Randall v R

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Georges and Henry, JJ.A.)
• Judgment Date: 18 August 1993
• Court: Court of Appeal (Cayman Islands)
• Date: 18 August 1993

Court of Appeal

(Zacca, P., Georges and Henry, JJ.A.)

RANDALL

and

R.

H. Hamilton, Q.C. and D. Harrison for the appellant;

I. Archie, Senior Crown Counsel, for the Crown.

Cases cited:

(1) Leung Kam-Kwok v. R.UNK(1984), 81 Cr. App. R. 83.

(2) R. v. DonaldsonUNK(1976), 64 Cr. App. R. 81.

(3) R. v. DuncanUNK(1981), 73 Cr. App. R. 359, applied.

(4) R. v. McGregor, [1968] 1 Q.B. 371; [1967] 2 All E.R. 267.

(5) R. v. Sharp, [1988] 1 W.L.R. 7; [1988] 1 All E.R. 65, dicta of Lord Havers applied.

(6) Reid v. R.UNK(1978), 27 W.I.R. 254, dicta of Lord Diplock applied.

(7) State v. HodgeUNK(1976), 22 W.I.R. 303, dicta of Massiah J.A. applied.

Legislation construed:

Court of Appeal Law (Law 9 of 1975), s.6(2): The relevant terms of this sub-section are set out at page 532, lines 14–19.

Prisons Law (Law 14 of 1975), s.31A(1) and (2), as added by the Imprisonment (Amendment) Law, 1981 (Law 10 of 1981), s.24 and amended by the Prisons (Amendment) Law, 1992, s.2: The relevant terms of these sub-sections are set out at page 535, lines 6–17.

Evidence-admissions-admissions against interest -admission by accused of any matter to be established by Crown to prove crime is inculpatory evidence-admissible even if not amounting to confession

Evidence-admissions-mixed statement-all accused”s admissions relevant to Crown”s case and excuses or explanations amounting to defence however weak, to be left to jury-failure to direct jury accordingly fatal to conviction

Criminal Procedure-retrial-factors to be considered-if in interests of justice, long delay between arrest and prolonged trial, time and expense of new trial, and accused”s entitlement to apply for parole may justify refusal of retrial

The appellant was charged in the Grand Court with, inter alia, theft and obtaining property by deception.

It was alleged that the appellant, a trust officer with a bank, had fraudulently transferred various sums of money belonging to the bank to an account for his own use. He was first interrogated by the police and then arrested eight months later. The trial commenced some two years after his arrest.

At the trial the appellant elected not to give evidence but the prosecution tendered a record of the police interview under caution and also the written answers of the appellant. In these he had made certain qualified admissions and purported to have acted only in the bank”s interest and not in any way fraudulently. Other evidence tendered by the prosecution sought to establish that the appellant purported to have made payments to another person who had not in fact received any payments but this person was not resident in the Cayman Islands and was not called to support that evidence.

The trial judge in his summing-up directed the jury that since there was nothing in the appellant”s statements as tendered by the prosecution which could be taken to be a confession, they were to treat them as a denial of his guilt. He further directed that the statements were not to be regarded as evidence of the facts but only as showing the appellant”s attitude at the time they were made, especially since some of them were written responses to questions which had been asked some three months earlier. The trial lasted six weeks and the appellant was convicted and

sentenced to three years” imprisonment, a third of which he had already served by the time of the hearing of his appeal.

The appellant submitted inter alia that the trial judge had failed to give any or adequate directions to the jury (a) that notwithstanding his election not to give evidence, they were to consider all his statements as tendered by the prosecution, giving such weight to the exculpatory parts as they thought fit; and (b) as to his defence which arose out of cross-examination and the statements tendered by the prosecution.

The Crown submitted inter alia that (a) since all the statements were wholly self-serving and not evidence of the truth of their contents and since they contained no admissions of guilt, the trial judge was under no obligation to direct the jury that they spoke to the facts; and (b) the appellant, having elected not to give evidence, had offered no defence upon which the judge could direct the jury.

Held, allowing the appeal:

(1) Any matter which the accused admitted and which had to be established by the Crown if the alleged crime were to be proved against him, might be tendered in evidence as inculpatory evidence. This was so even where that statement by itself did not amount to a confession of guilt. The judge had in effect directed the jury that there was nothing in the statements which could be used against the appellant and anything which went towards his defence was not evidence of the facts, whereas, in fact, the appellant was saying in those statements that his actions were not fraudulent and that he had acted at all times in the interest of the bank. The statements therefore consisted of both inculpatory and exculpatory statements and the jury ought to have been told that they must consider their entire contents-the excuses as well as the explanations-in deciding where the truth lay. Instead, as the direction stood, they would have failed to consider the exculpatory statements in this context. There was therefore a misdirection and a non-direction to the jury which were in themselves sufficient to justify quashing the convictions. There was the additional consideration that no directions were given to the jury regarding the defence raised in the statements. It was the duty of a trial judge to leave any defence that was raised, however weak or minimal, to the consideration of the jury. This failure also justified the quashing of the convictions and the appeal would accordingly be allowed (page 526, lines 23–38;page 530, lines 6–17; lines 23–26; page 532, lines 5–8).

(2) The power of the court to order a new trial would generally be exercised as the interests of justice demanded after consideration of the factors particular to each case. Some considerations in this case were that a new trial would enable the Crown to strengthen its case by calling to testify witnesses upon whose written evidence it had relied. On the other hand, there had been a long delay from the date of the appellant”s arrest to the commencement of the trial, which itself had been prolonged and complex. A new trial was likely to be as prolonged and complex and would involve a great deal of expense (e.g. in bringing in

overseas witnesses). Moreover, having already served one third of his sentence, the appellant had become entitled to apply for parole. In these circumstances the court would refuse to order a new trial (page 534, lines 7–8;page 534, line 24 – page 535, line 2; page 535, lines 18–25).

25	ZACCA, P.: The appellant was convicted by a jury on
December 9th, 1991 in the Grand Court on Counts 2 and 7 which
charged obtaining property by deception and Counts 3, 4, 5, 6,
11, 12, 13 and 14 which charged theft. He was charged on an
indictment containing 16 counts, 5 of which charged the offence
30	of obtaining property by deception and 11 the offence of theft.
All counts related to transactions in the Swiss Bank & Trust
Corp. Ltd. branch in Grand Cayman.
The appellant at the time of the alleged offence was a trust
officer in the said bank. The allegations were that the appellant
35	caused certain sums of money to be transferred from one account
to another and in so doing dishonestly obtained various sums of
money. The theft charges related to various sums of money
belonging to the bank. A total of three years” imprisonment was
imposed on the appellant. It is from this conviction and these
40	sentences that the appellant now appeals.
The case for the Crown in respect of Counts 1–7 was that the

appellant fraudulently utilized funds contained in three accounts,
namely Triangle Dilling, Milford Campbell and Campbell Engi-
neering to fund a fourth account, Violet Securities. In respect of
Counts 8–16, the allegations were that the appellant fraudulently
5	utilized funds contained in what was known as the Berlin Trust
account.
On behalf of the appellant, Mr. Howard Hamilton, Q.C. and
Mr. Delano Harrison argued 13 grounds of appeal. It is proposed
to deal with Grounds 6 and 11 only. [The learned President set
10	out all the grounds; Grounds 6 and 11 are reproduced below.]
Ground 6
‘(a) The learned trial judge failed to give any or adequate
directions to the jury that, notwithstanding the failure of the
15	appellant to give evidence, the jury were entitled to rely on
what was said in support of his contentions in his cautioned
statement by a prosecution witness; (b) as a consequence of
the misdirection complained of above, the learned trial judge
failed to point out the numerous answers contained in the
20	cautioned statements which went towards advancing the
appellant”s defence.’
Mr. Hamilton submitted that the prosecution tendered in
evidence an interview by the police with the appellant on
December 6th and 7th, 1988 and also written answers supple-
25	mentary to the interview, sent by the appellant to Supt. David
Gooding. These, he argued, formed part of the prosecution”s
case. It was submitted that the documents contained both
inculpatory and exculpatory statements and that the entire
statement should have been left for the consideration of the jury
30	and it was for the jury to consider the entire statement as
evidence giving such weight to the exculpatory statements as they
thought fit.
Mr. Archie for the Crown submitted that all the statements
were wholly self-serving and not evidence of the truth of their
35	contents. The learned trial judge was under no duty to bring the

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