Officer’s conduct ends theft trial

A defendant accused of theft was discharged last week after Magistrate Valdis Foldats found that the police officer investigating the matter had behaved in a way that amounted to unlawful conduct. 

Kerry Horek had faced 24 charges of stealing rental payments. The total of $22,600 was for the intended benefit of the landlord. The alleged offences occurred in 2008-09, while the apartment owner was living in the United States. 

The court heard a taped interview in which Ms Horek said she accepted responsibility on the basis that a company employee had misappropriated the rental payments. That interview was part of the Crown’s case. 

Ms Horek was charged personally and as owner of Sonek Trading Company Ltd, trading as Island Rental Services. However, she was never asked to answer the charges. In fact, Crown Counsel Kenneth Ferguson never got to finish presenting the prosecution evidence. 

The reason was defence attorney Anthony Akiwumi’s successful application for a stay of proceedings on the grounds of abuse of the court’s process. He made his application after the police officer in the case, Constable Richard Clarke of the Financial Crimes Unit, gave his evidence. 

The attorney submitted that Mr. Clarke committed the offence of “compounding” by attempting to obtain payment of the missing rental money for the benefit of the landlord by way of an agreement that Ms Horek would not be prosecuted if she paid the money. Mr. Akiwumi said it would be an abuse of the court’s process to allow the prosecution to continue in such circumstances. 

The magistrate adjourned the trial so that he could write out his ruling. In it he quoted comments made by Mr. Clarke when interviewing Ms Horek. 

At one stage he tells her, “I made it very clear that if no payment have been received by yesterday you would have been arrested”, and when she says that she did make a payment he replies, “Only, only in reaction to the pressure that I put you under.” 

In giving his evidence, Mr. Clarke had said he had facilitated an agreement between Ms Horek and the landlord because he thought it was the easiest way for the man to get his money back “rather than go through a court process.”  

The magistrate pointed out that Mr. Clarke did not consult with his superiors or obtain any legal advice prior to embarking on his course of conduct. Neither did he appear to have an understanding of the offence of “compounding”. 

The Penal Code sets out this offence, which includes the following elements: Whoever asks or attempts to obtain any benefit of any kind for himself or any other person upon any agreement or understanding that he will abstain from, discontinue or delay a prosecution, or will withhold any evidence, is guilty of an offence. 

The landlord’s evidence was that he had tried to meet with Ms Horek about his rent money after he returned to Cayman in December 2009. After an initial phone call, he was not successful in making any contact with her. He went to the Financial Crimes Unit and gave a statement to Mr. Clarke in April 2010. Later that month, he told the court, “She and I and Mr. Clarke” drafted an agreement regarding her paying the money. After the agreement, Ms Horek made two payments to the landlord totalling $5,400.86. 

Other behaviour by Mr. Clarke came to light during the trial and the magistrate referred to it in his ruling. 

“On 15 June, 2010, some two weeks after the defendant’s arrest and second interview, the investigating officer entered into a listing agreement with the defendant’s company – she became his realtor on a commission basis; and on 23 July, 2010, he signed a purchase agreement whereby the defendant would hold deposit monies for the transaction in relation to his property. Ultimately, the sale went through with the defendant’s assistance. The theft charges in this case were not filed until August 2010,” the magistrate summarised. 

During the trial, Mr. Clarke had said he wanted to sell his house because he was resigning from the police service. He subsequently left the jurisdiction, but returned to give evidence. 

The magistrate’s ruling cited authorities on the question of a court’s power to stop a trial. One source expressed the opinion that a court has a discretion to stay any criminal proceedings on the ground that to continue those proceedings would amount to an abuse of its own process either (1) because it would be impossible to give the accused a fair trial, usually because of delay, or (2) “because it offends the Court’s sense of justice and propriety to be asked to try the accused in the circumstances of a particular case.” 

Where the court’s sense of justice is concerned the court must carry out a balancing exercise, weighing “the public interest in ensuring that those who are accused of serious crimes should be tried, and the competing public interest in ensuring that executive misconduct does not undermine public confidence in the criminal justice system and bring it into disrepute.”  

In Ms Horek’s case, the magistrate concluded that she could still have a fair trial in the sense that there was no lengthy delay and no evidence had been lost or destroyed. However, he said, he found the investigating officer’s conduct to be unlawful and this offended the court’s sense of justice and propriety. 

He said the evidence disclosed that Mr. Clarke, without directions from a superior officer, assisted the landlord to reach an unlawful agreement with Ms Horek by which prosecution for theft was delayed – and would have been abstained from if the total missing rent had been paid. 

Further, the magistrate said, Mr. Clarke had taken an active, aggressive and partisan role. “In essence, he was acting as an unregulated, private debt collector while clothed in the authority of a police officer – ‘pressuring’ the defendant to make payments under threat of arrest. 

“The investigating officer’s actions, although perhaps unwitting (in the sense that he was unaware of the offence of compounding) were certainly unlawful, in essence, he facilitated the commission of an offence,” the magistrate said. 

His conclusion was that the court should not have to make its process available and, by doing so, endorse unworthy conduct when it is proved against the executive or its agents, however humble in rank. He therefore stayed proceedings. 

Mr. Akiwumi asked that verdicts of not guilty be recorded for his client, but Mr. Ferguson objected, reserving the right to appeal. 

The magistrate declined to enter not guilty verdicts, but told the defendant she was discharged on all charges. 

He explained that there is room in a stay of proceedings for the matter to be re-opened.