Cassell and another v The Queen

In a criminal appeal involving serious defects in a jury direction, the proviso cannot be applied merely because the appellate court is itself persuaded of guilt. The court must also be satisfied that any properly directed jury would inevitably have convicted. Extensive misdirections on the central issue of dishonesty, coupled with improper judicial comment which effectively removed that issue from the jury, made that conclusion impossible. In exceptional cases involving a wholly perverted trial process, a miscarriage of justice may exist even if conviction would have been inevitable. Appeals were allowed and the question of retrial was remitted, subject to specified counts being excluded.

The appellants, a practising lawyer and a company he owned and controlled, were convicted in Montserrat of conspiracy to defraud, procuring the execution of valuable securities by deception, and money laundering. The Court of Appeal of the Eastern Caribbean Supreme Court dismissed the appeals against the principal convictions, applied the proviso despite accepting that the conspiracy direction was faulty, and quashed the money-laundering conviction because it had been charged under the wrong statute while ordering a retrial.

Before the Privy Council, the appellants advanced substantially different grounds. The central issues were whether the summing-up adequately identified dishonesty and the appellants’ state of mind as matters for the jury, whether the Virginia judgment was admissible, whether the statutory proviso could cure the defects, and whether particular counts disclosed legally sustainable offences.

1. Appeals allowed. The summing-up contained cumulative and pervasive misdirections. It treated proof of unlawful acts as sufficient for conspiracy to defraud, without making dishonesty and the intention to cause loss essential issues. It also failed properly to distinguish what Cassell knew from what he ought to have known, and repeatedly expressed the judge’s own conclusions on the central question whether Cassell knew that he was not entitled to act as PEL’s director.
2. The judge’s comments that the restoration application was crafted to deceive, that no court would have granted it if fully informed, and that Cassell must have known his self-appointment was unlawful impermissibly directed the jury towards the Crown’s case. The question was whether Cassell may honestly have believed that he had acquired control of PEL and was legally entitled to proceed, however unattractive or sharp his conduct appeared. That issue belonged to the jury.
3. The Virginia proceedings were admissible, principally to show that the appellants had notice of Rooney’s protest and later knowledge that a court regarded their conduct as unlawful. The judge should have explained that relevance and that the judgment was not binding on the appellants. The admission of the evidence nevertheless did not make it inadmissible.
4. Under section 39 of the Montserrat Supreme Court Act, the proviso required more than appellate satisfaction of guilt. Ordinarily, the appellate court had to be satisfied that any properly directed jury would inevitably have convicted. The extensive defects here made that conclusion unsafe. The proviso could not be applied to the conspiracy counts in any event because it could not be said that every jury must have found Wood dishonest.
5. Counts 9 and 13 failed because no deception of PEL had been alleged. Count 10 failed because a wire transfer was not a document within section 225 of the Penal Code. The retrial order on count 14 was quashed because the charge had been laid under the Proceeds of Crime Act 2010, which was not in force for most of the relevant period; the Crown remained free to charge under the Proceeds of Crime Act 1999.
6. The Board advised remission to the Court of Appeal to decide whether there should be a retrial on counts other than 9, 10, 13 and 14. Costs were left for written submissions.

• Privy Council: Appeals allowed. The Board advised remission to the Court of Appeal on possible retrial of counts other than 9, 10, 13 and 14.
• Court of Appeal of the Eastern Caribbean Supreme Court (Montserrat): Appeals dismissed on the principal convictions. The money-laundering conviction was quashed because it was charged under the wrong statute and a retrial was ordered.
• Trial court: The appellants were convicted of conspiracy to defraud, procuring the execution of valuable securities by deception, and money laundering.