R. v. Ebanks (Elvis Kelsey)

¶ 1 IN THE GRAND COURT OF THE CAYMAN ISLANDS 2 CRIMINAL SIDE 3 4 5 INDICTMENT NO: 0105/2012 6 7 8 THE QUEEN 10 11 12 13 14 v ELVIS KELSEY EBANKS 15 Appearances: Ms. Lanra Manson for the Crown 16 17 18 19 20 Before: Mr. Michael Wingrave of Stenning & Associates for the Defendant The Hon. Mr. Jnstice Charles Qnin 21 Trial commenced: 4th November 2013 22 Stay Application Snbmissions heard: 7th November 2013 23 24 25 26 27 28 29 30 31 32 33 RULING ON APPLICATION BY THE DEFENCE TO STAY THE PROCEEDINGS I. On the morning of the 5th of November 2013, during his evidence in-chief, the complainant said, with some feeling, that he is not a thief. The Interpreter became, I'm going to say, slightly overcome, or broke down slightly, and there were tears which she clearly attempted to wipe away, so at the same time she turned away to compose herself. Ruling on Application to Stay Proceedings in lnd No. 105/20J 2. R v. Elvis Kelsey Ebanks. Coram Quin J, Date: 7.11.13 Page 10/8 1

¶ [2] On the 6th November 2013 trial proceedings were suspended to 2 accommodate an International Judge's Colloquium. 3

¶ [3] Today, the i h November, the defence have applied to have the jury 4 discharged on the basis that the emotional display by the Interpreter, when 5 the witness declared in his sworn evidence that he is not a thief, will 6 influence the jury to sympathise with the witness, thereby preventing them 7 from being able to render an impartial verdict. 8 POSITION OF THE CROWN 9

¶ [4] Crown counsel submits that it carne at a time when the evidence was not 10 crucial to the Crown case. Crown counsel, Ms. Manson, submits that the fact 11 that the complainant said he is not a thief would not influence the jury as it is 12 neither here nor there. Crown counsel relies upon the fact that the emotional 13 display was brief and therefore the impact would be very small. The Crown 14 contends that the Interpreter's attempt to conceal her tears showed her 15 professionalism and, therefore, there would be no prejudice to the defendant. 16 Finally, Crown counsel submits that, in any event, this can be easily 17 remedied by a judicial direction along the lines cited by Girvan LJ in the 18 Court of Appeal case in Northern Island of R. v. H. [2012] NICA 40, where 19 the Court of Appeal held that the following direction by the judge, Judge 20 Lockie, could remedy the situation, when certain witnesses broke down and 21 cried, by saying: 22 ~----c----c-cc-~~o--~---c~c-:c---; .. ------.-;;-~~---;;;-~ Ruling on Application to Stay Proceedings in Ind. No. 105/2012. R v. Elvis Kelsey Ebanks. Coram Quin J. Date: 7.11.13 Page 2 0[8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

¶ [7] "That's a situation that often occurs in this type of case but you must avoid an emotional reaction to that sort of evidence. It is your duty to approach your task of deciding on the factual issues on this matter in a fair and dispassionate manner, without sympathy, for the prosecution or against the prosecution, for the defence or against the defence ... you conduct a thorough, reasoned, balanced assessment of all the evidence andfacts that you have heard." In that particular case, the Northern Ireland Court of Appeal rejected that particular ground of appeal. Crown counsel urges that such a similar direction would have the effect of remedying the situation we have before us. In any event, we are at an early stage of the case and the jury will forget about it and it will fade into insignificance. ANALYSIS I am grateful to both counsel for providing the relevant case law, which I now examine. The first case is the English Court of Appeal decision of R. v. Michael Docherty [1999] 1 Cr.App.R. 274, where the Court stated that the judge, in exercising his discretion whether or not to discharge the jury, should approach the issue on the basis of the more prejudicial meaning that could reasonably be placed on it, rather than on some lesser prejudicial interpretation. Roch LJ, who states, at page 4 of the judgment: Ruling on Application to Stay Proceedings in lnd No. 105/2012. R v. Elvis Kelsey Ebanks. Coram Quin J. Date: 7.11.13 Page 30/8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 31 32 33 34 35 36

¶ [9] "The first line of authority establishes that it is not in every case where some matter prejudicial to the defendant has inadvertently been admitted in evidence then the jury is to be discharged. Whether or not the jury should be discharged is for the discretion of the trial judge on the particular facts. The Court of Appeal will not likely interfere with the exercise of that discretion." The English Court of Appeal then referred to the House of Lords decision in the R. v. Gough [1993] AC 646. Lord Goff at letter C on page 670 states: n ... I wish to express my understanding of the law as follows. I think it possible, and desirable, that the same test should be applicable in all cases of apparent bias, whether concerned with justices or members of other inferior tribunals, or with jurors, or with arbitrators. Likewise, I consider that, in cases concerned with jurors, the same test should be applied by a judge to whose attention the possibility of bias on the part of a juror has been drawn in the course of a trial, and by the Court of Appeal when it considers such a question on appeal. Furthermore, I think it unnecessary, in formulating the appropriate test, to require that the court should look at the matter through the eyes of a reasonable man, because the court in cases such as these personifies the reasonable man, and, in any event, the Court is first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to the observer in court at the relevant time. Finally, for the avoidance of doubt, I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him." The Court of Appeal in R v. Lawson [2007] 1 Cr. App. R. 20, at letter B on page 671 also quoted Lord Woolf in R. v. Gough where he supported Lord Goff and stated: Ruling on Application to Stay Proceedings in lnd No. 10512012. R v. Elvis Kelsey Ebanks. Coram Quin J. Date: 7.11.13 Page 4 0/8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

¶ [12] "J agree that the correct test to adopt in deciding whether a decision should be set aside on the grounds of alleged bias is that given by Lord Goff, namely whether there is a real danger of injustice having occurred as a result of the alleged bias." The House of Lords in R v. Gough also referred to the tests that the Court of Appeal applied, namely, if a verdict is challenged before the Court of Appeal on the ground of bias, the ultimate principles to be applied are: Is the conviction safe? - in which case the appeal is to be dismissed, or: Is the conviction unsafe? - in which case the appeal is to be allowed. I move on now to the case of the R. v. Lawson [2007] 1 Cr.App.R. 20, and the judgment of the Court of Appeal given by Auld LJ, in which he states, at paragraph 64: "The ultimate question for the court in determining whether the judge correctly ruled against the appellant's application to discharge the jury is whether, given the error he made and the steps he took to mitigate it, it is satisfied that the convictions are safe." The Court in Lawson approved the test in Docherty that the court should look at the most prejudicial interpretation and its possible effect on the jury. At paragraph 65, Auld LJ states as follows: Ruling on Application to Stay Proceedings in Ind. No. 105/2012. R v. Elvis Kelsey Ebanks. Coram Quin J. Date: 7,11.13 Page 5 0/8 1 2 3 4 5 6 7 8 9 10 11 22 23 24 25 26 27 28 29 30 31 32 33

¶ [14] "Whether or not to discharge the jury is a matter for evaluation by the trial judge on the particular facts and circumstances of the case, and this court will not lightly interfere with his decision. It follows that every case depends on its own facts and circumstances, including: 1) the important issue or issues in the case; 2) the nature and impact of improperly admitted material on that issue or issues, having regard, inter alia to the respective strengths of the prosecution and defence cases; 3) the manner and circumstances of its admission and whether and to what extent it is potentially unfairly prejudicial to a defendant; 4) the extent to and manner in which it is remediable by judicial direction or otherwise, so as to permit the trial to proceed We repeat, all these matters and their combined effect are very much an evaluative exercise for the trial judge in all the circumstances of the case. The starting point is not that ... whenever something of this nature is put in evidence through inadvertence. Equally, there is no sliding scale so as to increase the persuasive onus on a defendant seeking a discharge of a jury on this account according to the weight or length of the case or the stage it has reached when the point arises for determination. The test is always the same, whether to continue with the trial would or could, by reason of the admission of the unfairly prejudicial material, result in an unsafe conviction" . The defence submits that the emotional display by the Interpreter, whilst inadvertent, is and couId be prejudicial to the defence and, therefore, the jury should be discharged. In his evidence, the complainant says that he had taken a phone which had been left at the car wash. The complainant says that the defendant used that fact to extort money from the complainant. The complainant's declaration that he is not a thief was said with great feeling. The Interpreter's reaction showed a significant measure of sympathy for the complainant and for the predicament that the complainant said he found himself in. The Complainant's declaration that he is not a thief, with the feeling he gave it, and her sympathetic emotional display gives the clear impression that she, as an independent officer of the court, believes him. ~----;---;c--c-~c-;;-----;c----c---;-;c-;-;-~=~c--;c~~---- ...... - Ruling on Application to Stay Proceedings in Ind. f:lo. 105/2012. R v. Elvis Kelsey Ebanks. Coram Quin J. Date: 7.11.13 Page 60/8 1

¶ [15] No criticism is intended of the Interpreter. It was an involuntary and 2 inadvertent act. However, her emotional reaction to the Complainant's 3 evidence is too closely connected to his evidence because she is telling the 4 jury what the complainant is saying. In a way, her show of emotional 5 sympathy for the Complainant could be interpreted as supporting the 6 complainant's case and therefore confirming his credibility. 7 CONCLUSION 8

¶ [16] I malce the following four conclusions: 9 i. I find in all the circumstances of this case that the Complainant's 10 evidence on this issue is important evidence. The case will be decided, to 11 a large extent, upon the credibility of the complainant as against the 12 credibility of the defendant. 13 ii. I agree with defence counsel's submission that the court must not indulge 14 in reading the jury's mind. 15 iii. I find that the Interpreter's reaction when interpreting the complainant's 16 evidence before the jury is potentially unfairly prejudicial to the 17 defendant. 18 iv. When I consider if it is possible to remedy the potential prejudice, I am 19 unable to give a sure or even confident answer. Ruling on Application to Stay Proceedings in Ind. No.1 0512012. R v. Elvis Kelsey Ebanks. Coram Quin J Date: 7.11.13 Page 7 0/8 1

¶ [17] In my final conclusion, mindful of the fact that I must approach the issue on 2 the basis of the more prejudicial meaning that could reasonably be placed on 3 it, rather than on some lesser prejudicial interpretation, and applying the test 4 as set out in both Docherty and Lawson, I find that to continue the trial 5 would, or could, result in an unsafe conviction. I find that there is a real 6 danger of bias and therefore a real danger of injustice. 7

¶ [18] Accordingly, I feel compelled to accede to the Defendant's application and I 8 therefore stay the case. I will discharge the jury and order a new trial. 9 10 11 12 13 Dated this the 5th November 2013 14 15 16 17 Honourable Mr. Justice Charles Quin 18 Jndge of the Grand Conrt Ruling on Application to Stay Proceedings in Ind. No. 10512012. R v. Elvis Kelsey Ebanks. Coram Quin J. Date: 7.11.13 Page 8 0/8