Bush v Att Gen
| Jurisdiction | Cayman Islands |
| Judge | (Quin, J.) |
| Judgment Date | 23 June 2010 |
| Court | Grand Court (Cayman Islands) |
| Date | 23 June 2010 |
(Quin, J.)
Ms. N. Moore for the first appellant;
L.A. Freeman for the second appellant;
B.J. Tonner and Ms. L. Organ for the third appellant;
Mrs. K.-A. Gunn, Crown Counsel, for the respondent.
(1) Att. Gen. v. Castro, 2010 (1) CILR N[5], referred to.
(2) R. v. Mayers, [2009] 1 W.L.R. 1915; [2009] 2 All E.R. 145; [2009] 1 Cr. App. R. 30; [2009] Crim. L.R. 272; [2008] EWCA Crim 2989, referred to.
(3) Streames v. Copping, [1985] Q.B. 920; [1985] 2 W.L.R. 993; [1985] 2 All E.R. 122; (1985), 81 Cr. App. R. 1, referred to.
(4) West Ham Churchwardens v. Fourth City Mutual Bldg. Socy., [1892] 1 Q.B. 654; (1892), 61 L.J.M.C. 128; 66 L.T. 350, applied.
Criminal Evidence (Witness Anonymity) Law 2010, s.12: The relevant terms of this section are set out at para. 14.
s.13: The relevant terms of this section are set out at para. 15.
s.17(2): The relevant terms of this sub-section are set out at para. 29.
s.19(1) ‘Where a court has made a witness anonymity order in relation to a witness in the trial proceedings and a defendant in the trial proceedings has in those proceedings-
(a) been convicted;
(b) been found not guilty by reason of insanity; or
(c) been found to be under a disability and to have done the act charged in respect of an offence,
the Court of Appeal may in proceedings or in connection with an appeal by the defendant from the trial proceedings discharge, vary or further vary the order if it appears to the court to be appropriate to do so . . .’
Criminal Procedure Code (2006 Revision), s.165(1): The relevant terms of this sub-section are set out at para. 16.
Evidence-witnesses-witness anonymity order-no appeal against witness anonymity order whilst proceedings ongoing-Magistrate”s Court making order has jurisdiction to discharge or vary and another court may only discharge or vary once proceedings concluded-right of appeal to Grand Court under Criminal Procedure Code (2006 Revision), s.165 impliedly repealed by omission from Criminal Evidence (Witness Anonymity) Law 2010
The appellants were jointly charged in the Grand Court with murder and possession of unlicensed firearms.
The Crown made ex parte applications to the Summary Court for witness anonymity orders in respect of two prosecution witnesses. Apart from having previously informed the appellants” counsel of its general intention to apply for such orders, the Crown gave no notice to the appellants or their counsel of its specific intention to apply for the orders. The appellants did not appear and were not represented at the hearing of the applications; the Summary Court granted them and made the orders.
On appeal against the orders, the appellants submitted that the Grand Court had jurisdiction to hear their appeals since-the Criminal Evidence (Witness Anonymity) Law 2010 being silent as to whether they had a right of appeal-s.165 of the Criminal Procedure Code (2006 Revision) applied to give them the right to appeal, as (a) they were dissatisfied with an order
of the Summary Court; and (b) the order was made in a criminal cause or matter to which all of them were parties.
The Crown submitted in reply that the Grand Court did not have jurisdiction to hear an appeal from an accused against the making of a witness anonymity order in the Summary Court, since (a) under the Criminal Evidence (Witness Anonymity) Law, an accused had no right of appeal against the orders until the proceedings in the Summary Court had been concluded-instead, the Summary Court had jurisdiction to review them; (b) s.165 of the Criminal Procedure Code did not apply to a witness anonymity order, which was not a ‘judgment, sentence or order’ finally disposing of a case but merely interlocutory in nature; and (c) since the legislature had not intended s.165 to apply to such orders, the section had therefore been impliedly repealed in respect of them.
Held, dismissing the appeals:
The appellants were not entitled to appeal to the Grand Court against the making of the witness anonymity orders whilst proceedings in the Summary Court were ongoing. The Criminal Evidence (Witness Anonymity) Law 2010 did not give an accused any right of appeal against the making of such an order during the proceedings. Instead, the court that made the order had jurisdiction to discharge or vary it (s.17(2)), and the only circumstances in which another court could discharge or vary it would be once the proceedings had concluded (s.19). Nor could the appellants appeal pursuant to s.165 of the Criminal Procedure Code (2006 Revision) since, by omitting a right of appeal in the present circumstances from the Criminal Evidence (Witness Anonymity) Law, the legislature had shown its intention that s.165 of the Criminal Procedure Code-which provided for an appeal to the Grand Court against a final ‘judgment, sentence or order of the Summary Court’-would not apply to witness anonymity orders, which were in effect interlocutory rulings. Section 165 of the Criminal Procedure Code was therefore inconsistent with the later-enacted 2010 Law and had been impliedly repealed in respect of witness anonymity orders. The Grand Court therefore had no jurisdiction to hear these appeals, which would be dismissed without consideration of the substantive grounds (paras. 28–38).
1 QUIN, J.: On April 22nd, 2010, Samson & McGrath, then attorneys for all three appellants, filed a notice of intention to appeal against an order of the Summary Court (dated April 20th, 2010) in which it made a witness anonymity order pursuant to s.11(1) of the Criminal Evidence (Witness Anonymity) Law 2010. On June 3rd, 2010, the first appellant (through his new attorneys, Priestleys) filed a second notice of appeal against a second witness anonymity order, granted by the Summary Court on April 27th, 2010, pursuant to s.11(1) of the Criminal Evidence (Witness Anonymity) Law 2010. On June 4th, 2010, the second appellant filed a similar notice of appeal against the second witness anonymity order of the Summary Court (dated April 27th, 2010). The third appellant has filed a similar notice of appeal. In summary, all three appellants are appealing the first witness anonymity order (dated April 20th, 2010) in relation to witness ‘Tom Cruise’ and the second witness anonymity order (dated April 27th 2010) in relation to witness ‘James Brown’.
Relevant chronology
2 The appellants are jointly charged with the murder of Alrick Peddie on March 24th, 2010 and with possession of unlicensed firearms allegedly used by them to commit that murder. The appellants were charged and
brought before the Summary Court on April 1st, 2010, when the matter was adjourned and the appellants remanded in custody.
3 On April 15th, 2010, the appellants appeared before the Summary Court for mention. All three appellants were represented by Mr. Lloyd Samson of Samson & McGrath. In the Summary Court, the respondent made an application for the adjournment of the appellants” bail hearings, so that an application for a witness anonymity order could be made at a later time. It is the respondent”s position that Mr. Samson made no objection to the adjournment and did not make any representations that he wished to be present and thereby make representations in respect of any proposed witness anonymity order. The respondent submits that counsel for the appellants was given oral notice of the Crown”s...
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R v Bush
...to the Grand Court against the making of the order. The Grand Court (Quin, J.) dismissed the appeal (in proceedings reported at 2010 (1) CILR 437), holding that it had no jurisdiction to hear it. The matter subsequently came back before the Summary Court, which held that it could no longer ......