The mistrial application filed on behalf of former Turks and Caicos Island (TCI) Premier Michael Misick was yesterday dismissed by High Court Judge Justice Paul Harrison.
A story in yesterday’s online edition of the Turks and Caicos Sun newspaper reports Justice Harrison as saying that he agreed with British prosecutor Andrew Mitchell, QC that the mistrial application filed by Misick’s attorney, Ralph Thorne, QC, was “novel” and “unprecedented”.
Thorne had filed the application arguing that the prosecution had engaged in the practice of issuing daily releases of “its unproven opening statement through a website created by the prosecution itself”.
“I consider this practice to be improper and undue and I have expressed this position in court,” Thorne said in a statement issued on the weekend.
The defence attorney said he felt constrained to issue his response on behalf of his client after Sandals issued a statement last Saturday in response to allegations made by Mitchell in his opening statement.
Sandals pointed to Mitchell’s statement that payments were made to Michael Misick by one or more Sandals-related companies.
SANDALS NOT ON TRIAL
The hotel chain confirmed that the payments were made without the authorisation of its principals, and explained that it issued the statement to clarify that Sandals was not on trial. It also reiterated the circumstances which were revealed approximately 5 or 6 years ago years ago at the time of the discovery of the unauthorised payments.
“The matter first came to light in the course of investigation by the US Department of Justice (DOJ) in or about 2009. This triggered a series of internal investigations by Sandals to determine the source of the payment and the responsible parties,” the Sandals statement said.
“Tom Scott, a retired federal judge and partner in the Florida law firm Cole, Scott & Kissane, was retained by Sandals to assist with the investigation, and a highly reputable 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 explained.
“The unauthorised 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 unauthorised payments,” Sandals added.
“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.
“In concluding the investigation, the US Department of Justice said that Sandals had co-operated ‘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 (SIPT)’.”
Added Sandals: “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.”
Sandals said that the incident triggered a group-wide review of the internal controls within the organisation and during the course of that exercise further instances of irregularities were discovered.
“One such discovery culminated in the criminal prosecution in the Half-Way-Tree Resident Magistrate’s Court in Jamaica of Dr Jeffrey Pyne, former managing director of Gorstew Limited and the Sandals treasurer; 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,” the resort chain explained.
In his statement, Thorne said it was clear to him 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 said this was clearly evident on Thursday, January 28, 2016, when Misick was accosted with threats by an individual while he was leaving the court.
“Together with the prosecutor, we brought this incident to the attention of the judge on the following morning,” Thorne said.
“In addition, 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 added.