R v Michael Misick and Others (ABUSE OF PROCESS) (CR 35 of 2012; CR 36 of 2012) [2021] TCASC 12 (7 May 2021)

Flynote

Criminal law

Case summary

Temporary stay of proceedings ordered on the ground of a lack of a fair trial on the new Information date 3 March 2021 until 31 May 2021. On or before the 31 May, the Prosecution, if desirous of continuing with the prosecutions, must present to the court, severed Informations to make possible, expedited trials. Should the Prosecution fail to comply with the time, and/or fail to sever the trials such as will permit speedy retrials as ordered, the stay may be made permanent on the application of any or all of the defendants on, or after 31 May 2021, or on the court’s own motion. 1. With regard to the first issue, the court held that the test to be applied is that it will be impossible to have a fair trial on the preponderance of probabilities, the burden of proof laying on the defence. The authorities are clear that a finding of unjustifiable delay does not automatically lead to a finding of the lack of a fair trial for which proceedings may be stayed. After carefully considering the possibility of a cure, a fair (re)trial will only be achievable after the excessive delay seen in this matter, if drastic change is brought to the new Information by severing the trials (paras 165-191). Attorney General’s Reference (No. 1 of 1990) [1992] QB 630, p 644 APPLIED, Attorney General’s Reference (No. 2 of 2001) [2003] UKHL 68, para 13 APPLIED; Dyer v Watson [2002] 3 WLR 1488 at 1527 B-C CONSIDERED, R v Telford Justices ex parte Badhan [1991] QBD 78 at pp 91C92C CONSIDERED. The court further found that: a. it agreed with the Defendants’ submissions that the first trial was unmanageable with a 17 count Information against 9 Defendants and 108,075 pages of evidence, which expanded by 61,891 more pages during the course of the trial. The new trial is also of giant proportions and will not likely be concluded in a year. It will not produce a fair trial for any of the defendants after the long period of delay which is sure to impact their defence (paras 199-226). 2. With regard to the second issue, the court held that the authorities are agreed that what will lead to a stay is where the moral integrity of the court will be compromised which is mostly found in ‘but for cases’, that is where, but for executive or prosecutorial (including police) misconduct, the prosecution would not even take place. That is not the case here (paras 149- 157). R v Maxwell [2010] UKSC 48 CONSIDERED; R v Latif and Shahzad [1996] 1 WLR 104 CONSIDERED. The court further found that: a. On an objective standard, criminal proceedings that are just shy of a decade and a trial which in entering its sixth year was far from concluded as the defence had just opened its case is unreasonable delay. It found that of the 1,879 days that elapsed between the trial date in 2015 and the last day of sitting, only 512 days were used as sitting days. These are proceedings which began for most of the defendants in 2012 (2011 for the second and seventh defendants, and 2014 for the first defendant) (paras 115-123). Attorney General’s Reference No. 2 of 2001 [2004] UKHRR 193 at 73 APPLIED. b. The submissions by the first, second, sixth and seventh defendants that there was prosecutorial manipulation of the new Information by having regard to their no case submissions did not find merit with the court. The court found that if the said submissions had found favour with Harrison J., an alteration in a retrial that appeared to have been informed by them, may have indeed constituted manipulation, but that is not the case here. The second defendant in particular, accused the prosecution of altering the Information, based on the evidence in chief given by him in the first trial, to deprive him of his defence. But this submission also failed as the court found that if giving evidence amounted to such prejudice against the second defendant, there could never be an order of re-trial. Also, in response to the submission that certain amendments to the Information allowed by Harrison J. have been taken advantage of in the new Information, the court found that the inclusion of what was a sought-for correction of the old Information, in the new Information would hardly qualify as a manipulation. (paras 130-138, 162). c. With regard to the second defendant’s submission that the delay has caused a loss of evidentiary material and the death of his witnesses, the court found that he gave evidence for 34 or 35 days, with no complaint of his inability to make his defence and has therefore failed to establish that he could receive a fair trial (paras 140-142). d. And with regard to the complaint of the enormous cost of the proceedings, the public is entitled to have the allegations against the defendants either properly determined or abandoned by the Prosecution at their own discretion. As the circumstance of a new trial has come up only because the trial judge died, and not because of wrong doing on the part of the Prosecution, the court found that there is no danger of compromising the integrity of the court for the prosecution to be continued in order to bring these proceedings to a conclusion (para 163). e. The court found that the defendants have been put to unfortunate prejudice by having gone through an amorphous trial that moved at a snail’s pace. But the court has to consider the seriousness of the offences, and must perform a balancing exercise. The authorities are agreed that what will lead to a stay is where the moral integrity of the court will be compromised which is mostly found in ‘but for cases’, that is where, but for executive or prosecutorial (including police) misconduct, the prosecution would not even take place. That is not the case here. (para 149- 157) R v Maxwell [2010] UKSC 48 CONSIDERED; R v Latif and Shahzad [1996] 1 WLR 104 CONSIDERED.

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