ADVANCE COPY

Privy Council Appeal No. 22 of 2001

Barry Victor Randall Appellant

v.
The Queen Respondent

FROM

THE COURT OF APPEAL OF THE

CAYMAN ISLANDS
---------------

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 Hutton
Lord Hobhouse of Woodborough
Lord Rodger of Earlsferry
[Delivered by Lord Bingham of Cornhill]
------------------

1. The appellant stood trial in the Grand Court at George Town

on an indictment containing five counts: four counts of theft and
one count of obtaining a valuable security by deception. After a
trial lasting 41 days before Williams J and a jury he was on 8
August 1997 convicted on all counts and sentenced to 4½ years’
imprisonment. Orders for payment of compensation of US
$500,000 were made under each of counts 2 and 5, with a
consecutive sentence of 6 months’ imprisonment on each count on
default of payment. The appellant appealed against conviction and
sentence and on 13 August 1998 the Court of Appeal of the
Cayman Islands dismissed his appeal against conviction on counts
1 - 4, allowed his appeal against conviction on count 5, and
dismissed his appeal against sentence (save that the second
compensation order necessarily fell on the quashing of the
conviction on count 5). The Court of Appeal (Zacca P, Georges
and Kerr JJA) gave the reasons for its decision in writing on 10

[2002] UKPC 19
December 1998. By special leave of the Board the appellant now
renews his appeals against conviction and sentence. The primary
ground of his appeal against conviction is that the trial was
conducted in a manner which was grossly and fundamentally
unfair. The source of this unfairness, it is said, was the conduct of
prosecuting counsel, Mr Richard Small, which is said to have
undermined the integrity of the trial process. But complaint is also
made that the trial judge wrongly failed to restrain the conduct of
prosecuting counsel and on occasion endorsed it. The appellant
advances additional grounds of appeal against conviction based on
the trial judge’s directions to the jury on dishonesty and the
omission of a good character direction. The sole ground of appeal
against sentence relates to the compensation order which, it is said,
should not have been made without inquiry into the appellant’s
means.

The case against the appellant

2. Count 1 of the indictment against the appellant read:
“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).

3. The ASRP was a pension fund which had been financed and
established by a Hong Kong group of companies of which the
parent was known as Trade Media Holdings (HK) Limited
(TMHK). TMHK had established the pension fund for the benefit
of employees of its group. The Swiss Bank and Trust Corporation
of Cayman (“Swiss Cayman”) was originally the trustee of the
pension scheme, at a time when the appellant was an employee of
Swiss Cayman. As an employee he dealt with matters arising in
relation to ASRP and had dealings with the managing director and
investment manager of the group. When, in 1987, the appellant’s
employment with Swiss Cayman came to an end, he formed CCTC,
of which he became managing director, and by a trust deed of 6
April 1988 TMHK appointed CCTC as trustee of the ASRP funds
in place of Swiss Cayman. CCTC was a company duly licensed to
carry on the business of a trust company with overseas customers.

4. Under the terms of the trust deed the assets owned by ASRP,
formerly held by Swiss Cayman, were transferred into the name or
control of CCTC. The prosecution case was that the appellant,
during 1988 and 1989, had used these trust funds for his own
purposes. By the time the alleged fraud was discovered the loss
suffered by TMHK was said to be in excess of US $1 million. It
was alleged that the appellant, having obtained control of these
ASRP assets, had used them as security for loans, which were
obtained for his own benefit or that of his company, but not for the
benefit of ASRP or TMHK. It was further alleged that the
appellant went to some lengths to conceal the use of these assets as
security for the loans, which he obtained from Credit Suisse
Guernsey Limited (“Credit Suisse”). It was said that the funds had
been dispersed on the instructions of the appellant and then used
for such purposes as investment in a hotel building project and the
repayment of a loan to the depositor who featured in count 5.
When in due course Credit Suisse demanded repayment of the
loans the ASRP assets were sold on the instructions of the appellant
to pay off CCTC’s indebtedness to Credit Suisse. Reliance was
placed on the failure of the appellant to seek the approval of
TMHK for these transactions, and on his failure to reveal the true
facts to an inspector appointed to oversee CCTC’s management of
three trust accounts. In the course of a visit to CCTC the inspector
noted that a file relating to a Caymanian company named
Wintergreen Holdings Limited was missing; in due course this file
was found and within it were documents suggesting that
Wintergreen had received the proceeds of the loans. In due course
it became clear that CCTC was insolvent, and application was
made to wind it up. The deficiency noted in its state of affairs was
nearly US $4 million. When the appellant was interviewed in the
presence of his lawyer at police headquarters, he declined to
answer many of the questions put to him concerning his dealings
with the assets of ASRP and gave no explanation for his conduct.

5. The fourth count of the indictment charged the appellant with

theft of assets to the value of approximately $106,300 currency, the
property of Mr Anthony Tan, a client of CCTC and beneficial
owner of a company named Mums Incorporated. Mr Tan was a
retired Canadian businessman living in Toronto who was the sole
shareholder of Mums. He wished to apply for residence in the
Cayman Islands and transferred his savings of $160,574 to CCTC
with instructions that the money was to be placed on deposit in the
name of the company for his use when he became resident. Mr
Tan’s application for residence was successful and he arrived in the
Cayman Islands in 1988. He then sought payment of the balance of
the money he had deposited, some of the monies having been
properly disbursed, and (according to the prosecution) the appellant
gave a series of unsatisfactory reasons for not paying the money
demanded. At one point a cheque for $57,000 was given to Mr
Tan, but it was returned unpaid.

6. The fifth count of the indictment charged the appellant that

“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.

7. The appellant was arraigned on 9 June 1997 and pleaded not

guilty. Mr Small for the prosecution opened the case and called ten
witnesses whose evidence ended on 2 July. The appellant (who
was represented by two counsel) gave evidence in chief from 3 July
until 15 July and was cross-examined from 15 July to 23 July. He
called a single character witness. The trial judge summed up the
case to the jury over five days, at the end of which the jury very
quickly convicted.

8. It is unnecessary to explore in detail the defence advanced at

the trial by the appellant. The trial judge summarised the effect of
it in his direction to the jury:
“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.”

Fairness
9. A contested criminal trial on indictment is adversarial in
character. The prosecution seeks to satisfy the jury of the guilt of
the accused beyond reasonable doubt. The defence seeks to resist
and rebut such proof. The objects of the parties are fundamentally
opposed. There may well be disputes concerning the relevance and
admissibility of evidence. There will almost always be a conflict of
evidence. Some witnesses may be impugned as unreliable, others
perhaps as dishonest. Witnesses on both sides may be accused of
exaggerating or even fabricating their evidence. Defendants may
choose to act in an obstructive and evasive manner. Opposing
counsel may find each other easy to work with or they may not. It
is not unusual for tempers to become frayed and relations strained.
In a fraud trial the pressure on all involved may be even more acute
than in other trials. Fraud trials tend to involve a great deal of
documentation, which is particularly cumbersome to handle in a
jury trial. They tend to involve much unfamiliar detail, often of a
technical nature, which it is difficult for many people to
understand, assimilate, retain and recall. And fraud trials tend to be
very long, which in itself tends to increase the strain on all
involved, whether the defendant, witnesses, jurors, counsel or the
judge. The appellant’s trial was said to be the longest criminal trial
ever held in the Cayman Islands.
10. There is, however, throughout any trial and not least a long
fraud trial, one overriding requirement: to ensure that the defendant
accused of crime is fairly tried. The adversarial format of the
criminal trial is indeed directed to ensuring a fair opportunity for
the prosecution to establish guilt and a fair opportunity for the
defendant to advance his defence. To safeguard the fairness of the
trial a number of rules have been developed to ensure that the
proceedings, however closely contested and however highly
charged, are conducted in a manner which is orderly and fair.
These rules are well-understood and are not in any way
controversial. But it is pertinent to state some of them:
(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 [1916] 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.
11. It cannot be too strongly emphasised that these are not the
rules of a game. They are rules designed to safeguard the fairness
of proceedings brought to determine whether a defendant is guilty
of committing a crime or crimes conviction of which may expose
him to serious penal consequences. In a criminal trial as in other
activities the observance of certain basic rules has been shown to
be the most effective safeguard against unfairness, error and abuse.

The appellant’s complaints of unfairness

12. The appellant makes a number of complaints of unfairness.
These complaints fall under several different heads. First it is
complained that prosecuting counsel repeatedly interpolated
prejudicial comments while examining prosecution witnesses,
repeatedly interrupted the cross-examination of prosecution
witnesses, often with prejudicial comment, repeatedly interrupted
the examination in chief and re-examination of the appellant,
interpolated prejudicial comment in the course of his cross-
examination of the defendant and interrupted the judge in the
course of his summing up. The appellant illustrates these
complaints by reference to the transcript. It is difficult adequately
to appreciate the force of these complaints without extensive
quotation from the transcript of passages significant largely
because of their length and frequency. But some references should
be given. Mr Baker, an accountant, was a prosecution witness.
During his examination in chief Mr Small interjected prejudicial
comment at pages 306, 307, 308, 309, 310 and 311. There was
similar comment during the re-examination of Mr Baker. Similar
comment was made during the examination in chief of Mr Seitz at
pages 428 (when reference was made to “this wild suggestion put
by the defence”) and 429. The cross-examination of prosecution
witnesses was similarly interrupted by Mr Small. Examples were
pointed out at pages 185, 188, 189 and 190 of the transcript of the
cross-examination of Mr Hinrichs. When defence counsel, Mr
Collins, sought to cross-examine Mr Tan, Mr Small made an
objection which led to argument over several pages of the
transcript and ended with the judge warning Mr Collins not to
exhaust his patience (pages 1241-1247). When Mr Collins
examined the defendant in chief he was repeatedly interrupted.
Examples are found in the transcript at pages 1454, 1526, 1598,
1814, 1829-33, 1846, 1876, 1890, 1891, 1894, 1903 and 1908.
When cross-examining the appellant Mr Small broke off to make
prejudicial comments. Examples are found at pages 2387, 2467
and 2477 of the transcript. When Mr Collins attempted to re-
examine the appellant, Mr Small intervened so constantly as
effectively to preclude any re-examination at all: see pages 2635-
2686. During the judge’s summing up Mr Small repeatedly
interrupted. Reference to the transcript shows repeated
interjections, sometimes prompting a continuing dialogue:
examples are found in the transcript of the summing up which is
before the Board at pages 736, 741, 742, 745, 980, 987, 1228, 1270
and 1273. The last of these exchanges, during the summing up and
in the presence of the jury, was to this effect:
“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 …”

13. A further complaint relates to running comments made by Mr

Small on the motives and conduct of the appellant. At page 1044
of the trial transcript Mr Small made suggestive play with the name
of a witness named Crook. At pages 1480, 1481 and 1482 he
accused the appellant and Mr Collins (during the examination in
chief of the appellant) of attempting to “smear” prosecution
witnesses. When, at page 1515, Mr Collins asked the appellant in
chief what the ASRP fund comprised, Mr Small enquired whether
he was referring to the time when the appellant took out $500,000
or to $200,000. On a further question put to the appellant in
examination in chief (at page 1810) Mr Small commented on the
answer “He has learned the skill of circumlocution”. At page 1829
Mr Small referred to the appellant’s “resistance” to the questions
his counsel was asking and at page 1830 criticised the appellant for
not answering the questions he was asked by his counsel. At page
1903 Mr Small referred, during the examination in chief of the
appellant, to “the manoeuvres that are available to somebody with
trust experience to disguise where funds go”. At page 2006 during
cross-examination of the appellant Mr Small interjected:
“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 –

MR SMALL: Yes, because you ask questions which are

ridiculous, Mr Collins.”

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:
“THE COURT: Yes, what’s your answer, Mr Randall?
He doesn’t want nice-sounding words, he wants a direct
answer to the question.”

Another example is found at pages 2552-2553:

“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.”

14. A further complaint is based on imputations made by Mr

Small against the conduct and motives of defending counsel.
References to the making of wild suggestions and the smearing of
witnesses have already been noted. Mr Collins was again accused
of seeking to smear witnesses (page 1493), of making a cowardly
attack (page 1494) and of wasting time (pages 1513, 1804, 2677).
His behaviour was described as “disgracing” the legal profession
(pages 1541-1542), as “dishonouring the law” (page 1542) and as
“disgraceful” (page 1543). His personal integrity was further
impugned as in this exchange at page 1545:
“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.

MR SMALL: No, nobody could honestly believe that.

Not for a moment could you believe that.”

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 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.

MR SMALL: I wonder where Mr Collins has been for

the last five weeks.”
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:
“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 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:
“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.”

At page 2700 the judge observed “still bob and weaving, Mr

Collins”.

15. Some of the examples already given illustrate the insulting

and overbearing conduct of Mr Small to which objection is taken.
But there are other examples. When, at page 1822, Mr Collins said
that his conscience was clear, Mr Small retorted “I am not talking
about your conscience, I am talking about your state of ecstasy”.
When cross-examining the appellant about a document which the
appellant said was a journal voucher, Mr Small said at page 2049:
 “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. …”

In the course of Mr Small’s cross-examination of the appellant

there occurred this exchange (at pages 2189-2190):
“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.

MR SMALL: Which is it? You are more dishonest than

you are brazen or you are more brazen than you are
dishonest?”

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:
“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?”

At page 2670 Mr Small took it upon himself to reprove Mr Collins:

“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.”

16. The appellant complains that on occasion Mr Small made

scarcely veiled references, in the presence of the jury, to the
existence of material prejudicial to the appellant which was not
before the court. At pages 602-603, during the cross-examination
of Mr Jeffrey by Mr Collins, there occurred this exchange:
“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.

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.”

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):
“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.”
17. Much of the judge’s very lengthy summing up was taken up in
reading, in extenso, the questions and answers which he had
somewhat laboriously recorded in his notebook during the trial.
The judge did however describe an answer of the appellant as
“roundabout” (page 713) and continued (at page 714):
“… 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 absence of loan documentation for one transaction

as “amazing” (page 715). At page 1107 he observed:
“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 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:
“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.”

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):
“So this is a man of great loyalty and nothing is going to
shake him from his views with regard to Mr Randall.”

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.

The appellant’s appeal to the Court of Appeal

18. The first ground of appeal relied on by the appellant in his
notice of appeal was that
“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.”

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”.

19. One of these instances related to the exchange, mentioned

above, when Mr Collins asked the appellant about the size of the
ASRP fund and Mr Small asked whether Mr Collins was referring
to the time when the appellant had taken $500,000 out of the fund
or the time when he had taken out $200,000. The court considered
Mr Collins’ question unobjectionable, and Mr Small’s intervention
unnecessary and made in infelicitous language. But it held that the
judge had implicitly ruled against the intervention and that the
remarks would not have been likely to have any effect on the jury
adverse to the appellant.

20. The second incident referred to an objection to the tendering

of a document by defence counsel with no previous agreement on
the admissibility of the document. Of this the court said:
“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.”
21. The third complaint related to the passage, mentioned above,
where Mr Small said it was necessary to shout because the witness
had been behaving in this way all along and had been encouraged
in doing so by Mr Collins’ observations. The court observed that
the evasiveness of the appellant was recognised by counsel on both
sides and that Mr Collins’ consistent complaints of being unfairly
treated were “unfounded and purposeful”.
22. With particular reference to criticisms of the trial judge the
court recorded that reference was made to eight passages but that
three only had been pursued. Of the first illustration the court
merely observed that it was favourable to the appellant. The
second illustration was based on a long and unprompted
intervention by Mr Small in the judge’s summing up, including his
reference to the appellant giving a dishonest answer, which had
culminated in the judge saying to Mr Small:
“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 Court of Appeal observed:

“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.”

23. The Court of Appeal also referred to a third passage in the

evidence, not expressly referred to above, where complaint was
made of the judge’s comments. The court said:
“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.”

24. The court considered criticisms made of the judge’s summing

up and made reference to R v Hulusi (1973) 58 Cr App R 378, but
concluded that the conduct of the trial judge in this case did not fall
within the offending categories described in that authority.

Unfairness: the prosecution response

25. On behalf of the prosecution Mr Perry submitted that overall
the trial of the appellant was fair and his conviction safe. The case
against him was very strong. His defence had been conducted in a
deliberately obstructive way, which obliged the prosecution to call
witnesses to prove matters which turned out to be uncontroversial
and which greatly hampered the preparation of documents for the
jury. The appellant had been very slow to reveal what his defence
was, his explanations had altered as the case progressed and he had
never given any convincing explanation of the damning facts
proved against him.

26. Mr Perry accepted that some of the matters relied on by the

appellant did not reflect well on Mr Small, that the conduct of both
counsel departed from what was to be expected, that he could not
defend badgering, bullying or brow-beating by prosecution counsel
and that the judge should have exerted himself more than he did to
control counsel and the conduct of the case. But he pointed out
that the Board had seen no more than a small part of the transcript
and that the complaints made should be viewed in the context of a
very lengthy trial. The appellant had proved to be an evasive
witness from whom it had been unusually difficult to obtain any
clear and precise answers. While Mr Small had been very ready to
object and intervene, so also had Mr Collins. Many of the
observations made by Mr Small had been prompted by Mr Collins’
objections. Many others were directed to Mr Collins’ failure to put
matters to prosecution witnesses which should have been put. The
appellant had had the advantage of representation by two counsel,
neither of whom had at any stage asked for the jury to be
discharged or for any argument to be heard in the absence of the
jury. Counsel on each side had been fairly matched and each had
(as the Court of Appeal put it) given as good as he got. Although
points were wrongly made by way of interjection and interpolation,
these were matters which could properly have been raised in a
closing speech. Overall, the appellant had a fair opportunity to
give his evidence and present his account to the jury and the
departures from good practice which had occurred were not shown
to be of such a nature that the Board should intervene following
dismissal of the appellant’s appeal by the Court of Appeal.
Fairness: the Board’s conclusion
27. The Board sees great force in many of the points made by Mr
Perry for the prosecution. The case against the appellant does
indeed appear to have been a very strong one, and the explanations
proffered by him might well have been properly rejected by a jury.
On the material before the Board, there would appear to be
grounds for criticising the conduct of the defence and the evidence
of the appellant. It would be quite wrong to infer that all the faults
in the conduct of this trial lay with the prosecution, which had to
overcome a series of unnecessary obstacles. The Board is fully
mindful that it has seen a relatively small part of the trial transcript.

28. While reference has been made above to some of the rules
which should be observed in a well-conducted trial to safeguard the
fairness of the proceedings, it is not every departure from good
practice which renders a trial unfair. Inevitably, in the course of a
long trial, things are done or said which should not be done or said.
Most occurrences of that kind do not undermine the integrity of
the trial, particularly if they are isolated and particularly if, where
appropriate, they are the subject of a clear judicial direction. It
would emasculate the trial process, and undermine public
confidence in the administration of criminal justice, if a standard of
perfection were imposed that was incapable of attainment in
practice. But the right of a criminal defendant to a fair trial is
absolute. There will come a point when the departure from good
practice is so gross, or so persistent, or so prejudicial, or so
irremediable that an appellate court will have no choice but to
condemn a trial as unfair and quash a conviction as unsafe,
however strong the grounds for believing the defendant to be
guilty. The right to a fair trial is one to be enjoyed by the guilty as
well as the innocent, for a defendant is presumed to be innocent
until proved to be otherwise in a fairly conducted trial.

29. The crucial issue in the present appeal is whether there were
such departures from good practice in the course of the appellant’s
trial as to deny him the substance of a fair trial. The Board
reluctantly concludes that there were. Prosecuting counsel
conducted himself as no minister of justice should conduct himself.
The trial judge failed to exert the authority vested in him to control
the proceedings and enforce proper standards of behaviour.
Regrettably, he allowed himself to be overborne and allowed his
antipathy to both the appellant and his counsel to be only too
manifest. While none of the appellant’s complaints taken on its
own would support a successful appeal, taken together they leave
the Board with no choice but to quash the appellant’s convictions.
It cannot be sure that the matters of which complaint is made, taken
together, did not inhibit the presentation of the defence case and
distract the attention of the jury from the crucial issues they had to
decide.

30. The Board regrets that it finds itself in disagreement with the
view taken by the Court of Appeal on the principal issue in this
appeal. It is apparent from the judgment of the court that it did not
give full consideration to a large number of the appellant’s
complaints, including a number of the more serious. Thus, as
already observed, the Court of Appeal stated with reference to the
complaints relating to the conduct of prosecution counsel that of
seventy-nine 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”, and with reference to the criticisms of the trial
judge the court stated that reference had been made to eight
passages but only three had been pursued. In presenting an appeal
based on criticisms of many separate passages in a very lengthy
transcript counsel is faced with considerable difficulties in
presentation and the court is also faced with difficulties in
considering the full ambit of the criticism and the large body of
material which supports it. There may have been a degree of
misunderstanding between counsel and the court as to the number
of instances upon which the appellant was relying but the Board
understands that no complaint made by the appellant was
abandoned. Therefore, for whatever reason, it is clear that the
Court of Appeal did not adequately examine the matters relied on
by the appellant. After its fuller and more detailed consideration
the Board is satisfied that the decision of the Court of Appeal on
this issue cannot stand.

The appellant’s additional grounds

31. In view of the conclusion already expressed, the appellant’s
other grounds of appeal may be shortly reviewed. The first was
that the trial judge had failed to give the jury an accurate direction
on the central issue of dishonesty. There is force in the criticism
that the judge’s direction was confused and over-elaborate. But the
issue for the jury’s decision was a short one and it seems very
unlikely, taking the summing up as a whole, that the jury could
have mistaken the test which was to be applied.

32. Complaint was made that the judge should have given a good
character direction to the jury. Authority makes clear that he
should: R v Aziz [1996] AC 41; Barrow v The State [1998] AC 846.
While the lack of such a direction is material and may provide
grounds for quashing a conviction, it need not do so, even where
the issue of character is squarely raised by the defence, if the
appellate court is satisfied that even with the benefit of a proper
direction the jury would inevitably have convicted: see Anderson v
The Queen [1972] AC 100; Berry v The Queen [1992] 2 AC 364; R
v MacDonald (unreported, CACD, 25 March 1999). Without a
much more detailed inquiry into the facts than has been possible on
the hearing of this appeal, the Board cannot form an opinion
whether that high standard could have been met on the facts of this
case.

33. The appellant’s complaint against sentence is that a

compensation order should not have been made without an inquiry
into the means available to him to pay such an order. In making
this complaint the appellant is able to rely on a well established
principle of sentencing. Where a consecutive sentence is imposed
on default of payment, it is intrinsically unfair to make an order
which may result in the imprisonment of the offender when he
lacks the means to avoid that consequence. Had it been material,
the Board would have upheld this complaint.

The order
34. The Board will humbly advise Her Majesty that the appeal
should be allowed and the appellant’s convictions quashed. The
Board will make no order as to payment of costs, but would invite
the Government of the Cayman Islands to consider increasing the
contribution already made towards the appellant’s costs of this
appeal. Since the appellant has already served his sentence a retrial
would not be appropriate.