishonouring the law by seeking to smear prosecution witnesses and have recorded as fact matters that had not been proved; (e) in his summing-up, the trial judge had repeated many of the exchanges described above and had suggested that the appellant was deliberately forgetful and evasive in his answers; (f) the judge had also failed properly to direct the jury on the issue of dishonesty and had neglected altogether to direct them on the appellant’s previous good character; and (g) the court should not have imposed compensation orders carrying a term of imprisonment in default without first inquiring into the appellant’s means.

    The Crown submitted in reply that (a) there had been no unfairness in the conduct of the appellant’s trial such as to render his convictions unsafe or unsatisfactory; (b) the case against the appellant had been very strong and his defence had been conducted in an obstructive manner, hampering the presentation of the case to the jury and evading giving any convincing explanation of the facts proved against him; (c) although Crown Counsel’s conduct had at times been unprofessional and the trial judge had not always exerted proper control over the proceedings, defence counsel’s objections had prompted many of the comments made, and the exchanges cited by the appellant represented isolated incidences in a long trial; and (d) neither of the appellant’s counsel had asked for the jury to be discharged or for argument to be heard in its absence, and the appellant had had a fair opportunity to present his case.

2002 CILR 256

    Held, allowing the appeal:

    (1) The decision of the Court of Appeal would be reversed and the appellant’s convictions quashed. The evidence against the appellant had been very strong, and his defence might well have been properly rejected by the jury. Furthermore, there were some grounds for criticism of the conduct of his defence, which had made the task of the prosecution unnecessarily difficult. However, Crown Counsel had failed to conduct himself in accordance with accepted standards of professional behaviour and the trial judge had failed to exert his authority so as to control the proceedings and enforce proper standards. The judge had also showed his antipathy toward the appellant and his counsel in front of the jury. Taken together, a sufficient number of the appellant’s complaints were made out to conclude that the presentation of the defence case may have been inhibited, and the jury’s attention distracted from its task. His trial had therefore been conducted unfairly. The Court of Appeal had not considered the full ambit of the appellant’s complaints, and it may have been unclear that the appellant relied in his appeal on a large number of passages from the trial transcript besides the small number of instances that had been elaborated on. A retrial was inappropriate, since the appellant had already served his sentence (para. 49; paras. 51–54; para. 58).

    (2) Among the well-established rules of practice developed to safeguard the fairness of the trial process were the following:

    (a) The prosecutor’s duty was to act in the interests of the administration of justice, and not to obtain a conviction at any cost. His remit was to lay all relevant and credible evidence before the court to prove the offence, in a firm but fair manner. It excluded any concept of winning or losing.

    (b) The jury should not be distracted from its task of determining guilt on the basis of the evidence adduced, the submissions made and the judge’s summing-up. Accordingly, evidence should ordinarily be given without interruption by counsel, and any objection likely to give rise to extended argument should take place in the absence of the jury, particularly if it concerned the substantial merits of the case. Counsel were not permitted to address the jury other than at prescribed times and should not do so under the guise of interjections in the course of evidence. Counsel might criticize a witness’s testimony, based on the other evidence or lack of it, but should not seek to intimidate or insult witnesses or each other. Any disparaging comment should be made in closing speeches. Counsel should never refer to matters prejudicial to the accused which were not before the jury. The judge’s summing-up should not be interrupted unless a factual misstatement could be quickly and uncontroversially corrected. Any misdirection, omission or inaccuracy should be brought to his attention at the close of the summing-up and, if there was a risk of prejudice, in the jury’s absence.

    (c) The judge’s role was to ensure that the proceedings were conducted in an orderly and fair manner. This included monitoring and correcting

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The Cayman Islands pursued the case of Marius Voiculescu for possession of a half of a ganja spliff of 004 ounces of ganja in five proceedings: a Summary Court trial, two Grand Court hearings and two Cayman Islands Court of Appeal hearings. These required 21 Summary Court hearings, 7 Grand Court hearings and 4 CICA hearings. The Voiculescu case was only 1 of 6 appeals by the Legal department to the CICA in 2009.

The a Cayman Islands Attorney General retained outside counsel 27 times between 2011 and 2013, at a cost of almost CI$1,000,000, and $360,000 was spent on a case to decide on the retirement age of a Grand Court judge.

The necessary information would come from an FOI or directly from the courts office:

1. Number of prosecution appeals from Summary Court to Grand Court 2023,2022,2021.
2. Number of criminal case appeals from Summary Court to Grand Court 2023,2022,2021.
3. Number of prosecution appeals from Grand Court to Court of Appeal 2023,2022,2021.
4. Number of criminal case appeals from Grand Court to Court of Appeal 2023,2022,2021.
5. Number of prosecution appeals from Court of Appeal to Privy Council 2023,2022,2021.
6. Number of criminal case appeals from Court of Appeal to Privy Council 2023,2022,2021.
7. Number of Summary Court cases where a judgement has been reversed in part or whole by the court after judgment handed down.
8. Number of Grand Court cases where a judgement has been reversed in part or whole by the court after judgment handed down.
9. Number of Court of Appeal cases where a judgement has been reversed in part or whole by the court after judgment handed down.

Related Articles:

Review of DPP statement on the Pines : Cayman News Service

DPP staffer acquitted of breach of trust charge – Cayman Compass

ODPP pays $64k bill after failed seizure of legit cash : Cayman News Service

Missing evidence leads to quashed drug conviction : Cayman News Service Archive (2008-2014)

FCU gives back cash in quashed drug case : Cayman News Service Archive (2008-2014)

Questions raised over legal department : Cayman News Service

Peter Polack: The case against a new Cayman Court House – IEyeNews

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Biography

Peter Polack was a criminal defence lawyer for over three decades. He is the author of The Last Hot Battle of the Cold War: South Africa vs. Cuba in the Angolan Civil War (2013), Jamaica, The Land of Film (2017) and Guerrilla Warfare: Kings of Revolution (2018).He was a contributor to Encyclopedia of Warfare (2013) and his latest book entitled Soviet Spies Worldwide: Country by Country, 1940–1988 will be published by McFarland in 2024.

See also: https://www.ieyenews.com/cayman-odpp-and-costs-award-for-incompetence-r-v-bernardo/