Thu | Aug 17, 2017

Judge in Turks and Caicos Islands dismisses Michael Misick's application for a mistrial

Published:Wednesday | February 3, 2016 | 2:00 AM

(Turks and Caicos Sun):

The High Court judge presiding over corruption cases in the Turks and Caicos Islands has dismissed an application for a mistrial that was made on behalf of the country's former premier, Michael Misick.

Justice Paul Harrison, former president of the Jamaican Court of Appeal, said he agreed with British prosecutor Andrew Mitchell, Queen's Counsel (QC), that the mistrial application filed by Misick's Barbadian lawyer, Ralph Thorne, QC, was "novel and, I dare say, unprecedented".

Thorne and Malcolm Bishop, QC, who is representing Chal Misick, brother of the former premier, had filed for a mistrial on the grounds that a recent press release issued by the Sandals and Beaches hotel chains has the potential of influencing witnesses in the case and would, therefore, deny their clients the right to a fair trial.

However, some of the other defence lawyers, including Jamaican QC Earl Witter, lawyer for former Deputy Premier Floyd Hall, did not side with the application brought on behalf of the Misick brothers. Instead, Witter filed a separate written motion asking for a contempt of court order to be made against the author of the press release from Sandals Resorts International/Beaches Resorts.

Harrison ultimately denied all of the motions the defence lawyers brought.

"As the trial of fact in this case, I am obliged, and have a duty, to disabuse my mind from anything said or published outside of the ambit of court proceedings," Harrison told a hushed and expectant courtroom.

"I am also compelled not to take into consideration anything said outside the evidence in this case."

Harrison said he was not aware of any case where media publicity has been "held to attract the treatment of the court in respect of the witnesses" as Thorne advanced.

The judge added that Thorne did not direct the court to "any authority or thinking in that regard".

The trial, which officially started on January 18, is being tried by Harrison alone, following the suspension of automatic right to trial by jury in the Turks and Caicos Islands in 2010.

DUTY TO DELIVER FAIR TRIAL

Harrison stressed that he has a qualified duty to ensure that the defendants receive a fair trial, in accordance with Section 6 of the Turks and Caicos Islands Constitution and the European Convention on Human Rights.

He noted that adverse publicity by the media or otherwise has always been viewed as likely to deny defendants the right to a fair trial because of its possible influence on the jury. However, he said, there are well-established methods and mechanisms in jury cases to avoid prejudices, deal with errant witnesses or the possibility of an unfair trial, including changing venues, warnings to jury and postponing trial dates.

"There's also a punishment for perjury because of proven lies under oath, and also where witnesses have been found to give conflicting evidence, the judge usually directs the jury to consider whether it is on a major issue and, if so, whether there is an explanation for the variation, or if there is an explanation, it is such that the jury should not accept it," the judge said.

Harrison said he had alerted Thorne that he (Harrison) had not heard or read the press release or seen the local newspapers and forewarned the defence attorney that revealing the contents of the release may have raised the very problem he was complained about, but yet he proceeded undeterred.

The mistrial application stemmed from a widely publicised press release issued on behalf of Gordon 'Butch' Stewart, owner and chairman of the Sandals and Beaches hotel chains, on the weekend.

The press statement made specific reference to Mitchell's opening statement in which he suggested that a US$1.6-million payment from Sandals Resorts International to the former premier was an alleged act of bribery.

Stewart said in the press release that the US$1.6-million payment first came to light in the course of investigations by the United States Department of Justice.

This, he added, triggered a series of internal investigations by Sandals to determine the source of the payment and the responsible parties.

"The results of the investigation and the forensic audit revealed that some US$1.6 million had been paid to Prestigious Properties Limited, a real estate company in which Michael Misick, Phillip Misick and Washington Misick (current Turks and Caicos Islands minister of finance), were the shareholders, and Chalmers Misick & Co, a firm of lawyers in the TCI. All those payments were made without the knowledge or consent of the principals of Sandals," Stewart added.

The Sandals press release said the unauthorised payments were made by a senior executive of Sandals and culminated in the hotel chain having to pay US$12 million to settle with the Helen Garlick-led Special Investigations and Prosecutions Team to avoid criminal prosecution.