Judgment on Prosecution Application to Adjourn. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/20. Coram: Chapple J. (Actg.). Date: 22.03.2021. IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL SIDE 2 3 IND. NOs: 0002 + 0004/2020 4 5 6 7 THE QUEEN 8 9 V 10 11 CHARMAINE ELIZABETH MOSS 12 CANOVER NORBERT WATSON 13 14 15 16 Appearances: Mr. Andrew Radcliffe Q.C. with Ms. Toyin 17 Salako for the Crown 18 19 Mr. Charles Miskin Q.C. instructed by Mr. 20 Nicholas Dixey of Nelsons for Ms. Moss 21 22 Mr. Stephen Kamlish Q.C. instructed by 23 Ms. Amelia Fosuhene of Brady Attorneys 24 for Mr. Watson 25 26 Before: Justice Roger Chapple (Actg.) 27 Heard: 15th, 17th 18th & 19th March 2021 28 29 30 31 HEADNOTE 32 Criminal Law – Conspiracy to Defraud contrary to Common Law - Transferring 33 Criminal Property contrary to s.133(1) of the Proceeds of Crime Law - 34 Application to Adjourn 35 36 JUDGMENT 37 ON APPLICATION BY THE PROSECUTION TO ADJOURN 38 39 40 41 42 43 Judgment on Prosecution Application to Adjourn. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/20. Coram: Chapple J. (Actg.). Date: 22.03.2021.
Ms Charmaine Moss (“CM”) and Mr Canover Watson (“CW”) face an indictment 1 containing five counts. Counts 1 and 2 allege conspiracies to defraud. Counts 3, 4 2 and 5 allege money laundering offences. These offences are said to have taken place 3 within a 2-year time bracket, from September 2012 to November 2014. 4 5
The conspiracy alleged in count 1, in very short summary, involves the submission 6 of false invoices, by companies owned and operated by CM, to the Confederation of 7 North, Central American and Caribbean Football Association (“CONCACAF”). At 8 the material time, Jeffrey Webb (“JW”) was the President of CONCACAF. CM 9 was, and had for a long time been, in a relationship with JW. The conspiracy is said 10 to involve CM, JW and others. It is charged as an open conspiracy. CW does not 11 figure in count 1. A total of US$207,000 or thereabouts is said to have been 12 fraudulently obtained and thereafter dissipated. 13 14
Count 2 alleges another open conspiracy. Both defendants are indicted in count 2. 15 JW is a named co-conspirator. Again, the conspirators are alleged to have defrauded 16 CONCACAF, this time in respect of office premises leased in George Town. The 17 conspirators are alleged, by the device of what the prosecution describe as a dummy 18 lease, to have dishonestly obtained $100,000 a year from CONCACAF. The 19 conspirators had arranged to rent the office premises for $160,000 a year, but 20 provided a false lease to CONCACAF, who were under the impression that the rent 21 was $260,000 which they were duly paying, with the conspirators pocketing the 22 difference. There were also renovations to the offices, which, although carried out, 23 were, it is said, charged at over inflated prices. It is impossible to provide an accurate 24 figure for the sums said to be dishonestly obtained, but I take $500,000 as a very 25 rough figure. 26 27 Judgment on Prosecution Application to Adjourn. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/20. Coram: Chapple J. (Actg.). Date: 22.03.2021.
Although these offences are said to have taken place between 2012 and 2014, the 1 investigation of these alleged offences began, I think I’m right in saying, in 2016. In 2 the course of interviews, CW made no comment to all questions asked of him. CM 3 gave full comment interviews, setting out at length her position – in essence that she 4 was merely a nominee, unaware and uninvolved in whatever fraudulent activities 5 were taking place. Such benefits as she had obtained were for work and/or services 6 properly rendered. 7 8
The defendants were charged in December 2019 and this case began its journey 9 through the courts. A dismissal application on behalf of CW was indicated but 10 following discussions, amendments to the indictment were made – particularly the 11 removal of CW from the conspiracy alleged in count 1 – and the dismissal 12 application was not pursued further. CW was arraigned and pleaded not guilty to the 13 counts that concerned him on 4 May 2020. CM had earlier pleaded not guilty to the 14 counts that concerned her. The trial was fixed for 23 November 2020, with a time 15 estimate of 2-3 weeks. 16 17
Thereafter, this court has, as is emphasised and prayed in aid on all sides, 18 endeavoured, at all stages to ensure close management and control of the case, in 19 accordance with its duties, powers and responsibilities pursuant to the Criminal 20 Procedure Rules, 2019 – the object of course being to achieve the overriding 21 objective of dealing with the case justly, efficiently and expeditiously1. 22 23 24 25 26 1 (para 4 of CPR 2019) Judgment on Prosecution Application to Adjourn. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/20. Coram: Chapple J. (Actg.). Date: 22.03.2021.
At a hearing on 4 May 2020, orders were made in this case as well as in two other 1 cases in which CW (but not CM) was involved. The first was one for confiscation 2 proceedings following his conviction and sentence in what has been referred to as 3 the Care Pay case. The second was in respect of a single indictment, numbered 79, 4 80 and 89 of 20192. This indictment contains allegations of offences contrary to the 5 Anti-Corruption Act and money laundering offences, involving CW and Mr Bruce 6 Blake - again allegations of defrauding CONCACAF. That trial is scheduled to 7 commence on 7 April 2021. 8 9
At a Case Management Hearing (“CMH”) on 8 October 2020, Ms Fosuhene for CW 10 confirmed that so far as she was concerned, disclosure of unused material in this case 11 was complete; she had no outstanding requests. Mr Dixey for CM said that he had 12 no disclosure issues to raise. All parties confirmed that they were, or would be, ready 13 for trial on 23 November 2020. It follows that the prosecution at that stage was 14 satisfied that it had complied with its duties in respect of unused material. 15 16
On 2 November 2020, Mr Dixey applied for the fixture to be broken – essentially 17 because leading Counsel, then instructed, was not available, for a variety of reasons 18 – principally, I think, because leading Counsel was stranded or at least delayed in 19 Europe as a result of Covid-19 restrictions. The application to adjourn was 20 strenuously opposed both by counsel on behalf of Mr. Watson, and by Mr Simon 21 Russell-Flint QC, then instructed to conduct this prosecution with Ms Salako. I 22 granted the application, since the interests of justice required it. 23 24 25 26 2 In its original form. There has since been a voluntary bill. Judgment on Prosecution Application to Adjourn. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/20. Coram: Chapple J. (Actg.). Date: 22.03.2021.
On 18 November 2020, the case was re-fixed to commence on 1 March 2021. I had 1 earlier stressed that this case should be re-fixed as soon as possible in 2021, for a 2 number of reasons, not the least of which was Mr Dixey’s urging, given what he said 3 was the considerable stress and anxiety under which CM was labouring. Further, 4 this was predicted to be a considerably shorter case than Watson & Blake. Separate 5 jury panels were of course essential, in order to avoid any danger of contamination. 6 It was then anticipated that this trial would have been completed in ample time before 7 a new panel of jurors began a 3-month period of jury service on 7 April 2021. 8 9
All leading Counsel now appearing were instructed relatively late in the day. Mr 10 Radcliffe QC told me at a CMH on 9 February 2021 that he had only been instructed 11 a matter of weeks ago. Mr Miskin QC was, I understand, instructed at about the same 12 time. Mr Kamlish QC, indicated in an email to Mr Radcliffe and Ms Salako dated 1 13 March 2021 that he had only been instructed on 17 February 2021 - less than two 14 weeks before trial. 15 16
Inevitably, newly instructed Counsel will see aspects of a case differently, and there 17 will be differences of emphasis and approach. That has, it seems to me, had a number 18 of unfortunate consequences, particularly for the management of the case, although 19 they pale into relative insignificance when viewed against the events that were to 20 unfold. 21 22
Mr Radcliffe and Mr Miskin travelled from England to be here for the trial, with all 23 the attendant difficulties involved as a result of the pandemic, including of course a 24 period of 2 weeks’ quarantine on arrival on island. Mr Kamlish was unable to travel 25 and has appeared throughout by zoom. At the CMH on 9 February 2021, the Court 26 endeavoured to make sure that this case was indeed trial ready. For the avoidance of 27 any doubt, my lengthy note of all that was discussed was circulated to all parties and 28 Judgment on Prosecution Application to Adjourn. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/20. Coram: Chapple J. (Actg.). Date: 22.03.2021. is now annexed to this ruling as ‘Appendix A’. As can be seen, disclosure of unused 1 material was discussed and no problem signalled from any quarter. Ms Fosuhene 2 and Mr Dixey confirmed that they “did not foresee any significant matters of law 3 arising in this trial.” 4 5
It was then disappointing, to say the least of it, that no sooner had jury selection 6 begun (on the 1st March, continuing on the 3rd March) than Mr Kamlish said that he 7 had what he described as, a “global objection” to the admissibility of all exhibits 8 produced by one of the Crown’s principal witnesses and a number of exhibits 9 produced by another witness, that he had further requests for disclosure and some 20 10 unresolved objections to Mr Radcliffe’s draft opening. At the same time, Mr Miskin 11 indicated that he would be making an application to sever the money laundering 12 counts from the conspiracy counts. 13 14
Further, Mr Radcliffe explained that there was a problem with one of his principal 15 witnesses, Mr Kevin Brandt, a director of Admiral Financial Center Ltd, the owners 16 of the building in which office space was leased by CONCACAF. In the course of 17 his evidence, it was intended that he would produce the landlord’s part of the 18 documentation relating to the leasing of the office space. Mr David Cruz, of 19 CONCACAF would produce the tenant’s documentation. Mr Brandt is based in 20 Virginia, USA. He had indicated in each of his various witness statements (including 21 one obtained by the defence) that he was willing to give evidence via video-link. An 22 application to permit him to do so, pursuant to s.37 of the Evidence Act 2019, had 23 earlier been made and granted. He had however more recently indicated reluctance, 24 followed by a refusal to give evidence. The Crown then applied for his statement to 25 be read to the jury, pursuant to s.33(2)(b) of the Evidence Act – on the grounds that 26 he was outside the islands and it is not reasonably practicable to secure his attendance 27 Judgment on Prosecution Application to Adjourn. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/20. Coram: Chapple J. (Actg.). Date: 22.03.2021. – or alternatively, pursuant to s.33(6) on the ground that it was in the interests of 1 justice to admit his statement. That application was strenuously contested, 2 principally by Mr Kamlish. 3 4
The application was still being argued on Friday 12 March 2021 when, as the Court 5 resumed, Mr Radcliffe told the court, with obvious embarrassment, that he had only 6 recently been made aware of the existence of a substantial amount of potentially 7 disclosable material, contained on a hard drive referred to as “HD1” which it 8 transpired, was in the possession of the Anti-Corruption Commission. 9 10
This prosecution, I should say, is being handled by the Financial Crime Unit of 11 RCIPS. It was understood that HD1 contained downloads from a number of 12 electronic devices - a laptop, a Tablet, some cell phones and so on – belonging to or 13 attributable to CW, seized during a search of his home when he was arrested in 2014 14 in connection with the Care Pay case. The contents of HD1 needed to be examined 15 further. It was envisaged that this would take at least the weekend, with several 16 deployed to assist. The circumstances in which HD1 came to light would of course 17 need to be explained to the defence. The case was accordingly adjourned. 18 19
When the case resumed on Monday 15 March, Mr Radcliffe reported that 20 examination of the material on HD1 had thus far taken nine man days. He added 21 that there was “a mass of material” stored on the hard drive, consisting of downloads 22 from two IPhones, a Samsung cell phone, a Seagate hard drive, an IPad, a Microsoft 23 Surfer Tablet, a laptop computer and a Samsung Chromebook. Mr Kamlish’s 24 subsequent description that they constituted CW’s “life on devices” seems apt. I 25 should note that, for various reasons, three of the devices were inaccessible. Searches 26 Judgment on Prosecution Application to Adjourn. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/20. Coram: Chapple J. (Actg.). Date: 22.03.2021. for various keywords returned hits revealing data that may be relevant in this case. 1 As Mr Radcliffe put it: 2 3 “There is new material that the prosecution would want to rely on and there is 4 material on the Surfer Tablet that may support CM’s version of events: i.e. that 5 she was merely a nominee. The enquiries made this morning are that there is 6 more material at the Anti-Corruption Commission.” 7 8
Mr Radcliffe concluded that it was not realistic or feasible to seek to continue this 9 trial with the present jury and applied for the case to be adjourned. 10 11
Mr. Radcliffe did not at that stage indicate for how long the case should be adjourned 12 but clearly envisaged a matter of weeks if not months. Examination of material was 13 by no means complete. Mr Radcliffe had earlier posed the question: “is there 14 anything else – i.e. relevant material – out there?” and answered it, saying, “we don’t 15 know.” It was agreed on all sides that the jurors selected, but not put in charge, should 16 be discharged. 17 18
The case was further adjourned for all parties to take stock, for Mr Radcliffe to 19 provide such explanation as he could for what was, on any view, a substantial failure 20 of disclosure and for the defence to provide such written submissions and material 21 as they felt might assist me in the forthcoming contested application to adjourn. Mr 22 Radcliffe made clear that if the application to adjourn were refused, the case could 23 not continue and no evidence would be offered. 24 25
I indicated that in the course of my initial consideration of at least some of the 26 relevant authorities in this area, I had found the approach and judgment of Lord 27 Thomas, LCJ in R v Salt and Salt3 helpful, and suggested it would provide a useful 28 3 [2015] EWCA Crim 662 Judgment on Prosecution Application to Adjourn. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/20. Coram: Chapple J. (Actg.). Date: 22.03.2021. framework for submissions, listing as it did at least some of the matters I should 1 consider in arriving at my decision. I stressed then, as I do now, that the case of Salt 2 (relating to an application to stay proceedings) was very different – both in its facts 3 and in the situation in which the trial judge made his decision – from the case before 4 me. 5 6
I am grateful to all counsel for their submissions, both written and oral, which have, 7 of course, assisted me in arriving at my conclusions. 8 9
In his “Further submissions on behalf of the Crown – application to adjourn trial” 10 dated 17 March, Mr Radcliffe candidly accepts: 11 12 “Opportunities presented themselves at each stage of the investigation and 13 prosecution to address the issues that have led to the failure of disclosure. It is 14 plain that there was an absence of coordination at each level and a series of 15 missed opportunities.” 16 17
I had of course asked, at the conclusion of his oral application to adjourn on 15 18 March, how the court could have confidence in the disclosure process in the future 19 given recent events. In his written submissions of 17 March, Mr Radcliffe set out a 20 number of procedures and safeguards which would be put in place to ensure the more 21 efficient handling of material in the future. 22 23
The emergence of HD1 was not the first cause for concern about the disclosure 24 process in this case. At a CMH held on 22 February 2021, Mr Miskin complained 25 bitterly – with every justification – that he had only recently been served with 1460 26 emails on a flash drive that at first could not be opened. Eventually, the defence was 27 able to access this material but not in a format that lent itself to easy consideration 28 of the material. In an effort to ease the task of the defence team, the prosecution 29 provided hardcopies of 56 of the 1460 emails, assuring the defence that only those 30 Judgment on Prosecution Application to Adjourn. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/20. Coram: Chapple J. (Actg.). Date: 22.03.2021. 56 emails were relevant. Mr Radcliffe was later to concede that by relevant, he meant 1 disclosable. Asked then to explain why 1460 rather than 56 emails had been 2 disclosed in the first place, adding considerably to the burden on the defence, Mr 3 Radcliffe was at something of a loss, but I of course appreciate that there was a great 4 deal for him to consider and he had only recently been instructed. 5 6
These emails had been provided by Maitland, the successor to Admiral Financial, on 7 17 May 2018, following a production order obtained by the prosecution. According 8 to a statement from DC Murray dated 21 January 2021, an initial word search was 9 conducted but produced no hits. He reviewed the material on 14 October 2020. His 10 statement does not explain what prompted him to do that. There is no explanation as 11 to why the material was not disclosed to the defence until 18 February 2021. 12 13
I return to the application before me. As I say, I have been assisted by all the written 14 material provided by all Counsel and particularly by a detailed disclosure chronology 15 and bundle of supporting documents prepared by Mr Miskin. The dates and events 16 set out in that chronology are not disputed by Mr Radcliffe although he does not of 17 course accept the comments therein contained. 18 19 20 THE LAW 21
I have been referred to a number of authorities in addition to Salt. Of particular 22 relevance and assistance are the cases of R v Boardman4 and R v R and others5, in 23 which both Mr Miskin and Mr Radcliffe appeared. Nevertheless, Salt has been of 24 the most practical help in focussing these submissions. 25 4 [2015] EWCA Crim 175 5 [2016] 1 WLR 1872 Judgment on Prosecution Application to Adjourn. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/20. Coram: Chapple J. (Actg.). Date: 22.03.2021.
As has been emphasised by all counsel and I repeat, the allegations the jury had to 1 try and the facts and circumstances which presented themselves to the trial judge and 2 the Court of Appeal were very different. The defendants in Salt faced allegations of 3 rape, assault by penetration and false imprisonment. The trial by jury had been 4 underway for eight days before the judge ordered a stay as a result of the way in 5 which disclosure had been handled. The case came before the Court of Appeal by 6 way of a prosecutor’s appeal against the trial judge’s terminating ruling to stay the 7 proceedings. 8 9
In Boardman, the trial judge refused to admit crucial prosecution evidence served 10 only a few days before trial which brought the case to an end. 11 12
Here, the application is to adjourn for a substantial period. If I refuse the application, 13 it brings the case to an end. Clearly, these are different scenarios, but in all cases, the 14 question was whether, in the light of prosecution failures, the case should 15 nevertheless be allowed to continue. The essential question for me, clearly, is 16 whether it is in the interests of justice to grant the adjournment sought. As was said 17 in Salt, 18 “thus, although the way in which the judge proceeded in Boardman was by 19 refusing to admit evidence under s78 of PACE and the present case involved a 20 stay for abuse of process, the court should approach both types of application 21 on the same basis, namely by balancing the material considerations and 22 determining whether it was in the interests of justice, including the interest in 23 the integrity of the criminal justice system, that the proceedings should be 24 allowed to continue…….. we have no doubt that there are failures of the 25 prosecution where the court should act so that the proceedings do not continue.” 26 27
Thomas, LCJ continued: 28 “it is necessary to examine more widely the various factors and to balance the 29 public interest in ensuring that those charged with grave crime should be tried 30 and the rights of the complainants against the need to ensure the proper integrity 31 of the criminal justice system and the fairness of any future trial.” 32 33 Judgment on Prosecution Application to Adjourn. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/20. Coram: Chapple J. (Actg.). Date: 22.03.2021.
The Court then went on to list the particular factors to be taken into account in that 1 case and to examine each in turn. All Counsel have done likewise and so shall I. 2 3 THE GRAVITY OF THE CHARGES 4 5
The more serious the crime of course, the greater the public interest that the case 6 should be tried. I have already referred to the allegations faced by the brothers in the 7 case of Salt. Here it is alleged that the defendants fraudulently obtained $700,000 or 8 thereabouts from CONCACAF. These allegations are not in the same league of 9 seriousness as rape. Public concern for the effective prosecution of serious sexual 10 assaults generally ranks considerably higher than the effective prosecution of 11 fraudsters. As Mr Kamlish observed, the likely sentences of imprisonment for rape 12 on the one hand and fraud of this kind on the other, are very different. Nevertheless, 13 fraud on this scale is undoubtedly a serious offence. This was a fraud, on the 14 prosecution’s case, of some sophistication, involving the setting up of a company to 15 facilitate the fraud; it was persistent; one of the co-conspirators took blatant 16 advantage of his position as president of CONCACAF, depriving that organisation 17 of funds that could have been put to very much better use. It took place in this 18 jurisdiction, known throughout the world as a centre of excellence for financial 19 services. Crimes such as these, if proved, risk reputational damage to these islands. 20 Albeit these allegations date back, the best part of, 10 years, all other things being 21 equal, there is a clear and pressing public interest in this case being placed before a 22 jury for its consideration. 23 24 25 26 27 Judgment on Prosecution Application to Adjourn. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/20. Coram: Chapple J. (Actg.). Date: 22.03.2021. DENIAL OF JUSTICE TO THE COMPLAINANTS 1
This was a powerful consideration in Salt, which is absent in this case. As Mr 2 Radcliffe succinctly put it in his submissions, here the complainant was corporate 3 rather than human. 4 5 THE IMPORTANCE OF DISCOVERY IN SEXUAL CASES 6 7
Again, this is a crucial consideration in sexual cases. However, the importance of a 8 reliable and effective disclosure regime in cases of serious fraud is obvious. 9 10 THE NECESSITY FOR PROPER ATTENTION TO BE PAID TO DISCLOSURE/THE NATURE AND 11 MATERIALITY OF THE FAILURES 12 13 14
It is convenient to deal with both these Salt headings together as there is a 15 considerable degree of overlap. The timescale in Salt allowed more enquiry as to the 16 cause of disclosure failures than has been possible here. The Chief Constable of 17 North Yorkshire Police provided a statement to the Court of Appeal. The Lord Chief 18 Justice reiterated what was said in R v Olu Wilson & Brooks6 and R v Malook7, 19 emphasising: 20 “the importance of proper procedures being put in place for an intelligent 21 approach to disclosure and a necessity for disclosure officers to receive proper 22 training.” 23 24 The trial judge in Salt found that the officer in the case had exhibited gross 25 incompetence and there was clear evidence of lack of training and supervision. 26 27 28 29 6 [2010] 1 Cr App R 33 7 [2011] EWCA Crim 254 Judgment on Prosecution Application to Adjourn. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/20. Coram: Chapple J. (Actg.). Date: 22.03.2021.
That something has gone badly wrong in this case is plain. Mr Radcliffe’s concession 1 that there was “an absence of coordination at each level and a series of missed 2 opportunities” bears repeating. 3 4
There is, as Mr Miskin put it, a “coincidence of personalities” at various stages of 5 this and other cases involving CW. HD1 was seized in 2014 in the context of the 6 Care Pay case and it was to loom large in that case. Ms Salako was junior counsel 7 for the Crown in that case, as she is in this case. In the Care Pay case, she was led 8 by Mr Patrick Moran, now the DPP. In September 2015, two months before the Care 9 Pay trial was due to begin, Mr Moran and Ms Salako applied for and were granted 10 an adjournment, principally in order properly to consider the material contained on 11 HD1. As Mr Kamlish observes, in essence, the same application is being made now, 12 five years later, in the context of this trial. 13 14
The very same exhibit, HD1, was entered on the schedule of unused material in the 15 case of Watson and Blake on 12 August 2020. It is right that I should note that Ms 16 Salako is not involved in that case but there is a “coincidence of personality”: Mr 17 Walkington of the DPP’s office is the disclosure officer in both this case and in 18 Watson and Blake. Mr Radcliffe notes that Mr Walkington is “widely known to be 19 a disclosure officer of significant experience.” 20 21
I understand that HD1 was brought to DC Murray’s attention as a result of recent 22 enquiries he made of the Anti-Corruption Commission. These enquiries, I further 23 understand, were made by way of insurance as it might be. In the event of the 24 application to read Kevin Brandt’s statement – in which he produces the Admiral 25 leases – failing, was there another route by which the leases could properly and 26 admissibly be placed before the jury? 27 Judgment on Prosecution Application to Adjourn. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/20. Coram: Chapple J. (Actg.). Date: 22.03.2021.
It is on the face of it extraordinary that whilst the Anti-Corruption Commission was 1 apparently the first port of call when there was a perceived difficulty in the 2 prosecution case, no enquiry of that same body had earlier been made as to whether 3 they held material that might assist the defence. 4 5
In the short time available since these difficulties came to light, there has been no 6 proper opportunity to investigate these failures of disclosure. 7 8
Regardless of my conclusion in this case, I anticipate that the Director of Public 9 Prosecutions and the Royal Cayman Islands Police Service (RCIPS) will launch an 10 investigation into the reasons for these admitted failures, missed opportunities and 11 absence of coordination. Indeed that is foreshadowed in Mr Radcliffe’s written 12 submissions. 13 14
The defence have invited me to conclude that what happened here was a systemic 15 failure. I cannot begin to do so on the very limited information presently available. 16 It would be irresponsible for me to do so. By the same token, it would be altogether 17 wrong to seek to attribute blame to any individual. Mr Kamlish, characteristically 18 not mincing his words or allegations, sought to do so. That approach is to be 19 deprecated. There is no sufficient information for such allegations to be made and 20 the individuals to whom he attributes blame have had no opportunity to respond. I 21 cannot go further, neither should I go further than Mr Radcliffe’s concessions of a 22 series of missed opportunities and an absence of co-ordination that have led to a 23 serious failure of disclosure, necessitating the abandonment of this trial after the best 24 part of 3 weeks of argument, submissions and delay. 25 26 27 28 29 30 Judgment on Prosecution Application to Adjourn. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/20. Coram: Chapple J. (Actg.). Date: 22.03.2021. FAILURES BY THE DEFENCE LAWYERS 1 2
It is not suggested that the defence contributed to the disclosure failure that has 3 brought things to this position. I note here only that some of the matters Mr Miskin 4 sought to deploy in his submissions as demonstrating further failures of disclosure I 5 do not regard as matters of significance or relevance to this application. 6 7
Disclosure in a case such as this is a mammoth task and it should be a collaborative 8 process with the active participation of the defence. By way of example, if the 9 disclosure of emails from CONCACAF was thought to be incomplete and/or 10 selective, as Mr Miskin now alleges, this could and should have been mentioned by 11 the defence at an earlier stage. 12 13 THE WASTE OF COURT RESOURCES AND THE EFFECT ON THE JURY 14 15
Court time is a precious commodity in any jurisdiction. The pressures on court 16 rooms, judicial time and attorney’s availability in this jurisdiction are intense. It is 17 now 3 weeks since jury selection began. The jury never was put in charge; thankfully 18 it was only necessary for them to attend on two days. The inconvenience to them 19 was thus minimised. More seriously, the best part of 3 weeks of valuable court time 20 has been wasted with nothing very much to show for it. Mr Miskin and Mr Dixey 21 appear pursuant to legal aid certificates. If the case is adjourned, Mr Radcliffe and 22 Mr Miskin will need to travel from overseas to Cayman again and may, again, have 23 to quarantine. The cost to public funds is substantial. CW is funding his 24 representation privately and again, one anticipates, the cost is substantial. 25 26 27 28 Judgment on Prosecution Application to Adjourn. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/20. Coram: Chapple J. (Actg.). Date: 22.03.2021. THE AVAILABILITY OF SANCTIONS 1 2
This has no pressing relevance to the decision I have to make. 3 4 OTHER CONSIDERATIONS 5 6
That exhausts the list of factors mentioned in Salt. However, it seems to me there 7 are further important considerations present in this case which were not of any 8 particular moment in Salt – where the trial could continue within a short time after 9 being remitted back to the Crown Court, the Court of Appeal being satisfied that the 10 disclosure achieved was such that a fair trial was possible. Here, disclosure is far 11 from complete. HD1 has been provided to those representing CW in the Watson & 12 Blake trial although it appears not until very recently, in readable form. HD1 has not 13 yet been served on those representing CM. 14 15
In any event, until there has been a proper investigation into what went wrong and 16 the reasons for the serious disclosure failures in this case are understood, there can 17 be no confidence that further failures will not occur. 18 19
If the application to adjourn is granted, it is clear that it will be many months before 20 this case will be trial ready. CW’s representatives’ availability is very limited. Even 21 were it not for those difficulties, when pressed, Mr Radcliffe said that he was asking 22 for an adjournment “in the first instance” of six months. I would like to think that, at 23 the end of that period, assuming that there had been a thorough investigation, the 24 court could have confidence in the disclosure regime in this case. 25 26 27 28 29 Judgment on Prosecution Application to Adjourn. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/20. Coram: Chapple J. (Actg.). Date: 22.03.2021.
I am confident that the question I should ask myself is not, as suggested by Mr 1 Kamlish, that I must be satisfied so that I am sure that there will be no further 2 disclosure failures. Rather, the question is whether I can be reasonably confident 3 that, given sufficient time resources and attention, disclosure will be appropriately 4 handled. I would like to think so. 5 6
The additional factors not present in Salt but of considerable importance in this case, 7 are then: 8 9 i. the substantial delay that the granting of an adjournment would cause; 10 and 11 ii. the effect and consequence of that delay, including the likely prejudice 12 that would be caused to these defendants, were I to grant the 13 prosecution’s application to adjourn. 14 15
The offences are alleged to have taken place between 2012 and 2014. Albeit that 16 they were not charged until December 2019, the defendants have been under 17 suspicion since 2016. The case was to have been tried in November 2020; the 18 defendants were no doubt preparing themselves for that date. It was vacated, through 19 no fault of theirs. They then had to wait another four months, until March 2021, and 20 again prepared themselves for a trial which again has not taken place – and if the 21 application is granted, will not take place for many months. They are of course 22 entitled to trial within a reasonable time. The anxiety and strain of a criminal trial, 23 particularly a complex one, where, as here, on conviction, prison sentences of some 24 length are likely, should not be underestimated. CM and CW have attended this court 25 for the last 3 weeks on an almost daily basis. 26 27 28 Judgment on Prosecution Application to Adjourn. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/20. Coram: Chapple J. (Actg.). Date: 22.03.2021.
Delay should of course be avoided wherever possible. In the course of his written 1 submissions in support of his application to admit hearsay evidence, rather than 2 adjourn for perhaps a month or so in order for Mr Brandt’s evidence to be taken 3 pursuant to the Mutual Legal Assistance Treaty that exists between the Cayman 4 Islands and the USA, Mr Radcliffe prayed in aid that “the present fixture would have 5 to be broken and the trial re-fixed in a matter already between 7 and 9 years old.” 6 He now urges a course that would delay the hearing of this case by at least six 7 months. It can, though, properly be said that this is a case that relies very largely on 8 documents rather than recollection and to that extent delay is less damaging to 9 justice. 10 11
CM is a woman of good character, presently on a fixed term government contract of 12 employment, due to expire in April. She has been suspended from that employment 13 as a result of these proceedings. She understandably fears that her contract will not 14 be renewed. It is said that if the case is adjourned, CW can no longer fund his legal 15 representation. If that be right, then the likelihood is that he will become legally 16 aided. The burden of this trial upon the legal aid fund, has already been, I anticipate, 17 considerable. Further expenditure of public money, with two legally-aided 18 defendants, whilst far from a deciding factor, is one of the many matters I take into 19 account. 20 21 CONCLUSION 22 23
My approach must be a holistic one. I take into account all the matters I have already 24 discussed in the course of this judgment. Despite the considerable public interest in 25 cases such as this being tried, despite the considerable resources already expended 26 on this case and the considerable efforts and dedicated work by many, I am driven – 27 and firmly driven – for all the reasons referred to above, to the conclusion that the 28 Judgment on Prosecution Application to Adjourn. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/20. Coram: Chapple J. (Actg.). Date: 22.03.2021. interests of justice require that I refuse this application to adjourn, appreciating as I 1 do that this puts an end to this prosecution. 2 3 4 Dated this the 22nd day of March 2021 5 6 7 8 Justice Roger Chapple 9 Acting Judge of the Grand Court 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Judgment on Prosecution Application to Adjourn. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/20. Coram: Chapple J. (Actg.). Date: 22.03.2021. APPENDIX A 1 2 3 IN THE GRAND COURT 4 CRIMINAL SIDE 5 INDICTMENTS 2 & 4 of 2020 6 7 THE QUEEN 8 9 -v- 10 11 CHARMAINE ELIZABETH MOSS 12 CANOVER NORBERT WATSON 13 14 Note of CMH held 9/2/21 15 16 Prosecution: Andrew Radcliffe QC and 17 Toyin Salako 18 Defence: 19 Moss: Nick Dixey 20 Watson: Amelia Fosuhene 21 22 AR explained that he had only been instructed a matter of weeks ago and was in the course of 23 preparing a number of schedules, to be used as working documents and possibly for use by the 24 jury. He hoped to reduce substantially the number of documents that needed to be referred to at 25 trial; summaries of Moss’ (lengthy) interviews were in the course of preparation. 26 AR would be preparing draft admissions, since all confirmed that a great deal of the evidence 27 (including all the banking evidence) was not in dispute. 28 He made it clear that the opening note prepared by Simon Russell-Flint QC remained an accurate 29 statement of the way in which the Crown put its case – although made it clear that he would not 30 be following it slavishly. AF indicated that she may have some objections to the way in which 31 some matters were being put. 32 33 34 Representation at trial: Leading Counsel for the prosecution (AR), and for Ms Moss (Charles Miskin QC) will be on island for this trial; leading Counsel for Mr Watson, Stephen Kamlish QC would appear via zoom. TS, ND and AF would be in court for the trial. Normal court sitting hours (approx. 10am-4pm) would be observed, despite the time difference for SK The issues at trial: ND confirmed that Ms Moss’ position remains as she explained it in the course of her police interviews. All invoices presented by Moss International were for work properly done / expenses properly incurred. AF explained that Mr Watson’s position at trial would be that everything done was above board. All that he did he was entitled to do. Judgment on Prosecution Application to Adjourn. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/20. Coram: Chapple J. (Actg.). Date: 22.03.2021. ND and AF confirmed that the banking evidence was not in dispute. ND and AF confirmed that they did not foresee any significant matters of law arising in this trial Pre-trial interviews The prosecution will be conducting pre-trial interviews next week with witnesses Cruz, Brandt and MacLean. Notes of those interviews will be served on all parties To be served prior to 22/2/21 Witness orders: Final witness orders to be confirmed ASAP. ND indicates that he requires the following witnesses: MacLean, Cruz, Brandt, Van Der Bol, Rankin and Armitage. No additional witnesses required by AF Pros will be applying for a number of witnesses to give evidence via video link. No objection in principle from ND or AF Prosn application for evidence to be given via live TV link to be served prior to 22/2/21 Unused material: ND and AF confirmed there were no outstanding issues here. Trial Bundle TS arrange delivery to Ms Livingston of an up to date hard copy trial bundle for my use at trial ASAP Notices of further evidence The Crown does intend to serve further evidence – mostly additional statements from existing witnesses. This will be done as quickly as possible. Hopefully to be served before 22/2/21 Summaries of interviews (Moss) Were in the course of preparation To be served prior to 22/2/21 Jury questionnaire AF said that a jury questionnaire would be required, as in previous trials involving Mr Watson AF to provide draft questionnaire to TS and ND ASAP – to be discussed 22/2/21 Trial date The trial remains fixed to commence on 1/3/21 – on this date, a jury will be selected and any outstanding matters addressed. The trial will commence in earnest (the prosecution will open its case) on 2/3/21. Presentation of evidence AR explained that the way in which the evidence was to be placed before the jury was still under consideration. Schedules were being prepared. Electronic presentation of evidence was being considered. To be discussed further 22/2/21. If electronic presentation is to be used, this to be discussed with Court IT team as soon as possible. If otherwise, proposed jury bundle (or at least an index) to be served prior to 22/2/21. Judgment on Prosecution Application to Adjourn. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/20. Coram: Chapple J. (Actg.). Date: 22.03.2021. Time estimate The majority view was that the original time estimate of 3 weeks remained accurate although some thought it may last longer. Prosecution opening Any areas of objection to be notified prior to 22/2/21 1 2 Case to be listed for further CMH on 22/2/21 at 9.15am. At that hearing, all outstanding matters 3 will be discussed, with a view to ensuring the smooth-running of this trial. Amongst other things, 4 the following will be discussed: 5 6 • The presentation of evidence: if electronic, arrangements to be discussed; if paper, 7 contents of jury bundle 8 • Admissions 9 • Final witness requirements and applications for video link to be used 10 • Summaries of defendants’ interviews 11 • Jury questionnaire 12 • 7 man jury or 12 – 7 I’d have thought – not that complex 13 • 14 15 END OF APPENDIX A 16