The Queen v Floyd Basil Hall, Jeffrey Christoval Hall, Melbourne Arthur Wilson, Clayton Stanfield Greene
| Jurisdiction | Turks and Caicos Islands |
| Judge | Agyemang CJ |
| Judgment Date | 18 June 2021 |
| Court | Supreme Court (Turks and Caicos) |
| Docket Number | ACTION NOS. CR 37/12 — Melbourne Wilson CR 40/12 — Jeffrey Hall CR 44/12 — Floyd Hall |
Agyemang CJ
ACTION NOS. CR 37/12 — Melbourne Wilson
CR 38/12 — Clayton Greene
CR 40/12 — Jeffrey Hall
CR 44/12 — Floyd Hall
IN THE SUPREME COURT
FOR THE CROWN: Mr A. Mitchell QC.; WITH HIM Mr. Q. Hawkins AND Ms. K. Duncan
FOR THE FIRST DEFENDANT: Mr. W. Earl Witter QC.; WITH HIM Mr K. Smith AND Mr F. Grant
FOR THE SECOND DEFENDANT: Mr. J. Perry QC.; WITH HIM Mr. I. Robins AND Mr J. Misick
FOR THE THIRD DEFENDANT: Mr. A. Shepherd QC.; WITH HIM Mr. J. Shepherd AND Mr A. Comert
FOR THE FOURTH DEFENDANT: Mr R. Bendall; WITH HIM Ms. K. Hall
This is a ruling in respect of an application by the Prosecution, brought under section 58 of the Criminal Procedure Ordinance (CPO), seeking an order of this court for the instant trial to be conducted without a jury.
The present trial of the four defendants has been severed from a trial of seven persons, itself a reduction of a trial of ten persons, reduced to nine, and then to seven.
All the defendants (once senior Government officials in these islands — the Premier of these islands from 2003–2009 his Ministers, and two of their lawyers), have been charged with corruption offences during the tenure of their service. The criminal proceedings that began in 2011 for some, 2012 for others, and 2014 for the former Premier, resulted in a trial that lasted five years and counting. It was truncated by the death of the trial judge. That trial had been conducted as a judge alone trial.
Following the decision of the Director of Public Prosecutions to continue with the prosecution of the said defendants, the defendants brought an application before this court alleging abuse of process. In the ruling that followed the applications by the seven defendants, the court made an order for the severance of the trials.
The trials have been severed into two trials by order of the court. The first of the trials is the instant one in which the Prosecution seeks an order of the court for the trial to be conducted without a jury.
In making their application the Prosecution raise a preliminary matter, arguing that there is in fact, no need to relitigate the matter of the conduct of this trial without a jury, seeing that in the trial aborted upon the death of the trial judge Harrison J, the said judge had already ruled that such should be the conduct of the trial. The said ruling which was challenged on appeal at the Court of Appeal was further challenged before the Privy Council which upheld same.
Thus, they contend that as the matter of a trial without jury was settled in the court's ruling of 23 June 2014 in R v. Michael Misick and Ors, there being no provision in the legislation regarding the necessity to make a further application in the event of a re-trial, this court should hold that there is no need to relitigate the issue. Thus they urge this court to let stand, the order of Harrison J for a trial without a jury, as endorsed by the Court of Appeal and the Privy Council.
On the merits, the Prosecution submit (should the court be of a different view), that having regard to the circumstances set out in section 58(3) of the CPO, the court must have regard to the following matters pertaining to the instant case to hold that it will be in the interests of justice for the retrial(s) to be without a jury.
The identified matters were set out as: the social and political climate in the Turks and Caicos Islands which is said to make impossible the assembling of an impartial jury; the complex nature of the case(s); media and social media publicity, among others.
Regarding the preliminary issue, all the defendants reject the Prosecution's call for Harrison J's ruling on holding a trial without a jury to stand.
It must be noted, that as with the application itself, at the time of the filing of the defendants' submissions, the present order severing the trials had not been made. The arguments will however, be considered in the light of the later events of severance, the present Information, the witness lists, and the removal of certain counts and projects.
It is their unanimous submission, that the ruling of 23rd June 2014 by Harrison J was based on circumstances then prevailing, and on an Information since abandoned. They aver that the re-trial is de novo, and is besides, not the trial that was before Harrison J in scope, some counts in the aborted trial, having been removed, and some projects having been abandoned.
In reliance on the guidance contained in DPP v Humphrys [1977] AC 1, they submit that “issue estoppel”, as a concept, does not apply in criminal law. Thus, they contend that this court must of necessity consider, afresh, under 58(3) of the CPO, “whether the interests of justice require that the trial be conducted without a jury” in the light of the present reality.
All the defendants further oppose the application on its merits and reject the prosecution's intimation that the political climate, social linkages, pretrial publicity, and/or the size of the jury pool will make this case unsuitable for a jury trial.
Having read the application filed by the Prosecution for the instant trial to be conducted without a jury, having read the various submissions made on behalf of the defendants herein, and having heard counsel on both sides, the sole issue that stands out for determination is:
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1. Whether or not a case has been made that the interests of justice require that the instant trial be conducted without a jury.
In particular, the Prosecution allege the following for the persuasion of this court:
The Prosecution contend that to ensure a fair trial (with the paramount consideration of fairness to both the Prosecution and the defence), the court must have regard to the fact that in the highly politicised atmosphere of these Islands where almost every person is allegedly aligned to one of two political parties, a trial conducted by jury may be compromised. This is because of the alleged political polarization of this country which has produced the phenomenon of everyone belonging to one of the two political parties. Since this trial has political undertones, being of senior public officials of government, they submit that it may be almost impossible to assemble an impartial jury.
The matter, they contend, has been compounded by the media publicity since the proceedings began, (referred to in Superintendent Tony Noble's affidavit) which includes highly publicised statements made by Michael Misick a former Premier charged in these trials, as well as Carlos Simons QC a senior member of the Bar of the TCI, who has been appointed a temporary judge, at a time when he was said to be vying for the leadership of the PNP party. They also point to social media extremism which includes a petition to defund the SIPT trial(s), a call to demonstrations and calls for “criminal damage”, and the strong feelings which led to a recent demonstration on the road outside the Supreme Court Annex calling for the process to end.
The Prosecution submit further, that the impending trial(s) involve allegations, unprecedented in the history of the TCI, against the conduct of senior public officials in public life, relating to corruption surrounding payments of bribes to Ministers, their relationship with developers, and the handling of Crown Land applications. More particularly, the Prosecution alleges a complex web of payments representing bribes to serving Ministers of the Crown, and requires understanding of government and its component parts, the award of contracts, among other mechanisms. The Prosecution contend that the jury would be required to arrive at a verdict in a “paper heavy case”, in which unlike a judge they would not have access to the papers in advance, nor to constantly refresh their memories as to what other witnesses have said to form an overall view of a case of complexity.
They also contend that the requirement for random selection is severely compromised as there is a real possibility of jury bias of a jury drawn from a pool of eligible voters numbering about 8,581, further narrowed to Islanders from Providenciales or Grand Turk, and to people aged between twenty-one, and sixty-five. In their submission, most persons in the islands have been affected (positively or adversely) by matters that have formed the basis of the investigations that underpin the present trial(s). Regarding the explanation proffered by the defence of monies paid into party coffers from which party members and sympathisers benefitted, they assert that it is almost inevitable that potential jurors would have a personal view of the truth or otherwise of this explanation, making them “witnesses” of a point of view in respect of it. Furthermore, the range of projects forming the subject matter of the Prosecution's case cover a large geographical area of the TCI; thus, affecting individuals throughout the islands. They submit therefore, that it would be allegedly impossible to attempt to summon a jury comprising only individuals in areas without any relevant development during the period under scrutiny in these charges.
In short, the prosecution contends that these matters: the size of the jury pool and the politicisation of the country, among other matters may have the probable effect of exposing the trial process to jury contamination.
The likelihood of this happening has been the subject of comment independent of this trial. These include a comment in the 1986 Sir Louis Blom-Cooper QC Commission of Inquiry Report:
“Almost everyone in the Islands identifies himself with one or...
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