R v Gerald Gurvin Bush

• Jurisdiction: Cayman Islands
• Judge: Justice Cheryll Richards
• Judgment Date: 18 August 2023
• Docket Number: INDICTMENT NOs: 100 & 101 OF 2022
• Court: Grand Court (Cayman Islands)

R

and

Gerald Gurvin Bush

Before:

Justice Cheryll Richards KC

INDICTMENT NOs: 100 & 101 OF 2022

IN THE GRAND COURT OF THE CAYMAN ISLANDS

CRIMINAL DIVISION

HEADNOTE

Criminal Law-Application for a stay of the Indictment on the ground of abuse of process, Excessive delay in bringing charges, Case discontinued against Co-Accused, Applicable principles.

Appearances:

Ms. Kerri-Ann Gillies, Crown Counsel 1 of the Office of the Director of Public Prosecutions for the Prosecution

Mr. John Furniss and Mr. Crister Brady for the Defence

RULING

1 This is an application by the defence for a stay of the Indictment against the defendant Gerald Gurvin Bush as an abuse of process. The application is made on two grounds:-

• i) Delay; and

• ii) lack of parity in prosecuting the defendant but discontinuing against the former co-defendant Mark Kennedy Bush.

2 The defendant is charged on the Indictment with three counts of Handling Stolen Goods contrary to s.260(2) of the Penal Code 2019 Revision. The first count charges him with handling a Movado watch on or before March 2019. The second with handling a Tag Heur watch on or before the 30 ^th May 2019. On the third count he was jointly charged with Mark Bush with handling a Cartier watch on or before the 14 ^th March 2019.

3 The evidence in summary appears to be that following various burglaries which took place in March and April 2018, the police attended the business premises in March 2019. This is a business which trades in the purchase and sale of secondhand items. They recovered evidence that Gerald Bush had attempted to pawn the Cartier watch. A picture of the same watch was downloaded from the phone of Mark Bush. The Tag Heur watch had been pawned by the defendant Gerald Bush at the said business.

4 The defendant Gerald Bush was arrested on the 5 ^th March 2020. The Movado watch was found during a search of his home. It was identified as stolen from one of the burglaries.

5 In interviews under caution in June 2020 the defendant Gerald Bush said that he had received all the items from Mark Bush who is his cousin.

6 The police file of evidence was submitted to the prosecution's Office on the 3 ^rd September 2020. The charging decision was rendered almost two years later on the 24 ^th July 2022. Charges were laid on the 3 ^rd August 2022.

7 On the 28 ^th April 2023 following representations made by his attorney the prosecution discontinued the case against Mark Bush citing public interest grounds. These are said to be that he had been convicted and sentenced for similar conduct including in respect of a burglary involving one of the same complainants in this Indictment.

8 Defence Counsel points out that this defendant was arrested some two years after the burglary and charged two and half years later, a total of four and a half years. It is noted that evidence only came to light in 2019. The prosecution say that the delay in the charging decision was due to “institutional administrative matters” in its Office. The defence say that the case is not a complicated one nor one that required further evidence to be obtained. It is said that the reason put forward by the prosecution is not rational or justifiable.

9 On the second ground of parity, the defence in summary argues that the second defendant who had the case discontinued against him is being rewarded for having a criminal record, while this defendant who does not have a long criminal history is treated differently. Counsel's main point is that this defendant cannot have a fair trial because he has lost the opportunity to confront his co-defendant Mark Bush before the jury and put his case that the items were received from him.

10 Counsel relies on the case of R. v Forsythe 1 in which the English Court of Appeal expressed question about decisions made in respect of co-defendants. The Court said this:-

“Not unnaturally Mr Robertson suggested that it was equally unfair to try the appellant in the absence of Mr Nadir. Answering this ground of appeal, Mr Calvert-Smith attempted to point out differences between the two cases but we confess he did not convince us of their significance. On its face it seems a strange decision to press home the prosecution against one who appears to have been involved at short notice in assisting in an isolated transaction on the fringe of an immense misuse of company funds and at the same time to release from all criminal responsibility the group chief accountant alleged to have been more closely, extensively and frequently involved. The decision to do so is the prerogative of the SFO and does not in our judgment itself amount to an abuse of process. It is not for us to say whether such a choice accords with ordinary notions of even handedness or is likely to enhance the public perception of the fairness of a prosecuting authority.”

11 The prosecution opposes the instant application and by reference to cases including that of Warren v. Attorney General for Jersey 2 submits in summary that the threshold for an abuse of process application to succeed is a high one and has not been met in this case. It is submitted that the defendant has not established that he cannot receive a fair trial.

12 I am conscious that this very short ruling does not set out in full the very detailed, well researched and helpful arguments of both Counsel. I thank Counsel for their research and assistance to the Court.

13 I consider it sufficient to say this. The Court's jurisdiction in an abuse of process application is well known. It is set out in a number of cases including in the local case of R. v. Anglin 3, a decision of Justice Quin.

14 The Court has power to stay criminal proceedings in two categories of cases:-

• 1. Where it will be impossible for the defendant to have a fair trial; and

• 2. Where it would not be fair to try the defendant.

15 In the leading case of Horseferry Road Magistrates' Court ex parte Bennett 4 it was made plain that the discretion to grant a stay “must be exercised carefully and sparingly and only for very compelling reasons. The discretion to stay is not a disciplinary jurisdiction and ought not to be exercised in order to express the...