Michael Eugene Misick, v The Attorney General of the Turks and Caicos Islands
| Jurisdiction | Turks and Caicos Islands |
| Judge | Agyemang CJ |
| Judgment Date | 07 May 2021 |
| Court | Supreme Court (Turks and Caicos) |
| Docket Number | Action No: CL 17/2021 |
In the Matter of the Turks and Caicos Islands Constitution Order 2011
In the Matter of the Criminal Proceedings No. CR 35/12, 36/12, 37/12, 38/12 40/12 44/12, 18/14
Agyemang CJ
Action No: CL 17/2021
IN THE SUPREME COURT OF THE TURKS AND CAICOS ISLANDS
Mr. Ariel Misick QC, WITH Mr. Selvyn Hawkins FOR THE PLAINTIFFS
Mr. Andrew Mitchell QC, WITH Mr. Quinn Hawkins AND Ms. Kate Duncan FOR THE DEFENDANTS
By an originating summons, the plaintiffs herein, (being the defendants in the case of R v. Michael Misick and Ors, save for the fifth defendant Mr. Clayton Greene), have brought suit against the defendants herein seeking these substantive reliefs:
1. “a declaration that the continuation of the proceedings in R v. Michael Misick and Ors. in any form or manner contravenes or is likely to contravene the plaintiffs' right to protection of law under section 1(a) of the 2011 Constitution, and their right to a fair trial within a reasonable time under section 6(1) of the Constitution;
2. further and/or alternatively, a declaration that the continuation of the said proceedings in any form or manner contravenes or is likely to contravene the preambular and/or unwritten constitutional principle of the rule of law;
3. an order dismissing the proceedings…”
The matters that have given rise to the present application (referred to alternately, as the constitutional motion), are that the plaintiffs herein, all defendants in the criminal case of R v Michael Misick and Ors., have for some years (ten years in the case of the second and seventh defendants and seven years for the first plaintiff), been charged for various crimes under the broad umbrella of ‘corruption’.
They have since the 1 st of March 2021, found themselves in some difficulty, following the decision of the second defendant to continue with the criminal prosecution against them (as well as Mr. Clayton Greene), despite the fact that the trial of the charges against them — which for most has taken nine years of their lives, has come to an end with the tragic death of the trial judge Harrison J. The continued prosecution which has been announced, has been followed by the filing and service of a new information by the second defendant, in which some of the charges have been “streamlined”.
In the present constitutional motion, the plaintiffs complain that the trial of the charges against them has suffered inordinate delay, and that the continuation of prosecution will be unfair, and an infringement of rights guaranteed to them as persons charged with crimes, under the Turks and Caicos Islands Constitution Order 2011; more particularly, section 1(a) which guarantees them the protection of the law, and 6(1) which guarantees them a fair trial within a reasonable time.
The matters antecedent to the bringing of the application, are set out in the affidavit of Jahmal Misick (JM) the local instructed counsel for the first, fourth and fifth plaintiffs (first, fourth and sixth defendants in the criminal case).
The deponent's assertion, that the information contained in his affidavit was provided on behalf of all the plaintiffs, has been challenged by the defendants who have also produced their chronology of events. This alternative set of facts did not actually dispute the facts set out by JM, but expanded upon them, and on occasion, supplied missing information. I will therefore rely on both the affidavits of Mr. Jahmal Misick (JM) and the version of events as recounted by Mrs. Khalila Astwood-Tatem (KAT) in my narration of the antecedent matters.
It all started when in 2009, a Special Prosecutor was appointed to investigate identified allegations of corruption. The appointment was made after a Commission of Inquiry chaired by Sir Robin Auld, looked into allegations of corruption against members of the House of Assembly in the six-year period of 2003–2009. The first plaintiff who was Premier, resigned from his position, and the investigation referred to as the Special Investigation and Prosecutorial Team (SIPT) commenced. The plaintiffs were said to have been included in the targets of that investigation which took place between 2009 and 2011, and that by 2011, it was allegedly publicly known that they would be facing prosecution. In that year, and in connection with impending proceedings, a restraint order was placed on the assets of the first plaintiff; the second and seventh defendants were charged with various offences. In the following year: 2012, the third to sixth plaintiff were all charged with various offences before Harrison J, a retired Jamaican Judge, who was appointed for a period of two years (which was extended over the life of the case) and made solely responsible for the criminal proceedings. The defendants in those proceedings pleaded not guilty, and the case went through the processes of sufficiency and pretrial readiness. In the pre-trial review that took place on 16th of September 2013, a time estimate of three to five months for the trial which was scheduled to commence on 7th July 2014, was provided by the Crown. Unfortunately, the trial did not commence then. In 2014, the first plaintiff who was returned to the country after extradition proceedings, was also charged with some offences and joined on the Information with the other co-accused.
The trial never did commence that year; it did in the last month of the year following. This was because a number of intervening applications were made. These included applications for judicial review of: legal aid rates for defence counsel, the Governor's extension of Harrison J's contract, among others. Constitutional motions were also brought by the defendants challenging various pertinent matters, and appeals on the decisions all the way to the Privy Council.
The trial was scheduled to commence on 7 th December 2015 and was said to have commenced that day, although no evidence was called, the court having had to hear a number of applications: an extradition Speciality argument on behalf of the first defendant therein (first plaintiff); written submissions on abuse of process (adequate time and facilities) referencing unmanageability, and an application for a six-month adjournment. All of them were dismissed.
Finally, on 18 th January 2016, the Prosecution opened its case.
The trial proceeded on choppy waters with further defence counsel applications. Some of these were: an application by the first plaintiff in February 2016 for a mistrial to be declared; an application for a stay of proceedings by the fifth plaintiff, a proposal by the second plaintiff to commence contempt of court proceedings against a newspaper reporting matters pertaining to the trial.
There were also a number of adjournments, no less than sixteen times after this, for a variety of reasons, including Christmas, Easter, Summer and “Hurricane” (three-week October) Breaks. Other adjournments were to accommodate the court, defence counsel, and the Prosecution. These characterized the conduct of the trial until the Prosecution closed its case finally on 20 th September 2018.
No-case submission filings, followed by oral submissions, took up some space until following a ruling on 29 th July 2019. The first defendant, scheduled to open his defence, announced that he would not be calling evidence. The second defendant completed his evidence in chief and was undergoing cross-examination when in March 2020, the trial was adjourned due to the COVID-19 pandemic. Shortly after this, Regulations issued by the Governor (including regulation 4(6) which clothed a judge with jurisdiction to sit outside the islands to conduct cases), were challenged in a constitutional motion. An appeal was lodged against the decision at first instance to the Court of Appeal, followed by a further appeal to the Privy Council. Following the judgment of the Court of Appeal permitting a judge to sit outside the islands, applications were made by defence counsel regarding in-person hearing in the islands. The application was refused, and the trial resumed. There were a series of adjournments once again including an adjournment for the court administration to make logistical arrangements to accommodate the new mode of trial. The trial resumed, and the fourth defendant who had sought for, and was given a Goodyear indication of sentence, changed her plea from Not Guilty to Guilty and was sentenced. The trial resumed on the 28 th of January 2021 and was adjourned to 15 th February to accommodate a request from one defence counsel.
Before the next adjourned date, on 7th February 2021, the trial judge: Harrison J, died.
It is important to note that of the one thousand, eight hundred and seventy-nine (1,879) days that had elapsed from December 2015 (the scheduled commencement date), and the 28th of January 2021 (the last sitting date), only five hundred and twelve (512) days were utilised as sitting days. As aforesaid, this was preceded by the charges which for the second to sixth plaintiffs were preferred against them in 2011 and 2012, and for the first plaintiff, 2014.
Following his death, the court convened on 15 th of February 2021 for directions. The second defendant herein was ordered to indicate his pleasure: whether he would continue with prosecution. On the 1 st of March, the second defendant, through lead counsel for the Prosecution, informed the court that prosecution would continue. The next day, the Prosecution filed a new Information and applied that the new trial in respect of which Information had been filed, be...
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