1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE Appearances: SCA: 0006/2012 THE QUEEN APPELLANT v KERRY ROSITA HOREK RESPONDENT Mr. Greg Walcolm for the Appellant Mr. Nicholas Dixey of Nelson & Co. for the Respondent 20 Before: The Hon. Mr. Justice Timothy Owen Q.C. 21 Submissions heard: 2nd September 2014 22 23 24 25 26 27 28 29 30 31 32 33 JUDGMENT
This is an appeal by case stated from the ruling of Magistrate Foldats dated 3,d May 2012, in which he stayed the prosecution of the Respondent on charges of theft as an abuse of the process of the court. Mr. Walcolm for the Director of Public Prosecutions seeks to argue that the Summary Court of the Cayman Islands has no jurisdiction to grant a stay on what has become known as the ex parte Bennett limb 2 ground (Le. abuse of power offending the Court's sense of justice and propriety) and that the learned Magistrate erred in law in finding that the conduct of the relevant investigating police officer amounted to serious misconduct such as to justifY the grant of a stay of the proceedings. Judgment. SeA #0006/2012. R v. Kerry Rosita Harek.. Coram: DIVen J (Ae/g,). Date: 04.09.14 Page 1 0/12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
Mr. Dixey for the. Respondent submits that the nature of the abuse submission was such as to fall well within the jurisdiction of the Summary Court and that Magistrate Foldats was therefore right to entertain and rule on the abuse submission, not least in circumstances where the Crown declined to ask for an adjournment in order that the case could be referred to the Grand Court for a ruling. On the merits of the ruling, Mr. Dixey maintains that the Crown's submission that the Magistrate erred in law is quite hopeless because it is clear that the Magistrate applied the right test in law and was fully entitled to conclnde as he did in light of the undisputed evidence before him. THE RELEVANT FACTS I can deal with the facts quite briefly. The Respondent, Ms. Kerry Rorek, appeared in May 2012 before the Summary Court on a number of counts of theft arising from her business managing property for a landlord called Clinton Judson who owns property in West Bay but who resides for part of the year in the USA. The Crown alleged that in the course of her business activities as owner of a property management company, the Respondent stole rental payments totaling $22,600 made by two tenants for the intended benefit of Mr Judson. The evidence established to Magistrate Foldats' satisfaction that most of the rental payments were either deposited into the property company's bank account or were initially received by company employees rather than the Respondent personally. In her recorded police interview, it was the Respondent's case that the money was misappropriated by one of her employees and that she knew nothing of the thefts. Judgment. SeA #0006/2012. R v. Kerry Rosita Harek.. Coram: o.venJ. (Actg.). Date: 04.09.14 Page 2 0/12 1 2 3 4 5 6 7 8 9 10 11 24 25 26 27 28
The abuse of process submission, raised before the learned Magistrate, was based on the conduct of the investigating police officer, Richard Clarke, who until his retirement on 31st December 2010 was a Detective Constable in the Financial Crimes Unit of the Royal Cayman Islands Police Service. Prior to delivering his ruling on the abuse submission, Magistrate F oldats heard evidence from DC Clarke and also from the landlord, Mr. Judson, and the two tenants who had paid the rent to the Respondent's property company. In his ruling, the learned Magistrate recorded the following findings conceming an alleged agreement concluded between DC Clarke, Mr. Judson and the Respondent for the repayment of the "stolen" rental monies on terms that meant that Ms. Kerry would avoid being prosecuted for theft: "The landlord testified that he met with the defendant and the investigating officer at the Financial Crimes Unit offices in April 2010 on a number of occasions during which an agreement was reached that the monies would be paid back; as the landlord described it - 'the agreement that she and I and [the investigating officer] drafted to repay. The landlord agreed that the investigating officer was trying to help reach an agreement "as to how the debt was to be repaid". The final written agreement was reached on April 26th 2010 with the ''full assistance" of the investigating officer - it stated in part that that "if payments are not made as outlined ... then we can liable for prosecution .... ". The defendant in due course repaid some $5400.86 to the landlord pursuant to the agreement." Having cited from the Respondent's tape recorded interviews in order to "capture the investigating officer's involvement in the process", Magistrate Foldats went on to say: Judgment. seA #0006/2012, R v, Kerry Rosita Horek.. Coram: OwenJ. (Aetg.). Date: 04.09.14 Page 3 of 12 1 2 3 4 5 6 7 8 9 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
" .. the investigating officer testified that he facilitated the process because "[the landlord's] interest was solely to get back the money .. .! thought it was the easiest way for him to get the money back rather than go through a court process" - he defined court process as "arrest [or] civil action ". And in cross-examination, he agreed that "facilitating an agreement between the defendant and [the landlord] would have the effect of avoiding protracted criminal or civil proceedings". The investigating officer admitted that if the payments were made, there would be no arrest. The investigating officer did not consult with his superiors or obtain any legal advice prior to embarking on this course of conduct; nor did he appear to have an understanding of the offence of "compounding" describing it as when "a situation is made worse by one's actions." The learned Magistrate went on to refer to the criminal offence of "compounding" set out in s.108 of the Penal Codel and finally concluded with these findings of fact: "The evidence before me disclosed that the investigating officer, without oversight, advice or directions from a superior officer, assisted the landlord to reach an unlawful agreement with the defendant whereby the prosecution for theft was delayed and would be abstained from upon payment of the missing rental sums. And, furthermore, the investigating officer took an active, aggressive and partisan role in attempting to secure payment for the landlord. In essence, he was acting as an unregulated, private debt collector while clothed in the authority of a police officer - "pressuring" the defendant to make payments under threat off arrest. The investigating officer's actions, although perhaps unwitting (in the sense that he was unaware of the offence of compounding), were certainly unlawful - in essence he facilitated the commission of an offence. It is this unlawful conduct that "offends the Court's sense of justice and propriety" 1 "s.108: Whosoever asks, receives or obtains or agrees or attempts to receive or obtain, any property or benefit of any kind for himself or any other person upon any agreement or understanding that he will compound or conceal an offence, or will abstain from, discontinue or delay a prosecution for an offence or will withhold any evidence thereof is guilty ofan offence." Judgment. SeA #0006/2012. R v. Kerry Rosita Horek.. Coram: OwenJ. (Actg.). Date: 04.09.14 Page 4 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
The learned Magistrate held that the Respondent was still able to have a fair trial before him and that there had been no undue delay causing prejudice through loss of evidence but that "on the second limb I find that the investigating officer's conduct constituted 'serious misbehaviour' and he referred to the various factors cited by the Privy Council in R v. Warren 2 He also records in his Ruling that prosecuting counsel, Mr. Ferguson, declined to apply for an adjournment in the course of the hearing so that the issue of abuse could be raised before the Grand Court for determination. He simply submitted there was no abuse. The Case Stated lodged with the Court identifies the following question of law which the magistrate desires to be submitted for the Grand Court to determine: "Whether the Summary Court has jurisdiction to stay proceedings as an abuse of the court's process on the ground that it offends [they offend] the Court's sense of justice and propriety to try the accused in the circumstances of this case." A further question of law was submitted by the DPP for the opinion of the Grand Court, as follows: "Whether the Court erred in law in holding that the investigating officer's conduct constituted 'serious misbehaviour' in the context of the evidence that was before the court at the time and therefore was sufficient to "offend the Court's sense of justice and propriety" to justify a stay of proceedings against the defendants." 2 [2011] UKPC 10. Judgment. seA #000612012. R v. Kerry Rostta Horek .. Coram: OwenJ. (Aetg.). Date: 04.09.14 Page 5 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
THE FIRST QUESTION: THE JURISDICTION OF THE SUMMARY COURT TO ENTERTAIN A LIMB 2 ABUSE OF PROCESS SUBMISSION In advance of the hearing of the appeal I brought to the attention of Counsel two authorities that did not feature in either Skeleton Argument but which were, in my view, directly relevant to the merits of the question posed by the learned Magistrate, namely Sharma v. Brown-Antoine & Others3 and the subsequent decision of the Privy Council in Pan day v. Virgil'. Extensive citation from both these decisions was included in my Judgment in Kpesunu v. Chief Immigration Officer & another5 in support of the proposition that a court of summary criminal jurisdiction enjoys a very broad jurisdiction to stay criminal proceedings in accordance with the principles identified in R v. Horseferry Road Magistrates' Court ex parte Benneti'. In particular, in Panday the Board unanimously agreed (albeit obiter in view of their finding that the Bennett principle could not be invoked on the facts of that case) that the jurisdiction of a magistrates' court extended to staying proceedings on the basis of an abuse of Executive power save in relation to the very narrow factual scenario of Bennett itself where the argument was that an accused had been unlawfully brought within the jurisdiction (see paragraphs 28-35 of the judgment of Lord Brown). Only in that narrow example of Executive abuse of power would it be necessary, in the view of the Board, for the 3 [2006] UKPC 57 4 [2008] UKPC 24 5 Cause G 365 of2013 (Unreported) 6 [1994]1 AC 42 ~~;c---;----;o---;o----;;-;--- Judgment. SeA #0006/2012. R v. Kerry Rosita Horek.. Coram: Owen J. (Actg.). Date: 04.09.14 Page 60/12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21
magistrates' court to adjourn in order that the High Court might exercise its supervisory jurisdiction on an application for judicial review. It follows from the Board's reasoning in Panday that where an abuse of process submission is grounded on limb 2 of the Bennett principle (i.e. abuse of power on the basis that a charge has been institnted in bad faith or oppressively or in other circumstances that offend the court's sense of justice and propriety so that it would be unfair to try the accused at all), a court of summary jurisdiction has the power to grant a stay of proceedings without the need to adjourn for an application for judicial review to be pursued save in one very narrowly confined sitnation which is likely to raise sensitive cross-border considerations and which range well outside the prosecution process itself. It is not in dispute that the jurisdiction of the Summary Court of the Cayman Islands extends to staying proceedings as an abuse of process in line with the principles in Bennett - see R v. Minzetl. However neither Sharma v. Brown-Antoine & others nor Panday was cited to the Court of Appeal in Minzett and Sir John Chadwick, President, expressly reserved the question of whether the Chief Magistrate ought to have adjourned the issue of entrapment raised before him to the Grand Court in light of the observation of Lord Griffiths in his speech in Bennett to the effect that: 7 (2011) (2) CILR236 Judgment. SeA #0006120]2. Rv. Kerry Rosita Horek .. Coram: Owen 1. (Ae/g.). Date: 04.09.14 Page 70/12 8 9 10 11 12 13 14 IS 16 17 18 19 20 21 22 23 24 25 " ... the wider responsibility for upholding the rule of law must be that of the High Court and that if a serious question arises ... a magistrate should allow an acijournment so that an application can be made to the Divisional Court which I regard as the proper forum in which such a decision should be taken." Having had the two Privy Council decisions drawn to his attention, and in light of my Judgment in Kpesunu, Mr. Walcolm stated at the outset of his submissions that he did not seek to maintain the argument set out in his Skeleton Argument to the effect that the Summary Court here on the Cayman Islands lacks jurisdiction to rule upon an abuse of process submission based on limb 2 of Bennett so that the learned Magistrate simply had no power to hold that the proceedings be stayed on the basis that the Court's sense of propriety and justice was offended by the bringing of the charges before it. In my view, Mr. Walcolm was right to make this concession. Although not strictly binding on this court, I regard the views of the Privy Council in Sharma v. Brown-Antoine & others and Panday as both compelling and highly persuasive. It is plainly desirable that where a magistrate has heard all the relevant evidence in a trial before him, he should be empowered to stay proceeclings in circumstances where he is satisfied either that a defendant cannot receive a fair trial or that it would unfair to try him at all. To require the matter to go to the Grand Court for review only in the latter category of abuse of process submissions would require, in my view, a very clear policy justification in circumstances where it is obvious that resort to the Grand Court will result in delay in the prosecution process. Judgment. seA #000612012. R v. Kerry Rosita Horek. Coram: OwenJ. (Aetg.). Date: 04.09.14 Page 8 0[12 1 2 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
It follows in my view that the learned Magistrate was lawfully entitled to entertain and rule upon the submission advanced by the Respondent that her prosecution was an abuse of the process of the Court. THE SECOND QUESTION: DID THE MAGISTRATE ERR IN LAW IN STAYING THE PROCEEDINGS? I have already set out the facts as found by the magistrate which led him to conclude that the conduct of the investigating officer in organizing an unlawful agreement whereby the Respondent was given an assurance that she would not be prosecuted so long as she made regular payments to the landlord, arnounted to serious misbehavior which offended the court's sense of propriety and justice. Mr. Walcolm for the DPP frankly accepted that DC Clarke's evidence established that his actions in inducing the Respondent to agree to make payments to the landlord meant he was guilty of the criminal offence of compounding contrary to s.108 of the Penal Code. He also accepted that in pursuing an appeal by way of case stated, the DPP could not challenge the findings of fact made by the learned Magistrate and that the conclusion that a stay had to be granted was the result of an exercise of discretion by the magistrate. I put it to Mr. Walcolm that, in circumstances where the magistrate plainly took into account the principles set out in the Privy Council of Warren and in particular the judgment of Lord Dyson, he had to demonstrate that the magistrate's conclusion that the conduct in issue in this case was such as to justifY a stay on the grounds of abuse of power was perverse. Mr. Walcolm was, perhaps understandably, reluctant to Judgment. seA #0006/2012. R v. Kerry Rosita Horek .. Coram: Owen J. (Aetg.). Date: 04.09.14 Page 9 of12 1 accept that he had to go as far as that and instead sought to argue that despite 2 referring to and citing from Warren the magistrate had somehow failed 3 properly to conduct the proper balancing exercise. He suggested that the 4 reasoning of the magistrate shows that he did not take into account the 5 factors that mitigated in favour of the prosecution proceeding, that he failed 6 to appreciate that the unlawful agreement in issue in this case was 7 "conditional" (in the sense that it was made clear to the Respondent that she 8 would be prosecuted if she failed to keep up her payments to the landlord) 9 and that in the circumstances the discretion to stay was not exercised in a 10 judicious manner. 11
Mr. Dixey characterized the DPP's argument on this aspect of the case as 12 "hopeless" and I regret to say that I agree with this description. A full 13 reading of the magistrate's careful ruling makes it crystal clear that he was 14 well aware of the principles of law that governed his power to stay the 15 proceedings and that he was scrupulous in setting out the various factors that 16 told in favour of and against a stay. Ultimately he formed the view that 17 regardless of the fact that the officer's actions were not tainted by bad faith 18 or malice and proceeded on the basis of ignorance of the criminal offence of 19 compounding, the officer nonetheless took an active, aggressive and partisan 20 role in attempting to induce the Respondent to pay back the missing rental 21 money under threat of arrest and prosecution thereby facilitating the 22 commission of an offence. .------....... -- ,~;;__;;c_~_c_;_;c_-;--;oc--~---;--;c~~ Judgment. seA #000612012. R v. Kerry Rosita Horek.. Coram: Owen J. (Actg.). Date: 04.09.14 Page 10 0[12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 19 20 21 22 23 I reject the submission that the nature of the agreement imposed upon the Respondent by DC Clarke meant that it was not an unconditional promise not to prosecute because it left open the possibility of arrest should the money not be repaid in full. It clearly was a promise that so long as the rental money was repaid at regular intervals and in full, no prosecution would follow. The essence of the agreement imposed meant that pressure was sustained against the Respondent for a period of some months before she was eventually arrested for allegedly breaching the agreement. Indeed in the course of the interview that followed the Respondent's arrest, DC Clarke expressly observed that immediately before her arrest the Respondent had been frantically trying to arrange further payment "in reaction to the pressure I put you under". Far from mitigating the conduct, I regard the sustained threat of arrest and prosecution in the event that the Respondent breached the "agreement" she had made as aggravating not mitigating the conduct in issue in this case. A situation in which a police officer decides to take the law into his hands by acting as a private debt collector for an aggrieved landlord thereby placing pressure on an individual (who claims to be innocent of any crime) to repay an alleged debt under threat of arrest is intolerable. It gravely undermines the integrity of the police force and thereby threatens to undermine the rule of law itself. The idea that it can sensibly be argued that no magistrate could rationally conclude that a stay should be granted on proceedings that have their origin in the kind of conduct perpetrated by DC Clarke is, in my view, unsustainable. Judgment. SeA #000612012. R v. Kerry Rosita Borek.. Coram: OwenJ. (Aetg.). Date: 04.09.14 Page 11 of 12 1
In conclusion, I have reached the very clear view that not only was the 2 magistrate's conclusion that allowing the prosecution to proceed would 3 amount to an abuse of the process not wrong in law, it was plainly right. 4 Accordingly, this appeal is dismissed. 5
No order as to costs. 6 7 Dated this the 4th day of September 2014 8 9 Honourable Mr. Justice Timothy Owen Q.C. (Actg.) 10 Acting Judge of the Grand Court Judgment. SeA if0006120i2. R v. Kerry Rosita Horek .. Coram: Owen J. (Aetg.). Date: 04.09.14 Page 12 of 12