Randall v R (Cayman Islands)  UKPC 19 (16 April 2002)
Privy Council Appeal No. 22 of 2001
Barry Victor Randall Appellant
The Queen Respondent
THE COURT OF APPEAL OF THE
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 16th April 2002
Present at the hearing:-
Lord Bingham of Cornhill
Lord Nicholls of Birkenhead
Lord Hobhouse of Woodborough
Lord Rodger of Earlsferry
[Delivered by Lord Bingham of Cornhill]
The case against the appellant
“Barry Victor Randall between 10th day of May 1988 and 30 March 1989 stole assets to the value of the sum of $200,000, US currency, the property of clients of Cayman Capital Trust Company namely the Asian Sources Retirement Plan (c/o Trade Media Holdings Ltd a Hong Kong company) formerly known as Publishers Representatives Ltd”
The second count was to the same effect, save that the starting date was a little later and the sum allegedly stolen was US $500,000. The third count also was to the same effect, save that the starting date was later again and the sum allegedly stolen was US $50,000. The prosecution case against the appellant on these three counts was, in brief summary, that the appellant, acting as a professional trustee, had been entrusted with trust funds which he had then used for his own purposes. The victims of the thefts were the beneficiaries of the trust fund, the assets of which had been deposited with Cayman Capital Trust Company (CCTC), a company run by the appellant. The trust fund in question was called the Asian Sources Retirement Plan (ASRP).
“between 24 November 1987 and 30 June 1988 [he] dishonestly obtained from Ronald W Jeffrey valuable securities to the value of $500,000 US currency with the intention of permanently depriving the said Ronald W Jeffrey thereof by deception, namely by falsely representing that a Sally Spence, on whose account for investment the said Ronald W Jeffrey intended to part with the said securities, was shareholder of a Cayman Islands company named ‘Sunrise Starts Tomorrow Management Limited’, the company by which the said investment was to be conducted, Barry Victor Randall, well knowing that the said Miss Sally Spence was not a shareholder of that company even while purporting to the said Ronald W Jeffrey to accept payment of the said securities on the premise that she was in fact a shareholder.”
The prosecution case was that the appellant had obtained US $500,000 from Mr Jeffrey, an American businessman, on the basis of false representations. The appellant had met Mr Jeffrey through Sally Spence and Mr Jeffrey deposited the sum in question with CCTC in early 1988 when the appellant had offered Mr Jeffrey a 10% return on the funds and had said that the deposit of the funds would enable him (the appellant) to obtain a loan using the funds as security. The appellant, it was alleged, repaid Mr Jeffrey the sum deposited plus interest, using the loan he had obtained from Credit Suisse. But Mr Jeffrey also invested US $500,000 in a business venture (namely a nightclub) involving the Sunrise company, having given instructions to the appellant to form Sunrise as a bearer share corporation controlled by Sally Spence. In 1991 Mr Jeffrey was seen by the police and for the first time discovered that his instructions had not been carried out and that Sally Spence was neither a director nor a shareholder of Sunrise.
Fairness“The case for the defence in a nutshell is that the defendant did nothing that was dishonest. That he acted properly throughout, that he acted within the powers of the trust deed and the trust law and was perfectly entitled to do what he did, and that that was his belief and it was an honest belief.”
(1) The duty of prosecuting counsel is not to obtain a conviction at all costs but to act as a minister of justice: R v Puddick (1865) 4 F & F 497 at 499; R v Banks  2 KB 621, 623. The prosecutor’s role was very clearly described by Rand J in the Supreme Court of Canada in Boucher v The Queen (1954) 110 Can CC 263, 270:
“It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.”
(2) The jury’s attention must not be distracted from its central task of deciding whether, on all the evidence adduced before it, and on all the submissions made, and on the judge’s legal direction and summing up of the evidence, the guilt of the defendant is or is not established to the required standard. From this imperative several subsidiary but important rules derive. (i) Evidence should ordinarily be given without interruption by counsel. If either counsel has cause to object to any evidence adduced or about to be adduced such objection should be made promptly and shortly and the judge should rule. If such an objection prompts any extended argument or seems likely to do so, and particularly if the argument bears on the substantial merits of the case, it should take place in the absence of the jury. (ii) The procedure of the criminal courts provides opportunities for prosecuting and defence counsel to address the jury, usually before and after the calling of evidence. Counsel are not (save where the rules allow defence counsel to open the defence) permitted to address the jury at any other time, nor is it permissible under the guise of an interjection for counsel to make observations intended to influence the mind of the jury. (iii) While the duty of counsel may require a strong and direct challenge to the evidence of a witness, and strong criticism may properly be made of a witness or a defendant so long as that criticism is based on evidence or the absence of evidence before the court, there can never be any justification for bullying, intimidation, personal vilification or insult or for the exchange of insults between counsel. Any disparaging comment on a witness or a defendant should be reserved for a closing speech. (iv) Reference should never be made to matters which may be prejudicial to a defendant but which are not before the jury. (v) Unless the judge seeks the assistance of counsel on a point of factual detail, or makes a factual misstatement which can be quickly and uncontroversially corrected, his summing up should proceed without any interruption by counsel. If, as not infrequently happens, prosecuting or defence counsel wish to bring some suggested misdirection or omission or inaccuracy to the attention of the judge, this should be done, preferably at the close of the summing up or at some convenient interlude in the proceedings, and in the absence of the jury unless the point is one which can safely be discussed in their presence without risk of prejudice. It can never be proper for counsel to make any interjection prejudicial to the defendant when the judge is in the course of summing up to the jury.
(3) It is the responsibility of the judge to ensure that the proceedings are conducted in an orderly and proper manner which is fair to both prosecution and defence. He must neither be nor appear to be partisan. If counsel begin to misbehave he must at once exert his authority to require the observance of accepted standards of conduct. He should not disparage the defendant in the course of the evidence. Nor should he disparage defence counsel, since jurors inevitably tend to identify clients with their counsel. Sometimes a trial judge may have briefly to check or rebuke counsel. If however he has occasion, in any serious or sustained manner, to criticise the conduct of the defence case or to criticise or rebuke defending counsel, it will usually be prudent for the judge to do so in the absence of the jury and he should ensure that his disapproval of or irritation with counsel does not affect the jury’s judgment. If he chooses to express personal opinions in the course of the summing up, he should do so in a restrained, moderate and balanced way.
The appellant’s complaints of unfairness
“MR SMALL: So that I’m submitting, my Lord, is relevant documentary evidence. All of them under Mr Randall’s hand, which ought to be correlated to the answers which he gave here, because what he’s saying here is he could have paid –
MR COLLINS: My Lord, this is an address, you know, my Lord, because if my learned friend had this now when Mr Randall was in the dock, he should have asked him about it then.
MR SMALL: Mr Randall gave this dishonest answer in re-examination.
MR COLLINS: Don’t say that, Mr Small.
MR SMALL: This answer was given in re-examination, and I’m submitting it is a dishonest answer in light …”
“I don’t want any long speech, I have asked a specific question and he is being evasive, he has been wasting time, he has been facilitating in it and I ask, My Lord, that you insist that the witness answer what is a simple, straightforward question. There is no need for any speech. That is why his evidence in chief has taken eight days. It is a simple question, My Lord. Simple direct question which goes to the heart of the matter …”
At page 2029 he described an answer of the appellant as “smoke”. The charge of circumlocution was repeated at pages 2072 and 2073. At page 2140 there is found this exchange:
“MR COLLINS: It is not necessary to shout.
MR. SMALL: It is necessary because the witness has been behaving in this way all along and has been encouraged in it by your observations.”
At page 2259 there was an exchange between counsel to this effect:
“MR COLLINS: My Lord, my learned friend is shouting me down, he shouting down the witness –
At pages 2615 and 2616 Mr Small accused the appellant of “fakery” and “faking ignorance”. At page 2630 he suggested that an answer given by the appellant was “another cowardly lie”. During re-examination of the appellant Mr Small objected to a question put by Mr Collins on the grounds that the answer given by the appellant in cross-examination had been “absolutely clear; albeit it wasn’t believable” (page 2658). On none of these occasions did the judge seek to restrain or reprove counsel. He more often echoed Mr Small’s complaints. One example may be found at pages 2003-2004 of the transcript:MR SMALL: Yes, because you ask questions which are ridiculous, Mr Collins.”
Another example is found at pages 2552-2553:“THE COURT: Yes, what’s your answer, Mr Randall? He doesn’t want nice-sounding words, he wants a direct answer to the question.”
“MR SMALL: My Lord, my Lord, you know I went through all of this before with Mr Randall. I thought my friend was going to complain that I was going back over ground. I am just rolling it up together so my friend gets the whole picture.
THE COURT: Very well. He doesn’t like the picture that way.
MR SMALL: He doesn’t like the whole picture.”
“MR COLLINS: And I accept what Your Lordship has said, but I say that I am of the view that I only need to go as far as I went.
THE COURT: No. No. No. No.
He was accused of seeking to insinuate material into the record which had not been established in evidence (pages 1818, 1821). Mr Small was “astonished by what Mr Collins was just trying to say” (page 1821). On occasion Mr Small’s treatment of his opponent was one of contempt, as in this exchange on page 1888:MR SMALL: No, nobody could honestly believe that. Not for a moment could you believe that.”
“MR COLLINS: I don’t see that as something in dispute. It was put to –
MR SMALL: He doesn’t see it as something in dispute? He doesn’t see it as something in dispute? Is that what I heard Mr Collins say?
MR COLLINS: Hold on. Hold on. It is in dispute.
In one of his questions Mr Collins was said to be “creating a smoke-screen around the real issues here with such a question” (page 1899). At page 1906, during the examination in chief of the appellant, Mr Small observed:MR SMALL: I wonder where Mr Collins has been for the last five weeks.”
At page 2187 the appellant was accused (during his cross-examination) of wasting time and his counsel of encouraging him. Again the transcript shows that far from restraining resort to personal abuse the judge repeatedly took a similar line himself. At page 1819, in the presence of the jury, he told Mr Collins “Don’t try that sort of trick”. At page 1821 he described himself as “absolutely disgusted” by Mr Collins’ behaviour. At page 1844 he accused Mr Collins of refusing to put a direct question to the appellant, adding “and that has been your tactics throughout the whole of this case”. He complained that Mr Collins had made a false allegation against the court, which was “unpardonable” (page 1845). He accused Mr Collins (at page 1851) of “dancing and dodging around” and described his behaviour as “atrocious” (page 1852). At page 1853 the judge again suggested to Mr Collins that he “just kept dodging around”. At pages 1905-1906 the judge is recorded as saying:“This is – this is – you know what this is, my Lord, this sounds like the Tyson defence. You nibble on one ear and you go and nibble on the next.”
At page 2700 the judge observed “still bob and weaving, Mr Collins”.“Well, you see, what is happening, Mr Small, is we are back to where we were on the 27th of June when Mr Collins said that I prevented him from doing certain things which I had not prevented him from doing, but it was the same sort of thing that he just goes around and goes around and goes around and goes around trying to nibble, nibble, nibble, nibble instead of going straight to the issue. And when he has detected that he is not going in the right direction, then he just makes a slight tilt and comes back almost with the same thing.”
In the course of Mr Small’s cross-examination of the appellant there occurred this exchange (at pages 2189-2190):“I didn’t ask you if it was a journal voucher, Mr Randall. Answer my question. It’s also a piece of paper, it is also an oblong shape, it also has writing on it. I didn’t ask you that. Answer my question. …”
“MR SMALL: I am suggesting to you that your dishonesty is only matched by your brazenness?
THE COURT: Answer?
THE APPELLANT: I would suggest that you are very wrong.
The judge did not in any way deprecate or seek to restrain such questions but instead reminded the jury of this exchange when summing up. At page 2453 Mr Small referred to the “slipperiness” of the appellant. At page 2620 he said to the appellant:MR SMALL: Which is it? You are more dishonest than you are brazen or you are more brazen than you are dishonest?”
At page 2670 Mr Small took it upon himself to reprove Mr Collins:“You see, that is an example of your smartness. You think you are smart. Are you now challenging Mr Tan’s evidence that such a conversation between you and he took place? Are you challenging it?”
“Is that what you’re saying about His Lordship’s ruling? Don’t be rude to the court. The court has upheld my objection. You’re being rude to the court. Don’t be rude to the court. Let’s proceed so we don’t waste any more time.”
“MR SMALL: … The issue on this count is whether or not Mr Randall made a misrepresentation to Mr Jeffrey to get him to hand over $500,000. How it was spent and how it wasn’t spent is not relevant, with the greatest of respect, My Lord, and we’re going to go into endless unconnected matters and then my friend is going to want to cut off the witness in mid-statement about what he calls prejudicial matters, matters which I deliberately didn’t lead. We have bags of information about Mr Randall which we could have led evidence on which wouldn’t have put him in a good light but because it doesn’t relate to the charge which is before the court, namely how he obtained the $500,000 and how he acted in relation to the representations that he had made to Mr Jeffrey and what changes he made there, those are the relevant issues at the time he received the money. If my friend begins to open up areas about how he handled the money after having received it, then I can only say, My Lord, that the re-examination may carry us into areas which my friend may feel uncomfortable about. He has got one or two answers that he’s tried to cut off from the witness and it’s because he’s going outside of the issues which, strictly speaking are before this court.
MR COLLINS: Let me respond, My Lord.
During the examination in chief of the appellant, during one of his many interjections, and again in the presence of the jury, Mr Small made a similar reference (at page 1904):THE COURT: Mr Collins, you have to bear in mind if you go and open certain areas in cross-examination that you will have opened yourself to certain issues.”
“MR SMALL: And this, My Lord, if I may say so is bordering on what is known as ‘smart man defence’.
THE COURT: Yes.
MR SMALL: It seems to me to be the other side of the defence ambush that my friend told us that he was entitled to conduct and if a man is smart enough to hide the proceeds of the – of such deeds, then the Crown hasn’t proved its case. There is no requirement to prove that nor to prove either that he was a poor man or a rich man.
THE COURT: Yes. This is not a relevant issue. This is not a relevant issue.
MR SMALL: And be careful if you continue on that line, I will open up something. I am warning you.”
He described the absence of loan documentation for one transaction as “amazing” (page 715). At page 1107 he observed:“… but you don’t get a straight answer, you get a round-about way to sort of give you the impression that this had nothing to do with Jeffrey so to speak. It seems to me quite clear that the purpose of obtaining this money was to repay Jeffrey his $500,000, but it’s a matter for you.”
He described the appellant’s offer of a 20% return as “a sort of coated poison pill so to speak” (page 1109), himself preferring a lower but more assured rate of return. He regarded the approach to investment described by the appellant as unrealistic (pages 1110-1111). He observed at page 1268:“So, what is really happening here now is we’re getting the contents. Somehow we’re getting the contents sneaking in, although that was not the purpose for which the document was tendered. You’re told one moment that the contents of the document is not tendered for proof of its contents, but then some effort is now being made to deal with the content.”
He failed to direct the jury on the appellant’s good character. Instead he reminded the jury of the evidence given by the appellant’s character witness, including some questionable cross-examination of that witness by Mr Small, and concluded by observing (at page 1280):“It may occur to you, Madam Foreman and Members of the Jury, you may form the view that Mr Randall seemed to remember when he wants to remember all the details about the documents, but when he doesn’t want to remember, he doesn’t recollect and he doesn’t recall, but it’s a matter for you.”
After the summing up was concluded there was discussion, in the presence of the jury, about the likely course of the jury’s deliberation after this long trial, and Mr Small queried in the presence of the jury why Mr Collins thought they might need as long as a day to deliberate.“So this is a man of great loyalty and nothing is going to shake him from his views with regard to Mr Randall.”
The appellant’s appeal to the Court of Appeal
A large number of transcript references were listed in the notice as supporting this ground. The Court of Appeal, in the reasons for judgment given by Kerr JA, summarised very fully, clearly and expertly the underlying facts of the case. But with reference to this ground the court said that of 79 instances listed in the notice of appeal the attention of the court had been drawn to only seven and only three had been “earnestly pursued”.“The learned trial judge erred throughout the trial in allowing counsel for the prosecution to make comments and/or speeches in the presence of the jury prejudicial to the appellant on the pretext of summarising evidence and/or addressing the court in relation to issues raised by way of objection or otherwise.”
“Now this type of objection demands from a trial judge prompt and concise ruling in such conclusive language as to deter debate but the ambulatory approach of the learned trial judge often opened the door to prolonged and semantic debate. It is also illustrative of defence counsel seeing in such instances a challenge to be taken up and to give as good as he got. In so doing, he had eroded any merit that might have existed in this type of complaint. In the instant case, the intervention was reasonable and no undue prejudice would be occasioned thereby.”
The Court of Appeal observed:“All right, very well. Well you’ve made a point and I’m sure the jury have heard what you said and I leave it for their consideration.”
“The second (at page 593-7) was a request that the evidence relating to certain documents should be comprehensively reviewed. The judge entertained a debate by counsel on both sides. References by Crown counsel to the evidence, having regard to the nature of his defence, was of no significant importance. In the end the learned trial judge ended the debate in favour of the defence.”
“The comments were due to defence counsel persisting with questions introducing new evidence inconsistent with evidence in chief. The indulgence of the trial judge resulted in prolonged debate on a collateral matter that was of dubious relevance to the important issues relating to the three allegedly unauthorised and surreptitious loans and whether or not there was a fraudulent conversion of the monies obtained thereby. It has not been shown that Crown counsel had erred in his corrective measures or acted to the prejudice of the defence in so doing.”
Unfairness: the prosecution response
Fairness: the Board’s conclusion
The appellant’s additional grounds