Court name
Supreme Court of Turks and Caicos Islands
Case number
CR 37 of 2012
CR 38 of 2012
CR 40 of 2012
CR 44 of 2012

R v. Floyd Hall and others (EVIDENCE) (CR 37 of 2012, CR 38 of 2012, 40 of 2012, 44 of 2012) [2021] TCASC 19 (23 August 2021) (CR 37 of 2012, CR 38 of 2012, CR 40 of 2012, CR 44 of 2012) [2021] TCASC 27 (23 August 2021);

Media neutral citation
[2021] TCASC 27
Case summary:

Paragraph 20 of Arthur Robinson’s witness statement in this matter contains a statement allegedly made by the third Defendant, Melbourne Wilson, to Mr Robinson. The admissibility of this paragraph 20 was challenged by the second Defendant, Jeffrey Hall, for three reasons: (i) even though section 9 of the Evidence Ordinance makes the evidence of a co-conspirator against a Defendant admissible, even if the statement is made in his (the 2nd Defendant’s) absence, there is no evidence that Melbourne Wilson was a co-conspirator (para 8); (ii) the statement is protected by attorney-client privilege (para 10); (iii) the statement is prejudicial to the alleged co-conspirators on count 2 of the Information (para 11). Alternatively, the second Defendant submitted that paragraph 20 should be only partially admissible for the reason that it contains hearsay evidence which does not fall into any hearsay rule exception (para 13). These reasons were adopted by all co-Defendants.
The Crown replied that the evidence is admissible against Melbourne Wilson as it is a statement made by him voluntarily to the witness, demonstrating that he, Mr Wilson, knew the ‘players’ of the North West Point transaction (paras 15-18).

Headnote and holding:

Paragraph 20 of Arthur Robinson’s witness statement is partially admitted. The names or any description that may otherwise identify any of the defendants who are not the intended persons against whom the evidence is adduced, shall be redacted (paras 24-25). 

The evidence in paragraph 20 is not being offered in proof of any charge against any alleged co-conspirator and the question of the admissibility of a hearsay statement need not be considered (paras 20-22) 

Coram
Agyemang, CJ

C:\Users\SupremeCourt 2\Downloads\Judiciary Logo.jpg 

IN THE SUPREME COURT 

TURKS AND CAICOS ISLANDS 

(Criminal) 

 

ACTION NOS. CR 37/12 – R v Melbourne Wilson 

CR 38/12 – R v Clayton Greene 

CR 40/12 – R v Jeffrey Hall 

CR 44/12 – R v Floyd Hall 

BETWEEN: 

 

THE QUEEN 

 

and 

 

FLOYD BASIL HALL, JEFFREY CHRISTOVAL HALL, MELBOURNE ARTHUR WILSON AND CLAYTON STANFIELD GREENE 

 

CORAM: AGYEMANG CJ 

 

FOR THE CROWN: MR A. MITCHELL QC.; WITH HIM MR. Q. HAWKINS AND MS. K. DUNCAN  

 

FOR THE FIRST DEFENDANT: MR. W. EARL WITTER QC.; WITH HIM MR K. SMITH AND MR F. GRANT 

 

FOR THE SECOND DEFENDANT: MR.  J. PERRY QC.; WITH HIM MR. I. ROBINS AND MR J. MISICK 

 

FOR THE THIRD DEFENDANT: MR. A. SHEPHERD QC.; WITH HIM MR. J. SHEPHERD AND MR A. COMERT 

 

FOR THE FOURTH DEFENDANT: MR R. BENDALL; WITH HIM MS. K. HALL 

 

HANDED DOWN ON 23RD AUGUST, 2021 

 

 

 

RULING 

 

 

INTRODUCTION 

  1. This is a ruling in respect of submissions made by learned Queen’s Counsel for the second defendant. Learned Queen’s Counsel representing the first defendant who at first simply associated himself with the submissions made on behalf of the second defendant, later filed additional submissions. Learned Queen’s Counsel for the third and fourth defendants also adopted the submissions made on behalf of the second defendant.  

 

  1. The submissions are in respect of an objection made to the admissibility of part of the evidence of a witness before this court Arthur Robinson, who having given a witness statement in 2012, is yet to give evidence before this court in this trial. 

 

  1. The evidence objected to is contained in paragraph 20 of his witness statement given to the investigators in 2012. 

 

THE EVIDENCE 

  1. This court which by its ruling of  18 June 2021d excluded prior sight of witness statements, is not in consequence, in possession of the statement of the said witness which is sought to be offered as evidence by the Crown.  

 

  1. The content of the impugned evidence has therefore been supplied by Mr. Wilkinson QC, for the second defendant with these redactions (by the substitution of numbers for names): 

“Sometime following the closing of the deal and the disbursement of the funds I asked Wilson who was behind the deal. Wilson told me that the individuals who were behind the deals were ___1_____, _____2_____, ______3____ and ____4_____. Wilson told me that ______5_______ and ____6_______, who are respectively the brothers of ___7_______ and _____8______, were used to front the deal. Wilson told me that he was in correspondence with ______9______, who he described as the “Chief Negotiator”, and that ___10_____ brother was representing ____11____ interest.” 

 

RELIEFS SOUGHT 

  1. On behalf of the second defendant (as adopted by the first, third and fourth defendants), learned Queen’s Counsel seeks the following reliefs: 

  1. that his objection be sustained or upheld, and the witness (Arthur Robinson) be prevented from giving evidence of the contents of paragraph 20 of his witness statement, in-chief or otherwise, in toto; 

  1. alternatively, that the witness’s said witness statement be edited or redacted so that, in giving evidence, the Witness cannot state the name of any individual, or alleged co-conspirator, mentioned in paragraph 20 of the said witness statement save and except for the alleged maker of the alleged statement who is a defendant in the proceedings; and 

  1. that this Honourable Court confirms, or rules, that the alleged statement contained in paragraph 20 of the said witness statement is inadmissible against any person other than the person who allegedly made the statement. 

 

ARGUMENTS  

  1. Arguing the grounds upon which the objection has been brought for the alternative reliefs of: either a ruling holding the entire paragraph 20 to be inadmissible, or one holding it to be only partially admissible, learned Queen’s Counsel raises two alternative issues. 

 

TOTAL EXCLUSION 

  1. In respect of the submission for the total exclusion of the evidence: learned Queen’s Counsel Mr. Wilkinson contends that that Section 9 of the Evidence Ordinance, Cap 2.06 which makes admissible the evidence of a co-conspirator against a defendant even if the statement was made in his absence, necessarily excludes the admissibility of the statement, alleged by the witness Mr. Robinson to have been made by the third defendant against other alleged co-conspirators. This is because no case of conspiracy has been established against him, .  

 

  1. He contends that the third defendant could not have had any “common intent” to commit crime with any of the alleged co-conspirators against whom the statement was made.  

 

  1. He further argues that admitting the evidence of the said paragraph 20, would mean the divulging of a privileged statement by the third defendant against co-conspirators or other persons to whom the privilege belonged.  

 

  1. He submits that the statement is prejudicial to the alleged co-conspirators on Count 2, including the second defendant in this allegedly “ill-defined charge” of conspiracy, and contends that in any event, whatever probative value the said evidence would have in proof of the Crown’s case is far outweighed by the prejudice that may be occasioned to the defendants, including the second defendant.  

 

  1. Arguing in respect of the alternative relief of partial inadmissibility, Queen’s Counsel Mr. Wilkinson also points out that the statement in paragraph 20 of the witness statement is hearsay, and inadmissible against anyone apart from the alleged maker: the third defendant.  

 

  1. He avers also. that intrinsically, the statement in paragraph 20 of the witness statement does not fall within any exception to the hearsay rule, for it is manifest, from the words: “…following the closing of the deal and the disbursement of the funds…” that if the statement was made at all, it was so made after the fact when the alleged criminal acts had been committed; thus it could not have been made  “in furtherance” of any conspiracy nor “…in reference to [the alleged co-conspirators’] common intent”.   

 

ARGUMENTS FOR FIRST, THIRD AND FOURTH DEFENDANTS 

  1. As aforesaid, learned Queen’s Counsel appearing for the first,  and third  Defendants and Counsel for the fourth defendants have adopted the said arguments of Mr. Wilkinsonson QC on behalf of the said defendants regarding the admissibility of paragraph 20 of the witness statement of Arthur Robinson, against them.  

 

CROWN’S RESPONSE 

  1. In response to the said submissions, learned Queen’s Counsel Andrew Mitchell for the Crown urges the court to discountenance the objection and admit the evidence for the following reasons: that the statement allegedly made by the third defendant to the witness Arthur Robinson was a statement against his interest, which would at common law be admissible against him. This, he contends is what the evidence is offered to establish, that the third defendant understood the import of the transaction, and the roles of others in furtherance thereof. Thus, he contends that “the evidence is NOT, at this stage, admissible against anyone other than [the third defendant] …”  

 

  1. In his submission therefore, the points raised by learned Queen’s Counsel Mr. Wilkinson are of no moment at all. In particular, he points out that because the Crown’s case for admissibility is not based on the assumed legal basis that the statement of the third defendant is evidence of “anything said…by any such persons in reference to their common intent” (as the evidence is not being offered against co-conspirators at all), S. 9 of the Evidence Ordinance on which learned Mr. Wilkinson QC relies is not relevant to the matter.  

 

  1. He urges the court to hold that the extra judicial statement which was made voluntarily to the witness by the third defendant is relevant and admissible against him as it demonstrates that he knew “who the “players” were in the North West Point transaction.”  

 

  1. He urges the court to disregard the arguments on privilege which he contends are not sound, as privilege may not attach to communication regarding the commission of a crime. In this case, he avers, the evidence is offered against the third defendant regarding his commission of a crime and no privilege may be invoked to prevent an inquiry into it. 

 

ISSUE FOR DETERMINATION 

  1. The sole issue to be determined is whether in accordance with section 9 of the Evidence Ordinance, the statement contained in paragraph 20 of Arthur Robinson’s witness statement should be excluded. The reasons for urging the court to do so, have been set out at length before now. 

 

CONSIDERATION 

  1. Having read the submissions, and having heard learned Queen’s Counsel on both sides, it is my view that the question has lost its thrust in face of the clear submission of Mr. Mitchell QC that the evidence is not being offered in proof of any charge against any alleged co-conspirator. He is emphatic that the statement which is allegedly an admission against interest, is offered in proof of the charge against the alleged maker of the statement the third defendant. 

 

  1. In the face of this assertion, I call to mind the proverbial “storm in a teacup”, as it turns out that it is offered against the third defendant only, and not against any of the defendants, who have challenged its admissibility against them. 

 

  1. The Crown’s assertion makes it unnecessary to examine the intrinsic admissibility of a hearsay statement against the persons allegedly named by the third defendant in his communication with the witness Arthur Robinson.  

 

  1. For these reasons, there is no need for the other persons against whom the evidence is offered to be named at all. This is so, as without doubt, intended or no, the admissibility of the unredacted statement complete with names (should the names include persons alleged to be part of a conspiracy in this trial), may engender prejudice to the named persons who have been charged along with the alleged maker of the statement, as co-conspirators. 

 

ORDER 

  1. Having considered the two positions and especially the stance of the Crown which has rendered arguments on admissibility of the statement against defendants other than the third defendant otiose, I have little difficulty in granting the alternative relief of partial admission of the statement of the witness contained in paragraph 20 of his witness statement.  

 

  1. In consequence, I make an order for the redaction of names or any description that may otherwise identify any of the defendants who, on the showing of Mr. Mitchell QC, are not the intended persons against whom the evidence is adduced. The witness is permitted to use only part of paragraph 20, and may restrict himself to the statement of the third defendant’s knowledge of persons who were part of the deal without providing any detail as to name or description. 

 

FIRST DEFENDANT’S ADDITIONAL ARGUMENTS 

  1. For the first defendant a further argument was made for the exclusion of the content of paragraph 22 of the said witness statement of Arthur Robinson. The said arguments could not form part of this ruling, as the content of the impugned paragraph 22 was not brought to the attention of this court. As aforesaid, this court which earlier in these proceedings ruled against having prior sight of witness statements, has no independent knowledge of the content of Mr. Robinson’s statement. As it was not set out in the submission this court is disabled from considering the objection regarding the admissibility of the content.  

 

  1. The alternative relief of partial admission of the content of paragraph 20 is hereby granted in the terms set out before now. 

 

  1. The relief sought by the first defendant regarding paragraph 22 is hereby refused. 

 

 

M.M. Agyemang  

Chief Justice