Breach of Prosecution Duties – Criminal procedure – Trial – Fair trial – Role of judge – Role of prosecuting counsel – Interjections – Prejudicial comments – Appellant tried for and convicted of theft – Prosecuting counsel interjecting prejudicial comments during testimony by witnesses – Judge manifesting antipathy to appellant and defence counsel – Whether conviction sustainable: Randall v R Cayman Islands Privy Council

[2002] 5 LRC 678, [2002] UKPC 19, [2002] 1 WLR 2237

Randall v R

Cayman Islands
Privy Council
[2002] 5 LRC 678, [2002] UKPC 19, [2002] 1 WLR 2237
HEARING-DATES: 4 March, 16 April 2002
16 April 2002
CATCHWORDS:
Criminal procedure – Trial – Fair trial – Role of judge – Role of prosecuting counsel – Interjections – Prejudicial comments – Appellant tried for and convicted of theft – Prosecuting counsel interjecting prejudicial comments during testimony by witnesses – Judge manifesting antipathy to appellant and defence counsel – Whether conviction sustainable.

HEADNOTE:
After a trial lasting 41 days the appellant was convicted on four counts of theft and one count of obtaining a valuable security by deception and sentenced to imprisonment for four and a half years, with orders for the payment of compensation. The Court of Appeal allowed his appeal against conviction for obtaining by deception but dismissed his appeal against the convictions of theft. He appealed, by special leave, to the Privy Council against conviction and sentence, alleging that his trial had been conducted unfairly because of the conduct of prosecuting counsel which the trial judge had failed to restrain.

HELD: Appeal allowed. Convictions quashed.

The right of a criminal defendant to a fair trial was absolute and was to be enjoyed by the guilty as well as the innocent, for a defendant was presumed to be innocent until proved otherwise in a trial conducted fairly. Several basic rules had been developed effectively to safeguard the overriding requirement of fairness. (1) The duty of prosecuting counsel was not to obtain a conviction at all costs but to act as a minister of justice. (2) The attention of the jury was not to be distracted from its central task of deciding whether, on all the evidence before it, on all the submissions made and on the judge’s legal direction and summing up of the evidence, the guilt of the defendant was or was not established to the required standard. Therefore evidence should normally be given without interruption by counsel. The procedure gave prosecuting and defence counsel opportunities to address the jury, usually before and after evidence was called, and counsel were not permitted to address the jury at other times or, under the guise of interjection, to make observations intended to influence the jury. There could never be any justification for bullying, intimidation, personal vilification or insulting of a witness or defendant by counsel or for the exchange of insults between counsel; any disparaging comment on a witness or a defendant should be reserved for a closing speech. Reference should never be made to matters prejudicial to a defendant which were not before the jury. The judge’s summing up should proceed without interruption by counsel and it could never be proper for counsel to make any

interjection prejudicial to the defendant during the summing up. (3) It was the responsibility of the judge to ensure that the trial was conducted in an orderly and proper manner, fair to both prosecution and defence. The judge should not be, nor appear to be, partisan. He should not disparage the defendant or defence counsel. If counsel began to misbehave, the judge had to at once exert his authority to require observance of the accepted standard of conduct. If a judge had occasion, in any serious or sustained manner, to criticise defence counsel or the conduct of the defence case, it would usually be prudent for him to do so in the absence of the jury and to ensure that his disapproval of, or irritation with, counsel did not affect the jury’s verdict. If the judge chose to express personal opinions in the course of summing up, he should do so in a restrained, moderate and balanced way. The appellant had complained that prosecuting counsel had repeatedly interpolated prejudicial comments while examining prosecution witnesses, repeatedly interrupted the cross-examination of such witnesses, often with prejudicial comment, repeatedly interrupted the examination-in-chief of the appellant, interpolated prejudicial comment in his cross-examination of the appellant, made imputations about the conduct and motives of defence counsel and interrupted the judge in the course of his summing up. Although the case against the appellant was a very strong one and his explanations might well have been properly rejected by a jury, and although there were grounds for criticising the conduct of the defence and the evidence of the appellant, there were such departures from good practice in the course of the trial as to deny the appellant the substance of a fair trial. Prosecuting counsel had conducted himself as no minister of justice should do. The judge had failed to exert his authority to control the proceedings and enforce proper standards of behaviour: he had allowed himself to be overborne and his antipathy to both the appellant and his counsel to be only too manifest. While none of the matters complained of by the appellant, taken alone, would have supported a successful appeal, the Board could not be sure that, taken together, they did not inhibit the presentation of the defence case and distract the jury’s attention from the crucial issues. It was clear that the Court of Appeal had not a adequately examined the matters relied on by the appellant (see paras [10]-[11], [27]-[30], post). Dictum of Rand J in Boucher v R (1954) 110 Can CC 263 at 270 applied.

Per curiam. The judge should have given a good character direction to the jury. While the lack of such a direction is material and might lead to the quashing of a conviction, it need not do so, even where the issue of character is squarely raised by the defence, if the appellate court is satisfied that even with the benefit of a proper direction the jury would inevitably have convicted (see para [32], post). Anderson v R [1971] 3 All ER 768, Berry v R [1992] LRC (Crim) 82, R v Aziz [1995] 3 LRC 254, Barrow v State [1998] 4 LRC 517 and R v Macdonald (25 March 1999, unreported), CA CD, applied.

CASES-REF-TO:
Cases referred to in judgment

Anderson v R [1971] 3 All ER 768, [1972] AC 100, Jam PC

Barrow v State [1998] 4 LRC 517, [1998] AC 846, T&T PC

Berry v R [1992] LRC (Crim) 82, [1992] 3 All ER 881, [1992] 2 AC 364, Jam PC

Boucher v R (1954) 110 Can CC 263, Can SC

R v Aziz [1995] 3 LRC 254, [1995] 3 All ER 149, [1996] AC 41, UK HL

R v Banks [1916] 2 KB 621, [1916-17] All ER Rep 356, UK CCA

R v Hulusi (1973) 58 Cr App R 378, UK CA

R v Macdonald (25 March 1999, unreported), CA CD

R v Puddick (1865) 4 F & F 497

INTRODUCTION:
Appeal

The appellant, Barry Victor Randall, appealed by special leave of the Privy Council against the decision of the Court of Appeal of the Cayman Islands (Zacca P, Georges and Kerr JJA) on 13 August 1998, for reasons delivered on 10 December 1998, allowing his appeal against conviction on one count but dismissing his appeal against conviction on four counts and against sentence on 8 August 1997, after trial before Williams J and a jury. The facts are set out in the judgment of the Board.

COUNSEL:
James Guthrie and Thomas Roe for the appellant.; David Perry, Garreth Patterson and Samuel Bulgin (Solicitor General) for the respondent.

16 April 2002. The following judgment of the Board was delivered.

16 April 2002

Solicitors:; Simons Muirhead & Burton for the appellant.; Treasury Solicitor for the respondent.

PANEL: Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hutton, Lord Hobhouse of Woodborough and Lord Rodger of Earlsferry

JUDGMENTBY-1: LORD BINGHAM OF CORNHILL.

JUDGMENT-1:
LORD BINGHAM OF CORNHILL.

[1] The appellant stood trial in the Grand Court at George Town on an indictment containing five counts: four counts of theft and one count of obtaining a valuable security by deception. After a trial lasting 41 days before Williams J and a jury he was on 8 August 1997 convicted on all counts and sentenced to 4 years’ imprisonment. Orders for payment of compensation of US $500,000 were made under each of counts 2 and 5, with a consecutive sentence of 6 months’ imprisonment on each count on default of payment. The appellant appealed against conviction and sentence and on 13 August 1998 the Court of Appeal of the Cayman Islands dismissed his appeal against conviction on counts 1-4, allowed his appeal against conviction on count 5 and dismissed his appeal against sentence (save that the second compensation order necessarily fell on the quashing of the conviction on count 5). The Court of Appeal (Zacca P, Georges and Kerr JJA) gave the reasons for its decision in writing on 10 December 1998. By special leave of the Board the appellant now renews his appeals against conviction and sentence. The primary ground of his appeal against conviction is that the trial was conducted in a manner which was grossly and fundamentally unfair. The source of this unfairness, it is said, was the conduct of prosecuting counsel, Mr Richard Small, which is said to have undermined the integrity of the trial process. But complaint is also made that the trial judge wrongly failed to restrain the conduct of prosecuting counsel and on occasion endorsed it. The appellant advances additional grounds of appeal against conviction based on the trial judge’s directions to the jury on dishonesty and the omission of a good character direction. The sole ground of appeal against sentence relates to the compensation order which, it is said, should not have been made without inquiry into the appellant’s means.

The case against the appellant

[2] Count 1 of the indictment against the appellant read:

‘Barry Victor Randall between 10th day of May 1988 and 30 March 1989 stole assets to the value of the sum of $200,000, US currency, the property of clients of Cayman Capital Trust Company namely the Asian Sources Retirement Plan (c/o Trade Media Holdings Ltd a Hong Kong company) formerly known as Publishers Representatives Ltd.’

The second count was to the same effect, save that the starting date was a little later and the sum allegedly stolen was S500,000. The third count also was to the same effect, save that the starting date was later again and the sum allegedly stolen was S50,000. The prosecution case against the appellant on these three counts was, in brief summary, that the appellant, acting as a professional trustee, had been entrusted with trust funds which he had then used for his own purposes. The victims of the thefts were the beneficiaries of the trust fund, the assets of which had been deposited with Cayman Capital Trust Company (CCTC), a company run by the appellant. The trust fund in question was called the Asian Sources Retirement Plan (ASRP).

[3] The ASRP was a pension fund which had been financed and established by a Hong Kong group of companies of which the parent was known as Trade Media Holdings (HK) Limited (TMHK). TMHK had established the pension fund for the benefit of employees of its group. The Swiss Bank and Trust Corporation of Cayman (‘Swiss Cayman’) was originally the trustee of the pension scheme, at a time when the appellant was an employee of Swiss Cayman. As an employee he dealt with matters arising in relation to ASRP and had dealings with the managing director and investment manager of the group. When, in 1987, the appellant’s employment with Swiss Cayman came to an end, he formed CCTC, of which he became managing director, and by a trust deed of 6 April 1988 TMHK appointed CCTC as trustee of the ASRP funds in place of Swiss Cayman. CCTC was a company duly licensed to carry on the business of a trust company with overseas customers.

[4] Under the terms of the trust deed the assets owned by ASRP, formerly held by Swiss Cayman, were transferred into the name or control of CCTC. The prosecution case was that the appellant, during 1988 and 1989, had used these trust funds for his own purposes. By the time the alleged fraud was discovered the loss suffered by TMHK was said to be in excess of S1 million. It was alleged that the appellant, having obtained control of these ASRP assets, had used them as security for loans, which were obtained for his own benefit or that of his company, but not for the benefit of ASRP or TMHK. It was further alleged that the appellant went to some lengths to conceal the use of these assets as security for the loans, which he obtained from Credit Suisse Guernsey Limited (‘Credit Suisse’). It was said that the funds had been dispersed on the instructions of the appellant and then used for such purposes as investment in a hotel building project and the repayment of a loan to the depositor who featured in count 5. When in due course Credit Suisse demanded repayment of the loans the ASRP assets were sold on the instructions of the appellant to pay off CCTC’s indebtedness to Credit Suisse. Reliance was placed on the failure of the appellant to seek the approval of TMHK for these transactions, and on his

failure to reveal the true facts to an inspector appointed to oversee CCTC’s management of three trust accounts. In the course of a visit to CCTC the inspector noted that a file relating to a Caymanian company named Wintergreen Holdings Ltd was missing; in due course this file was found and within it were documents suggesting that Wintergreen had received the proceeds of the loans. In due course it became clear that CCTC was insolvent, and application was made to wind it up. The deficiency noted in its state of affairs was nearly S4 million. When the appellant was interviewed in the presence of his lawyer at police headquarters, he declined to answer many of the questions put to him concerning his dealings with the assets of ASRP and gave no explanation for his conduct.

[5] The fourth count of the indictment charged the appellant with theft of assets to the value of approximately $106,300 currency, the property of Mr Anthony Tan, a client of CCTC and beneficial owner of a company named Mums Incorporated. Mr Tan was a retired Canadian businessman living in Toronto who was the sole shareholder of Mums. He wished to apply for residence in the Cayman Islands and transferred his savings of $160,574 to CCTC with instructions that the money was to be placed on deposit in the name of the company for his use when he became resident. Mr Tan’s application for residence was successful and he arrived in the Cayman Islands in 1988. He then sought payment of the balance of the money he had deposited, some of the moneys having been properly disbursed, and (according to the prosecution) the appellant gave a series of unsatisfactory reasons for not paying the money demanded. At one point a cheque for $57,000 was given to Mr Tan, but it was returned unpaid.

[6] The fifth count of the indictment charged the appellant that-

‘between 24 November 1987 and 30 June 1988 [he] dishonestly obtained from Ronald W Jeffrey valuable securities to the value of $500,000 US currency with the intention of permanently depriving the said Ronald W Jeffrey thereof by deception, namely by falsely representing that a Sally Spence, on whose account for investment the said Ronald W Jeffrey intended to part with the said securities, was shareholder of a Cayman Islands company named “Sunrise Starts Tomorrow Management Limited”, the company by which the said investment was to be conducted, Barry Victor Randall, well knowing that the said Miss Sally Spence was not a shareholder of that company even while purporting to the said Ronald W Jeffrey to accept payment of the said securities on the premise that she was in fact a shareholder.’

The prosecution case was that the appellant had obtained S500,000 from Mr Jeffrey, an American businessman, on the basis of false representations. The appellant had met Mr Jeffrey through Sally Spence and Mr Jeffrey deposited the sum in question with CCTC in early 1988 when the appellant had offered Mr Jeffrey a 10% return on the funds and had said that the deposit of the funds would enable him (the appellant) to obtain a loan using the funds as security. The appellant, it was alleged, repaid Mr Jeffrey the sum deposited plus interest, using the loan he had obtained from Credit Suisse. But Mr Jeffrey also invested S500,000 in a business venture (namely a nightclub) involving the Sunrise

company, having given instructions to the appellant to form Sunrise as a bearer share corporation controlled by Sally Spence. In 1991 Mr Jeffrey was seen by the police and for the first time discovered that his instructions had not been carried out and that Sally Spence was neither a director nor a shareholder of Sunrise.

[7] The appellant was arraigned on 9 June 1997 and pleaded not guilty. Mr Small, for the prosecution, opened the case and called ten witnesses whose evidence ended on 2 July. The appellant (who was represented by two counsel) gave evidence in chief from 3 July until 15 July and was cross-examined from 15 July to 23 July. He called a single character witness. The trial judge summed up the case to the jury over five days, at the end of which the jury very quickly convicted.

[8] It is unnecessary to explore in detail the defence advanced at the trial by the appellant. The trial judge summarised the effect of it in his direction to the jury:

‘The case for the defence in a nutshell is that the defendant did nothing that was dishonest. That he acted properly throughout, that he acted within the powers of the trust deed and the trust law and was perfectly entitled to do what he did, and that that was his belief and it was an honest belief.’

Fairness

[9] A contested criminal trial on indictment is adversarial in character. The prosecution seeks to satisfy the jury of the guilt of the accused beyond reasonable doubt. The defence seeks to resist and rebut such proof. The objects of the parties are fundamentally opposed. There may well be disputes concerning the relevance and admissibility of evidence. There will almost always be a conflict of evidence. Some witnesses may be impugned as unreliable, others perhaps as dishonest. Witnesses on both sides may be accused of exaggerating or even fabricating their evidence. Defendants may choose to act in an obstructive and evasive manner. Opposing counsel may find each other easy to work with or they may not. It is not unusual for tempers to become frayed and relations strained. In a fraud trial the pressure on all involved may be even more acute than in other trials. Fraud trials tend to involve a great deal of documentation, which is particularly cumbersome to handle in a jury trial. They tend to involve much unfamiliar detail, often of a technical nature, which it is difficult for many people to understand, assimilate, retain and recall. And fraud trials tend to be very long, which in itself tends to increase the strain on all involved, whether the defendant, witnesses, jurors, counsel or the judge. The appellant’s trial was said to be the longest criminal trial ever held in the Cayman Islands.

[10] There is, however, throughout any trial and not least a long fraud trial, one overriding requirement: to ensure that the defendant accused of crime is fairly tried. The adversarial format of the criminal trial is indeed directed to ensuring a fair opportunity for the prosecution to establish guilt and a fair opportunity for the defendant to advance his defence. To safeguard the fairness of the trial a number of rules have been developed to ensure that the proceedings, however closely contested and however highly charged, are

conducted in a manner which is orderly and fair. These rules are well-understood and are not in any way controversial. But it is pertinent to state some of them:

(1) The duty of prosecuting counsel is not to obtain a conviction at all costs but to act as a minister of justice: R v Puddick (1865) 4 F & F 497 at 499 and R v Banks [1916] 2 KB 621 at 623. The prosecutor’s role was very clearly described by Rand J in the Supreme Court of Canada in Boucher v R (1954) 110 Can CC 263, 270:

‘It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.’

(2) The jury’s attention must not be distracted from its central task of deciding whether, on all the evidence adduced before it, and on all the submissions made, and on the judge’s legal direction and summing up of the evidence, the guilt of the defendant is or is not established to the required standard. From this imperative several subsidiary but important rules derive.

(i) Evidence should ordinarily be given without interruption by counsel. If either counsel has cause to object to any evidence adduced or about to be adduced such objection should be made promptly and shortly and the judge should rule. If such an objection prompts any extended argument or seems likely to do so, and particularly if the argument bears on the substantial merits of the case, it should take place in the absence of the jury.

(ii) The procedure of the criminal courts provides opportunities for prosecuting and defence counsel to address the jury, usually before and after the calling of evidence. Counsel are not (save where the rules allow defence counsel to open the defence) permitted to address the jury at any other time, nor is it permissible under the guise of an interjection for counsel to make observations intended to influence the mind of the jury.

(iii) While the duty of counsel may require a strong and direct challenge to the evidence of a witness, and strong criticism may properly be made of a witness or a defendant so long as that criticism is based on evidence or the absence of evidence before the court, there can never be any justification for bullying, intimidation, personal vilification or insult or for the exchange of insults between counsel. Any disparaging comment on a witness or a defendant should be reserved for a closing speech.

(iv) Reference should never be made to matters which may be prejudicial to a defendant but which are not before the jury.

(v) Unless the judge seeks the assistance of counsel on a point of factual detail, or makes a factual misstatement which can be quickly and uncontroversially corrected, his summing up should proceed without any

interruption by counsel. If, as not infrequently happens, prosecuting or defence counsel wish to bring some suggested misdirection or omission or inaccuracy to the attention of the judge, this should be done, preferably at the close of the summing up or at some convenient interlude in the proceedings, and in the absence of the jury unless the point is one which can safely be discussed in their presence without risk of prejudice. It can never be proper for counsel to make any interjection prejudicial to the defendant when the judge is in the course of summing up to the jury.

(3) It is the responsibility of the judge to ensure that the proceedings are conducted in an orderly and proper manner which is fair to both prosecution and defence. He must neither be nor appear to be partisan. If counsel begin to misbehave he must at once exert his authority to require the observance of accepted standards of conduct. He should not disparage the defendant in the course of the evidence. Nor should he disparage defence counsel, since jurors inevitably tend to identify clients with their counsel. Sometimes a trial judge may have briefly to check or rebuke counsel. If, however, he has occasion, in any serious or sustained manner, to criticise the conduct of the defence case or to criticise or rebuke defending counsel, it will usually be prudent for the judge to do so in the absence of the jury and he should ensure that his disapproval of or irritation with counsel does not affect the jury’s judgment. If he chooses to express personal opinions in the course of the summing up, he should do so in a restrained, moderate and balanced way.

[11] It cannot be too strongly emphasised that these are not the rules of a game. They are rules designed to safeguard the fairness of proceedings brought to determine whether a defendant is guilty of committing a crime or crimes conviction of which may expose him to serious penal consequences. In a criminal trial as in other activities the observance of certain basic rules has been shown to be the most effective safeguard against unfairness, error and abuse.

The appellant’s complaints of unfairness

[12] The appellant makes a number of complaints of unfairness. These complaints fall under several different heads. First it is complained that prosecuting counsel repeatedly interpolated prejudicial comments while examining prosecution witnesses, repeatedly interrupted the cross-examination of prosecution witnesses, often with prejudicial comment, repeatedly interrupted the examination in chief and re-examination of the appellant, interpolated prejudicial comment in the course of his cross-examination of the defendant and interrupted the judge in the course of his summing up. The appellant illustrates these complaints by reference to the transcript. It is difficult adequately to appreciate the force of these complaints without extensive quotation from the transcript of passages significant largely because of their length and frequency. But some references should be given. Mr Baker, an accountant, was a prosecution witness. During his examination in chief Mr Small interjected prejudicial comment at pp 306, 307, 308, 309, 310 and 311. There was similar comment during the re-examination of Mr Baker. Similar comment was made during the examination in chief of Mr Seitz at pp 428 (when reference was made to ‘this wild suggestion put by the defence’) and 429. The cross-examination of prosecution witnesses was similarly interrupted by Mr

Small. Examples were pointed out at pp 185, 188, 189 and 190 of the transcript of the cross-examination of Mr Hinrichs. When defence counsel, Mr Collins, sought to cross-examine Mr Tan, Mr Small made an objection which led to argument over several pages of the transcript and ended with the judge warning Mr Collins not to exhaust his patience (pp 1241-1247). When Mr Collins examined the defendant in chief he was repeatedly interrupted. Examples are found in the transcript at pp 1454, 1526, 1598, 1814, 1829-1833, 1846, 1876, 1890, 1891, 1894, 1903 and 1908. When cross-examining the appellant Mr Small broke off to make prejudicial comments. Examples are found at pp 2387, 2467 and 2477 of the transcript. When Mr Collins attempted to re-examine the appellant, Mr Small intervened so constantly as effectively to preclude any re-examination at all: see pp 2635-2686. During the judge’s summing up Mr Small repeatedly interrupted. Reference to the transcript shows repeated interjections, sometimes prompting a continuing dialogue: examples are found in the transcript of the summing up which is before the Board at pp 736, 741, 742, 745, 980, 987, 1228, 1270 and 1273. The last of these exchanges, during the summing up and in the presence of the jury, was to this effect:

‘MR SMALL: So that I’m submitting, my Lord, is relevant documentary evidence. All of them under Mr Randall’s hand, which ought to be correlated to the answers which he gave here, because what he’s saying here is he could have paid-

MR COLLINS: My Lord, this is an address, you know, my Lord, because if my learned friend had this now when Mr Randall was in the dock, he should have asked him about it then.

MR SMALL: Mr Randall gave this dishonest answer in re-examination.

MR COLLINS: Don’t say that, Mr Small.

MR SMALL: This answer was given in re-examination, and I’m submitting it is a dishonest answer in light …’

[13] A further complaint relates to running comments made by Mr Small on the motives and conduct of the appellant. At p 1044 of the trial transcript Mr Small made suggestive play with the name of a witness named Crook. At pp 1480, 1481 and 1482 he accused the appellant and Mr Collins (during the examination in chief of the appellant) of attempting to ‘smear’ prosecution witnesses. When, at p 1515, Mr Collins asked the appellant in chief what the ASRP fund comprised, Mr Small inquired whether he was referring to the time when the appellant took out $500,000 or to $200,000. On a further question put to the appellant in examination-in-chief (at p 1810) Mr Small commented on the answer ‘He has learned the skill of circumlocution’. At p 1829 Mr Small referred to the appellant’s ‘resistance’ to the questions his counsel was asking and at p 1830 criticised the appellant for not answering the questions he was asked by his counsel. At p 1903 Mr Small referred, during the examination in chief of the appellant, to ‘the manoeuvres that are available to somebody with trust experience to disguise where funds go’. At p 2006 during cross-examination of the appellant Mr Small interjected:

‘I don’t want any long speech, I have asked a specific question and he is being evasive, he has been wasting time, he has been facilitating in it and I ask, My Lord, that you insist that the witness answer what is a simple, straightforward question. There is no need for any speech. That is why his evidence-in-chief has taken eight days. It is a simple question, My Lord. Simple direct question which goes to the heart of the matter …’

At p 2029 he described an answer of the appellant as ‘smoke’. The charge of circumlocution was repeated at pp 2072 and 2073. At p 2140 there is found this exchange:

‘MR COLLINS: It is not necessary to shout.

MR SMALL: It is necessary because the witness has been behaving in this way all along and has been encouraged in it by your observations.’

At p 2259 there was an exchange between counsel to this effect:

‘MR COLLINS: My Lord, my learned friend is shouting me down, he shouting down the witness-

MR SMALL: Yes, because you ask questions which are ridiculous, Mr Collins.’

At pp 2615 and 2616 Mr Small accused the appellant of ‘fakery’ and ‘faking ignorance’. At p 2630 he suggested that an answer given by the appellant was ‘another cowardly lie’. During re-examination of the appellant Mr Small objected to a question put by Mr Collins on the grounds that the answer given by the appellant in cross-examination had been ‘absolutely clear; albeit it wasn’t believable’ (p 2658). On none of these occasions did the judge seek to restrain or reprove counsel. He more often echoed Mr Small’s complaints. One example may be found at pp 2003-2004 of the transcript:

‘THE COURT: Yes, what’s your answer, Mr Randall? He doesn’t want nice-sounding words, he wants a direct answer to the question.’

Another example is found at pp 2552-2553:

‘MR SMALL: My Lord, my Lord, you know I went through all of this before with Mr Randall. I thought my friend was going to complain that I was going back over ground. I am just rolling it up together so my friend gets the whole picture.

THE COURT: Very well. He doesn’t like the picture that way.

MR SMALL: He doesn’t like the whole picture.’

[14] A further complaint is based on imputations made by Mr Small against the conduct and motives of defending counsel. References to the making of wild suggestions and the smearing of witnesses have already been noted. Mr Collins was again accused of seeking to smear witnesses (p 1493), of making a cowardly attack (p 1494) and of wasting time (pp 1513, 1804, 2677). His behaviour was described as ‘disgracing’ the legal profession (pp 1541-1542), as ‘dishonouring the law’ (p 1542) and as ‘disgraceful’ (p 1543). His personal integrity was further impugned as in this exchange (at p 1545):

‘MR COLLINS: And I accept what Your Lordship has said, but I say that I am of the view that I only need to go as far as I went.

THE COURT: No. No. No. No.

MR SMALL: No, nobody could honestly believe that. Not for a moment could you believe that.’

He was accused of seeking to insinuate material into the record which had not been established in evidence (pp 1818, 1821). Mr Small was ‘astonished by what Mr Collins was just trying to say’ (p 1821). On occasion Mr Small’s treatment of his opponent was one of contempt, as in this exchange (p 1888):

‘MR COLLINS: I don’t see that as something in dispute. It was put to-

MR SMALL: He doesn’t see it as something in dispute? He doesn’t see it as something in dispute? Is that what I heard Mr Collins say?

MR COLLINS: Hold on. Hold on. It is in dispute.

MR SMALL: I wonder where Mr Collins has been for the last five weeks.’

In one of his questions Mr Collins was said to be ‘creating a smoke-screen around the real issues here with such a question’ (p 1899). At p 1906, during the examination-in-chief of the appellant, Mr Small observed:

‘This is-this is-you know what this is, my Lord, this sounds like the Tyson defence. You nibble on one ear and you go and nibble on the next.’

At p 2187 the appellant was accused (during his cross-examination) of wasting time and his counsel of encouraging him. Again the transcript shows that far from restraining resort to personal abuse the judge repeatedly took a similar line himself. At p 1819, in the presence of the jury, he told Mr Collins ‘Don’t try that sort of trick’. At p 1821 he described himself as ‘absolutely disgusted’ by Mr Collins’ behaviour. At p 1844 he accused Mr Collins of refusing to put a direct question to the appellant, adding ‘and that has been your tactics throughout the whole of this case’. He complained that Mr Collins had made a false allegation against the court, which was ‘unpardonable’ (p 1845). He accused Mr Collins (at p 1851) of ‘dancing and dodging around’ and described his behaviour as ‘atrocious’ (p 1852). At p 1853 the judge again suggested to Mr Collins that he ‘just kept dodging around’. At pp 1905-1906 the judge is recorded as saying:

‘Well, you see, what is happening, Mr Small, is we are back to where we were on the 27th of June when Mr Collins said that I prevented him from doing certain things which I had not prevented him from doing, but it was the same sort of thing that he just goes around and goes around and goes around and goes around trying to nibble, nibble, nibble, nibble instead of going straight to the issue. And when he has detected that he is not going in the right direction, then he just makes a slight tilt and comes back almost with the same thing.’

At p 2700 the judge observed ‘still bob and weaving, Mr Collins’.

[15] Some of the examples already given illustrate the insulting and overbearing conduct of Mr Small to which objection is taken. But there are other examples. When, at p 1822, Mr Collins said that his conscience was clear,

Mr Small retorted ‘I am not talking about your conscience, I am talking about your state of ecstasy’. When cross-examining the appellant about a document which the appellant said was a journal voucher, Mr Small said (at p 2049):

‘I didn’t ask you if it was a journal voucher, Mr Randall. Answer my question. It’s also a piece of paper, it is also an oblong shape, it also has writing on it. I didn’t ask you that. Answer my question …’

In the course of Mr Small’s cross-examination of the appellant there occurred this exchange (at pp 2189-2190):

‘MR SMALL: I am suggesting to you that your dishonesty is only matched by your brazenness?

THE COURT: Answer?

THE APPELLANT: I would suggest that you are very wrong.

MR SMALL: Which is it? You are more dishonest than you are brazen or you are more brazen than you are dishonest?’

The judge did not in any way deprecate or seek to restrain such questions but instead reminded the jury of this exchange when summing up. At p 2453 Mr Small referred to the ‘slipperiness’ of the appellant. At p 2620 he said to the appellant:

‘You see, that is an example of your smartness. You think you are smart. Are you now challenging Mr Tan’s evidence that such a conversation between you and he took place? Are you challenging it?’

At p 2670 Mr Small took it upon himself to reprove Mr Collins:

‘Is that what you’re saying about His Lordship’s ruling? Don’t be rude to the court. The court has upheld my objection. You’re being rude to the court. Don’t be rude to the court. Let’s proceed so we don’t waste any more time.’

[16] The appellant complains that on occasion Mr Small made scarcely veiled references, in the presence of the jury, to the existence of material prejudicial to the appellant which was not before the court. At pp 602-603, during the cross-examination of Mr Jeffrey by Mr Collins, there occurred this exchange:

‘MR SMALL: … The issue on this count is whether or not Mr Randall made a misrepresentation to Mr Jeffrey to get him to hand over $500,000. How it was spent and how it wasn’t spent is not relevant, with the greatest of respect, My Lord, and we’re going to go into endless unconnected matters and then my friend is going to want to cut off the witness in mid-statement about what he calls prejudicial matters, matters which I deliberately didn’t lead. We have bags of information about Mr Randall which we could have led evidence on which wouldn’t have put him in a good light but because it doesn’t relate to the charge which is before the court, namely how he obtained the $500,000 and how he acted in relation to the representations that he had made to Mr Jeffrey and what changes he made there, those are the relevant issues at the time he received the money. If my friend begins to open up areas about how he handled the money after having received it,

then I can only say, My Lord, that the re-examination may carry us into areas which my friend may feel uncomfortable about. He has got one or two answers that he’s tried to cut off from the witness and it’s because he’s going outside of the issues which, strictly speaking are before this court.

MR COLLINS: Let me respond, My Lord.

THE COURT: Mr Collins, you have to bear in mind if you go and open certain areas in cross-examination that you will have opened yourself to certain issues.’

During the examination-in-chief of the appellant, during one of his many interjections, and again in the presence of the jury, Mr Small made a similar reference (at p 1904):

‘MR SMALL: And this, My Lord, if I may say so is bordering on what is known as “smart man defence”.

THE COURT: Yes.

MR SMALL: It seems to me to be the other side of the defence ambush that my friend told us that he was entitled to conduct and if a man is smart enough to hide the proceeds of the-of such deeds, then the Crown hasn’t proved its case. There is no requirement to prove that nor to prove either that he was a poor man or a rich man.

THE COURT: Yes. This is not a relevant issue. This is not a relevant issue.

MR SMALL: And be careful if you continue on that line, I will open up something. I am warning you.’

[17] Much of the judge’s very lengthy summing up was taken up in reading, in extenso, the questions and answers which he had somewhat laboriously recorded in his notebook during the trial. The judge did, however, describe an answer of the appellant as ’roundabout’ (p 713) and continued (at p 714):

‘… but you don’t get a straight answer, you get a roundabout way to sort of give you the impression that this had nothing to do with Jeffrey so to speak. It seems to me quite clear that the purpose of obtaining this money was to repay Jeffrey his $500,000, but it’s a matter for you.’

He described the absence of loan documentation for one transaction as ‘amazing’ (p 715). At p 1107 he observed:

‘So, what is really happening here now is we’re getting the contents. Somehow we’re getting the contents sneaking in, although that was not the purpose for which the document was tendered. You’re told one moment that the contents of the document is not tendered for proof of its contents, but then some effort is now being made to deal with the content.’

He described the appellant’s offer of a 20% return as ‘a sort of coated poison pill so to speak’ (p 1109), himself preferring a lower but more assured rate of return. He regarded the approach to investment described by the appellant as unrealistic (pp 1110-1111). He observed (at p 1268):

‘It may occur to you, Madam Foreman and Members of the Jury, you may form the view that Mr Randall seemed to remember when he wants to remember all the details about the documents, but when he doesn’t want to remember, he doesn’t recollect and he doesn’t recall, but it’s a matter for you.’

He failed to direct the jury on the appellant’s good character. Instead he reminded the jury of the evidence given by the appellant’s character witness, including some questionable cross-examination of that witness by Mr Small, and concluded by observing (at p 1280):

‘So this is a man of great loyalty and nothing is going to shake him from his views with regard to Mr Randall.’

After the summing up was concluded there was discussion, in the presence of the jury, about the likely course of the jury’s deliberation after this long trial, and Mr Small queried in the presence of the jury why Mr Collins thought they might need as long as a day to deliberate.

The appellant’s appeal to the Court of Appeal

[18] The first ground of appeal relied on by the appellant in his notice of appeal was that:

‘The learned trial judge erred throughout the trial in allowing counsel for the prosecution to make comments and/or speeches in the presence of the jury prejudicial to the appellant on the pretext of summarising evidence and/or addressing the court in relation to issues raised by way of objection or otherwise.’

A large number of transcript references were listed in the notice as supporting this ground. The Court of Appeal, in the reasons for judgment given by Kerr JA, summarised very fully, clearly and expertly the underlying facts of the case. But with reference to this ground the court said that of 79 instances listed in the notice of appeal the attention of the court had been drawn to only seven and only three had been ‘earnestly pursued’.

[19] One of these instances related to the exchange, mentioned above, when Mr Collins asked the appellant about the size of the ASRP fund and Mr Small asked whether Mr Collins was referring to the time when the appellant had taken $500,000 out of the fund or the time when he had taken out $200,000. The court considered Mr Collins’ question unobjectionable, and Mr Small’s intervention unnecessary and made in infelicitous language. But it held that the judge had implicitly ruled against the intervention and that the remarks would not have been likely to have any effect on the jury adverse to the appellant.

[20] The second incident referred to an objection to the tendering of a document by defence counsel with no previous agreement on the admissibility of the document. Of this the court said:

‘Now this type of objection demands from a trial judge prompt and concise ruling in such conclusive language as to deter debate but the ambulatory approach of the learned trial judge often opened the door to

prolonged and semantic debate. It is also illustrative of defence counsel seeing in such instances a challenge to be taken up and to give as good as he got. In so doing, he had eroded any merit that might have existed in this type of complaint. In the instant case, the intervention was reasonable and no undue prejudice would be occasioned thereby.’

[21] The third complaint related to the passage, mentioned above, where Mr Small said it was necessary to shout because the witness had been behaving in this way all along and had been encouraged in doing so by Mr Collins’ observations. The court observed that the evasiveness of the appellant was recognised by counsel on both sides and that Mr Collins’ consistent complaints of being unfairly treated were ‘unfounded and purposeful’.

[22] With particular reference to criticisms of the trial judge the court recorded that reference was made to eight passages but that three only had been pursued. Of the first illustration the court merely observed that it was favourable to the appellant. The second illustration was based on a long and unprompted intervention by Mr Small in the judge’s summing up, including his reference to the appellant giving a dishonest answer, which had culminated in the judge saying to Mr Small:

‘All right, very well. Well you’ve made a point and I’m sure the jury have heard what you said and I leave it for their consideration.’

The Court of Appeal observed:

‘The second (at pp 593-597) was a request that the evidence relating to certain documents should be comprehensively reviewed. The judge entertained a debate by counsel on both sides. References by Crown counsel to the evidence, having regard to the nature of his defence, was of no significant importance. In the end the learned trial judge ended the debate in favour of the defence.’

[23] The Court of Appeal also referred to a third passage in the evidence, not expressly referred to above, where complaint was made of the judge’s comments. The court said:

‘The comments were due to defence counsel persisting with questions introducing new evidence inconsistent with evidence in chief. The indulgence of the trial judge resulted in prolonged debate on a collateral matter that was of dubious relevance to the important issues relating to the three allegedly unauthorised and surreptitious loans and whether or not there was a fraudulent conversion of the moneys obtained thereby. It has not been shown that Crown counsel had erred in his corrective measures or acted to the prejudice of the defence in so doing.’

[24] The court considered criticisms made of the judge’s summing up and made reference to R v Hulusi (1973) 58 Cr App R 378, but concluded that the conduct of the trial judge in this case did not fall within the offending categories described in that authority.

Unfairness: the prosecution response

[25] On behalf of the prosecution Mr Perry submitted that overall the trial of the appellant was fair and his conviction safe. The case against him was very strong. His defence had been conducted in a deliberately obstructive way, which obliged the prosecution to call witnesses to prove matters which turned out to be uncontroversial and which greatly hampered the preparation of documents for the jury. The appellant had been very slow to reveal what his defence was, his explanations had altered as the case progressed and he had never given any convincing explanation of the damning facts proved against him.

[26] Mr Perry accepted that some of the matters relied on by the appellant did not reflect well on Mr Small, that the conduct of both counsel departed from what was to be expected, that he could not defend badgering, bullying or brow-beating by prosecution counsel and that the judge should have exerted himself more than he did to control counsel and the conduct of the case. But he pointed out that the Board had seen no more than a small part of the transcript and that the complaints made should be viewed in the context of a very lengthy trial. The appellant had proved to be an evasive witness from whom it had been unusually difficult to obtain any clear and precise answers. While Mr Small had been very ready to object and intervene, so also had Mr Collins. Many of the observations made by Mr Small had been prompted by Mr Collins’ objections. Many others were directed to Mr Collins’ failure to put matters to prosecution witnesses which should have been put. The appellant had had the advantage of representation by two counsel, neither of whom had at any stage asked for the jury to be discharged or for any argument to be heard in the absence of the jury. Counsel on each side had been fairly matched and each had (as the Court of Appeal put it) given as good as he got. Although points were wrongly made by way of interjection and interpolation, these were matters which could properly have been raised in a closing speech. Overall, the appellant had a fair opportunity to give his evidence and present his account to the jury and the departures from good practice which had occurred were not shown to be of such a nature that the Board should intervene following dismissal of the appellant’s appeal by the Court of Appeal.

Fairness: the Board’s conclusion

[27] The Board sees great force in many of the points made by Mr Perry for the prosecution. The case against the appellant does indeed appear to have been a very strong one, and the explanations proffered by him might well have been properly rejected by a jury. On the material before the Board, there would appear to be grounds for criticising the conduct of the defence and the evidence of the appellant. It would be quite wrong to infer that all the faults in the conduct of this trial lay with the prosecution, which had to overcome a series of unnecessary obstacles. The Board is fully mindful that it has seen a relatively small part of the trial transcript.

[28] While reference has been made above to some of the rules which should be observed in a well-conducted trial to safeguard the fairness of the proceedings, it is not every departure from good practice which renders a trial unfair. Inevitably, in the course of a long trial, things are done or said which

should not be done or said. Most occurrences of that kind do not undermine the integrity of the trial, particularly if they are isolated and particularly if, where appropriate, they are the subject of a clear judicial direction. It would emasculate the trial process, and undermine public confidence in the administration of criminal justice, if a standard of perfection were imposed that was incapable of attainment in practice. But the right of a criminal defendant to a fair trial is absolute. There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty. The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial.

[29] The crucial issue in the present appeal is whether there were such departures from good practice in the course of the appellant’s trial as to deny him the substance of a fair trial. The Board reluctantly concludes that there were. Prosecuting counsel conducted himself as no minister of justice should conduct himself. The trial judge failed to exert the authority vested in him to control the proceedings and enforce proper standards of behaviour. Regrettably, he allowed himself to be overborne and allowed his antipathy to both the appellant and his counsel to be only too manifest. While none of the appellant’s complaints taken on its own would support a successful appeal, taken together they leave the Board with no choice but to quash the appellant’s convictions. It cannot be sure that the matters of which complaint is made, taken together, did not inhibit the presentation of the defence case and distract the attention of the jury from the crucial issues they had to decide.

[30] The Board regrets that it finds itself in disagreement with the view taken by the Court of Appeal on the principal issue in this appeal. It is apparent from the judgment of the court that it did not give full consideration to a large number of the appellant’s complaints, including a number of the more serious. Thus, as already observed, the Court of Appeal stated with reference to the complaints relating to the conduct of prosecution counsel that of 79 instances listed in the notice of appeal the attention of the court had been drawn to only seven and only three had been ‘earnestly pursued’, and with reference to the criticisms of the trial judge the court stated that reference had been made to eight passages but only three had been pursued. In presenting an appeal based on criticisms of many separate passages in a very lengthy transcript counsel is faced with considerable difficulties in presentation and the court is also faced with difficulties in considering the full ambit of the criticism and the large body of material which supports it. There may have been a degree of misunderstanding between counsel and the court as to the number of instances upon which the appellant was relying but the Board understands that no complaint made by the appellant was abandoned. Therefore, for whatever reason, it is clear that the Court of Appeal did not adequately examine the matters relied on by the appellant. After its fuller and more detailed consideration the Board is satisfied that the decision of the Court of Appeal on this issue cannot stand.

The appellant’s additional grounds

[31] In view of the conclusion already expressed, the appellant’s other grounds of appeal may be shortly reviewed. The first was that the trial judge had failed to give the jury an accurate direction on the central issue of dishonesty. There is force in the criticism that the judge’s direction was confused and over-elaborate. But the issue for the jury’s decision was a short one and it seems very unlikely, taking the summing up as a whole, that the jury could have mistaken the test which was to be applied.

[32] Complaint was made that the judge should have given a good character direction to the jury. Authority makes clear that he should: R v Aziz [1995] 3 LRC 254 and Barrow v State [1998] 4 LRC 517. While the lack of such a direction is material and may provide grounds for quashing a conviction, it need not do so, even where the issue of character is squarely raised by the defence, if the appellate court is satisfied that even with the benefit of a proper direction the jury would inevitably have convicted: see Anderson v R [1971] 3 All ER 768, Berry v R [1992] LRC (Crim) 82 and R v MacDonald (25 March 1999, unreported), CACD. Without a much more detailed inquiry into the facts than has been possible on the hearing of this appeal, the Board cannot form an opinion whether that high standard could have been met on the facts of this case.

[33] The appellant’s complaint against sentence is that a compensation order should not have been made without an inquiry into the means available to him to pay such an order. In making this complaint the appellant is able to rely on a well established principle of sentencing. Where a consecutive sentence is imposed on default of payment, it is intrinsically unfair to make an order which may result in the imprisonment of the offender when he lacks the means to avoid that consequence. Had it been material, the Board would have upheld this complaint.

The order

[34] The Board will humbly advise Her Majesty that the appeal should be allowed and the appellant’s convictions quashed. The Board will make no order as to payment of costs, but would invite the Government of the Cayman Islands to consider increasing the contribution already made towards the appellant’s costs of this appeal. Since the appellant has already served his sentence a retrial would not be appropriate.