<!-- image --> | 1 2 | INTHEGRANDCOURTOFTHECAYMANISLANDS CRIMINALSIDE | INTHEGRANDCOURTOFTHECAYMANISLANDS CRIMINALSIDE | |-------|--------------------------------------------------|--------------------------------------------------------------------------------------------------------------| | 3 | | | | 4 | | INDICTMENT NO: 43 of 2018 | | 5 | | | | 6 | | REGINA | | 7 | | | | 8 9 | | V. | | 10 | | ASSADADANAWALKER | | 11 12 | | FITZROY OTTEY | | | | OWEN OMARREM | | 13 | | | | 14 | | | | 15 | | | | 16 | Appearances: | Mr. Garcia Kelly for the Crown | | 17 | | | | 18 19 | | Ms. Amelia Fosuhene of Bradys, Attorneys for Defendant Walker Mr. J Hughes of Samson Law for Defendant Ottey | | 20 | | Ms. P Bodden of Samson Law for Defendant Reid. | | 21 | | | | 22 | Before: | Hon. Justice Marlene Carter (Actg.) | | 23 | | | | 24 | Ruling Delivered: | 15 March 2019 | | 25 | | | | 26 | | HEADNOTE | | 27 | | Application to stay proceedings; Abuse of process; Non-disclosure | | 28 | | RULING ONANAPPLICATION TOSTAY PROCEEDINGS | | 29 | | (Revised transcript of Oral Ruling delivered 15 March 2019, and | | 30 | | Approved for Release 25 November 2019) | | 31 | | | | 32 | | Introduction | | 33 | 1. | On day four ofthe defendants′ trial, counsel for the defendants applied for a stay of the proceedings | | 34 | | on behalf of these three defendants. They submitted that there was an abuse of the process of the | | 35 | | Court, relating specifically to disclosure issues. | <!-- image --> 4 5
In December 2018, the matter came before Madame Justice Dobbs. Justice Dobbs gave directions 7 with regard to how the matter should proceed. The parties were to inform the court whether or not 8 they intended to adopt certain positions. This was to have been done by mid-January 2019. ６
11 take a certain course in this trial, that the Crown should have been trial ready on the date fixed for 12 trial i.e. 11 March 2019. From mid-January 2019, this trial date has remained firm. 13
The Crown also accepts that when the defendants indicated that they would seek a Goodyear 15 direction from this court, the Goodyear direction having been heard on Monday, the first day of 16 this trial, that this did not in any way effect the trial preparation or trial readiness which was to be 17 expected from the Crown, 18 - 19 6. The Defences' submissions point to a number of matters relating to disclosure. These I will deal 20 with as follows: 21 - 22 (i The service of photographs upon which the Crown intend to rely. - 23 7. The photographs in question are approximately 200 photographs which were served on Tuesday 24 of this week the 12t March, the second day of this trial. No index was provided at the time of 25 service of the photographs. However, the index was received by the defence yesterday, on what 26 would have been the fourth day of the trial. 27 - 28 (i) The issue relating to DS 1-8 - photographs which were shown to the defendants 29 during the course of their records of interview. 30 - 31 8. Counsel for the defendants state that a request was made, I believe late on Monday or early Tuesday 32 of this week, seeking from the Crown, evidence regarding the provenance of those photographs. - 33 The defence say that it is relevant, given their indication that one of the main issues for the defence - 34 is the chain of custody relating to RSC 13, the exhibit in which the firearm and ammunition, which The defendants are charged with firearm offences as well as being concerned in the importation of ganja, relating to matters which took place on 2"d March 2018. Not Guilty pleas were entered and a trial date was fixed for September 2018. <!-- image --> form part of the main part of this indictment, was found. These photographs relate to RsC 13 exhibit. ## (ii) The lack of service of unused material. | | 59. | When the question was posed by this Court to Crown Counsel yesterday, the indication from him | |----|-------|----------------------------------------------------------------------------------------------------------| | 6 | | at that time was that the unused material had not yet been served in its entirety. I understand from | | 7 | | Crown Counsel that there are notes from various police officers which he, before this Court rose | | 8 | | yesterday, still did not have in his possession. Crown Counsel agreed with the court that unused | | ６ | | material would, in the normal course of things, have been served as primary disclosure in advance | | 10 | | of trial. | | 11 | | | | 12 | | (iv) The late service of the Scenes of Crime Report and other documents. | | 13 | 10. | The scenes of crime report was served only yesterday -- the fourth day of the trial. Defence counsel | | 14 | | include in this application before the Court the fact that, at this stage, there are no agreed summaries | | 15 | | of the records of interview, there is no agreed jury bundle, and there are no agreed admissions, the | | 16 | | draft admissions having been served by the Crown yesterday -- the fourth day of the trial. | | 17 | | | | 18 | 11. | Also included in this 4t point are the issues relating to the statements of Police Officer Durrant and | | 19 | | Police Officer Stewart. Officer Durrant is a Crown witness who has begun his evidence before this | | 20 | | court. During the course ofthat evidence certain matters arose which then led to a further statement | | 21 | | having to be taken from the witness. The defence argue that all of this material is relevant to their | | 22 | | preparation of the defence, that the Crown should have been aware of these issues and produced | | 23 | | these statements before trial. | | 24 | | | | 25 | 12. | Officer Steward has not yet been called as a witness for the Crown, but every indication is that he | | 26 | | would be called as a witness on the trial. The defence submit that there is the further related issue | | 27 | | of whether or not that officer had now been alerted to matters raised at the trial, and asked the court | | 28 | | to consider whether or not that would prejudice their clients and their defence of these charges. | | 29 | | | | 30 | 13. | Taking all those disclosure issues in the round, taking account of the fact that disclosure has come | | 31 | | piecemeal during the course of the trial, the defence submit that they are not confident that these | | 32 | | defendants could receive a fair trial. They say that the Crown has not fulfilled its disclosure | | 33 | | obligations. They argue that there is a lack of readiness with regard to the Crown's conduct of the | <!-- image --> trial and that all of these factors could have the result that these defendants are not able to receive a fair trial. ## Crown's Response | | 514. | On behalf of the Prosecution, Crown Counsel submits that some of the disclosure issues identified | |-----|--------|-------------------------------------------------------------------------------------------------------| | 9 | | on this application are now in hand. With regard to the provenance of photographs DS 1-8, Counsel | | 7 | | indicated that statements have been sought and that indexes have now been provided. Crown | | 8 | | Counsel offered that with the matters relating to Officers Durrant and Stewart, are matters that | | 9 | | | | 10 | | cross-examination regarding what was contained or not in their statements now before the court. | | 11 | | | | 12 | 15. | It is submitted on behalf of the Crown that this therefore is not a case where the Court should find | | 13 | | that it should stay the proceedings and instead invited the Court to consider whether or not the | | 14 | | issues that have been raised, and any prejudice that might have been suffered by the defendants, | | 15 | | could be cured by an adjournment of this trial, or a discharge of the jury and setting of a new trial | | 16 | | date. | | 17 | | | | 18 | | The Law | | 19 | 16. | I have been referred to the authorities of R v Salt' and R v Boardman?. I consider that Boardman, | | 20 | | as in many of these cases, is a case that was decided on its facts. Salt, however is an authority | | 21 | | wherein the Court of Appeal delved into the many factors that this court must consider on the | | 22 | | instant application. | | 23 | | | | 241 | 17. | The power of the Court to stay proceedings where abuse of process is alleged, is considered in | | 25 | | cases to which the court has been referred: R v Maxwell, [2011] 1 W.L.R. and R v Horseferry Road | | 26 | | Magistrates Courts, ex parte Bennett [1994] 1 A.C. p. 42 and also R v Latif [1996] 1 W.L.R. 104. | | 27 | | | | | 2818. | The main principles can be summarised as follows: a court has the power to stay proceedings in | | 29 | | two categories of cases, namely, (1) where it would be impossible for the defendant to have a fair | | 30 | | trial and, (2) where it offends the court's sense of justice and propriety to be asked to try the | | 31 | | defendant in the particular circumstances of the case. In the first category of case, if the court | 1 R V Salt [2015] 1 WLR 4905 2 R v Boardman [2015] 1 C. App R 504 - 1 concludes that an accused cannot receive a fair trial, it will stay the proceedings without more. No - 2 question of the balance of completing interests arises. In the second category of case, the court is - 3 concerned to protect the integrity of the criminal justice system. In this second category, a stay - 4 will be granted when the court concludes that in all the circumstances, the trial will offend the - 5 court's sense of justice and propriety. 9 - 7 19. I have looked at the factors which Counsel have highlighted and I have also considered those found 8 in Salt, enumerated and applied by the Court of Appeal. These factors are: 9 <!-- image --> - (i) The gravity of the charges. These defendants are charged with very serious of 10 years, for the first two offences. These are very serious charges. 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 34 - (i) Is there is a question of denial of justice to complainants? In this case, it is not the regular complainants. The complainants here would, in a sense, be the wider society - persons who need to be protected where allegations with regard to persons being involved in drugs and firearms are being brought into its jurisdiction. Those would be the wider complainants that this court would have toconsider, - (ii) The importance of disclosure. In Salt it was the importance of disclosure in sexual offences cases, but here, the importance of disclosure generally, it being accepted by all that disclosure is an essential prerequisite to ensure a fair trial. - (iv) Importantly, in this case, there has been no allegation of bad faith on the part of the prosecution, or of the police. There seems to have been allegations of incompetence, and I take that with regard to, for example, the statement of Durrant, whether he should have provided a fuller statement. However, there is no direct evidence of serious incompetence of the sort that was alleged in Salt. On the matter of non-disclosure, the Crown has accepted that in some of the instances highlighted by the defence there were deficiencies on their part. - (v) The nature and materiality of the failures to disclose. From the matters already identified, the most significant of these, it seems to me, would be the 200 <!-- image --> 5： 6 7 8 6 10 11 12 13 14 15 16 17 18 19 20 21 - 22 21.1 I have considered whether there has been a waste of resources and the effect on the jury. The jury - 23 has only been in court on two occasions, and has heard very limited evidence. The jury has had to - 24 be in and out of this building, waiting to be told where the proceedings would go each day and as - 25 a result there has been some discomfort and discommoding of the jury. I am very conscious how - 26 these matters impact their view of the judiciai system. 27
With regard to the Court's resources, it is true that the first two days of the trial were taken up with 29 legal arguments, the first being necessary to hear submissions on the Goodyear indication. The 30 second legal argument dealt with an application from the defence. These are all factors that I have 31 to consider. 32 33 photographs upon which the Crown intend to rely, that were served on the second day of trial. The matter of the unused material is also important. The defence are S r a although it is unused by the Crown, it could be that there are matters within this material that the defence might find useful to their case. It is absolutely important and essential that the defence have all of this material pre-trial. - (vi) While the other matters identified relating to summaries, agreed jury bundles or admissions, might not have the same weight as the physical evidence of the photographs or the unused material, late disclosure of these can have the effect of delaying trial proceedings and this court has to consider whether, cumulatively, these affect a fair trial. - (vi) I find that there is no issue regarding failures by the defence. I find that the application is not a frivolous one and it is one that the defence are entitled in these circumstances to properly make. In this case, there is no issue that there has been piecemeal disclosure.
The defence have also raised the issue of whether the Crown has gained an unfair advantage in terms of how the matters have proceeded thus far. ## 1 Court'sconclusions
It is now for the Court to determine whether, taking into account all of the circumstances as they 3 have been laid out before me, I find that these defendants can get a fair trial. 4
I have to consider whether defence counsel, having not had sight of all of the material which they 9 should, are able to confidently test the Crown's case or to determine how to put their case. And 7 further, whether this can be cured in any way within the course of the trial. 8
I am mindful that the defendants are in custody and the nature of the offences for which they are 10 charged, it might be that they would remain in custody whatever determination I do make on this 11 application. However, that is not one of the major factors for my consideration on this application. 12 - 13 26. I bear in mind that it is only exceptional circumstances that late disclosure in a trial is not be dealt 14 with by an adjournment or by discharging the jury, and that, in most instances, the determining 15 factor is whether there has been unusual or serious misbehaviour on the part of the prosecution or 16 police. 17 - 18 27. Having considered all of the relevant factors, I do not find that these defendants could not receive 19 a fair trial. While some ofthe information which is not yet disclosed does relate directly to material 20 issues raised by the defence, these are not such as to cause me to believe that these defendants 21 could not get a fair trial if defence counsel were afforded an opportunity to have that material and 22 to properly prepare for trial. 23 - 24 28. I therefore find that the applications to stay the proceedings for an abuse of process must be 25 dismissed. I will order that the jury be recalled and discharged. A new trial date will be set. 26 Previous to that trial date, within the next 14 days, this trial will be listed for a case management 27 conference at which time all matters relating to disclosure must be finally determined. 28 29 30 31 32 33 34 <!-- image --> <!-- image --> Q JusticeMarleneI.Carter Acting Judge of the Grand Court