Tibbetts v R

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Taylor and Forte, JJ.A.)
• Judgment Date: 24 January 2006
• Court: Court of Appeal (Cayman Islands)
• Date: 24 January 2006

Court of Appeal

(Zacca, P., Taylor and Forte, JJ.A.)

TIBBETTS

and

R.

M. Wood, Q.C. and S. Dickson for the appellant;

S.W. Bulgin, Q.C., Attorney General, C.M. Richards, Ag.Solicitor General and A. Mon Désir, Crown Counsel, for the Crown.

Cases cited:

(1) Att.-Gen. (Hong Kong) v. Wong Muk Ping, [1987] A.C. 501; [1987] 2 All E.R. 488; [1987] LRC (Crim) 315; (1987), 85 Cr. App. R. 167, followed.

(2) Johnson v. JohnsonUNK(2000), 200 C.L.R. 488, applied.

(3) Montgomery v. H.M. Advocate, [2003] 1 A.C. 641; 2000 S.C.C.R. 1044; 2001 S.L.T. 37; 2001 S.C. (P.C.) 1, referred to.

(4) Porter v. Magill, [2002] 2 A.C. 357; [2002] 1 All E.R. 465, applied.

(5) Pullar v. United KingdomHRC(1996), 22 E.H.R.R. 391; 1996 S.C.C.R. 755, applied.

(6) R. v. Baskerville, [1916] 2 K.B. 658; [1916–17] All E.R. Rep. 38; (1916), 12 Cr. App. R. 81, applied.

(7) R. v. HillsUNK(1988), 86 Cr. App. R. 26; [1987] Crim. L.R. 567, followed.

(8) R. v. Kilbourne, [1973] A.C. 729; [1973] 1 All E.R. 440, followed.

(9) R. v. Sussex JJ., ex p. McCarthy, [1924] K.B. 256; [1923] All E.R. Rep. 233, referred to.

Legislation construed:

Proceeds of Criminal Conduct Law (2001 Revision), s.22 (1):

‘Subject to subsection (3), whoever enters into or is otherwise concerned in an arrangement whereby-

(a) the retention or control by or on behalf of another (A) of property which is the proceeds of A”s criminal conduct is facilitated (whether by concealment, removal from the jurisdiction, transfer to nominees or otherwise); or

(b) property which is the proceeds of A”s criminal; conduct-

(i) are used to secure that funds are placed at A”s disposal …

knowing or suspecting that A is a person who is or has been engaged in criminal conduct or has benefited from criminal conduct, is guilty of an offence.’

Criminal Procedure-juries-impartiality of jury-if juror had previous relationship with witness, may be excused from sitting but verdict only set aside after trial if relationship such that fair minded and informed observer would regard bias as real possibility-in small jurisdiction unrealistic to require no connection between juror and any person involved in trial

Evidence-corroboration-accomplices-corroborative evidence need not confirm accomplice”s entire evidence but corroborate nature of the crime or accused”s involvement in it

Criminal Procedure-judge”s summing-up-interim summary of evidence-in exceptional circumstances (e.g. two-month delay between Crown and defence evidence following hurricane profoundly disturbing to whole community), acceptable for judge to summarize evidence already given when trial resumes

The appellant was charged in the Grand Court with offences under the Proceeds of Criminal Conduct Law (2001 Revision) of being concerned in money laundering.

Two US residents were convicted in the United States of fraudulently obtaining funds from investors in the United States and the Cayman Islands. The appellant and his co-accused were charged with being concerned in making arrangements in the Cayman Islands for the principal offenders to retain the proceeds of their criminal behaviour and to place further funds at their disposal by the use of those proceeds.

The appellant was tried by jury. The original panel of more than 100 potential jurors were asked in a questionnaire to disclose associations with either side, counsel or any proposed witnesses-whether they had ever been associated with the accused, or counsel for either side, and whether they were currently associated with any of the 58 proposed Crown witnesses. The last juror selected indicated that he was a friend of one of the Crown witnesses listed under her maiden name, but failed disclose an association with her husband who later gave evidence of an inculpatory statement by the appellant. The juror claimed he did not recognize the husband”s name on the list and doubted that he even knew

his surname; although he had had some social contact with these witnesses and even taken holidays with them, that was organized by his former girlfriend and all contact with the witnesses ceased some three years before the trial. During the period of their association they discussed the details of the scheme as the witness had recently invested in it through the appellant. The juror did not reveal the association when he recognized the witness giving evidence, but it came to light after the trial had ended.

The appellant”s co-accused gave evidence of conversations with him in which it was clear he knew the funds were not being used as investors expected. This evidence was corroborated in part by that of other Crown witnesses. The judge advised the jury which pieces of evidence were capable of acting as corroboration, but did not warn the defence which evidence he would point out in this way. During the trial, the Cayman Islands sustained extensive hurricane damage, causing an unscheduled two-month recess in the trial, following which the judge gave a summary of the predominantly Crown evidence which had already been given. The appellant was convicted and his co-accused acquitted.

On appeal, the appellant submitted that (a) there was a possibility that the juror had been biased due to his undeclared relationship with a key Crown witness; (b) the judge had erred in identifying certain evidence as capable of providing corroboration of the co-accused”s statement; (c) the judge had failed to disclose the evidence he would identify as corroborative prior to defence counsel”s address to the jury; and (d) by giving the summary of the Crown”s evidence following the two-month break, the judge may have influenced the jury in favour of that evidence by presenting it twice (once in the summary and again in the usual summing-up after all evidence had been heard).

The Crown submitted in reply that (a) the juror had enjoyed a superficial association with the witness in the past which had now ended, and was obviously not expected to influence him as he had been selected even though he had mistakenly declared a current friendship with the female witness; (b) even if the disclosure of the relationship during the trial would have been sufficient to have the juror excused, discovery of that fact after the trial would not automatically lead to the verdict being set aside; (c) the judge had been reasonable in what he suggested was corroborative evidence, bearing in mind that it was not necessary for corroboration to confirm all the previous evidence, but merely some salient part of it; and (d) the summary of the evidence already given had been necessary in the unusual and traumatic circumstances of the trial, and in any case the ability of the jury to remember the Crown evidence when the defence made its case could be as much of an advantage to the defence as to the Crown.

Held, dismissing the appeal:

(1) Bias on the part of the juror could not be apprehended merely on the basis of a prior friendship with a Crown witness. The test was whether a fair-

minded and informed individual-neither complacent nor unduly sensitive or suspicious-would see a real possibility of bias, which on the facts of this case seemed unlikely given the short length of their acquaintance, its shallow nature and the fact that it had ended a number of years before the trial. Moreover, in a small jurisdiction such as the Cayman Islands, in a case with over 50 Crown witnesses, to require no previous connections, however brief, between a juror and any party involved in the trial would be impractical and unrealistic. Furthermore, even if the disclosure of the relationship before or during the trial would have been sufficient to have the juror excused, its discovery after the trial would not automatically lead to the verdict being set aside (para. 23; para. 27; para. 30).

(2) The evidence which the judge suggested might corroborate that of the accomplice as to the accused”s knowledge of the misapplication of funds did not have to confirm every detail of that evidence; it was sufficient that it was independent evidence, confirmatory of that of the accomplice in important respects pertaining to the circumstances of the crime or the identity of the accused in relation to the crime (paras. 41–42; para. 49).

(3) Given the unusual circumstances surrounding the case, including the length of the interruption in the proceedings, the profoundly disturbing effect of the hurricane on the lives of the jurors and the quantity of evidence already heard, it was not unreasonable for the judge to provide an impartial summary of the facts when the trial resumed, in addition to his more detailed summing-up at the end (para. 55).

1 TAYLOR, J.A., delivering the judgment of the court: The appellant appealed against his conviction, following a lengthy trial before the Chief Justice and a jury, on two counts of ‘money laundering’ arising out of the collapse of a US car-loan business that became a so-called ‘Ponzi’ scheme, in which money raised from new investors was used to pay interest due to earlier investors and also misappropriated by the promoters for their own purposes.

2 The four grounds of appeal were: (i) the possibility of bias on the part of a juror; (ii) failure of the judge to disclose, prior to defence counsel”s address to the jury, the evidence that he would identify in his charge as capable of corroborating that of an accomplice witness called by the Crown; (iii) error by the judge in identifying evidence capable of providing such corroboration; and (iv) delivery by the judge of a summary of the evidence of prosecution witnesses when the trial resumed following a two-month interruption caused by a major hurricane that devastated Grand Cayman Island immediately after close of the Crown case. Counsel for the appellant conceded that he did not expect to succeed on ground (ii) if the court were to find no...