August 8, 2020

TCI Michael Misick trial: Defence calls for end of trial

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By Delana Isles From Turks & Caicos Weekly News

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THE FIRST in a series of no case submissions by defence lawyers in the Special Investigation and Prosecution Team (SIPT) trial has been made, with the lawyer calling for an end to the proceedings.

Queen’s Counsel Jerome Lynch, who along with attorney Peter Melleney represents former natural resources minister McAllister Hanchell, presented detailed and well thought out arguments before Justice Paul Harrison.

The presentation was made in the Supreme Court annex in Providenciales on Wednesday (January 16) as the trial officially resumed after the Christmas break.

Lynch’s no case submission application is predicated on two primary grounds – the Crown’s failure to make the trial manageable from the outset and during the course of the trial, and the court’s failure to regulate the trial process thus ensuring the manageability of the trial.

Abuse of process
The lawyer stated that any effective prosecution of alleged fraud is dependent on there having been thorough and careful investigation, guided by clear advice from the prosecution team who will ultimately be responsible for the presentation of the case.

This, he added, must be accompanied by structured case management which ensures that issues are properly clarified before the trial proper begins and a disciplined approach by all parties to all stages of the proceedings.

He explained that the purpose of his application is that the trial should be stopped by the judge because it has become unmanageable.

He noted that the only mechanism for doing so is to determine that to proceed would be an abuse of process of the court denying the defendants their right to a fair trial and abrogating their constitutional rights of a fair trial within a reasonable time.

“Although, we emphasise that this is not an application based on the passage of time alone, it is but a factor.”

He added that the law on abuse of process is well understood throughout the common law jurisdictions and that there exists in the court’s hands, a power to stay the indictment on the grounds on two main grounds.

Those grounds being that it would be impossible to give the defendant a fair trial, and or a stay is necessary to protect the integrity of the criminal justice system.

Manageability
Lynch noted that the prosecution is in sole charge of the information and they alone choose what counts to put on it and which defendants to charge.

“That decision is not one which is wholly unfettered. They must exercise good judgement in determining what is in the public interest and what they have a reasonable prospect of proving to the requisite standard.”

Further, he added, good practice does not require every conceivable charge to be included in an information even if they could prove it to the standard.

He said there is an obligation on the Crown to ensure that an information is not overloaded and that the scope of the trial is such that it is manageable, irrespective of whether there is a jury or not.

In the information’s first incarnation, dated July 11, 2012, it included 13 defendants and 23 charges without Michael Misick, the lawyer outlined.

These charges covered nine separate conspiracies all said to be “with others” to date unidentified, five of which were to defraud.

“By the time the matter came to trial a number of defendants had been jettisoned and Michael Misick added.

“Counts were revised and revised again so that we ultimately had an information which included nine defendants and 17 counts.”

He noted that this was in no way an attempt by the Crown to reduce the size and scope of the trial, rather, it was their hope that they would be able to add another count of perjury.

A hope that was eventually abandoned.

He stated that he had made it clear both in open court and in writing on June 18, 2015, that the defence will be putting the Crown to strict proof, as is the defendants’ right.

“There was never any misunderstanding about this, it could not be plainer. However, instead of the Crown taking a pragmatic approach and reducing the size and scope of their case, they dug their heels in, and in effect stated that they would seek to prove every tap and washer in the proverbial kitchen sink,” Lynch stated.

He added that a 17 count information was completely unnecessary to prove a substantial enough case against the defendants.

“The public interest here is served by ensuring that the prosecution advance their best case against the most seriously alleged perpetrators. Not every count against every defendant.”

The lawyer stated that the number of defendants was reduced by luck, outlining thusly: “Richard Padgett did a deal and received a suspended sentence after pleading , Varet Civre did a deal and was not prosecuted, Samuel Been did a deal and was not prosecuted, Quinton Hall did a deal and was not prosecuted and Earlson Robinson was severed by agreement.”

He added that when one considers the respective roles of the defendants and the part they have played in the trial, there are a number of obvious, stand-out candidates for severance by the Crown.

“Consider for a moment if there was an initial trial involving Michael Misick, , McAllister Hanchell and Thomas (Chal) Misick – arguably the three principal offenders and their facilitator.

“Even if the trial took the same amount of time, the savings to the public purse by excluding , Lillian Boyce, Melbourne Wilson and Jeffrey Hall and Clayton Greene.

“Even if it is believed they should face trial, these defendants could be disposed of in a matter of weeks, not years, with the obvious saving to the public purse.

“One has only to consider the relatively small parts they have played in the trial so far; of course collectively it has added to the length of the trial and in our submission, wholly unnecessarily.”

He further suggested that had the principal trial resulted in acquittals, the Crown would have been able to consider their position with regard to the other defendants, and if there were convictions other defendants might well have considered their respective positions and sought deals.

“As a sidebar, it may also have been possible to try some of the defendants by jury in a short compact trial where the emotive considerations would not have had the same impact.”

He stated that there is nothing to suggest that any of the suggestions he proffered were considered as a way of reducing the scope of the trial.

“The Crown persisted with the notion that the case could be concluded within seven months which was their best estimate as of their January 30 and June 30, 2015, documents when they knew that the case involved nine defendants, 18 counts (as then believed), and no less than 11 different projects and the PNP accounts.

“Couple that with the knowledge that at least some of the defendants were putting the Crown to strict proof, the estimate was a completely unrealistic one.

“Worse than that, it misled the court into a sense that even if it took that long, seven months was manageable.”

The lawyer called the Crown’s inability to properly manage the trial “reckless”.

“Had I known this case would take three years plus, I would not have accepted the brief and I suspect that is true of every other attorney in the case, including some of the prosecution team,” Lynch stated.

“What would have been your reaction had you been told from the outset that this case will take three years to adduce the Crown’s case alone, or even two years, or even one year?

“There can be little doubt that in the first instance you [the judge] may not have accepted the appointment, but having done so, you would have insisted the Crown pare down their case, as would we. I did.”

He recalled that at the outset of the trial defendant Michael Misick had made a written submission on abuse of process calling for a narrowing down of the information in order to make the trial more manageable.

“It is clear from the document and the arguments advanced… were even more prophetic than Ralph Thorne SC could have contemplated.”

Number of projects
There are 11 in all captured in two counts in the indictment, the lawyer noted.

He added that leaving aside the Crown’s case on the value of having a count two at all; it simply cannot have been necessary in count one to deal with a six year period of the alleged conspiracies involving five defendants ranging over a total of 11 separate projects.

The court is being asked to consider, in effect, at least 55 different permutations of the count.

“The Crown could and should have asked itself what are our best three projects? And do we really need to have Juniper Hole in this count?

“Identify all the material needed to prove count one, charge three separate conspiracies involving the principal defendants in each and the trial might have been over in the seven months predicted or less.

“That would provide the court with sufficient sentencing power if they had been found guilty.”

He added that the Crown’s claim that their right to be able to “tell the story” would be prejudiced by any decision to leave out one or more of these sample developments, only illustrates that the Crown’s case is aimed at the whole of their [PNP’s] tenure as a Government, and that it was tainted with corruption from the beginning.

“I think we all get that. It nonetheless is our submission that it was never necessary to adduce the evidence in relation to all 11.

“The wholly misleading assertion that having all the projects would not add to the length of the case lulled everyone into a false sense of how long it would take to adduce the evidence of each meeting with the developer, each Cabinet paper, each Cabinet minute, each Belonger, each letter written by each lawyer, each email sent by the parties, each development agreement in each guise and every payment made in respect of it.”

He stated that this knowledge was peculiarly in the hands of the prosecution, only they knew what they wished to adduce and from whom.

“They knew the parameters because the defence were not prepared to admit anything. Instead of taking a pragmatic approach they ploughed on regardless of how long it would take.

“Frankly, if the Crown could not tell the story with three projects, telling the story with 11 was not going to help especially if that story became obfuscated with the passage of time.”

He further recalled: “The Crown took six weeks to open their case and deal with the facts schedule. The case having commenced on December 7, 2015, they did not call the first witness in the case until March 9, 2016. Three months had already gone.

“We have heard from over 200 witnesses, producing well in excess of 2,000 exhibits. We have no idea how many pages there are in the exhibits before you. Tens of thousands for sure, but who knows?”

Disclosure
“I say with due deference to the court that I am not sure it fully appreciates the magnitude of the task or the nature of the various schedules and how they have changed over the course of the preparation and the trial itself,” the lawyer said.

At the beginning of the case there were three schedules in the trial.

Schedule one is the used material which was served by the prosecution as their sufficiency, which at the start of the trial amounted to the material amounted to some 108,075 pages.

Schedule two is the unused material, which is the material the Crown did not wish to use but were under an obligation to serve as it may assist the defence.

At the start of the trial it amounted to 34,187 pages, by the January 16, 2017, it had swollen to 55,923, by the February 5, 2018 it had grown to 91,540 and as of the September 30, 3018, it stood at 96,078.

“All the material in this schedule is now deemed used material. In other words, it is now really all part of schedule one making the total material upon which the Crown rely to prove their case well in excess of 200,000 pages.”

For a variety of reasons, he added, many of the counsel presently representing defendants did not come into the case until very late, some actually during the trial.

“The simple point is this: disclosure of unused material comes low down on the list of priorities when preparing the brief. Reading the used material must come first, then reading the proof and obtaining instructions, then case planning, a case theory and strategy, potential and actual legal arguments, identifying the areas of cross-examination of the witnesses.

“All come before a trawl through the unused material. That is not to say it has no importance but it necessarily comes lower down the pecking order.

“Of course we now know this is not unused material at all. It is used material, one third of which was disclosed during the trial itself.”

Lynch stated that many of the lawyers struggled to read the used material and prepare before the case started let alone examine the unused material which even at that time amounted to 34,187 pages.

“In a letter written by Helen Garlick for the SIPT to Mrs Hatmin on May 28, 2015, she seeks to answer some of the issues raised by Mr [Beryn] Duncanson then representing Michael Misick.”

In that letter Garlick told Duncanson that it was difficult to inform him precisely of the number of pages of unused material, since the schedules identify this material by item and not by pages She further stated that there have been 233 items of unused material supplied to date and a further 900 items are to be disclosed to the defence no later than the end of June 2015.

The lawyer stated that this is revealing for two reasons: first, the SIPT did not know themselves how much material there was in the unused schedule.

“Duncanson suggested in excess of 500,000 pages which whilst that may have been an exaggeration was not therein being gainsaid.

“Second, as at the May 28, 2015, 233 items have been disclosed. No one knows how many pages that represented, but there were apparently a further 900 items to be disclosed no later than the end of June 2015.”

He stated that it is worth remembering that the Crown had declared themselves trial ready in 2013, 2014 and 2015 on each and every occasion that the matter came before the court.

However, he said they could not have been if they had not yet fulfilled their obligations on disclosure.

“It is difficult to believe that between first declaring themselves trial ready and the end of June 2015 a further 900 items have come to light that may satisfy the Keane test on disclosure.”

Garlick goes on in the letter to Duncanson to assert the following: “With regard to both the served evidence and disclosed material, a crude page count is misleading, since for example, a cheque will be copied back and front, each occupying a single page and an entire document or portion of a development agreement that occupies several pages may in fact only contain one or two relevant passages that are easily identifiable.

“To date not one defence attorney has sought access to the schedule three material despite a protocol being in place, or raised any other query.”

The defence lawyer stated that this statement by Garlick was somewhat disingenuous, to suggest that the defence are in some way at fault.

He stated: “Given the time available for the primary counsel to get the case up (the judge refused applications by all of us to defer the trial) for my part we did remarkably well.”

“We did our best, but I for one can say I do not believe I have read everything I should have prior to the commencement of the trial. Time and again I have found documents I wish I had identified earlier to put to witnesses previously called.

“I did not want them recalled as the point would be lost in the quagmire of evidence already before the court. I have no doubt there is much I simply have not seen,” Lynch added.

He stated that it is the defence’s submission that no case should have to rely on over 200,000 pages of documents, 2,000 plus witness statements, 350 civilian witnesses among other things.

“No case should last three to four years, ever.”

Clearly there is no jury in this case and had there been it would or could not have taken this long, he said.

“It is as though because the Crown got their choice of trial without jury, they felt they had carte blanche to rely on every piece of evidence they could muster.

“And muster they did, thousands of pages initially relegated to the crypt that is schedule two and three, only to be chiselled therefrom, to emerge into the trial during its currency.”

He pointed stated: “We have struggled to keep on top of this case, and I am confident that in some areas we have failed.

“No one, not judge, not professional lawyer, not defendant, could possibly be expected to remember the witnesses (with a few notable exceptions), the evidence given, the nuance with which it was given; the manner in which it was given, whether it was immediately believable or there was a question mark over it, whether other evidence called months or even years later are consistent with it and what impact any contradictory evidence might have.

“This goes to the heart of the adversarial system of our trial process.”

He further questioned how the defendants are to deal with what witnesses said years ago.

“What should the Crown have done? Which defendants were the principal players here? Note this is not the same as saying others had no part to play or were not potentially guilty of crimes.”

He again suggested that count one of the indictment could have been alleged against Michael Misick, Floyd Hall, McAllister Hanchell and Chal Misick, with three projects named – one from early in the regime, one from the middle and one near the end.

Additionally, he suggested, three counts of conspiracy to receive bribes should have been included.

“Count two should never have been charged (if it was it should have been severed), the count took up an inordinate amount of time to adduce and most of us are still unclear about the multiplicity of potential ‘verdicts’ that the court will have to grapple with.

“Count three should have been severed and a separate trial lasting approximately three weeks.

“Count four also severed and a separate trial lasting approximately two weeks.

“Counts five and six severed and in the event of convictions for the named defendants on other charges left on the file.”

He added that counts seven to 14, the same should have applied.

“Count 16 – Lisa Hall, why is she here at all? But if there must be a trial severed and a separate trial lasting approximately two weeks.”

He said count 17 could have been left on file if defendants were convicted of any other offences.

He noted that with this approach, all trials would have been concluded within one year.

“Assuming some convictions, all sentencing could have been conducted at the conclusion of all cases so as to provide proper perspective.

“We fail to see how the Crown could not have delivered the necessary narrative for the court to consider.”

Lynch stated that the court’s failure to regulate the trial process, thus ensuring the manageability of the trial, ensured that the court would be saddled with a behemoth.

Failure to limit the scope of the case from the outset
The lawyer said the court also bears some of the responsibility by failing to challenge the assumptions as to the timing of the trial.

Adding that whilst this jurisdiction does not have any specific criminal procedure rules, the prosecution come from a jurisdiction which does and the judge comes from a jurisdiction which does and many of the defence lawyers come from jurisdictions which do.

He said the courts in various jurisdictions have been repeatedly advised by their respective courts of appeal to exercise trial management over the cases.

“Good judges have always exercised trial management over the cases before them requiring the advocates to adhere to orders made to ensure the smooth running of a case.

Failure to limit the scope of the case as it unfolded
He added that throughout the case applications have been made by the defence – him in particular – when objection has been taken to evidence being adduced on grounds of admissibility or relevance, when having heard argument it goes in anyway notwithstanding the additional objection that even if relevant it is simply not necessary and would prolong the trial.

He stated that the unwillingness of the court to exercise any constraint over the scope of the Crown’s case by the use of its discretion and trial management powers was evident on many occasions when given the chance to do so through objections by the defence to the prosecution’s conduct.

The lawyer also pointed out that during the course of the trial, the Crown was holding the proverbial Damocles sword over the head of the court: “if we are not allowed to use these charts then we will be here even longer”.

Following this threat, the judge caved and allowed the Crown its way.

There are charts in question, the lawyer explained, dealt with all manner of marginally relevant material which could have been captured if a limited number of projects was used.

“The court was implored to use their inherent powers to regulate the trial process. It is our submission the court failed to do so against a barrage of objection,” Lynch stated.

Disclosure
He noted that despite numerous assertions that they were trial ready and having been told from the outset that this was a case in which they would be put to strict proof of the evidence, by May 9, 2016, it was clear that the prosecution was not fully prepared.

Because of this, they decided to adopt the witness folder system. On reviewing the witness statements, it became apparent to the Crown, that many of the documents exhibited had not been served, but instead were either in schedule two or schedule three, or in some cases referenced, but a copy not obtained.

Lynch stated that had the case not become an “electronic case” in 2015 – just a few months before the trial began – the prosecution would have been compelled to serve any new material relied upon by NAE.

The defence would then have known what was been served; the date upon which it was being served and where it came from.

In the event, this material was simply moved between schedules and added to the witness folders. All of this was put into effect without proper application.

“This case is unique. The prosecution cannot tell us how many pages of exhibits have been served on us.

“Schedule two (unused material schedule) is served in its entirety, but we hope nobody suggests that it would be humanly possible for any defence team to read all that exists in schedule two and schedule two now contains much of what was in schedule three and schedule three has grown by 1,406 items. Each item being a file of varying size, rather than an individual document.”

He added that this has all come about because of the size and complexity of the case.

The prosecution has been re-evaluating what they want or need to rely as the case has progressed, because there was simply too much to marshal in advance.

He submitted that this could have been avoided had the case been simplified and more focused, but the prosecution wanted to rely on complexity, to advance their trial without a jury ordinance application.

“At no stage has the learned judge intervened and stopped the Crown from the never-ending expansion of their case.

“On the contrary, he has allowed the evidence to be called unchecked as to time and necessity.

“We emphasise this is not an issue of relevance or admissibility this is to do with the proper management of the case so as to keep in manageable proportions.”

The lawyer stated that a heavy fraud or complex trial that goes on interminably has the danger of losing direction and focus.

“That is what has happened here. It places an unfair burden on the defence, the judge and all those involved in the case. Moreover it wastes scare public resources. This case has already cost the state millions of dollars unnecessarily,” Lynch submitted.

“Is it too late to do anything?”

He stated that it is the defence’s unequivocal submission that it is and that the only fair course is to stop this trial now.

He added that he has also given anxious consideration to the question the court may have of “what if” it felt there was merit in the arguments advanced but wanted to try to find some method by which the trial process could be used to ameliorate the effects of the behemoth and the inevitable prejudice it has wrought on the defendants.

“One might consider severance of certain counts even now. Count two comes immediately to mind amongst others.

“But more particularly the court might insist on the Crown not rely on some of the projects currently before the court.

“This is just about possible since we have a judge only trial and the prejudice would be more limited if the judge can cast from his mind the project material already advanced,” he suggested.

This, the lawyer added, might be said to have the advantage of allowing the defendants the opportunity to know exactly what case they would have to meet if the submissions of no case were to founder.

“Limiting it in that way might provide for a fairer approach and a more limited period of time in the witness box. Thus, saving potentially months of defence evidence.”

For more on this story go to: http://tcweeklynews.com/defence-calls-for-end-of-trial-p9346-149.htm

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