Judgment on an Application by the Defence for Costs. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/2020. Chapple J. (Actg.). Date: 30th November 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 & 13 CANOVER NORBERT WATSON 14 15 16 17 Appearances: Mr. Nicholas Dixey of Nelsons Legal for the 18 Applicant/Charmaine Moss 19 20 Mr. Stephen Kamlish Q.C. instructed by 21 Ms. Amelia Fosuhene of Brady Attorneys 22 for the Applicant/Canover Watson 23 24 Mr. Andrew Radcliffe Q.C. with Ms. Toyin 25 Salako for the Crown/Respondent 26 27 Before: Justice Roger Chapple (Actg.) 28 Heard: 6th July 2021 29 30 31 HEADNOTE 32 Criminal Law – Defence Application for Costs – s.24 of the Judicature Act – s.33 33 of the Summary Jurisdiction Act 34 35 36 JUDGMENT 37 ON AN APPLICATION BY THE DEFENCE FOR COSTS 38 39 40 41 42 43 44 45 Judgment on an Application by the Defence for Costs. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/2020. Chapple J. (Actg.). Date: 30th November 2021.
Ms Charmaine Moss (“CM”) and Mr Canover Watson (“CW”) faced an indictment 1 containing five counts. Counts 1 and 2 alleged conspiracies to defraud. Counts 3, 4 2 and 5 alleged money laundering offences. These offences were said to have taken 3 place within a 2-year period, from September 2012 to November 2014. 4 5
The conspiracy alleged in count 1, in short summary, involved the submission of 6 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 was the President of CONCACAF. CM was, and 9 had for a long time been, in a relationship with Mr Webb. The conspiracy was said 10 to involve CM, Mr Webb and others, but not CW. A total of US$207,000 or 11 thereabouts was said to have been fraudulently obtained and thereafter dissipated. 12 13
Both CM and CW were indicted in count 2. Jeffrey Webb was again named as a co- 14 conspirator. Again, the conspirators were alleged to have defrauded CONCACAF, 15 this time in respect of office premises leased in George Town. The conspirators were 16 alleged, by the device of what the prosecution described as a dummy lease, to have 17 dishonestly obtained $100,000 a year from CONCACAF. The conspirators had 18 arranged to rent the office premises for $160,000 a year, but provided a false lease 19 to CONCACAF. CONCACAF was under the impression that the rent was $260,000 20 which they were duly paying, with the conspirators pocketing the difference. There 21 were also renovations to the offices, which, although carried out, were, it was said, 22 charged at over inflated prices. It was estimated that something in the order of 23 $500,000 was fraudulently obtained as a result of the count 2 conspiracy. 24 25 26 Judgment on an Application by the Defence for Costs. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/2020. Chapple J. (Actg.). Date: 30th November 2021.
Although these offences were said to have taken place in 2012 -2014, the defendants 1 were not charged until December 2019. The trial was originally scheduled to 2 commence in November 2020, but due to the non-availability of leading Counsel for 3 CM, the case was re-scheduled for March 2021. A jury was then selected but not put 4 in charge, since various matters of law were raised that required resolution. Those 5 matters were still being argued on Friday 12th March when Mr Radcliffe told the 6 court that he had only recently been made aware of the existence of a substantial 7 amount of potentially disclosable material. Having taken time to familiarise himself 8 with this newly emerging material and to take stock generally, Mr Radcliffe 9 concluded that it was not realistic or feasible to seek to continue this trial with the 10 present jury and applied for the case to adjourned. Consideration of the new material 11 and disclosure of that which was relevant would take a number of months. Mr 12 Radcliffe made clear that if his application to adjourn were to be unsuccessful (and 13 it was strenuously opposed by both defendants), he would be obliged to offer no 14 evidence on all counts of the indictment. 15 16
Having heard full argument and taken time to consider the application, I refused the 17 Crown’s application for an adjournment. I gave a full judgment setting out at length 18 the background and circumstances of this case, together with my detailed reasons for 19 refusing the application. That judgment, dated 22nd March 2021, should be read in 20 conjunction with this judgment. The Crown duly offered no evidence on all counts 21 and not guilty verdicts were entered. 22 23
Both defendants now make application for the legal costs incurred in defending this 24 case to be paid by the Crown. 25 26 27 Judgment on an Application by the Defence for Costs. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/2020. Chapple J. (Actg.). Date: 30th November 2021.
Mr Kamlish and Ms Fosuhene are privately instructed by CW. CM has been legally 1 aided throughout. Her application for costs is, so it is said, “brought to safeguard the 2 legal aid budget. The protection of budgets is of importance to all government 3 departments”1. The Crown oppose these applications. 4 5
I have the assistance of written submissions from all parties, as follows: 6 7 a. From CM dated 25th March; 8 9 b. From CW dated 26th March, supported by a fee note from Mr Kamlish and a 10 breakdown of costs from Messrs. Brady Attorneys at Law (Ms Fosuhene); 11 12 c. Submissions on behalf of the Crown, dated 6th April, together with a 13 comprehensive file of authorities and other supporting material; 14 15 d. From CM dated 19th April; 16 17 e. Supplementary submissions on behalf of the Crown dated 9th July. 18 19
These applications are brought pursuant to s24(5) of the Judicature Act 2021. In 20 view of the arguments advanced in this case, I should recite the provisions of s24 (1) 21 to (6) in full. They are as follows: 22 23 “(1) Subject to the provisions of this or any other Law and to rules of court, 24 the costs of and incidental to all civil proceedings in – 25 (a) the Court of Appeal; and 26 (b) the Grand Court, 27 shall be in the discretion of the relevant court. 28 29 (2) Without prejudice to any general power to make rules of court, such 30 rules may provide for regulating matters relating to the costs of civil 31 proceedings referred to in subsection (1), including, in particular — 32 (a) the entitlement to costs; 33 (b) the taxation of costs; 34 1 (Mr Dixey’s skeleton argument dated 19th April 2021) Judgment on an Application by the Defence for Costs. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/2020. Chapple J. (Actg.). Date: 30th November 2021. (c) the powers of taxing officers; 1 (d) the powers of judges to review decisions of taxing officers; and 2 (e) the powers of the court, as defined in section 24A(4), to make 3 protective costs orders in judicial review proceedings and 4 constitutional proceedings. 5 (3) The court shall have full power to determine by whom and to what extent 6 the costs are to be paid. 7 (4) In any criminal or civil proceedings, the court may disallow or (as the 8 case maybe) order the attorney-at-law or foreign lawyer concerned to 9 meet the whole of any wasted costs or such part of them as may be 10 determined in accordance with the rules of court. 11 (5) Costs, including wasted costs, may be awarded to or against the Crown. 12 (6) A costs certificate made by a taxing officer shall be enforceable as if it 13 were a judgment or order of the court” 14 15
I should add that amongst the definitions that appear in sub-section (7) is the 16 following: 17 “wasted costs mean any costs incurred by a party – 18 19 (a) as a result of any improper, unreasonable or negligent act or 20 omission on the part of any attorney at law or foreign lawyer or any 21 employee of such attorney at law or foreign lawyer; or 22 (b) which, in the light of any such act or omission occurring after they 23 were incurred, the court considers it is unreasonable to expect that 24 party to pay.” 25 26 27
It is clear from the wording of s.24(5), argue the defence, that the criminal division 28 of the Grand Court has a general power to award costs in favour of or against the 29 Crown. It was made plain on behalf of both defendants in the course of oral 30 submissions – there had earlier, in the course of exchange of skeleton arguments 31 been some confusion – that these were not applications for wasted costs under 32 s.24(4). 33 34
As to the law and the way in which such applications – for costs against the Crown 35 – are to be approached, the defence submit that one need look no further than what 36 Judgment on an Application by the Defence for Costs. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/2020. Chapple J. (Actg.). Date: 30th November 2021. is said to be the “leading authority”2 of R v Bernardo3, a first instance decision of 1 Williams, J, the essence of which is that, the court has an “unfettered discretion.” 2 3
The prosecution’s primary submission is a bold one: that on a true reading of s.25 4 taken as a whole, save for wasted costs pursuant to ss.(4), the criminal division of 5 the Grand Court has no power to make an award of costs against (or in favour of) 6 the Crown. As it is put in paragraph 10 of the Crown’s skeleton argument dated 9th 7 July, “in this jurisdiction, costs are unavailable either to or against the Crown save 8 where statute provides instances of wasted costs.” The Crown submits that the 9 concessions or assumptions made in previous cases are erroneous, urging that the 10 time has come to analyse the position in depth. 11 12
The Crown has made and developed its submissions at length and in considerable 13 detail in the course of written and oral submissions. For the purposes of this 14 judgment, a relatively short summary of those submissions will suffice, although I 15 have of course carefully studied and considered everything urged upon me. Many 16 authorities have been cited in the course of argument. The fact that I have not 17 referred to an authority does not mean that I have not considered it. In short, the 18 Crown submit as follows: 19 20 21 i. The well-established common law position is that “the Crown is by its 22 prerogative exempt from the payment of costs in any judicial 23 proceeding, and that this right cannot be taken away except by statute”4 24 25 2 (Mr Dixey’s description, at paragraph 1 of his skeleton argument dated 25th March) 3 [2014] 2 CILR 397 4 Affleck v The King [1906] HCA 2; 3 CLR 608; 1906 3CLR p.630 Judgment on an Application by the Defence for Costs. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/2020. Chapple J. (Actg.). Date: 30th November 2021. ii. The only statutory reference to costs in criminal proceedings in the 1 Grand Court is to be found in s.24 of the Judicature Act 2021 (and 2 previous incarnations of that statute). In light, particularly, of the 3 common law exemption provided to the Crown, this statute should be 4 construed strictly; 5 6 iii. Section 24 is almost exclusively concerned with costs in civil 7 proceedings in the Court of Appeal and the Grand Court. The only 8 mention of “criminal…. proceedings” to be found in the entire section 9 is at ss.(4) (wasted costs). Accordingly, only ss.(4) applies to criminal 10 proceedings. 11 12 iv. Section 19 of the Grand Court Act 2015 gives power to the Rules 13 Committee to make rules, inter alia, for “regulating pleading, practice 14 and procedure in respect of the conduct of criminal business and of civil 15 business before the court in relation to all matters within the jurisdiction 16 of the court, whether original or appellate in nature.” The Grand Court 17 Rules provide comprehensive guidance before the court on very many 18 matters of practice and procedure, yet, by Order 1 rule 2, save for (i) 19 committal, (ii) applications for judicial review, (iii) wasted costs and (iv) 20 Confidential Relationships (Preservation) Act, “these rules shall not 21 apply to any criminal proceedings.” This then provides strong support 22 for the view that there is no general power to award costs to or against 23 the Crown in the criminal division of the Grand Court. Had there been 24 such a power, the rules would characteristically have given 25 comprehensive guidance as to the exercise of that power. 26 27 Judgment on an Application by the Defence for Costs. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/2020. Chapple J. (Actg.). Date: 30th November 2021.
Towards the end of oral submissions, Mr Dixey drew my attention to the case of 1 Andrel Harris v R5, a decision of Chief Justice Anthony Smellie. The case was 2 mentioned by Williams, J in his judgment in Bernardo, but its relevance to the 3 Crown’s primary submission in this case was not perhaps fully appreciated until 4 submissions had been developed. In that case, the Crown was advancing essentially 5 the same argument as that upon which Mr Radcliffe now relies. The subject matter 6 of the appeal was the Magistrate’s decision not to award costs to the appellant 7 following his acquittal, the Crown having eventually offered no evidence. Albeit 8 that the Chief Justice was concerned with the meaning and interpretation of s.33 of 9 the Summary Jurisdiction Act, the decision is plainly of relevance to the 10 applications I now have to decide since the wording of s.24 of the Judicature Act is 11 identical. It was for that reason that, with the agreement of all parties, I gave leave 12 for the Crown to serve further written submissions. 13 14
Mr Radcliffe rightly observes that “whilst any judgment of the Chief Justice is due 15 the greatest respect” it is not binding upon me. That said, I am driven firmly to the 16 same conclusion as the Chief Justice as to the interpretation of s.24 of the Judicature 17 Act and s.33 of the Summary Jurisdiction Act. I am satisfied that, contrary to the 18 Crown’s submissions, ss.(5) of those statutes does provide the criminal divisions of 19 the Grand Court and the Summary Court with a general power to award costs in 20 favour of and against the Crown. 21 22
Whilst one must look at the words of any statute in context, the words of ss.(5) are 23 to my mind clear – and are worth repeating: 24 25 “Costs, including wasted costs, may be awarded to or against the Crown.” 26 27 5 SCA 33 of 2010 Judgment on an Application by the Defence for Costs. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/2020. Chapple J. (Actg.). Date: 30th November 2021.
As the Chief Justice observed in Harris (and I align myself with his observations): 1 “There is no basis for confining their meaning [the words of subsection (5)] to 2 costs in civil proceedings as [Crown Counsel] also argued by reference to the 3 fact that subsection (5) follows on from subsections (1) to (3) which, in their 4 terms, deal only with costs in civil cases. Subsection (4) expressly includes costs 5 in criminal cases. Had the intention been to exclude costs in criminal cases one 6 would expect subsection (5) which follows immediately, to be qualified in those 7 terms. No such qualification is placed upon it.” 8 9 Had it been the intention of the legislature to confine ss.(5) to civil proceedings, it 10 could so easily have said so in terms. 11 12
Mr Radcliffe observes that the Chief Justice was not apparently referred to the Grand 13 Court Rules – point (iv) in paragraph 12 above – venturing the view in oral argument 14 that had the Chief Justice been so referred, his conclusion might have been 15 otherwise. For my part, I very much doubt it. Such force as this argument might 16 otherwise have had is diminished by a failure at any stage in the course of 17 submissions to make reference to s.34 of the Penal Code, which provides as follows: 18 “Subject to limitations imposed by any other law, a court may order any person 19 convicted of an offence to pay the costs of and incidental to the prosecution or 20 any part thereof.” 21 22
It is then plain beyond any argument that the criminal courts have power make an 23 award of costs against a convicted defendant yet, as the Cayman Islands Court of 24 Appeal (CICA) recently observed in R v Errington Webster6: 25 “There is no dispute but that in deciding whether or not to make an order for 26 costs, the judge is exercising a discretion. There is no Cayman guidance 27 regarding this exercise.” 28 29 30
A further clear power to award costs to or against the Crown is to found in s.182 of 31 the Criminal Procedure Code: 32 “The court hearing any appeal may make such order as to the costs to be paid 33 by either party as it may think just.” 34 6 Criminal Appeal 19 of 2019 Judgment on an Application by the Defence for Costs. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/2020. Chapple J. (Actg.). Date: 30th November 2021.
This bears upon the Crown’s primary submissions in two ways: 1 i. again, it detracts from the argument that since the rules do not deal with 2 applications for costs against the Crown (save for wasted costs), such a 3 power does not exist; and 4 ii. it would surely make no sense for the Grand Court to be given a power 5 to award costs against the Crown in its appellate jurisdiction but not at 6 first instance. 7 As the Chief Justice noted in Harris, a court is entitled to take into account absurdity 8 or inconsistency when construing statutes. 9 10
Accordingly, I am altogether satisfied that in this case, this Court has, pursuant to 11 s.24(5) of the Judicature Act, a general discretionary power to make costs orders in 12 favour of and against the Crown. 13 14
I then turn to consider the exercise of that discretion. 15 16
As with the decision of the Chief Justice, the decision of Williams, J in Bernardo is 17 of persuasive authority, but I am not bound by it. Of the authorities to which I have 18 been referred, the following have been of particular assistance to me in reaching my 19 conclusions: 20 21 i. Attorney General v Cayman National Bank7 22 ii. R v Watler8 23 iii. R v P9 24 iv. Front Door (Cayman) Ltd v R10 25 26 7 [2004-05] CILR 298 8 [2007] CILR121 9 [2011] EWCA Crim 1130 10 (Case 03767/2014) Judgment on an Application by the Defence for Costs. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/2020. Chapple J. (Actg.). Date: 30th November 2021.
Debate has continued, in these and other cases, as to whether or not it is helpful to 1 look at the position in England and Wales. In very many instances, this court derives 2 considerable assistance by looking in that direction, although it is important to ensure 3 that one is comparing like with like. 4 5
It is common ground that the costs regime in the criminal courts of England and 6 Wales is markedly different from the regime in force in this jurisdiction – first and 7 foremost, because, in this jurisdiction, unlike in England and Wales, there is no 8 power to make an award of costs from central funds. Here, there are no “central 9 funds.” In England and Wales, the default position, as it might be, is that an acquitted 10 defendant will be granted an order for costs from central funds. The courts are 11 justified in departing from that general starting point if there is good reason to do so. 12 The examples usually given are where the conduct of the defence has been such as 13 to lead the prosecution to conclude that its case was in fact stronger than it was or 14 the defendant has brought suspicion upon himself. 15 16
I have little doubt that the legislature in this jurisdiction considered the provisions 17 and framework of the England and Wales costs structure when constructing its own 18 criminal costs regime. Clearly, a positive decision was taken to depart significantly 19 from England and Wales practice, by not establishing a central fund. It would 20 therefore, I am sure be altogether wrong to import the central funds default position 21 referred to above to this jurisdiction. Here there is no room for a starting point of 22 criminal costs following the event. 23 24
A clear and emphatic theme emerges from the cases to which I have been referred, 25 particularly those listed above. 26 27 Judgment on an Application by the Defence for Costs. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/2020. Chapple J. (Actg.). Date: 30th November 2021.
In Attorney General v Cayman National Bank, a decision of the CICA, Taylor, JA 1 said this: 2 “It is not the normal practice to make an order for costs in proceedings of this 3 sort, involving discharge by the Crown of responsibilities ancillary to its duty to 4 enforce the criminal law.” 5 6 7
The Court of Appeal was dealing with an application by the Crown to freeze bank 8 accounts held by Mr Watler (the appellant) in advance of trial. 9 10
Eventually, Mr Watler was tried in the Summary Court. He was successful in his 11 appeal against convictions in his Summary Court Appeal – all convictions were 12 quashed but his application for costs was refused by Henderson, J. This was of course 13 an exercise of the power contained in s.182 of the Criminal Procedure Code, rather 14 than s.25(5) of the Judicature Act, but I am satisfied that the principles applicable 15 to both powers should be similar, if not the same. I can do no better than quote the 16 law reporter’s summary of Henderson J’s decision, which I am satisfied is an 17 accurate distillation of his judgment: 18 19 “The defendant would not be awarded the costs of his criminal trial and appeal. 20 Although the court had unfettered discretion under the Criminal Procedure 21 Code, s.182, it would not normally award costs in criminal proceedings when 22 the Crown was not at fault in bringing charges but was merely discharging its 23 duty to enforce the criminal law. In the present case, there were no unusual 24 circumstances that would justify a departure from the general rule. The code of 25 practice constituted by legislation in the United Kingdom had not been adopted 26 here and therefore English authorities decided under those provisions could 27 have only limited application.” 28 29
The case of R v P is, in my view, of particular assistance. The costs decision of the 30 judge at first instance, against which the appeal was brought, was, for a variety of 31 reasons, fundamentally flawed. That is of no particular moment. What is important 32 Judgment on an Application by the Defence for Costs. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/2020. Chapple J. (Actg.). Date: 30th November 2021. is the guidance given by Hughes, LJ (as he then was) upon general principles said to 1 be applicable to all costs applications against the Crown, as follows: 2 3 “The decision to prosecute or not is a thoroughly difficult and delicate 4 one. It is one on which two perfectly responsible lawyers may easily 5 differ. It is only in the clearest possible cases that a decision taken by 6 the appropriate authority in good faith could possibly justify a penalty 7 in costs.” 8 9
Hughes, LJ later continued: 10 11 “It is important that the making of that decision should not be 12 overshadowed by the fear that if a prosecution is continued and fails 13 there may be an order for the payment of costs. An acquitted defendant 14 will normally receive his costs from central funds unless there is a good 15 reason why he should not. We do not say that there will never be a case 16 where a decision to prosecute is so unreasonable that a costs order is 17 appropriate, but we are satisfied that this case was not arguably such. 18 Here, the complainant's evidence might have been assessed as likely to 19 be accepted. The flatmate's evidence might have been assessed as 20 capable of disbelief. There was, we note, some material which perhaps 21 suggested possible partiality. There were, it was said, some possible 22 injuries to the complainant. We want to make it clear that we simply do 23 not know whether the decision to prosecute was right or wrong. It is 24 clear that it was made in good faith. Supposing, however, that it was a 25 wrong judgment on a difficult issue, that is not enough to justify an order 26 for costs…” 27 28 29
Despite the different costs regime in England and Wales, the guidance given by 30 Hughes, LJ is of considerable assistance in this jurisdiction and in the decision I have 31 to make. 32 33
In Front Door (Cayman) Ltd v R, Mettyear, J, (Actg.) having considered a number 34 of authorities, opined thus: 35 36 “The law expects for good reason restraint to be used in the making of costs 37 orders against the Crown.” 38 39 40 41 42 Judgment on an Application by the Defence for Costs. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/2020. Chapple J. (Actg.). Date: 30th November 2021.
From all these cases can be distilled a general principle that an award of costs against 1 the Crown is to be regarded very much as the exception rather than the rule. The 2 Crown should not be constrained in the exercise of its clear duty and responsibility 3 to enforce the criminal law in these courts by financial considerations, or to use 4 Hughes, LJ’s expression, the Crown should not feel overshadowed in the carrying 5 out of its public duty by costs implications. A necessary corollary to that proposition 6 is that costs should not be awarded against the Crown save in exceptional 7 circumstances. 8 9
It was presumably to address the hardship and potential unfairness caused to 10 acquitted defendants by the application of that principle that a central fund was 11 established in England and Wales. 12 13
It bears repeating that a positive decision was taken not to provide a central fund in 14 this jurisdiction. It was surely not the intention, as Mr Radcliffe rightly submits, to 15 place an additional burden on the Crown’s financial resources. 16 17
Williams, J was right when he observed in Bernardo that the court has a wide 18 discretion when considering applications for costs against the Crown. Needless to 19 say, as with all discretions given to the court, it should be exercised judiciously. 20 Williams, J did not of course suggest otherwise. 21 22
Whilst each case must be decided on its merits, I would not for my part describe the 23 discretion as unfettered. Williams, J was: 24 25 26 27 28 29 30 31 Judgment on an Application by the Defence for Costs. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/2020. Chapple J. (Actg.). Date: 30th November 2021. “… not convinced that it is appropriate for the court to fetter itself by having a 1 strict starting point, whether it would be that normally a court should not make 2 orders unless there are unusual circumstances justifying the making of them, or 3 whether it would be normally a court should make orders unless there are 4 positive reasons for not doing so.”11 5 6 7
In this regard, in the light particularly of the authorities referred to above, I 8 respectfully part company with him. I am convinced that there should be a firm 9 starting point, which is – as I have said – that it is exceptional for a costs order to be 10 made against the Crown. Accordingly, before such an order is made, there must be 11 exceptional circumstances, such as, to use the example given by Hughes, LJ: 12 “a decision to prosecute [that is] so unreasonable that a costs order is 13 appropriate.” 14 15 16
Turning now to the facts of this case. 17 18
Both Mr Kamlish and Mr Dixey agreed in the course of submissions that, had it not 19 been for the disclosure problems encountered by the Crown, had the case been tried 20 before the jury and concluded with not guilty verdicts from the jury, applications for 21 costs against the Crown would not have been appropriate. 22 23
It was not suggested on behalf or either CM or CW that the prosecution should not 24 have been brought. It was recognised that there was, in respect of both defendants, a 25 case to answer and, on the evidence, a reasonable prospect of conviction. 26 27
The question then arises as to whether the defence should be in a better position by 28 reason of the disclosure problems encountered by the Crown - which, in the event, 29 resulted in their earlier acquittal and considerably reduced both the length of the trial 30 and the legal costs incurred – than they would have been had the case proceeded in 31 11 paragraph 37 of the judgment Judgment on an Application by the Defence for Costs. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/2020. Chapple J. (Actg.). Date: 30th November 2021. the usual way. Logic, common sense and fairness would, to my way of thinking, 1 dictate otherwise. 2 3
I have reminded myself, both from my earlier judgment12 and my notes taken at the 4 time, of the reasons the case was brought to an early conclusion. No allegations of 5 bad faith, negligence or impropriety are alleged against prosecuting Counsel. It is 6 not in dispute that as soon as Mr Radcliffe became aware of the existence of what 7 was, to the prosecuting team new material, he informed the defence and the Court 8 and sought time to consider his position. On 17th March, in a skeleton argument, the 9 Crown conceded that there had been a failure of disclosure and that: “opportunities 10 presented themselves at each stage of the investigation and prosecution to address 11 the issues that have led to the failure of disclosure. It is plain that there was an 12 absence of coordination at each level and a series of missed opportunities.” 13 14
The reference to an absence of coordination refers to the liaison between various 15 bodies charged with the investigation of criminal offences – in this case, Royal 16 Cayman Islands Police Service generally, the Financial Crime Unit and the Anti- 17 Corruption Commission – rather than between the Financial Crime Unit and the 18 Office of the Director of Public Prosecutions. There is no reason not to take at face 19 value that explanation, in which event, such fault as there may have been lies with 20 those agencies rather than the Crown (in the shape of the Office of the Director of 21 Public Prosecutions). 22 23 24 25 12 Application to Adjourn Judgment on an Application by the Defence for Costs. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/2020. Chapple J. (Actg.). Date: 30th November 2021.
In some contexts, the phrase “the Crown” is used as an umbrella term, to include 1 both the prosecuting authority and the police or other investigating agency. In the 2 context of a costs application against the Crown, there is no justification for 3 including the agencies with whom the Office of the Director of Public Prosecutions 4 works in that term. There is no good reason why the Office of the Director of Public 5 Prosecutions – which would be responsible for satisfying any order for costs – should 6 take responsibility for the failings, if such they be, of the agencies with whom they 7 work. The Crown should not be penalised for having acted fairly and appropriately 8 once this new material was brought to its attention. 9 10
For all the above reasons these applications for costs are refused. 11 12
It is then unnecessary for me to consider further whether a legally-aided defendant 13 can or should make an application for costs against the Crown in order to “safeguard 14 the legal aid budget.” However, in deference to the arguments advanced, I make the 15 following observations. 16 17
Such an order, if granted, simply operates to transfer public funds from one 18 department to another. The raison d’etre of the legal aid department is to provide 19 legal representation to defendants who are unable to fund their own representation. 20 The purpose and duty of the Office of the Director of Public Prosecutions is to 21 enforce, by prosecution, the criminal law. It is difficult to see, at first blush, what 22 proper purpose is served by diverting funds from the former to the latter. Simply to 23 punish the Crown for perceived failings is something of an arid exercise, and is not 24 in accordance with authority. 25 26 Judgment on an Application by the Defence for Costs. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/2020. Chapple J. (Actg.). Date: 30th November 2021.
The first instance decision in R v Assad Walker, Fitzroy Ottey, Owen Reid13 was 1 cited as authority for the proposition that such an order can be made. It is not clear 2 from the partial transcript provided to me as to what led the proceedings to be 3 adjourned, but it appears there were failures of disclosure. One legally-aided attorney 4 opined that she was “duty-bound” to make an application for costs. I very much 5 doubt that such a duty exists. The application was not subjected to scrutiny by full 6 argument; the court indicated at an early stage that “you don’t have to persuade me 7 with regards to the costs.” The Crown did not oppose the order in principle. The 8 Court spoke of imposing a “sanction” on the Crown. While a Court’s sense of 9 frustration about a case having to be adjourned is readily understandable, the 10 imposition of a sanction does not, it seems to me, sit happily with Hughes, LJ’s 11 guidance in R v P that the Crown should not, generally speaking, be penalised in 12 costs. 13 14
Whilst I do not say that there could never be a case in which costs against the Crown 15 could be awarded in favour of the legal aid department, it would be an exceptional 16 course. 17 18
Mr Dixey is right when he observes that “the protection of budgets is of importance 19 to all government departments.” That is equally true of the Office of the Director of 20 Public Prosecution’s budget, which has no dedicated fund to meet orders for costs. 21 22
When an order for costs is made, funds have to be diverted from elsewhere to meet 23 the order. The result of this is unlikely to increase its efficiency or enhance its 24 performance. I close by repeating and endorsing the words of Mettyear, J quoted 25 above: 26 13 Indictment 43 of 2018 Judgment on an Application by the Defence for Costs. R v. Moss (Charmaine Elizabeth) and Watson (Canover Norbert). Ind. 2+4/2020. Chapple J. (Actg.). Date: 30th November 2021. “the law expects for good reason restraint to be used in the making of costs 1 orders against the Crown.” 2 3 4 5 6 Dated this the 30th November 2021 7 8 9 Justice Roger Chapple 10 Acting Judge of the Grand Court 11