The King v Floyd Basil Hall

• Jurisdiction: Turks and Caicos Islands
• Court: Supreme Court (Turks and Caicos)
• Judge: Agyemang CJ
• Judgment Date: 25 September 2023
• Year: 2023
• Docket Number: CR 44/12 R v. FLOYD HALL CR 37/12 R v. MELBOURNE WILSON CR 38/12 R v. CLAYTON GREENE

The King

and

(1) Floyd Basil Hall

(2) Jeffrey Christoval Hall

(3) Melbourne Arthur Wilson

(4) Clayton Stanfield Greene

CORAM:

Agyemang CJ

CR 44/12 R v. FLOYD HALL

CR 40/12 R v. JEFFREY HALL

CR 37/12 R v. MELBOURNE WILSON

CR 38/12 R v. CLAYTON GREENE

IN THE SUPREME COURT OF THE TURKS AND CAICOS ISLANDS

(CRIMINAL)

FOR THE CROWN: Mr Andrew Mitchell KC; WITH HIM Mr. Quinn Hawkins, Ms Katherine Duncan, AND Ms Enjaleek Dickenson

FOR THE FIRST DEFENDANT: Mr. Earl Witter KC, WITH HIM Mr. Kayode Smith; instructed by Ms. Leanna Brooks Campbell

FOR THE SECOND DEFENDANT: Mr. Ian Wilkinson KC, WITH HIM Ms Kimone Tennant; instructed by Mr. Jahmal Misick

FOR THE THIRD DEFENDANT: Mr. Alair Shepherd KC, WITH HIM Mr. James Shepherd; instructed by Mr. Ari Comert

FOR THE FOURTH DEFENDANT: Mr. Richard Bendall, WITH HIM Ms. Kishanta Hall Comert (AS BOTH JUNIOR AND INSTRUCTING COUNSEL)

1 ) By reason of the unfortunate associations of delay and public expenditure with which this trial has been characterised for more than a decade in the life of this country, it must be recognised, that what should have been a trial within a reasonable time, of men arrested in 2010, 2011, and 2012, became what may only be described as a burden to them, and to the administration of justice in these islands. The end of these proceedings in these circumstances must be acknowledged with the gravity it deserves.

2 ) I could not begin this judgment without acknowledging the industry, tact, and resourcefulness of counsel on both sides, and the patience of the defendants who through trial and retrial, maintained their respect for the Court and upheld its dignity at all times, and in all circumstances.

3 ) In this judgment the background of accountability must be acknowledged. This includes the accountability of the Governor who sits in the Executive Council of the Turks and Caicos Islands (ExCo)/Cabinet and must bear responsibility for what he concurs with and orders, Ministers of the Crown who owe a fiduciary duty to the Crown and the country, and attorneys whose practice must be in accordance with the law. The fiduciary duty of Ministers to not put their personal gain above their public duty set out in a document described as Responsibilities and Procedures for the Executive Council and Government Business 1 is also considered.

4 ) In the circumstances of economic prosperity within the grasp of the country, and heightened political activity spurred by promises made in politicians' manifesto to empower Turks and Caicos Islanders (Belongers), is the question of what may be considered acceptable conduct or may constitute inappropriate conduct that transcends the bounds of lawful activity for persons in public office, with attendant fiduciary duties.

5 ) This judgment in many ways concerns the administration of Crown land, a highly valued resource of the Crown which owns it. 2 It is administered by the Government of the Turks and Caicos Islands (TCIG), which participates in its sale for the benefit of the Belongers. Crown land administration during the period of this indictment, was governed by a policy which was little known or understood, even by persons entrusted with its administration. The lack of certainty opened the door for abuse in how it was accessed. The Crown Land Policy is central to three Counts charged in this Information; it is therefore important to provide a summary of its content.

6 ) In the Government's Gazette of 1 July 1994, the Government, stating its commitment to the development of the islands for the purpose of enhancing the living standards of the Belonger population, set out a Crown Land Policy. In this policy which made land available to Belongers for both residential and commercial development, it was provided among other things, that land would be made available on three-year leases to Belongers for large scale commercial

development, being projects of not less than $5million. This would enable the lessee to apply for the freehold title on the expiry of the lease provided that the lessee had completed the development. It was provided that in exceptional circumstances government consideration would be given to the grant of freehold title in the form of an option to purchase. The freehold purchase price would be fifty percent (50%) of the undeveloped value of the site at the time the lease was executed. Where freehold title was granted, it would be subject to a charge in favour of the Crown. The discount would be a debt to the Crown. If the freehold interest was transferred to a non Belonger in the only possible circumstances of a licensed financial institution exercising its power of sale, the debt had to be repaid. With particular reference to commercial development, the policy was to dispose of land for commercial development by non-Belongers on terms that would provide security for the developer in a project that would benefit the islands and could not be provided by Belongers

7 ) In 2004, what appeared to be changes to the Crown Land Policy, were introduced by Press Release on 1 April 2004. These included the provision that with regard to residential land, the Minister for Natural Resource rather than the Executive Council would grant approvals. ExCo would continue to approve CCPLs. Also, the lease must be executed within nine months, or it would lapse. It was also provided that no Crown land would be given for commercial purposes unless a Belonger had 51% in the entity to be given land. That the Belonger would pay no more than 50% of the Open Market Value of the land and a maximum of 25% the value per acre in the other islands except for Providenciales.

8 ) In 2005, the Policy was further revised. In this revision, a discount was to be allowed to Belongers only. It could not be transferred to non-Belongers. It was provided that no individual Belonger would be granted a discount for more than 10 acres; each Belonger would be eligible for one discount up to 50% of purchase price, up to 10 acres, except on Providenciales where the discount would be limited to 25%. If the land was sold within 5 years, the full discount would be repayable. If the land was sold between 5-10 years, half the discount was repayable. An allowance was made for two or more Belongers to combine their ten-acre lots in order to participate in major tourism projects.

9 ) This was the process of acquisition: all Belongers twenty-one years old would qualify for a discount. Discounted lands would be on Conditional Purchase Lease (CPL) terms. Freehold title would be granted if the CPL terms were met by the specified deadline. If the terms were not met, the lessee would have to refund the discount to TCIG to obtain the freehold, or the land would revert to TCIG. All Crown land allocations were to be published in the Gazette to make the process open, transparent and accountable. A Crown Land Unit was to be established, and the Chief Valuation Officer's decision was made subject to the appeal process.

10 ) In 2007-2008, there was another revision. There were no major changes save for renumbering paragraphs and the slight amendment of a few provisions, including valuations.

11 ) The Crown Land Policy was plagued with problems in its outworking. These were highlighted in what was referred to as the Barthel Report of 2005. In that report, among other things, the following comments were made of the Policy: it was uncertain, it was inadequate to meet the needs of the system of land administration, it did not define what was meant by a Belonger-controlled entity which made it subject to abuse. In this regard, Tatum Fisher-Clerveaux who was Assistant Commissioner and later Deputy Commissioner of lands during the years 2006-2008 acknowledged that it was not well-known and even officials who dealt with Crown land did not always know of its content.

12 ) Because Crown land is disposed of by the Governor acting for the Crown and the Government of the Turks and Caicos Islands which administers the land for the Belongers, in the counts charging economic loss, all three are said to be victims.

Burden of Proof

13 ) I begin this judgment by setting out the duty of this court at the close of the trial, which is to determine whether on all the evidence (the Prosecution's as well as the defence, if any), the Prosecution has discharged its burden of proving the guilt of the defendants beyond a reasonable doubt. In these indictments, the court has regard to the fact that the burden on the Prosecution (to prove the guilt of each of the defendants beyond a reasonable doubt), never shifted at any time, and it was not the duty of any of the defendants herein to prove their innocence.

14 ) On the standard of proof, I am guided by learning from the seminal judgments.

In Woolmington v DPP 3 Viscount Sankey said:

“ … the prosecution must prove the case beyond reasonable doubt. This statement cannot mean that in order to be acquitted the prisoner must “satisfy” the jury… If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner… the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained”;

Also, in Miller v. Minister of Pensions 4 where Denning J (as he then was) defining the standard of proof stated: “ That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt…If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence ‘of course it is possible, but not in the least probable,’ the case is...