There are several applications before this Court. These are:
- An application by McAllister Hanchell (MAH) to stay the criminal proceedings against him on the ground of abuse of process (AOP), filed on 12th December 2023.
- An originating summons filed by MAH on 22nd May 2024, claiming a declaration that the continuation of the criminal proceedings against him contravenes or is likely to contravene his right to the protection of the law under Section 1(a) of the Constitution and his right to a fair hearing within a reasonable time under Section 6(1) of the Constitution and an order permanently staying the criminal proceedings;
- An application by Michael Eugene Misick (MM) filed on 28th August 2024, seeking a permanent stay of the criminal proceedings against him on the ground that their continuation constitutes an abuse of process of the court and a further violation of his right to a fair trial within a reasonable time;
- An application filed on 30th August 2024 by Thomas Chalmers Misick (TCM) for a permanent stay of the criminal proceedings against him on the ground that the continuation of the criminal proceedings against him constitutes an abuse of process of the court and a further violation of his right to a fair trial within a reasonable time, and
- An application filed by the Crown on 2nd March 2021, for the trial of the defendants to be without a jury pursuant to Section 58 of the Criminal Procedure Ordinance 1968 (TWAJO).
Held: 1. The originating summons filed on 22nd May 2024 is dismissed. 2. The AOP applications filed on 12th December 2023, 28th August 2024, and 30th August 2024 are dismissed. 3. The TWAJO application is granted. I come to the following findings:
1. I am not satisfied on a balance of probabilities that the defendants have demonstrated such serious prejudice that no fair trial can be held, or that the continuation of the prosecution amounts to an abuse of the process of the court.
2. Whatever prejudice the defendants may suffer as a result of the passage of time can be remedied within the trial process.
3. I am not persuaded on a balance of probabilities that it would be unfair to try the defendants, or that a stay is necessary to protect the integrity of the criminal justice system. There is simply no evidence of prosecutorial misconduct, executive misconduct or unlawfulness, so as to justify the exceptional remedy of a permanent stay of proceedings in this case. See. Maxwell and Attorney-General’s Reference No 1 of 1990.
For the sake of completeness and in deference to counsel, I will deal briefly with a Constitutional argument put forward by counsel for MM. He submits that the DPP, in continuing these proceedings against MM, in breach of Section 6(1) of the Constitution is acting ultra vires the Constitution, and his act in so doing should be regarded as a nullity. In these circumstances the court should grant a permanent stay of the proceedings. MM submits that the Constitution imposes a “vires control” upon the DPP, in a similar though not identical way to that imposed on the Lord Advocate in Scotland by Section 57(2) of the Scotland Act 1998. MM further submits that if the Supreme Court permits the prosecution to proceed, the act of the Court in so doing will also be a nullity. The only adequate means of redress is a permanent stay of proceedings.
The fatal flaw in MM’s submission is that there is no statutory provision enacted in TCI that provides a “vires control” on the DPP or the Court from acting incompatibly with the Constitution, similar to section 57(2) of the Scotland Act 1998, which expressly provides a vires control from acting incompatibly with convention rights. That effectively disposes of this submission.
The Crown has made an application for this trial to be conducted without a jury pursuant to Section 58 of the Criminal Procedure Ordinance (CPO), which provides that a judge may grant such an order if he is satisfied that the interests of justice so require. On determining this issue, the judge is mandated to consider the following matters:
- the nature of the changes;
- the complexity of the issues, and any steps that might be taken to reduce the complexity of the trial;
- the length of the trial, and any steps that might be taken to reduce the length of the trial;
- the likelihood of pre-trial publicity influencing potential jurors and
- any information tending to suggest the possibility of jury tampering.
I have placed the relevant factors, as I have weighed them, unto the scale. The balance is overwhelmingly in favour of a trial without a jury. Accordingly, this court concludes that the interests of justice require that this trial should proceed without a jury.