Special Report
The Euro Bank trial collapsed as the Attorney General offered no further evidence against former bank employees and it was revealed that the ...
Crown Destroyed Evidence
The Director of the Cayman Islands Financial Reporting Unit (CAYFIN) Mr. Brian Gibbs told lies and deliberately failed to disclose and knowingly destroyed evidence which he was aware was highly relevant to the Euro Bank trial.
Mr. Ivan Burges and Ms. Judith Donegan following their aquittal. Absent from photo are Mr. Don Stewart and Mr. Brian Cunha.
That was one of the findings of Chief Justice the Hon. Anthony Smellie, QC, in a 47-page judgement which was handed down prior to the Euro Bank case collapsing due to the Attorney General refusing to offer an further evidence against the four former bank employees who were charged with money laundering.
The Chief Justice noted that Gibbs testified that he destroyed certain material on the instructions of his controlling agent of the United Kingdom Government (UKG) when, on 2nd July 2002, he was telephoned and told by that agent that a search warrant was to be executed at the FRU and at his home by the Commissioner of Police.
This search, the Chief Justice said, was to be in relation to an investigation arising from suspicions of interference with the judiciary's telecommunications.
Summarising his findings, Mr. Smellie noted that Gibbs destruction of a special agent witness and "intelligence" material on the 2nd July was the fulmination of his ongoing intention since late May when that material was returned from London never to disclose it to the defence.
As to the intentions of "John Doe", the agent who instructed him to destroy the material, the distinction between his and Gibbs' state of mind at the time was as between a deliberate intention to destroy relevant evidence and recklessness as to whether that would follow from his instructions, Mr. Smellie said.
"I conclude that Doe was at least reckless as to whether the material he ordered to be destroyed, was still relevant material required for this trial," the Chief Justice added.
" Had the defence not persisted in their enquiry about the true status of "W" as a witness, Gibbs' deceptive suppression of the evidence might well have succeeded. The prosecution's failure to put in place a proper use management system and to ensure compliance by Gibbs would have allowed this to happen.
"However, had the prosecution not responded,
however late in the day, to the defence's and the Court's concerns,
Gibbs would not have admitted to the destruction of the evidence
and to his failure to disclose it."
Mr. Smellie said the redactions made to the special agent witness'
material were "substantial and contextual, capable of misleading
the Court".
He added: "The London Plan involved a process and understanding by which this Court would have inevitably been misled as to the true provenance, custody and composition of the "W" (witness from England) and intelligence material.
"The London Plan, from its very inception, had committed the prosecution to a course of action that was inherently misleading and required Gibbs and prosecuting counsel to represent to this Court and to the defence, a falsehood.
"Even while the prosecution considered that they were acting in good faith, the London Plan involved the extra-judicial alteration of the state of the evidence. That evidence was recognised as relevant to and disclosable in this trial."
In what he termed an "alarming turn of events", the Chief Justice said that On 19th November Gibbs, in varying accounts, informed the Attorney and Mr. Mitchell that he held a disc which contained, in electronic form, the relevant material which he had destroyed.
He said Gibbs is reported as having told Mr. Andrew Mitchell, QC, on 19th November, that this material had arrived electronically overnight from the UKG.
"In contrast, he is reported as having told the Attorney General also on the morning of the 19th, that he had "discovered" a redacted version of the material which had been destroyed. He is further reported to have said to the Attorney, that it had been put in a safe place, such a safe place that he had forgotten its existence.
"I accept what Mr. Mitchell and the Attorney said about this and it follows that Gibbs lied to one of them. Gibbs has in fact admitted this deception.
"In his evidence upon the voir dire, he said that the account he gave to the Attorney was the correct one.
That he had lied to Mr. Mitchell. His reasons for lying at that stage, even after the destruction had been admitted and after some of the material had been recovered will also have to be considered."
The Chief Justice said it became apparent from an interrogation of the disc itself, that it held material and that Gibbs saved information on it on 22-23rd May and 20th November 2002; The 23rd May was the date on which information was last saved before as he stated he had destroyed the documentary material which showed any connection to the UKG agency.
"The material found on the disc was a reduced version of the material which had been brought from the UKG the material which had been entrusted to Gibbs for disclosure.
"Later, in his responses of the 28th November to requests of the defence for further and better particulars to his witness statement, Gibbs gave the impression that the material on the disc had indeed arrived electronically from overseas overnight the 18th November. He was then confirming the account he had given to Mr. Mitchell the account which he later impugned in his evidence upon the voir dire," the Chief Justice added.
"This written response of 28th November he admitted in his testimony on the voir dire was a further lie, this time deliberately included in answers which he knew were intended to be put before the Court.
"His explanation, which I immediately regarded as implausible and unacceptable from so experienced an operative as Gibbs, was that he was so embarrassed to have discovered the disc and its contents among his records, that he lied about it. It is now in my view established beyond argument, that because of his relationship with W, who was always seen as an important witness; Gibbs should have been regarded as a necessary witness in this case from the outset."
Mr. Smellie said the decision to allow Gibbs to inhabit the shadows without having to appear in the searching light of this case, encouraged and emboldened him in his misplaced sense of priorities for his relationship with the UKG agency to the point, as the examination of the circumstances will show, of placing his own position and that of the UKG agency above his duties to this Court and above his duty to ensure that the defendants received a fair trial.
"When it became apparent that the prosecution would be able to recover the material from London, and being faced with the prospect of full disclosure of the W material, Gibbs, in my view, tried to contain full disclosure by deception yet again," the Chief Justice wrote.
Attorney General Mr. David Ballantyne has defended his position and integrity in the Euro Bank case.
Speaking in open court on Monday afternoon, Mr. Ballantyne stated:
"I cannot abide (by) the notion that the Court or this jurisdiction would entertain any doubt as to the integrity or motives of its Attorney General. "I will not, however, be an advocate in my own cause. But my sole intention has been to bring this matter to an end, not to usurp your Lordship's position in any way, quite the contrary."
He added: "To the extent that the consequences of the discontinuance had not been fully thought through, I have revisited that issue. The only question really is how these proceedings should be brought to an end and what kind of finality is appropriate.
"For myself, and I don't mean that I know of any other, there is no hidden agenda beyond upholding the law fairly. No decision has been taken regarding the bank -- prosecution of the bank about which this case may cause some reflection.
"But more importantly, if people had
acted properly the Crown would not be in this position. All I
can do is to try to right the position. If fairness to the accused
requires an acquittal then they are entitled to it, on
revisiting that matter.
"Having had the opportunity to reflect
on the Court's indications as to how this matter may properly
be disposed of, and your Lordship's view that there would be a
more appropriate way to bring finality to the
proceedings, I am content to be guided by the Court in this regard."
Mr. Ballantyne then withdrew the move to discontinue the case and he offered no further evidence against the accused.
Chief Justice, Anthony Smellie, Attorney General, David Ballantyne
The four defendants in the Euro Bank money laundering trial were acquitted on Tuesday January 14, bringing an end to one of the most controversial cases in the Cayman Islands' legal history.
In a remarkable twist of events, charges against Mr. Donald Stewart, Mr. Brian Cunha, Mr. Ivan Burges and Ms. Judith Donegan were dropped after Attorney General Hon. David Ballantyne, QC, informed the court in the presence of the jury that he would not be offering any further evidence against them.
After the Attorney General dropped the Crown's case, Chief Justice the Hon. Anthony Smellie, stated: "There can be no question but that that is the proper thing to have done."
As the jury was not present since November 5, 2002, the Chief Justice said he believed that they, like the rest of the public were entitled to know what the enquiry was about and what were the findings of the court in their absence.
He then availed them with copies of a 46-page ruling before instructing them to return a formal verdict of not guilty against each defendant on each of the six counts of the indictment.
Wednesday's dramatic twist to the case unfolded in ten minutes before a packed, hushed and expectant courtroom, which included Executive Council Members Mr. Linford Pierson, Mr. Roy Bodden, Dr. Frank McField, Mr. Gilbert McLean and several lawyers.
The Chief Justice said the outcome is not to be viewed "in entirely only as a technical matter".
He said: "I think it is owed to the defendants that the public are aware that so far as this court is concerned this (acquittal) represents the proper and fair verdict.
"I will not comment in terms of what
I might observe to be any order of merit but I say in particular
that from the
court's observation the case against Mr. Stewart and Mr. Cunha
in particular has been notable in the terms of the paucity of
evidence against them on this indictment."
The four former bankers were visibly and verbally elated and relieved after the trial which started in June 2002.
"I am obviously delighted with the outcome and I am also satisfied that justice has prevailed," Mr. Burges, a former Senior Assistant Manager at Euro Bank told Cayman Net News.
Mr. Stewart, Euro Bank's former chairman of the Board of Directors, expressed his sincerest gratitude and thanks to his friends, family who were supportive throughout the trial.
He singled out the Walkers Law Firm and lawyers Mr. Marcus Thompson and Mr. Michael Hill, QC, who he said were "superb" in the case.
"I am delighted that justice has been done and that I can again revert to a more normal life with my family."
Mr. Cunha, who was Euro Bank's general manager, told Cayman Net News: "I am very heartened and satisfied that this matter has come to its proper conclusion and I feel particularly vindicated by the Chief Justice's remarks when he observed that there was a paucity of evidence against me."
Ms. Donegan, who held the non-management post of trust officer at Euro Bank, said it was a long, frustrating and ordeal, but she is relieved.
"I am happy that justice has been done and that it been seen to be done. I have secured my passport and I am looking forward to going away.
"I however think that it is time that the Cayman Islands constitution includes some human rights provisions because these past three-and-a-half years have been, for me, like a prison sentence."
In his address to the jury, the Chief Justice said: "Since then in your absence I've been engaged upon an enquiry which was the latest in a number of interruptions during the course of this trial.
"Indeed, so many such breaks have there been that in effect you have spent much more time way from the jury box than you have spent in it.
"I can now observe that the long break since November 5th by itself would have been grounds for concerns about whether this trial could continue to be a fair trial.
"The result of the enquiry in the meantime has however proven to be conclusive of this trial. As the direct result of it, the prosecution in the person of the Attorney General has offered no further evidence against these defendants on this indictment."
The Chief Justice also ordered the release of the defendants' travel documents and discharged restraining orders against them where they existed.
Mr. Ballantyne then told the court that following consultation with defence counsel there are proposals on the table for dealing with the issues of costs and that he would be instructing prosecuting counsel to engage in those discussions.
If agreement is reached, the Attorney General said, they would come back to court to ask that an appropriate is made and in the event that they failed to reach agreement they would return to court.
He added: "The defence reserves their position in respect of all matters in relation to costs as does the Crown but with the willingness to agree on a satisfactory conclusion on the issue of costs without troubling Your Lordship unnecessarily."
The Chief Justice then said he welcomed that approach as it avoided the need for an enquiry and for a formal decision of the court.