Connolly v R

• Jurisdiction: Cayman Islands
• Judge: (Henderson, J.)
• Judgment Date: 17 February 2006
• Court: Grand Court (Cayman Islands)
• Date: 17 February 2006

Grand Court

(Henderson, J.)

CONNOLLY and BRANDT

and

R.

T. Ward for the Crown;

S. Hall-Jones for Connolly;

J.H. Furniss for Brandt.

Cases cited:

(1) R. v. AgarUNK(1990), 90 Cr. App. R. 318, followed.

(2) R. v. DavisUNK(1993), 97 Cr. App. R. 110, applied.

(3) R. v. Turner, [1970] 2 Q.B. 321; (1970), 54 Cr. App. R. 352, applied.

Criminal Procedure-non-disclosure order-application for order-when non-disclosure of facts sought, unless application for public interest immunity, application to be inter partes with attorneys for both sides present-although court has discretion, failure to follow proper inter partes procedure usually results in retrial

Evidence-privilege-public interest immunity-Crown to inform defence that ex parte public interest immunity application being made and indicate category of material seeking to suppress, unless to do so would involve disclosure-if not done, judge may order that done before hearing application

The appellants were charged in the Magistrate”s Court with possession of forged documents.

Before the start of the trial, Crown Counsel was informed by one of the defence attorneys that during the trial he would adopt a line of questioning which would reveal that P, one of the Crown witnesses, had been the main informant in the case. P had previously been the subject of threats against herself and damage to her property, and Crown Counsel informed one of the defence attorneys that she was going to make an ex parte public interest immunity (‘PII’) application to withhold the fact that P was the informant. None of the other defence attorneys was informed of the application, and a police officer was the only other person present at the meeting with the magistrate. The magistrate dismissed the application and informed counsel for the defence that nothing prejudicial was discussed. The magistrate was not asked to recuse herself for reasons of possible prejudice. At the trial P did not give evidence because of her fear of being revealed as the informant but the appellants were convicted without her testimony.

On appeal, the appellants submitted that (a) the accused was entitled to hear all the information conveyed to the trier of fact which might impact on decisions about guilt or sentencing and, even when such information was of the kind not to be reported in open court, his attorney should have been present to represent him; (b) the Crown ought to have informed them that an ex parte PII application was being made and indicated the category of material which it was seeking to have suppressed-when it failed to do this without proper cause, the judge ought to order that it be done before hearing the application; (c) a court reporter ought to have been present to keep a record of the proceedings; (d) given that P”s statements to the police had already been made available to the defence and she was to be cross-examined at the trial, a PII application could not reasonably be upheld and accordingly the defence attorneys ought to have been present at the hearing; and (e) since the ex parte application had not been justified, the appellants” convictions should be set aside.

The Crown submitted in reply that (a) whilst it accepted that generally applications to the judge should be made inter partes, this case was a PII exception; (b) it had not informed the other defence attorneys of its application only because they had not been at the court at the time and, as it was an ex parte application, it was not relevant whether they were informed before or after it took place; (c) a PII application was appropriate, given that the plaintiff had been the main informant in the case against the appellants and had received threats against her person and property; and (d) the conviction ought not to be set aside because, even if the PII application had not been necessary, the magistrate herself said that nothing prejudicial had been discussed and had not upheld the request for non-disclosure.

Held, setting aside the conviction:

(1) The established English practice should be followed in the Cayman Islands. The accused was entitled to know all the information conveyed to the magistrate and all proceedings should take place in open court unless there was a good reason why the accused should not hear the information which was to be disclosed. When it was necessary for counsel to see a judge in private, counsel on both sides (and the attorneys advising them if they were in court) should be present at the meeting (paras. 3–4)

(2) The only possible exception to this rule which might excuse the Crown”s actions was a PII application, if it were the case that disclosing certain information to the accused would endanger the life or safety of an informant. Even if this were a PII application, the Crown should have given notice to the defence that it was applying for a ruling by the court and indicated the category of material concerned, unless it could show that such disclosure would have the effect of revealing that...