Fiallo v R

• Jurisdiction: Cayman Islands
• Judge: (Hull, J.)
• Judgment Date: 13 February 1987
• Court: Grand Court (Cayman Islands)
• Date: 13 February 1987

Grand Court

(Hull, J.)

FIALLO and SANTIAGO

and

R.

J. Jenkins for the applicants;

A. S. Smellie, Senior Crown Counsel, for the Crown.

Cases cited:

(1) Connelly v. D.P.P., [1964] A.C. 1280; [1964] 2 All E.R. 401; (1964), 48 Cr. App. R. 183, applied.

(2) R. v. Jones, [1918] 1 K.B. 416; (1918), 13 Cr. App. R. 86, considered.

Criminal Procedure-abuse of process-prevention of oppression-Grand Court may halt properly instituted proceedings if unreasonably vexatious and harassing to accused-prevention of oppression goes beyond technical scope of autrefois pleas

Criminal Procedure-abuse of process-prevention of oppression-trial by lower court of individual charges arising from same transaction may be halted if accused already acquitted by higher court on combination of charges disclosing overall criminality of accused.

The applicants obtained leave to seek judicial review by the Grand Court of a ruling by the Summary Court.

It was alleged that the offences charged ail arose out of the same series of incidents. The offenders were associates who arrived in the Cayman Islands from the United States in the space of a few days and stayed in the same hotel. One of them was arrested at the airport, in possession of quantities of cocaine, about to board a flight for the United States; the applicants, who were about to board the same flight, fled and returned to the hotel, where further quantities of cocaine were later found. It was packed and fastened in a way which was identical to that seized at the airport, and the second applicant was found to have traces of tape residue on her body identical to that on the packets.

The applicants and their associates were initially charged with conspiracy to export cocaine and further charges were added at a later date, namely, in respect of the applicants only, that of illegally attempting to export cocaine and, in respect of all four offenders, charges of (i) being unlawfully in possession of cocaine, (ii) being in possession of cocaine with intent to supply it, and (iii) being concerned in the possession of cocaine. The first two charges were only triable on indictment and the last three summarily.

At the trial in the Grand Court, the offender who had been arrested at the airport pleaded guilty to conspiracy and attempting to export and gave evidence for the Crown on the trial of the remaining three offenders. The jury acquitted all three but the applicants were at once re-arrested and the Attorney General subsequently announced his intention to proceed against them summarily in respect of the remaining three charges, which could not have been joined in the indictment tried before the Grand Court.

The applicants then sought the disqualification of the Magistrate on the ground that he had conducted the preliminary inquiry leading to the

jury trial and to stay the proceedings on a plea of autrefois acquit and on the basis of the principles of res judicata. The Summary Court rejected the application and the charges were set down for trial.

The applicants obtained leave to seek judicial review of the ruling on the latter point. They submitted that (a) the necessary conditions for a plea of autrefois acquit had been made out in that they were to be tried again for the same offences, or substantially the same offences, as those of which they had already been acquitted, and this was an absolute bar to the proposed proceedings; (b) the acquittal by the Grand Court jury amounted to a res judicata and thus also barred the proposed proceedings; and (c) such proceedings, even if they did not strictly fall within the first two categories of submission, would be oppressive and, in the exercise of the court”s inherent discretion, should be stopped.

The Crown submitted in reply that (a) the charges tried in the Grand Court did not concern offences with the same ingredients as those which it was proposed to try summarily and the plea of autrefois acquit could not therefore apply; (b) since the Grand Court jury had returned a general verdict in acquitting the applicants and it was therefore not known what evidence it had accepted, it could not be said that this verdict was necessarily incompatible with any subsequent finding in the proposed summary proceedings that they were guilty of the charges to be tried there-and in consequence the case did not raise issues of res judicata; and (c) the proposed proceedings would not therefore be oppressive.

Held, allowing the application and stopping the proceedings before the Summary Court:

(1) Although the court was not wholly convinced that the new summary charge of being concerned in the supply of cocaine was not in substance the same as the charge of conspiracy to export, of which the applicants had already been acquitted, the Crown”s submissions that the pleas of autrefois acquit, res judicata and issue estoppel were inapplicable were in general, as a matter of strict law, correct. To succeed, the applicants would therefore need to rely on the residual, discretionary ground that it would be oppressive to proceed (page 261, lines 11–24).

(2) It was, of course, open to the Attorney General to institute the proposed proceedings, since the charges were in a proper form and disclosed alleged offences. The Grand Court”s power to prevent the abuse of its process, however, included a power to intervene even in properly instituted criminal proceedings to prevent unfairness to an accused person by refusing to countenance those which, without reasonable grounds, were vexatious and harassing. It could therefore act to prevent the oppressive repetition of a charge after a previous decision, in circumstances which went beyond the scope of the autrefois pleas (page 261, line 27 – page 262, line 23; page 263, lines 5–18).

(3) Although it was true that in the present case the Crown had been unable to join in the indictment the charges it now wished to have tried summarily (because they were by statute only triable summarily), it did

not follow that these statutory limitations prevented the proposed course of action from objectively being seen as oppressive. The joinder that had taken place in the Grand Court had been allowed on the basis that the charges would together disclose the overall criminality alleged against the second applicant and, having tried that overall criminality, the jury had acquitted her. It was therefore doubtful whether the possibility of proceeding on any one aspect of the overall criminality remained, for the second applicant would be exposed to the retrial of what in reality was simply one part of the case against her, which had already been heard and determined. This reasoning applied a fortiori to the first applicant, against whom the overall case was weaker (page 263, line 30 – page 264, line 6; page 266, line 39 – page 267, line 23).

(4) It did not matter that the proposed proceedings were to be heard in a lower court, for a retrial of part of the case already dealt with in the Grand Court necessarily amounted to a challenge to the tatter”s process. As it would therefore be oppressive to continue the proceedings against the applicants in the Summary Court, they would accordingly be stopped (page 267, lines 24–33).

HULL, J.: On January 8th, 1986, the police arrested Giam-

pietro Salami, Joann Miranda, Mario Fiallo and Angie Santiago

in the Cayman Islands on suspicion of offences relating to

cocaine. In the proceedings which followed, the Crown relied on

the following allegations.

On January 2nd, 1986, Salami flew here from Miami. On

arrival he went to the Ambassador Inn, George Town, and

checked in, staying in Room 103. During this stay, he visited the

docks. He returned to Miami on the following day. Miss Miranda

travelled from New York to Miami on January 5th. There she was

introduced to Salami. She had been told to go to see him, in order

to accompany him to the Cayman Islands to obtain cocaine and

import it illegally into the United States. They came here on the

same day. Salami again checked into the Ambassador Inn and he

and Miranda stayed in Room 204, which was a room upstairs, on

the first floor, without a bathroom. The balcony leading to it

overlooked the office and an outside terrace with tables and
chairs and an almond tree in its centre.
On the following day, they went into George Town, where
Salami visited the docks again. At some time during the day, they
5	obtained cocaine. This was contained in 16 similar packets, which
were all of roughly equal weight.
On January 7th, Salami also requested another room. He was
given Room 104, which was on the ground floor, and he paid for
one night at the double occupancy rate. Fiallo and Santiago, who
10	were accepted by the Crown as being husband and wife, arrived
in the Cayman Islands on the evening flight on that day. They
stated in their immigration declarations that they were coming
here for recreational purposes. They went to the Ambassador Inn
where, on arrival, Salami spoke to them, and they stayed in
15	Room 104. During their stay, they associated with Salami and
Miranda.
On January 8th, Santiago was in Room 204 with Salami and
Miranda. The proprietress came up to the room to remind Salami
that check-out time was noon. Santiago gave her $50, saying that
20	one person would be staying on in it for one night. Soon after
lunch, Miranda, Fiallo and Santiago went to the airport in a taxi.
Minutes after they left the hotel Salami also left, on a motor
scooter, and went to the airport. On arrival Miranda, Fiallo and
Santiago all checked in at the ticket counter, received their
25	boarding passes for an afternoon flight, and went up to the cock-
tail lounge. They then came down and approached the security
clearance point which passengers pass through before

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