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Judgment

R v Damean Seymour - Reasons for Judgment

IND 0035/2002 · 2003-03-18

Murder; Reasons for Judgment on the admissibility of evidence

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In the Grand Court of the Cayman Islands — Criminal Division
Cause No. IND 0035/2002
Between
R
- v -
Damean Seymour - Reasons for Judgment
Before
Edwards J
Judgment delivered 2003-03-18

IN THE GRAND COURT OF THE CAYMAN ISLANDS

HOLDEN IN GEORGE TOWN, GRAND CAYMAN

IND. NO. 35 OF 2002

REGINA

VS

DAMEAN SEYMOUR

Reasons for Judgment on the admissibility of evidence delivered by The Honourable Mr. Justice Edwards on March 18, 2003 in George Town, Grand Cayman.

CHARGE: MURDER

APPEARANCES:

On behalf of the Crown: MR. A. MON-DESIR
MR. S. WILSON

On behalf of the Defendant: MR. C. MISKIN, QC instructed by MR. L. AIOLFI
(REASONS FOR JUDGMENT - ADMISSIBILITY OF EVIDENCE)

REASONS FOR JUDGMENT

RULING ON ADMISSIBILITY OF EVIDENCE

THE COURT: Last week I ruled the Crown could seek to introduce computer-generated cell phone records by meeting the requirements of section 35 of the Evidence Law, and perhaps other requirements necessitated by the burden of proof in a criminal case.

Yesterday I granted the Crown leave to seek to introduce such evidence as required under the ruling of Mr. Justice Sanderson of January 10, 2002.

Admissibility rests essentially on the reliability of the computer which generated the records as indicated by section 35(1)(c) of the Evidence Law.

Section 35(2) of the Evidence Law provides for a certificate as a means of demonstrating reliability and/or authenticity of computer generated records.

In this case, reliability was sought to be demonstrated by the expert evidence of Rudolph Myles, the Cable & Wireless investigations manager for Cayman. A voir dire was held to
(REASONS FOR JUDGMENT - ADMISSIBILITY OF EVIDENCE)

consider if the evidence of Mr. Myles met the section 35 criteria for admissibility of computer records.

In short, the issue is, does Mr. Myles' evidence demonstrate that the criteria for admissibility under section 35 are met by the records sought to be introduced into evidence, and if so, is section 35 adequate in a criminal case?

Mr. Myles' evidence includes two statements dated June 25th, 2002 and March 12th 2003 and his testimony on the voir dire.

I reject the defence submission that Mr. Myles could only certify or state that the computer on his own desk from which he printed the records in question was "operating properly" in the words of section 35(1)(c).

The definition of computer in section 2 of the Evidence Law is as follows: "means any device or combination of devices used together or in succession for the purpose of storing or processing information".

Mr. Myles' testimony described how call data were recorded from the inception of a call by switch computers, then transferred to
(REASONS FOR JUDGMENT - ADMISSIBILITY OF EVIDENCE)

storage in other computers, and how reports were generated by still other computers. All these steps were automatic, in the sense that the data were transferred from one computer to another and stored and processed in each without human input, except as to produce the paper version of the report.

I am satisfied that the computers working in succession constituted a "computer" as defined by section 2 of the Evidence Law.

While Mr. Myles conceded that no one person could certify that the whole of the telecommunications system was working properly, he said that if the system was not operating properly there were alarms from various parts, (switches, routers, etc.) on the local area network which would alert Cable & Wireless to the malfunction. He also stated that had there been any reason to suspect a malfunction he, in his position, would have been advised. He also testified that his own desk top was part of the local area network and the report he produced from it did not indicate there was any problem with the entire system made up of the various computers which record and process the call
(REASONS FOR JUDGMENT - ADMISSIBILITY OF EVIDENCE)

data.

I am satisfied that Mr. Myles' evidence demonstrates that the computer; that is, those devices which operated in succession to produce the records, was working properly. In other words, the requirements of section 35 are met.

Defence counsel suggested that even if that were so, there are the other criteria which should be imposed because of the fact that Cable & Wireless was not regulated and had to meet no standard of accuracy but its own self-imposed standard, citing as well the absence of any audit trail or protocol for producing the reports in question.

Additional criteria would go to the question of what "operating properly" in section 35 means. Implicitly, Mr. Myles' evidence is that "operating properly" means producing data which Cable & Wireless regards as sufficiently reliable for its own purposes. Cable & Wireless is not required to produce data to meet any higher standard of reliability.

The law, even the criminal law, does not require that any record, computer generated
(REASONS FOR JUDGMENT - ADMISSIBILITY OF EVIDENCE)

indeed, any other evidence for that matter,
must be infallibly accurate in order to be admitted.

I find that the computer-generated telephone records are admissible as being produced by a computer that was "operating properly" in the sense that it produced records of sufficient reliability to meet Cable & Wireless' own standards.

As I said, Cable & Wireless is required to meet no other standard. There is no evidence that Cable & Wireless' equipment was substandard by world standards.

Mr. Myles' attendance for cross-examination provided the defence with the opportunity to undermine the Cable & Wireless standard of accuracy as inadequate for purposes of proof in a criminal case.

For example, two possible errors an apparent missing 911 call and the fact that cell and landline call durations were not recorded as the same were satisfactorily explained by Mr. Myles.

If the defence seeks to call its own expert to undermine the Cable & Wireless
(REASONS FOR JUDGMENT - ADMISSIBILITY OF EVIDENCE)

standard of record accuracy or reliability, the Crown has said it will not oppose an adjournment.

That safeguard in my view assures the fairness of the trial process. In the result, I have determined that the records in question are admissible.

HON. JUSTICE EDWARDS

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