The Queen v Pamphill Prevost, Simon Power and Shawn Henry
| Jurisdiction | British Virgin Islands |
| Judge | Persad, J. |
| Judgment Date | 17 January 2019 |
| Neutral Citation | VG 2019 HC 1 |
| Docket Number | BVIHCR 0009 of 2016 |
| Court | High Court (British Virgin Islands) |
| Date | 17 January 2019 |
High Court
Persad, J. (Ag.)
BVIHCR 0009 of 2016
Mr. Patrick Thompson for the 1st Applicant.
Mr. Israel Bruce for the 2nd Applicant.
Mr. Ian Wilkinson Q.C. for 3rd Applicant.
Mr. John Black Q.C., Mrs. Tiffany Scatliffe-Esprit and Tamara Foster for the Crown.
Criminal practice and procedure - Indictment — Indictment containing both counts of conspiracy as well as substantive counts — Application to sever a number of counts from indictment.
Persad, J. (Ag.): The Defendants were before the Court on an Indictment dated the 4th July 2018. This Indictment included 10 counts of which two counts related to conspiracy, seven counts related to theft and one count related to the acquisition possession or use of the proceeds of criminal conduct.
As a result of directions from the Court legal submissions were filed by counsel for Prevost and Power in November 2018 seeking to quash a number of counts on the Indictment. The Crown having considered these submissions indicated in their written submissions that they would not proceed upon count eight of the July 4, 2018 Indictment.
Accordingly a new Indictment was presented to the Court reflecting the removal of count eight in the July 4, 2018 Indictment. This new Indictment dated 29 November 2018 included some nine counts. Two counts of conspiracy (conspiracy to steal and conspiracy to pervert the course of justice). There were also six substantive counts of theft and one count of acquisition possession or use of the proceeds of criminal conduct.
When the matter came before the Court on the 10th of January 2019 the Court of its own motion raised with the Crown a concern that since the Indictment included on the face of it counts of conspiracy to steal as well as substantive counts of theft relating to the same time. The Court wished to know whether the Crown was considering proceeding on both the conspiracy and substantive counts as these counts appeared from the depositions to relate to the same time period.
The Court reminded the Crown that in cases where there are substantive and conspiracy counts included on an Indictment, the practice is that the Crown would be required to justify the inclusion of both these types of counts on an Indictment.
In the case of Bhola Nandlal v. The State 1995 49 W.I.R. 412 at 429 Sharma, J.A. noted as follows under the rubric “Now the Conspiracy charge”:
But the mischief created by the State in adopting this division of counts and separate trials was still not complete, for the order or sequence in which the matters were taken had proverbially cooked the legal goose of the appellant.
After all, if he had already been found ‘Guilty’ by a jury on the first Indictment on a count for corruption, how in the name of decency and fair play could the State justify the prosecution for conspiracy on a second Indictment? Inherent in the ‘Guilty’ verdict returned by the jury in respect of the corruption charge in the first Indictment was the undeniable fact (and juridically unimpeachable decision) that there must have been the conspiracy (agreement) to pervert the course of justice, as the act of corruption was the end result or fruit of the conspiracy.
The course taken by the Director of Public Prosecutions was a clear breach of a settled practice as to how charges are laid and proceeded with when a conspiracy (a procedural offence) alone is charged, and when it is charged with an offence which is the fruit of the conspiracy (the substantive offence).
If a substantive offence was not committed, it is the practice to charge conspiracy. The reason for this is obvious. Where, however, there is an effective and substantive charge, the addition of a charge of conspiracy is, in the absence of exceptional circumstances, undesirable; see Verrier v. Director of Prosecutions [1967] 2 A.C. 195.
It is not desirable to include a charge of conspiracy which adds nothing to the effective charge of the substantive offence; see R v. Jones (1974) 59 Cr App Rep 120. One example of an exceptional circumstance in which a charge of conspiracy might be added is where the substantive offence(s) does not adequately represent the overall criminality; see R v. Jones (1974).
It is the modern practice where an Indictment contains a substantive count(s) and a related conspiracy count that the judge should require the prosecution to justify the joinder, or (failing justification) to elect whether to proceed on the substantive count or on the conspiracy count. A joinder is satisfied for this purpose if the judge considers that the interests of justice demand it.
Mr. John Black Q.C., lead counsel for the Crown informed the Court that he would indicate the Crown's position before the accused were arraigned.
It turns out that at the next hearing counsel for accused Henry, Mr. Wilkinson Q.C. indicated to the Court that he also wished to make two applications for the Court's consideration. Firstly, he wished to join with the other applicants who had filed motions to quash particular counts on the Indictment and if that was unsuccessful, he indicated his intention to make an application for severance on behalf of his client,
It turns out that after consideration of the matters ventilated in Court the Crown indicated to the Court that it would be proceeding on three counts mentioned on the November 29 Indictment and that by extension the Crown was not pursuing the six substantial or completed counts of Theft that were reflected on that Indictment.
In short the Crown had opted or elected as is their entitlement to prosecute the accused persons for the conspiracy to steal offence as well as the offence of conspiracy to pervert the course of justice which was laid against Prevost and Power and the offence of acquisition possession or use of the proceeds of criminal conduct which was laid solely against Power.
The Indictment having now come down to three counts, a further application was made by Mr. Wilkinson for Mr. Henry that there should be severance. In support of this an application and affidavit by those acting for Henry on the 15th of January 2019.
Counsel for the Applicant Henry, Mr. Wilkinson Q.C. making his submissions makes the following points: -
a. the applicant Henry is charged with the conspiracy to steal count where he is charged along with Prevost and Power.
b. The other counts on the Indictment do not in any way include Mr. Henry as they relate to the other accused.
c. That there is a real risk of prejudice that arises if the jury in the consideration of the evidence in relation to the other counts that Mr. Henry is not part of that the jury may use either the existence of the other counts on the Indictment or the material led in evidence on those counts as a basis to conclude that Henry be guilty of the charge of conspiracy.
d. That because there is a risk of prejudice this Court should sever from the Indictment the two counts that have nothing to do with Mr. Henry and therefore what this Court should do is proceed upon in effect an Indictment on the count of conspiracy to steal alone.
e. According to Mr. Wilkinson Q.C. the risk of prejudice is so high that no direction from the Court however comprehensive would be sufficient to protect Mr. Henry from this prejudice.
f. Further that when one considers the factors that the Court should take into account in determining whether to sever the two counts that have nothing to do with Mr. Henry little or no weight should be given to matters such as the number of witnesses and costs that arise if the Court is minded to sever the counts that Mr. Henry is not involved in.
Mr. John Black Q.C. for the Crown submits in response as follows: -
a. The Crown has as it is entitled to opted to elect for the conspiracy charges over the substantive charges.
b. He does not agree that there is a need for a separate trial in relation to the counts on conspiracy to pervert the course of justice or the acquisition possession or use of the proceeds of criminal conduct.
c. According to the Crown all counts are properly included on the Indictment in that they meet the test for being included on an Indictment in that they either relate to a series of offenses that are of a similar kind or the arise out of the same series of facts. The Crown asked the Court to look at the principles in the case of Ludlow in support of their position.
d. In any event the offence of perverting the course of justice arises out of the conspiracy to steal charge and is closely related and therefore properly included on the Indictment. Similarly, the money-laundering charge also arises out of the conspiracy to steal offence.
e. The Crown's position is that there is no prejudice to Henry as neither of the other counts in any way link or apply to Henry and the Court in the trial process is well-equipped to protect the interests of the Defendant by appropriate directions at the end of the trial.
f. The Crown indicates that should the Court consider it appropriate to order separate trials, it would mean that the 63 witnesses that the proposed to be called in this case and the expenses incidental to that would have to be repeated if there was another trial.
g. In fact, the Crown's position is that in order to properly prosecute the two other counts which Mr. Henry is not part of the would have to lead the same evidence from the same witnesses in order to establish those counts. According to the Crown the presumption of having a joint trial of matters which are of similar kind or arising out of the same set of facts militate towards a joint trial.
In dealing with this application, it is necessary to appreciate the legal principles that apply to the...
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