Ebanks (Jay Calvert) v R - Judgment on application to exclude evidence

¶ IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE INDICTMENT NO: 0112/2016 JAY CALVERT EBANKS V THE QUEEN Appearances: Mr. Guy Dilliway-Parry of Priestleys for the Applicant Mr. Scott Wainwright for the Crown/Respondent Before: The Hon. Mr. Justice Charles Quin Q.C. Hearing on Application to Exclude Evidence: 20th January 2017 Delivery of Judgment: 25th January 2017 HEADNOTE Criminal Law — Charges of Possession of Unlicenced firearm and ammunition — Application is to exclude evidence seized — Operation of s.40 of the Evidence Law — Submission of defective search warrant pursuant to s.26 of the CPC. JUDGMENT ON DEFENCE APPLICATION TO EXCLUDE EVIDENCE

¶ [1] The Defendant is charged with three (3) counts on Indictment 112/16 of being possession of an unlicenced firearm contrary to s.15(1) of the Firearms Law (2008 Revision) and like offences relating to ammunition.

¶ [2] All charges arise from a search which took place on the 25th August 2016 (the "Search") leading to the seizure of ten (10) rounds of .40 calibre ammunition, and a .38 calibre Smith & Wesson revolver containing two (2) live rounds.

¶ [3] According to witness statements a search of the #86 West Lane, Pedro Castle, Grand Cayman took place on the 25th August 2016 at 0500am. Present in the property were the Applicant/Defendant Jay Calvert Ebanks, Gerald Bush, Neika Seymour, Jeanne Lewis and Antonio Bullard.

¶ [4] The .40 calibre bullets were recovered from a bedroom occupied by the Defendant.

¶ [5] The revolver, loaded with the .38 calibre bullets, was recovered from the water tank to the toilet located in the en-suite bathroom attached to the bedroom occupied by Jeanne Lewis.

¶ [6] During his interview the Defendant stated that the firearm and ammunition belonged to him and that his mother, brother and girlfriend had nothing to do with them and were unaware of these items.

¶ [7] The Search was pursuant to an undated warrant (the "Warrant") obtained pursuant to s.26 of the Criminal Procedure Code (the “CPC”) (2014).

¶ [8] Section 26 of the CPC (2014) (provides that: "Where ... a Justice of the Peace is satisfied by information on oath that in fact or according to reasonable suspicion anything upon, by or in respect of which an offence has been committed or anything which is necessary to the conduct of an investigation into any offence is in any ... place, such .... Justice of the Peace may, by warrant (called a search warrant), authorise a police officer or other person therein named to search the ... place (which shall be named or described in the warrant) for any such thing and, if anything searched for is found, to seize it and carry it before the court issuing the warrant or some other court to be dealt with according to law" [Defence emphasis added].

¶ [9] The powers exercisable by the police under a warrant obtained pursuant to s.26 are contained in s.27 of the CPC and include the power to enter a private residence by force if necessary.

¶ [10] In addition, s.28 (3) & (4) provide that: "(3) A search warrant may be directed to one or more persons and maybe executed by all or any one or more of them; (4) A search warrant directed to any police officer may also be executed by any other police officer whose name is endorsed upon the warrant by the officer to whom it is directed or endorsed". APPLICANT’S/DEFENDANT’S POSITION

¶ [11] Counsel for the Defendant places reliance on the decision of the former Chief Justice Sir John Summerfield in \( R v Douglas^1 \). The learned former Chief Justice, Summerfield CJ., considered the issue of search warrants obtained under the equivalent provision of s.24 of the Criminal Procedure Code (Law 13 of 1975), which is drafted in identical terms to s.26 CPC 2014 and held that: "It is clear that on the face of the search warrant it was issued under s.24 of the Criminal Procedure Code. Having elected to proceed thus and invoke those powers, the contents and execution of the search warrant must comply with the provisions governing a search warrant issued under s.24". Summerfield CJ said further: "One must recognise that the liberty of the subject and the quiet enjoyment of property are involved and it is important that any legal invasion of these rights must be properly founded on legal authority and exhibit with confidence that due care was taken in invoking the provisions with knowledge of the consequence".

¶ [12] Turning his attention to the warrant in question Summerfield CJ found that: "Section 24 specifically calls for the naming of the police officer or other person who is to execute the warrant"

¶ [13] In that instance the officer executing the search under the warrant was not named therein – although another officer was so named and the warrant was also addressed to "other officers of the Royal Cayman Islands Police Force" – and the learned judge found that, with respect to the defect: \( ^1 \) [1980 – 83 CILR 119] "...this is more than a mere technicality. These provisions are so framed so as to protect the liberty of the subject and must be observed".

¶ [14] Defence counsel submits that in Douglas Summerfield CJ had little hesitation in holding that the warrant in question was defective (primarily, though not solely for the reason stated above).

¶ [15] Unlike the warrant in Douglas the present warrant names no police officers and defence counsel submits that in such circumstances the defect is considerably worse than the circumstances in Douglas.

¶ [16] Defence counsel submits that in Douglas, however, the consequence of the defective warrant was that the officers were found to be trespassers in the defendant's property with the result that the defendant was entitled to use reasonable force to expel them therefrom. It is important to record that no consideration was therefore given by the learned former Chief Justice as to the consequence of the defective warrant on the seizure of any evidence found within the property. THE RESPONDENT’S POSITION

¶ [17] Like the Applicant’s counsel, Crown Counsel has also presented very well-reasoned arguments – both on paper and in court.

¶ [18] Mr. Wainwright quite properly concedes that the Warrant signed by the Justice of the Peace is defective, in that, it does not name the police officer who executed the Warrant at the Defendant’s residence or any other police officer. Furthermore, the Warrant is not even dated and, as Mr. Dilliway-Parry submits, this would effectively mean that any police officer could enter the Defendant’s home at any time in perpetuity.

¶ [19] Mr. Wainwright submits that the case of Douglas² can be distinguished from the case before this Court. In Douglas, the Defendant was charged with assaulting a police officer whilst the police officers were executing a search warrant at the Defendant’s premises. The Detective Constable who was the alleged victim of the assault was not named on the face of the search warrant as required by the then s.24, and now s.26 of the CPC.

¶ [20] The Crown concedes that Chief Justice Sir John Summerfield also found that the defective search warrant in Douglas did not specify the object to be searched for and the warrant was executed before sunrise – in clear contravention of s.25(1) of the CPC, now s.27(1).

¶ [21] The Crown submits that in Douglas the learned Chief Justice was not addressing the question of whether or not to exclude admissible evidence such as we have in this case. ² supra

¶ [22] The Crown submits further that, in this case, although the warrant is defective in not naming the police officer or dating the warrant, the JP signed the warrant because he was satisfied that there is a reasonable suspicion of the commission of the offences of possession of an unlicenced firearm and attempted murder, and that the articles being searched for include a firearm and ammunition.

¶ [23] When the officers searched the Defendant’s premises at #86 West Lane, Pedro Castle, Bodden Town, they found and recovered a firearm and ammunition – that is, a .38 Smith & Wesson revolver containing two live rounds and a further ten (10) rounds of .40 calibre ammunition.

¶ [24] In addition, during his caution interview the Defendant admitted that the firearm and ammunition belonged to him.

¶ [25] Accordingly, there is considerable force to Crown counsel’s submissions that the facts and the circumstances surrounding this case are very different from the facts and circumstances surrounding the Douglas case.

¶ [26] The ultimate question for this Court is whether to exclude the evidence which was obtained as a result of the defective warrant. ANALYSIS & CONCLUSION

¶ [27] I turn now to the question of discretion of this Court to disallow evidence in criminal proceedings. Section 40 of the Evidence Law (2011 Revision) reads: "40. Nothing in this Law derogates from the power of a court in any criminal proceeding to disallow evidence otherwise admissible which, in the opinion of such court, would, if allowed, operate unfairly against an accused person."

¶ [28] In the Privy Council case of Kuruma, Son of Kaniu v. The Queen3, Lord Goddard, giving the judgment of the Court stated: "The test to be applied, both in civil and in criminal cases, in considering whether evidence is admissible, is whether it is relevant to the matters in issue. If it is, it is admissible, and the Court is not concerned with how it was obtained."

¶ [29] Some twenty-five years later in the House of Lords case of R v. Sang4 which has been applied by the Grand Court Lord Diplock laid down the test which still applies today and reads: "A judge in a criminal trial has always a discretion to refuse to admit evidence if in his opinion its prejudicial effect outweighs its probative value. But, save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after commission of the offence, he has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means."

¶ [30] Sang was decided two years before Douglas. But as Summerfield CJ was not dealing with the Court’s discretion to exclude evidence it was not cited to him nor did he refer to it in his judgment. 3 Judicial Committee dated 11th January 1955 [1995] 2 W.L.R. 223 4 [1980] A.C. 402

¶ [31] In R v. Khan (Sultan)5 the House of Lords again addressed the question of a Court’s discretion to exclude evidence. Lord Nolan applied Sang – confirming the principle that there is no discretion to exclude evidence discovered as a result of an illegal search. In Khan it was accepted by the House of Lords that although the evidence obtained constituted a breach of Article 8 of The European Convention on Human Rights (ECHR)6 it was relevant and admissible. Lord Nolan stated at page 582-C: "I consider that the trial judge was fully entitled to hold that the circumstances in which the relevant evidence was obtained, even they constituted a breach of article 8, were not such as to require exclusion of the evidence."

¶ [32] Lord Nolan went on to state at letter D on page 582: "I confess that I have reached this conclusion not only quite firmly as a matter of law, but also with relief. It would be strange reflection on our law if a man who has admitted his participation in the illegal importation of a large quantity of heroin should have his conviction set aside on the grounds that his privacy has been invaded."

¶ [33] Lord Nolan’s words could have been written for this case.

¶ [34] In this case, despite the facts that the firearm and ammunition have been found at the Defendant’s residence, and further, despite the fact that the Defendant has admitted in a caution interview to the police that the firearm and ammunition are his, he is asking the Court to exclude it on the grounds of inadmissibility because the Warrant for the search of his premises did not comply with the provisions of s.26 of the CPC, and consequently was defective. 5 [1997] AC 558 6 Formally: The Convention for the Protection of Human Rights and Fundamental Freedoms 1953.

¶ [35] In the Privy Council decision of *King (Herman) v R*⁷, the warrant was also found to be defective on the basis that the names of the officers did not appear on the face of it. Notwithstanding the defect, the Privy Council held that the evidence of the drugs found during the course of the search was admissible “*as the evidence had not been obtained by conduct of which the Crown ought not to take advantage.*”

¶ [36] I agree with Crown counsel that this case is on all fours with the Privy Council decision in *King*, and that before the evidence can be excluded the Applicant must show, not only that the warrant was defective, but that the evidence was obtained by conduct of which the Crown ought not to take advantage. In other words, the Applicant must show some bad faith or improper conduct on the part of the police officers who obtained and executed the warrant, or, alternatively, on the part of the Justice of the Peace who signed the warrant before the Court could exclude the relevant admissible evidence. No such bad faith has been alleged and, furthermore, even if the evidence had been obtained by some improper or unfair means, the House of Lords’ decision in *Sang* confirms that I have no discretion to exclude the evidence.

¶ [37] Finally, and for the sake of completeness I return to the Privy Council decision in *King*, which was cited and relied upon by both counsel in their submissions to the Court. In *King* the Privy Council quoted with approval, Lord Cooper (Lord Justice General) in the Jamaican case of *Lawrie v. Muir*⁸, and stated at page 4 as follows: ⁷ (1968) 52 Cr. App. R. 353 ⁸ 1950 JC "from the standpoint of principle ... the law must strive to reconcile two highly important interests which are liable to come into conflict—(a) the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and (b) the interest of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from Courts of law on any merely formal or technical ground....... it would usually be wrong to exclude some highly incriminating production in a murder trial because it was found by a police officer in the course of the search authorized for a different purpose or before proper warrant had been obtained."

¶ [38] In determining whether or not to exclude evidence on the grounds of a defective warrant I must seek to strike a balance between the rights of the homeowner to quiet enjoyment of his property on the one hand, and, on the other hand, the interests of the country in securing evidence bearing upon the commission of crime and the interests of justice.

¶ [39] Moreover, it is important to note and record that the Applicant has not supplied any case law authority where a defective warrant has led to the exclusion of evidence obtained during the course of the execution of the warrant.

¶ [40] It is clear from all of the above authorities that the court must have regard to the nature of the defect in the warrant, the conduct of the authorities and the seriousness of the offence being investigated.

¶ [41] It is regrettable that the name of the officer was not listed on the search Warrant and that it was not dated but I find that these omissions are formal or technical in nature and, most importantly, there is no suggestion of any impropriety or bad faith on the part of the police or the Justice of the Peace.

¶ [42] The interests of justice and the interest of the Cayman Islands in securing evidence relating to the extremely serious criminal offence of possession of a firearm clearly lend themselves to the admission of the subject evidence.

¶ [43] I agree with Crown counsel when he submits that when all of the factors are considered in the instant case the Court should exercise its discretion in allowing the admission of the evidence.

¶ [44] Accordingly, I admit the evidence and reject the Applicant’s application to exclude it. Dated this the 25th January 2017 Honourable Mr. Justice Charles Quin Q.C. Judge of the Grand Court