Re Euro Bank Corporation

JurisdictionCayman Islands
Judge(Smellie, C.J.)
Judgment Date22 January 2002
CourtGrand Court (Cayman Islands)
Date22 January 2002
Grand Court

(Smellie, C.J.)


A.J. Jones for the liquidators;

A. Akiwumi, Crown Counsel, for the Crown;

M. Thompson for the defendant Stewart (and holding for J.H. Furniss for the defendant Donegan);

A.S. McField for the defendant Taves;

A.J. Walters for the defendant Cunha.

Cases cited:

(1) Att.-Gen.”s Guidelines: Disclosure of Information to the Defence in Cases to be Tried on IndictmentUNK(1981), 74 Cr. App. R. 302, referred to.

(2) Dallison v. Caffery, [1965] 1 Q.B. 348; [1964] 2 All E.R. 610, followed.

(3) R. v. Brown, [1998] A.C. 267; [1997] 4 All E.R. 769; [1998] 1 Cr. App. R. 66, dicta of Lord Hope of Craighead applied.

(4) R. v. BryantUNK(1946), 31 Cr. App. R. 146, referred to.

(5) R. v. HennesseyUNK(1978), 68 Cr. App. R. 419, dicta of Lawton, L.J. applied.

(6) R. v. Keane, [1994] 1 W.L.R. 746; [1994] 2 All E.R. 478, followed.

(7) R. v. LawsonUNK(1989), 90 Cr. App. R. 107; [1990] Crim. L.R. 62, referred to.

(8) R. v. Maguire, [1992] Q.B. 936; [1992] 2 All E.R. 433; (1991), 94 Cr. App. R. 133, referred to.

(9) R. v. Melvin, Central Criminal Ct., December 20th, 1993, unreported, applied.

(10) R. v. Sansom, [1991] 2 Q.B. 130; [1991] 2 All E.R. 145; (1990), 92 Cr. App. R. 113, considered.

(11) R. v. Ward, [1993] 1 W.L.R. 619; [1993] 2 All E.R. 577; (1993), 96 Cr. App. R. 1, dicta of Glidewell, L.J. applied.

Legislation construed:

Criminal Procedure and Investigations Act 1996 (c.25), s.3(3): The relevant terms of this sub-section are set out at para. 38.

Criminal Procedure-prosecution case-disclosure of relevant information-Crown to disclose to defence all relevant unused material in possession, i.e. witness evidence or documents (i) relevant to issues in the case, (ii) raising new issues not apparent from prosecution evidence, or (iii) having real prospect of providing lead on relevant evidence

Criminal Procedure-prosecution case-disclosure of relevant information-if parties agree disclosure of very large number of documents, Crown need not further sift evidence for relevance and provide copies but may instead make available to defence for inspection, to avoid delay of trial

The liquidators of a bank applied for directions concerning their duty to disclose material to the Crown for the purpose of criminal prosecutions against former employees and account holders.

The defendants were charged with conspiracy and related money laundering offences in connection with their roles as officers and employees of the bank or their dealings with accounts held at the bank. In a pre-trial hearing, the court ordered the bank”s liquidators to disclose to the prosecution documents listed in an extensive schedule agreed by the parties, but which were documents that neither the prosecution nor the defence had yet seen. The material included computerized daily activity reports of the bank, files relating to loan applications, and records of accounts opened with the bank covering a six-year period. The intention was that the Crown should examine the documents to ascertain whether they contained relevant information to be disclosed to the defence.

The liquidators applied for further directions, questioning the practicality of assisting the prosecutors to select such material rather than simply giving the defence access to the entire material. They submitted that (a) the process of producing the material requested in a viewable form would itself take many weeks, and the exercise of inspecting all the documents would be so time-consuming for the prosecution as to delay the defendants” trial; (b) the defendants were better placed than the Crown to ascertain the materiality of the documents, since the prosecution had limited knowledge of the nature of the transactions they represented and could only guess at the nature of the proposed defences to the charges; and (c) some categories of document listed in the

approved schedule, e.g. files relating to loans, had been sold to another bank and were therefore no longer in their possession; others, e.g. correspondence with the bank”s former legal advisers, were more readily available from other sources.

The Crown submitted that since all the material had been seen by or been available to one of the liquidators in his role as a principal prosecution witness, it had had access to the material and was obliged to produce to the defence those documents that would assist them.

Held, giving the following directions:

(1) The Crown had a duty to disclose to the defence all relevant unused material, whether or not advantageous to the defence. Witness evidence or documents satisfying the criteria for materiality would be those that were relevant or possibly relevant to an issue in the case, those that raised or possibly raised a new issue the existence of which was not apparent from the prosecution”s evidence, and those that had a real prospect of providing a lead on evidence pertinent to the above. Disclosure would be required not only if the material were relevant to the offence charged but also if it had some bearing on the surrounding circumstances. The prosecution”s responsibility as a minister of justice assisting in the administration of justice obliged it to act according to the requirements of justice and fairness. Accordingly, the Crown was obliged to disclose to the defence the material in the agreed schedule, all of which had been in its possession or control through its principal witness (paras. 22–29; para. 32).

(2) Whilst the liquidators could not be expected to furnish the prosecution with documents that were no longer in their possession, for the purposes of disclosure to the defence, those documents they did have must be produced in compliance with the order, even though they could be obtained from other sources (para. 13).

(3) However, the duty to disclose could be fulfilled without the need for close scrutiny, selection and copying of documents by the liquidators and the prosecution. The material in question was large in volume, its existence was already known to the defence and its contents were, to some degree, familiar. Since the schedule had been agreed by the parties, the Crown could be regarded as having already selected the material as relevant. The prosecution might not, in any event, have been able to ascertain more precisely what documents were relevant, since it could only anticipate possible defences to its case. In the interests of ensuring full and fair disclosure in a manner which would not jeopardize a timely trial, the court would direct that the material in the schedule be made directly available to the defence for inspection and copying, and that the prosecution would then have fulfilled its duty (paras. 34–37; para. 39).

1 SMELLIE, C.J.: The liquidators bring this application for directions upon the invitation of the court given in the context of an earlier pre-trial hearing in related criminal proceedings. In those criminal proceedings, four of the named defendants are charged with conspiracy and related money-laundering offences in respect of their alleged conduct as former employees or officers of Euro Bank. The fifth defendant, Melvin Taves, is charged in relation to his dealings with certain accounts which were held at the bank either on his behalf or on behalf of his son, Kenneth Taves.

2 Kenneth Taves is also charged in this jurisdiction but has not been indicted. He has been convicted and awaits sentence for related offences in California, in the United States. His involvement, and that of Melvin Taves, with the bank must now certainly be regarded from an evidentiary

point of view, as a matter of readily identifiable record within the bank. For the purposes of the present discussion over the extent of the prosecution”s duty to disclose evidence to the defendants, Melvin Taves”s position, as it relates to the bank”s records, can be regarded as different from that of the other defendants. His attorney, Mr. McField, acknowledged as much and confirmed that the liquidators” proposal in respect of access to the bank”s records, which I will describe below, would be acceptable to him.

3 The position of the other four defendants as it might be affected by the liquidators” proposal will be considered now. Primarily because of their former capacities within the bank, their alleged involvement will need to be established by reference to materials with which they had dealt and touching upon very many transactions relating to many accounts. This is all the more so because of the wide ambit of the additional conspiracy count on which they are indicted. The prosecution has referred to its need to examine and adduce in evidence hundreds of thousands of documents for the purposes of proving the Crown”s case. That is a daunting prospect, however wide the allegations are cast, and one on which I will make further comment at the end.

4 The difficulty with which I must first deal concerns the extent to which the prosecution has an obligation of disclosure to the defendants. More specifically, the extent to which there is a duty to obtain and disclose to the defendants material within the bank which may be relevant or helpful to the defendants in refuting the case for the prosecution.

5 Recognizing that the duty exists, and with the agreement of the prosecution and the defence, I earlier gave directions by order made on November 30th, 2001. This was for the disclosure by the liquidators of materials described in a schedule to the order containing 35 items. The expressed intention of that order made on November 30th was that the material would be disclosed to the prosecution, which would first examine it to satisfy itself that it contained information which should be disclosed to the defence. This was intended to be in satisfaction of the...

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