R v Rowe

• Jurisdiction: Cayman Islands
• Judge: (Smellie, C.J.)
• Judgment Date: 27 July 2004
• Court: Grand Court (Cayman Islands)
• Date: 27 July 2004

Grand Court

(Smellie, C.J.)

R.

and

ROWE and TIBBETTS

Ms. C. Richards, Senior Crown Counsel and A. Mon-Desir, Crown Counsel, for the Crown;

Cases cited:

(1) Callis v. Gunn, [1964] 1 Q.B. 495; [1963] 3 All E.R. 677, applied.

(2) Chan Wei Keung v. R., [1967] 2 A.C. 160; [1967] 1 All E.R. 948, referred to.

(3) Customs & Excise Commrs. v. Harz, [1967] 1 A.C. 760; [1967] 1 All E.R. 177, followed.

(4) D.P.P. v. Ping Lin, [1976] A.C. 574; [1975] 3 All E.R. 175, applied.

(5) Deokinanan v. R., [1969] 1 A.C. 20; [1968] 2 All E.R. 346, followed.

(6) Francois v. StateUNK(1987), 40 W.I.R. 376, applied.

(7) R. v. Prager, [1972] 1 All E.R. 1114; (1972), 56 Cr. App. R. 151, followed.

(8) R. v. Sang, [1980] A.C. 402; [1979] 2 All E.R. 1222, applied.

(9) R. v. Seelig, [1991] 4 All E.R. 429; (1992), 94 Cr. App. R. 17, referred to.

Evidence-confessions-Judges” Rules-‘persons in authority’ include police officers and persons in analogous positions-requires involvement in investigation of breach or enforcement of criminal law-Monetary Authority inspector and controller not ‘persons in authority’

The defendants were charged with offences involving the fraudulent use of investors” funds.

The defendants were respectively owners and directors of two companies and their affiliates. Both companies were inspected by the Cayman Islands Monetary Authority (‘CIMA’) as there were official concerns that they were involved in a fraudulent scheme. As a result of the inspector”s findings and recommendations, the companies were placed in controllership. When the present prosecutions were commenced, the defendants challenged the admissibility of information given by them in interviews with the inspector and the controller.

They submitted that (a) that the inspector and controller were ‘persons in authority’ within the meaning of the Judges” Rules 1964 (preamble, para. (e)) as they were acting in the administration and enforcement of not only the applicable regulatory laws but also of the criminal laws, especially the Proceeds of Criminal Conduct Law (2004 Revision); (b) the inspector and controller, at the times of the interviews, had ‘reasonable grounds for suspecting’ or did in fact suspect, within the meaning of r.2 of the Judges” Rules, that the defendants had committed offences and in the absence of a caution at that point the statements were obtained in breach of the Judges” Rules; and (c) the second defendant had been given an undertaking by the inspector prior to interview that everything said would be kept in strict confidence and this undertaking operated on his mind throughout the inspection as an inducement to disclose his own state of mind.

Held, ruling the majority of the evidence admissible:

(1) The Judges” Rules were confined to regulating the admissibility of statements made as a result of pressure from ‘persons in authority’ and were not intended to apply more widely than to police officers or ‘persons in analogous positions.’ It was a question of fact whether persons charged with the duty of conducting regulatory enquiries were also given powers of detention and investigation and prosecution of

criminal offences, so as to fall into the category of ‘persons in analogous positions.’ In this case, the mandates of the inspector and the controller did not include the enforcement of criminal laws or the investigation of criminal offences, since if they became concerned about breaches of the criminal law their only duty was to notify the police. The Judges” Rules did not therefore apply to them and it was not necessary for them to have cautioned the defendants before interview (para. 13; paras. 17–21; para. 24).

(2) The defendants” answers in interview which were given or obtained voluntarily and fairly were admissible. A confession obtained involuntarily would have been strictly inadmissible but there was a discretion to admit a confession obtained without a caution in breach of the Judges” Rules as they were only a guide as to whether the confession was in fact obtained involuntarily. The defendants understood that they were under no compulsion of law, i.e. threat of penalty, or other threat, promise or inducement, and were free to contact an attorney. They were well-educated, intelligent businessmen who, in responding to enquiries from CIMA and the controller, would have been under no misapprehension about the nature of the enquiries and the statutory remits and objectives being pursued (para. 28; para. 37; para. 39; para. 51; para. 55).

(3) The inspector”s original undertaking that everything told to CIMA by the second defendant would be kept ‘in strict confidence’ operated to exclude anything said at that meeting, but it could not possibly have operated as an inducement throughout the entire period of the subsequent inspection. It would otherwise have been contrary to the public interest underlying inspectors” appointments and a complete abnegation of the inspector”s duty to report, which was reasonably understood by the second defendant (paras. 54–55).

A. Malcolm, Q.C. and C.H. Allen for the first defendant;

M. Woods, Q.C. and S.D. Dickson for the second defendant.

1 SMELLIE, C.J.: Counsel for the defendants object to the admission into evidence of notes and transcripts of interviews conducted with the defendants by two witnesses for the prosecution. They also object to certain other evidence to be given by those witnesses as outlined in their witness statements.

2 The witnesses are Mr. Don Seymour and Mr. Goronwy James Cleaver. They conducted interviews of the defendants acting respectively in their capacities as inspector appointed by the Cayman Islands Monetary Authority (‘CIMA’) and as controller appointed by the Governor-in-Council of certain companies which were under the control of the defendants.

3 The defendant Rowe was then the owner and directing mind of Zephyr International Ltd. and its affiliates (‘Zephyr’). The defendant Tibbetts was the owner and directing mind of Everest Management Ltd. and its affiliates (‘Everest’).

4 Because of official concerns that they had become involved in the fraudulent Cash 4 Titles (‘C4T’) scheme which is now the subject of the present indictment, Everest and Zephyr were inspected by CIMA in October and November 1999. Mr. Seymour led the inspection teams.

5 Among other reasons, because of his findings and recommendations, Everest and Zephyr were placed into controllership on or about April 19th, 2000 with the appointment of Mr. Cleaver as controller. The interviews which are impugned were conducted in the context respectively of the inspections and controllerships of Everest and Zephyr.

6 There were two interviews of Mr. Rowe conducted in the context of the CIMA inspection of Zephyr and of which there are written notes or records, albeit only in rather cursory form. Those were conducted on November 1st and November 24th, 1999. The admissibility of both is impugned on the grounds that they were taken in breach of the Judges” Rules. While it is apparent from the evidence and I accept that the CIMA inspection did not formally commence until about November 16th, 1999, it is also clear that the first interview of Mr. Rowe-that of November 1st, 1999-was treated as part of the fact-finding process of the inspection.

7 It is argued by Mr. Malcolm, Q.C. on behalf of defendant Rowe and by Mr. Woods, Q.C. on behalf of defendant Tibbetts, that by virtue of their respective appointments, Mr. Seymour and Mr. Cleaver were ‘persons in authority’ within the meaning of the Judges” Rules 1964 (preamble, para. (e)). This provides that to be admissible in evidence a statement must be voluntary ‘in the sense that it has not been obtained

from him by fear of prejudice or hope of advantage, exercised or held out by a person in authority, or by oppression.’ It is said that though they were not police officers, Messrs. Seymour and Cleaver were acting in the administration and enforcement, not only of the regulatory laws applicable to Zephyr and Everest, but also of...