False money was found
Two men found guilty of possessing forged documents had their convictions quashed on appeal, but Justice Alex Henderson left it up to the Crown whether to have a retrial.
On Thursday, 7 June, Crown Counsel Trevor Ward confirmed that there will be a new trial.
Curtis J. Connolly and Godfrey Adrian Brandt were convicted in Summary Court in September 2005. Charges against them arose from an incident in March 2004, when 14 false US$100 notes were found in Brandt’s car.
Connolly, who had been borrowing Brandt’s car, admitted handling the notes on at least one occasion – when he showed them to a young lady he was going out with. He said he had asked Brandt about them and Brandt had told him not to use the notes because they were not real.
Brandt said he brought the notes from Guyana to play Monopoly.
Nobody accused the men of any intent to pass the notes, but possession of forged currency notes is an offence.
The men received sentences of six months imprisonment, stayed pending appeal.
The first part of the appeal, which resulted in the convictions being set aside, was argued in February 2006. Attorney Stephen Hall-Jones appeared for Connolly, Attorney John Furniss for Brandt and Mr. Ward for the Crown.
There were other grounds of appeal and Justice Henderson said it was possible one or more of them could result in an outright acquittal rather than a new trial. Those other grounds did not get argued until last month.
On 25 May the judge heard arguments on the facts of the case from Mr. Hall-Jones on behalf of both men and from Mr. Ward for the Crown.
On 29 May, he found there had been no substantial miscarriage of justice and he dismissed the appeal. He said it was now up to the Crown to decide if they wished to go ahead with a new trial.
The convictions were quashed because the judge found there had been a significant departure from the guidelines for a fair trial – the prosecutor had gone to see the magistrate about an aspect of the case without any defence attorney present.
The prosecutor had asked to withhold the identity of an informant, but the magistrate refused. When a defence attorney raised the point in open court after finding out about it, the magistrate said nothing prejudicial had been discussed. No application was made for the magistrate to discharge herself.
The trial proceeded and the prosecutor chose not to call the informant as a witness.
Justice Henderson said what had happened raised questions of fundamental importance about the openness of criminal trial proceedings. He had been advised there were no Cayman decisions on the subject, so he set out his reasoning in detail.
He said one of the most jealously guarded principles of criminal law is the principle of openness of court proceedings. A defendant is entitled to be present throughout the entirety of his case. He is entitled to see and hear the witnesses against him.
With rare exception, the defendant is entitled to know all the information conveyed to the judge or jury that may bear on the question of guilt, innocence or sentence.
‘There must be freedom of access between advocate and judge. Any discussion must, however, be between the judge and advocates on both sides,’ he quoted from the TurnerPractice Directions, established in 1970.
The significant exception is public interest immunity. For example, it may be that certain sensitive information should not be disclosed in court or to the defendant because to do so might endanger the life or safety of a police informant.
Justice Henderson cited other sources and said this was a timely occasion for the court to say that the guidelines and principles he referred to are to be followed in the Cayman Islands. ‘All barristers practising in the criminal law arena should make themselves familiar with the text of those documents,’ he said.
In Connolly and Brandt’s case, the judge considered the prosecutor’s application for public interest immunity to be unnecessary, since the defendants already knew her identity, and there was no indication she was an informant in the sense of a person who provides information to police on a regular basis.
The judge also considered the application to have been made in a flawed and improper manner.
The ordinary result of any significant departure from guidelines will be an order for a new trial, he said. ‘Nothing short of that is likely to satisfy the public interest, and the interest of the individual defendant, in ensuring openness of trial proceedings.’
However, he added, there was no automatic rule. There could be cases where a new trial was unnecessary; everything depended on the circumstances. He then left it to Brandt and Connolly to proceed with their other grounds for appeal if they wished.
The arguments of 25 May had to do with the charge and the evidence that had been presented in Summary Court.
To prove possession of forged currency notes, the Crown had to establish three things: that the notes were; that they were in the possession of the defendant; that the defendant knew they were forged.
An important point was the distinction between forged and false.
A false document purports to be what it is not. A forged document is a false document made with intent to deceive.
Mr. Hall-Jones argued that Brandt and Connolly could not know the intention of the maker of the documents.
Justice Henderson said he had examined the notes himself. It was obvious they were false documents, not particularly clever or sophisticated simulations of what they purported to be. However, they were close enough to deceive the unsophisticated or someone in a state of intoxication.
He said the magistrate had been correct in finding that each man did possess the notes with the requisite knowledge.
Finally, it did not matter if Connolly and Brandt had any intention to deceive. What mattered was the intent of the maker of the documents. Each defendant would have known that the notes bore close resemblance to genuine notes; each would have known the notes were capable of deceiving someone.
‘It seems to me a belief that they are poor copies is entirely different from a contention that the notes were not made with intent to deceive,’ the judge said.
Mr. Hall-Jones had argued there was no evidence of intent to pass off the notes. The judge said intent to pass them was immaterial.
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