R v Leonard Ebanks - Ruling

¶ IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE INDICTMENT NO: 84/10 THE QUEEN V LEONARD EBANKS Appearances: Mr. Trevor Ward and Ms. Marilyn Brandt for the Crown Mr. Martin Heslop Q.C. instructed by Ms. Lucy Organ of Samson and McGrath for the Defendant Before: The Hon. Mr. Justice Charles Quin Heard: 5th - 9th September 2011 RULING ON DISCLOSURE OF DOCUMENTS

¶ [1] On the afternoon of the 8th September 2011, Ms. Arlene Whyte, witness for the Crown, gave evidence during cross examination that the Defendant admitted to her that he had committed another murder.

¶ [2] The witness was asked whether she had given a statement to the police in relation to this other matter, to which she replied that she thought, and she seemed to recall that she had.

¶ [3] The suggestion being made by the Defence was that because the witness had worked in a police station she would be the unlikely recipient of a confession by the Defendant of a criminal offence.

¶ [4] I will, for the record her evidence: Question: And Leonard Ebanks knew that you had worked at a police station in Jamaica didn’t he? Answer: Yes Sir Question: I have to put it to you, though it may be a matter of comment, all the more reason on to confess to you of all people. Do you see the point I am putting forward? Answer: He confided in me. There is a lot of things he tell me about. There is a lot of things we talk about. He just have a lot of confidence in me, so he tell me. Question: What sort of things did he confide in you about? Answer: We are talking about this particular one now --- Question: I’m sorry? Answer: We are talking about this bit Question: What sort of things did he confide? Answer: He tell me a lot of things Question: Well what sort of things? Answer: Did he tell you? Question: What sort of things?
<table> <tr> <th>1</th> <td><b>Answer:</b></td> <td><i>Did he tell you how many things he told me? Did he tell you Sir?</i></td> </tr> <tr> <th>3</th> <td><b>Question:</b></td> <td><i>What sort of things did he tell you?</i></td> </tr> <tr> <th>4</th> <td><b>Answer:</b></td> <td><i>If he didn’t tell you, why should I tell you now?</i></td> </tr> <tr> <th>5</th> <td><b>Question:</b></td> <td><i>I’m asking you what sort of things did he ...</i></td> </tr> <tr> <th>6</th> <td><b>Answer:</b></td> <td><i>We are talking about Mr. Burrell death.</i></td> </tr> <tr> <th>7</th> <td><b>Question:</b></td> <td><i>I’m sorry?</i></td> </tr> <tr> <th>8</th> <td><b>Answer:</b></td> <td><i>I think we are talking about Mr. Burrell death. I won’t tell you the rest of the things he told me.</i></td> </tr> <tr> <th>10</th> <td><b>Question:</b></td> <td><i>Well, did he tell you he had killed anybody else? Oh, come on, Ms. Whyte, please. Did he tell you he killed anybody else?</i></td> </tr> <tr> <th>13</th> <td><b>Answer:</b></td> <td><i>Yes Sir.</i></td> </tr> <tr> <th>14</th> <td><b>Question:</b></td> <td><i>He did?</i></td> </tr> <tr> <th>15</th> <td><b>Answer:</b></td> <td><i>Yes –</i></td> </tr> <tr> <th>16</th> <td><b>Question:</b></td> <td><i>When did he tell you ---</i></td> </tr> <tr> <th>17</th> <td><b>Answer:</b></td> <td><i>He told me about this white man who died down by West Bay, he used a block and drop it on him head, then drove him in his silver vehicle to Travis’ house, then take him back to his house and burn him in it. Did he tell you that? Did he tell you he told me that? I wasn’t here when it happened, I was in Jamaica, and after he came out of prison and met me he confined [sic] in me everything he did.</i></td> </tr> </table>
<table> <tr> <th>Question:</th> <td><i>That's true, is it, he confided in you everything he had done? And you of course went to the police with this information, did you?</i></td> </tr> <tr> <th>Answer:</th> <td><i>Excuse me?</i></td> </tr> <tr> <th>Question:</th> <td><i>Did you go to the police with this information that he confessed to another killing?</i></td> </tr> </table> The witness went on to say: <i>"I am not telling any lie on Mr. Ebanks. I don't supposed to. So he want to know, so I let him know."</i> The exchange continued: <table> <tr> <th>Question:</th> <td><i>Did you go to the police with that information?</i></td> </tr> <tr> <th>Answer:</th> <td><i>Yes, I tell them when I was telling them about Burrell. I told them.</i></td> </tr> <tr> <th>Question:</th> <td><i>You told who? Which officer?</i></td> </tr> <tr> <th>Answer:</th> <td><i>The officer who I gave –</i></td> </tr> <tr> <th>Question:</th> <td><i>Which officers?</i></td> </tr> <tr> <th>Answer:</th> <td><i>Joseph Wright</i></td> </tr> <tr> <th>Question:</th> <td><i>And when did you tell them?</i></td> </tr> <tr> <th>Answer:</th> <td><i>Said time about this murder case.</i></td> </tr> <tr> <th>Question:</th> <td><i>When you made your witness statement?</i></td> </tr> <tr> <th>Answer:</th> <td><i>Yes Sir</i></td> </tr> <tr> <th>Question:</th> <td><i>On the 22^nd of September?</i></td> </tr> </table>
Answer: Yes Sir. But that wasn’t necessary, they said. Question: And did you tell them about that in writing? Did you put it in writing? Answer: No sir.

¶ [5] The case was adjourned when counsel for the Defendant asked the Crown to make enquiries to see if the witness’s statement in the other investigation could be located.

¶ [6] On the 8th September 2011 at approximately 3:50 p.m. Senior Crown counsel provided the Defence with a witness statement of Arlene Whyte dated the 3rd October 2010. The witness statement refers to a purported confession by the Defendant to another crime.

¶ [7] At 9:03 a.m. on Friday the 9th September 2011 the Defence sent an email to the Crown asking for full disclosure of any material which relates to the “new” confession and which tends to undermine the validity of what Ms. Whyte says.

¶ [8] In the same email the Defence posed 14 questions and also asked for any evidence of Ms. Whyte making any further confessions to the witness, as well all notes of police officers’ contacts with Ms. Arlene Whyte.

¶ [9] The learned Chief Justice Anthony Smellie Q.C. in R v. Stewart, Cunha, Burges and Donegan 2002 CILR N. 20 summarised the principles of pre-trial disclosure in the Cayman Islands. The learned Chief Justice stated:
"The test of materiality found in R v. Melvin (Unreported 1993) and adopted in R v. Keane [1994] 1 WLR 746 was applied, namely: Information was material in the realm of disclosure if it was "seen on a sensible appraisal by the prosecution": (i) to be relevant or possibly relevant to an issue in the case (ii) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use (iii) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (i) or (ii)."

¶ [10] As has been cited in a number of cases the obligation on the Crown is to provide the Defendant with full disclosure and in particular, any material which might undermine the Crown case or assist the Defence.

¶ [11] It is my view that this statement relating to the other investigation and dated the 3rd October 2010 should have been provided to the Defence. However, as the witness is still now under cross examination the Defence can use the statement as it deems fit. The witness can be cross examined on it and the Defendant can put his case to the witness.

¶ [12] If the Defence requires an adjournment, then the Court is prepared to grant counsel a reasonable time to take instructions, if they so wish, on the contents of this new statement.

¶ [13] The other offence referred to in Arlene Whyte's statement of the 3rd October 2010 is not relevant to these proceedings. However, to be fair to the Defendant, I order the Crown either to disclose the answers to questions 1 to 5 in the email from the Defence dated the 9th October 2011, or, alternatively, to provide a short summary of the material facts relating to the investigation
about which the witness was asked during the course of cross examination by the Defence.

¶ [14] I find that the other questions contained in the email from the Defence which is dated the 9th September 2011, are not relevant to these proceedings, and indeed, may stray into the area of public interest immunity. Accordingly, I do not order the Crown to answer those questions – that is, questions 6 to 13.

¶ [15] I assume that all the notes of the police officers’ contacts with the witness, Arlene Whyte, have been provided. However, out of an abundance of caution this should be checked and confirmed. If there are any other notes, they should be provided. Dated this the 9th day of September 2011 Honourable Mr. Justice Charles Quin Judge of the Grand Court