R v Raziel Jeffers - Ruling

¶ Ruling – Regina v. Raziel Jeffers Ind. No. 61 of 2010 27.07.11 Page 1 of 9 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 HOLDEN IN GEORGE TOWN, GRAND CAYMAN 2 IND. NO. 61 OF 2010 3 4 REGINA 5 V. 6 RAZIEL JEFFERS 7 8 Appearances: Mr. Trevor Ward of the Office of the Director of Public 9 Prosecutions for the Crown 10 11 Mr. Peter Polack of Polack & Company instructing 12 Mr. Peter Champagnie for the Defendant 13 Before: Hon. Justice Henderson 14 Heard: July 27th 2011 15 16 RULING 17 18

¶ [1] The accused, Raziel Jeffers, is charged with the murder of Marcus Ebanks. On 19 this application, he argues that the continued prosecution of him is an abuse of 20 process and the proceedings should be stayed for that reason. It is accepted 21 that I have the jurisdiction to do so. The alleged abuse arises from the 22 intentional failure by the Crown to disclose a portion of its case prior to the 23 preliminary inquiry. 24 25 Ruling – Regina v. Raziel Jeffers Ind. No. 61 of 2010 27.07.11 Page 2 of 9

¶ [2] A long form preliminary inquiry was held on July 6th, 2010, after which the 1 accused was committed for trial in this court. Just one witness, Ms. Meagan 2 Martinez, was called to give evidence. 3 4

¶ [3] Prior to the preliminary inquiry, the Crown disclosed 22 witness statements. 5 These were described in argument by Mr. Ward as the crux of the case against 6 Mr. Jeffers. He said that the Crown intended to rely only upon these 22 7 witness statements at the preliminary inquiry. Well after the preliminary 8 inquiry, a great many more witness statements were delivered to the accused. 9 Included in this group were 58 witness statements which were in the 10 possession of the Crown before the preliminary inquiry and could have been 11 delivered before it started without difficulty. 12 13

¶ [4] The accused says that the Crown's failure to deliver the 58 witness statements 14 before the preliminary inquiry, without any justification for withholding them, 15 was so unfair as to amount to an abuse of the process of the court. The result, 16 says Mr. Champagnie, is that the proceedings should be stayed. 17 18

¶ [5] The obligation of the Crown to disclose its case in the Cayman Islands is the 19 common law obligation. Counsel agree that the Crown has a positive duty to 20 disclose all information in its possession which has some bearing on the 21 Ruling – Regina v. Raziel Jeffers Ind. No. 61 of 2010 27.07.11 Page 3 of 9 offence charged and the surrounding circumstances of the case. They also 1 agree that this disclosure should take place before the preliminary inquiry; the 2 obligation is a continuing one. Whenever new material comes into the Crown's 3 possession, it must be provided to the defence. Of course, there are certain 4 limited exceptions such as material which may be protected by public interest 5 immunity. 6 7

¶ [6] It should be noted that the Cayman Islands' obligation to disclose differs from 8 the current obligation in the United Kingdom with regard to timing. In the 9 United Kingdom, as a result of legislative changes in 1996, the Crown's 10 obligation to disclose prior to a preliminary inquiry is circumscribed in a way 11 which does not apply here. 12 13

¶ [7] In accordance with these concessions, Crown counsel accepts before me that 14 the accused's right to disclosure has been breached. This appears to have 15 happened in good faith, perhaps because of a mistaken assumption that the 16 United Kingdom disclosure regime prevails in this jurisdiction as well. I have 17 been assured during argument that steps will now be taken in the Prosecution 18 Service to ensure that there is no repetition of this unfortunate event. 19 20 Ruling – Regina v. Raziel Jeffers Ind. No. 61 of 2010 27.07.11 Page 4 of 9

¶ [8] I am satisfied that the accused's right to full disclosure prior to the start of the 1 preliminary inquiry has been violated. What relief is available to him? 2 3

¶ [9] No authority has been cited to me which is directly on point. The decision in 4 R. v Lee [1999] 2 All E.R. 737 turns upon the 1996 English Legislation and is 5 therefore of limited usefulness here. 6 7

¶ [10] There is, however, a decision of the Privy Council which is helpful. It 8 considers whether an accused was deprived of his right to a full hearing and 9 due process of law by the Crown's failure to make full disclosure prior to a 10 preliminary inquiry. Those are essentially the same considerations I must have 11 in mind here. My task is to assess whether this accused has been prejudiced 12 unfairly by the failure to disclose. 13 14

¶ [11] The case is Ferguson v Attorney-General [2001] UKPC 3, also reported at 15 (2001) 58 WIR 446. The court began its analysis at page 453 by observing that 16 the question of whether there has been a breach of the right to a fair trial or the 17 right to due process of law must be judged on a realistic assessment of the 18 proceedings considered as a whole. That approach, said the court, does not 19 undermine those guarantees, but rather it serves to concentrate on matters of 20 substance without focusing on technicalities or causally irrelevant breaches 21 Ruling – Regina v. Raziel Jeffers Ind. No. 61 of 2010 27.07.11 Page 5 of 9 and thus enhances the cause of human rights. The court then observed that if 1 the appellant Ferguson had a complaint at all, it must be based upon the 2 conduct of the preliminary inquiry. The court said the function of a 3 preliminary inquiry is to ensure that no one is brought to trial unless a prima 4 facie case has been made out. It cited the decision in R. v Epping [1973] QB 5

¶ [433] Next, the court considered the sufficiency of the evidence at the 6 preliminary inquiry. It concluded that if the relevant undisclosed witness 7 statements had been handed over at the preliminary inquiry and if those 8 witnesses had been tendered for cross-examination, the Magistrate would still 9 have been bound to commit the appellant for trial. 10 11

¶ [12] The decision in Ferguson provides me with a road map of how I must 12 approach this case. What I must now do is examine the material which could 13 have been but was not disclosed prior to the preliminary inquiry and assess 14 whether its disclosure might have affected the result. If the result of the 15 preliminary inquiry would necessarily have been the same with or without the 16 undisclosed material, the accused has suffered no prejudice. 17 18

¶ [13] The evidence of Meagan Martinez at the preliminary inquiry was as follows. 19 After being sworn, she said she was 18 years old and unemployed. She 20 continued: 21 Ruling – Regina v. Raziel Jeffers Ind. No. 61 of 2010 27.07.11 Page 6 of 9 “I know the accused Raziel Jeffers. I have a child with him. He is 15 1 months old. I was in a relationship with Raziel about six months or so 2 before I got pregnant. I was 16 when I got pregnant. Before the birth of 3 the child I lived between my sister's and my aunt's house and after the 4 child was born, I went to stay with a teacher for awhile. And then 5 Raziel and I moved in together at 134 Fairbanks. It was not the first 6 address I lived with him. That was 62 Nickel Lane, Birch Tree Hill, 7 West Bay. That was after the child was born. I was not employed then. 8 Raziel provided for myself and the child. I moved to 134 Fairbanks 9 with Raziel after we left the Nickel Lane address. We lived at Nickel 10 Lane for about six months. 11 There came a time when I became aware that there had been a shooting 12 at Bonaventure Road in May, 2009. I first learned about the shooting 13 the night it happened. I heard about it first from Raziel. I don't know 14 where he was. We were on the phone. Before that phone call from 15 Raziel telling me about the shooting I last saw him 6-6:30 that evening, 16 at 62 Nickel Lane. At home, yes. When I saw him he was with a man. 17 The man was short, dark skin and his hair was cut low. He left home 18 about 6-6:30. He left in his car that he had at the time, a white Toyota 19 Camry. It was tinted. [The next sentence is illegible.] 20 He told me he was going fishing. I understood him to mean he was 21 going on a hunt for his enemies. I knew who he considered his 22 enemies, Robert Bush, Jose Sanchez, Deward - don't know his last 23 name - Mason, Chris Bush, Andy Barnes and others associated with 24 them. Raziel and I lived together. He spoke about things often, that's 25 why I say fishing meant hunting for enemies. He used the expression 26 before. He did not return home that night. He called me around nine or 27 just after. He said that Joseph's yard had just got shot up. He was 28 referring to Joseph Hurlston. He said he wasn't coming home and he 29 was going to stay at a friend's house. He didn't say which friend's 30 house he was going to stay at. Not at the time, no. I did not hear from 31 him again that night. I saw him about ten days later because he got 32 arrested. I saw him the Saturday before his birthday. His birthday is 33 July 19th. I saw him at 62 Nickel Lane. He told me he was arrested on 34 suspicion of murder at Bonaventure, at Joseph's house. He didn't tell 35 me at the time whether he was involved or not in the murder. He said 36 he had went to his friend's house and he were there for a while then a 37 whole bunch of police came and put him on the ground and told him 38 they were arresting him on suspicion of murder. 39 There came a time when he said more about the murder. We were at 40 his aunt's house, on the board walk at Ocean Club. We were talking 41 about the war that was going on, the people that were dying in the war 42 between Logwoods and Gaza in West Bay. Gaza is Birch Tree Hill. 43 We were talking about that quite a few innocent people had died. I 44 brought up Jeremiah, Andy Barnes' son and he said Jeremiah was just 45 Ruling – Regina v. Raziel Jeffers Ind. No. 61 of 2010 27.07.11 Page 7 of 9 like Marcus. I knew he was referring to Marcus at Bonaventure even 1 tho he didn't say it to me directly. He said Marcus wasn't meant to die 2 either. He said when he ran into the yard he assumed that Marcus was 3 'Peto', José Sanchez. He said he shot Marcus assuming he was Peto. 4 His friend stayed nearer to the bushes shooting, but he was the only 5 one who went inside the yard. I said to him don't tell me anymore, 6 don't tell me this. He went quiet. I mentioned the name Peto before as 7 one of his enemies. They considered him as an enemy and believed if 8 you don't kill first, you'll be killed. Peto's baby mother and I used to be 9 best friends. We were going out one night and Peto didn't want his 10 baby mother to go and he and I got into a physical fight. I ended up 11 going to the hospital. I was pregnant but I didn't know. Peto kept 12 screaming things about Raziel like yeah, make your bad man defend 13 this because he knew me and Raziel were going out. I told Raziel about 14 this fight. He and Peto had got into a physical altercation at Kelly's, 15 after Peto and I had our fight, but I don't recall when that was. The 16 feeling of enmity only got worse. It never got better. He told me he 17 assumed Marcus was Peto and shot him.” 18 19

¶ [14] The third witness statement of Adrian Powell was also considered at the 20 preliminary inquiry. He said that when Marcus Ebanks was killed, both of the 21 assailants were wearing masks but for a brief moment the mask of one man 22 fell off. During this brief interval, Powell recognised the accused, Raziel 23 Jeffers. 24 25

¶ [15] Mr. Champagnie's argument on behalf of the accused concentrated on three 26 aspects of the undisclosed material. First, he made reference to a witness 27 statement of a Ms. Frances Pringle, a pharmacist who provided some potential 28 expert evidence on the effects of morphine upon a witness' memory of events 29 and powers of recollection. That was of relevance because Mr. Powell, who 30 Ruling – Regina v. Raziel Jeffers Ind. No. 61 of 2010 27.07.11 Page 8 of 9 was shot at the same time as the deceased, was under the influence of 1 morphine for a period of time before giving his third witness statement. 2 3

¶ [16] Second, Mr. Champagnie emphasised the non-disclosure of the witness 4 statement of Kurt Walton, the lead investigator. Mr. Walton questioned Powell 5 in the hospital before Powell gave his witness statement and engaged in a sort 6 of demonstration which may have influenced his recollection of what he saw. 7 8

¶ [17] Finally, the failure to disclose the crime scene photographs is criticised as they 9 may have assisted the defence in reconstructing the location of the various 10 witnesses and participants at the time of the shooting. 11 12

¶ [18] In my judgment, the evidence of Meagan Martinez and Adrian Powell justified 13 a committal for trial. If it could be said that the evidence of Frances Pringle 14 and Superintendent Walton was so cogent as to obliterate any vestige of the 15 credibility of Mr. Powell, then the Magistrate would have had to disregard his 16 evidence entirely. However, their evidence does not go so far. It may 17 ultimately serve to undermine the evidence of Mr. Powell, but it is not clear 18 that it will do so. In any event, the evidence of Meagan Martinez by itself 19 would justify a committal for trial. 20 21 Ruling – Regina v. Raziel Jeffers Ind. No. 61 of 2010 27.07.11 Page 9 of 9

¶ [19] It follows that the availability of the undisclosed evidence could not have 1 resulted in a decision by the Magistrate to discharge the accused instead of 2 committing him for trial and Mr. Jeffers has suffered no real prejudice from 3 what has happened. 4 5

¶ [20] For these reasons, the application for a stay is dismissed. 6 Dated this 27th day of July, 2011 7 8 Henderson, J. 9 Judge of the Grand Court 10 11