Ralph Thorne QC. Photo: MagneticMediaTV
By Caribbean News Now contributor
PROVIDENCIALES, TCI -- Following the recent disclosure of secret payments made to former Turks and Caicos Islands (TCI) premier Michael Misick by one or more Sandals-related companies (Prosecution outlines secret payments made by Sandals to Turks and Caicos ministers
), Sandals Resort International issued a statement on Friday acknowledging that the payments in question were in fact made, which has prompted Ralph Thorne QC, representing Misick at the trial to file an application to the court to declare a mistrial.
“…we now have a large corporate entity feeling obliged to issue a statement in relation to issues that pertain to contested evidence in the case,” Thorne noted.
He said it is a matter for the judge to consider whether the statement is contemptuous of the court and whether it is calculated to unduly and improperly influence the proceedings.
“As Mr Misick's lawyer, my immediate concern is that the statement is so highly prejudicial to his rights and to his presumption of innocence, that it defeats his opportunity for a fair trial. My client has lost his right to a fair trial,” Thorne said.
“It is a fact that those payments were made,” Sandals said in its statement on Friday.
According to Sandals, the matter first came to light in the course of investigation by the US Department of Justice. This triggered a series of internal investigations by Sandals to determine the source of the payment and the responsible parties. Tom Scott, a retired Federal judge, was retained by Sandals to assist with the investigation and a forensic accounting firm in Washington DC was also engaged to conduct an in-depth accounting investigation into the affair.
The results of the investigation and the forensic audit revealed that some US$1,650,000 had been paid to Prestigious Properties Limited, a real estate company in which Michael Misick, Phillip Misick and Washington Misick were the shareholders, and Chalmers Misick & Co., a firm of lawyers in the TCI.
“All those payments were made without the knowledge or consent of the principals of Sandals,” the company said.
The unauthorized payments were made by a senior executive and then treasurer of Sandals. This culminated in the separation of the senior executive from the company and was followed by Sandals filing a lawsuit against him in The Bahamas to recover the unauthorized payments.
“The damage done to the company by his actions was substantial. Not only had he betrayed the trust which the chairman and other directors had reposed in him but based on the level of his authority, the company was legally bound by his actions and this culminated in the company having to absorb a fine of US$12 million imposed by the Turks & Caicos authorities,” Sandals said.
“In concluding the investigation, the US Department of Justice said that Sandals had cooperated: ‘…with the United States authorities to a degree that [was] acknowledged to be both extraordinary and unique and included the early and voluntary release of valuable evidence that has been shared with the special investigation prosecution team’,” Sandals pointed out.
“Were it not for the Auld enquiry, which followed Michael Misick’s removal from the premiership in the TCI and the DOJ investigations, the illicit payments might not have come to light,” the statement continued.
The incident triggered a group-wide review of the internal controls with the organisation and during the course of that exercise further instances of irregularities were discovered. One such discovery culminated in the criminal prosecution in Jamaica of Dr Jeffrey Pyne, the Sandals treasurer; and Patrick Lynch and Catherine Barber, both former senior executives affiliated with the group, regarding violation of the ATL/Sandals Pension Fund, which is still the subject of court proceedings.
According to Thorne QC, the statement is a consequence of the practice of the prosecution of issuing daily releases of its unproved opening statement through a website created by the prosecution itself.
He said he considers this practice to be improper and undue and he has expressed this position in court.
“It is clear to me that the publication of the prosecution's opening statement to the judge, and its style, have excited feelings of hostility and antipathy towards my client,” he continued.
Misick was reportedly accosted with threats by an individual last Thursday while he was leaving the court.
“It is my view that the prosecution's daily publication of its highly charged opening statement and this statement have had the cumulative effect of scandalising my client, portraying him contemptuously and ultimately depriving him of the right to a fair trial that is guaranteed by the constitution and by the human rights conventions,” Thorne said.
He acknowledged that a proper balance between fair trial and press freedom must be maintained and he offered no condemnation of the media that seek to inform the public.
However, he asserted, parties to a trial must not exploit the media to seek resolution or ventilate on matters that are properly only within the purview of the court at this time.
“These extra-juridical publications, emanating from the prosecution and from a corporate entity connected to the evidence, are capable of undermining the independence of the judiciary and the dignity of the process of trial. We must not allow this process to degenerate into the nature and spectacle of an inquisition,” he said.