R v Michael Misick and Others (EXTRADITION) (CR 35 of 2012; CR 36 of 2012) [2021] TCASC 13 (7 May 2021)

Flynote

Criminal law

Case summary

The Court found (i) there was no wrongdoing in the extradition of the first Defendant either by the Government of the TCI (TCIG), the UK Government, the Foreign and Commonwealth Development Office or any combination of the three; (ii) the first Defendant is entitled to invoke the treaty protections, and in particular, to invoke the Rule of Speciality in relation to the offences he has been charged with in this retrial; (iii) in accordance with the Rule of Speciality, counts 2, 4 and 9 of the Information, which charge the first Defendant with Conspiracy to Defraud must be excluded from the charges against him and it will be an abuse of process to try him on these counts.  Justice Harrison determined the extradition argument in December 2015, just before the commencement of the trial, but that fact does not prevent this court of coordinate jurisdiction from revisiting the issue in the new trial due to the settled law that there is no issue estoppel regarding a matter decided in a criminal trial, in a subsequent trial. This is a recognition that a retrial is fundamentally a new trial which is neither encumbered nor informed by the first trial. In particular, this new trial is upon a new Information (paras 40-45). DPP v Humphrys [1977] AC 1 APPLIED.  The court found the first Defendant’s argument that securing a change in legal relations between Turks and Caicos Islands and Brazil, just to bring him to the TCI to face prosecution was done ad hominem, without merit. The Court did not see how an extension which was provided for under section 16(1) of the treaty, without any limitation on when it should be applied for, would, when accessed, result in an abuse of process. The availability of extension of the treaty suggests that it was in the contemplation of the parties to be used whenever necessary. Thus, the securing of the extension by the Governor and/or TCIG was an executive act within the contemplation of the parties (paras 46-59). Liyanage and others v Reginam [1966] 1 All ER 650 (Privy Council Ceylon), Ferguson v The Attorney General of Trinidad and Tobago [2016] UKPC 2, ex parte Bennett [1994] 1 AC 42, R v Mullen [2000] QB 520 CONSIDERED.  The court found that the first Defendant was entitled to invoke the protections of the treaty. Upon the application of the Extradition Act 2003 (Overseas Territories) Order 2016, the first Defendant is entitled to invoke the Specialty Rule in accordance with section 17(2) of the Extradition Act. Although in the new Information, the charge is Bribery instead of Conspiracy to Receive   Bribes, no issues arises, even though the extradition was sought on the inchoate offence rather than the substantive one. Further, the court held that as money laundering is an offence under Brazilian law, even if its ingredients are somewhat different from the definition in the TCI, the money laundering charge at count 13 of the Information is also an extraditable offence. However, the court found that the charge of Conspiracy to Defraud was outside what he was extradited for and the prosecution failed to discharge their burden to prove that Conspiracy to Defraud was indeed extraditable. (paras 60-87).

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