Ebanks v R

• Jurisdiction: Cayman Islands
• Judge: (Chadwick, P., Mottley and Conteh, JJ.A.)
• Judgment Date: 30 November 2012
• Court: Court of Appeal (Cayman Islands)
• Date: 30 November 2012

Court of Appeal

(Chadwick, P., Mottley and Conteh, JJ.A.)

L.A. EBANKS

and

R.

R.O. JEFFERS

and

R.

A. Malcolm, Q.C. and C. Allen for the first appellant;

M. Wolkind, Q.C. and R. Barton for the second appellant;

A. Ratcliffe, Q.C., T. Ward, Senior Crown Counsel, and Ms. C. James, Crown Counsel, for the Crown.

Cases cited:

(1) Johnson v. JohnsonUNK(2000), 201 CLR 488; 174 ALR 655; 74 ALJR 1380; [2000] HCA 48, applied.

(2) Medicaments & Related Classes of Goods (No. 2), In re, [2001] 1 W.L.R. 700, referred to.

(3) Porter v. Magill, [2002] 2 A.C. 357; [2002] 2 W.L.R. 37; [2002] 1 All E.R. 465; [2001] UKHL 67, referred to.

(4) R. v. Abdroikov, [2007] 1 W.L.R. 2679; [2008] 1 All E.R. 315; [2008] 1 Cr. App. R. 21; [2007] UKHL 37, dicta of Lord Bingham applied.

(5) R. v. Gough, [1993] A.C. 646; [1993] 2 W.L.R. 883; [1993] 2 All E.R. 724; (1993), 97 Cr. App. R. 188, considered.

(6) R. v. S.(K.), [2010] 1 W.L.R. 2511; [2010] 1 All E.R. 1084; [2010] 1 Cr. App. R. 20; [2009] EWCA Crim 2377, distinguished.

(7) R. v. Turnbull, [1977] Q.B. 224, [1976] 3 W.L.R. 445; [1976] 3 All E.R. 549; (1976), 63 Cr. App. R. 132, referred to.

(8) R. v. Twomey, [2010] 1 W.L.R. 630; [2009] 3 All E.R. 1002; [2009] 2 Cr. App. R. 25; [2009] EWCA Crim 1035, referred to.

(9) Saxmere Co. Ltd. v. Wool Bd. Disestablishment Co., [2010] 1 NZLR 35; [2009] NZSC 72, applied.

(10) Taylor v. Lawrence, [2001] 1 EWCA Civ 119; further proceedings, [2003] Q.B. 528; [2002] 3 W.L.R. 640; [2002] 2 All E.R. 353; [2002] EWCA Civ 90, followed.

(11) Tibbetts v. Att. Gen., 2010 (1) CILR 92; [2010] 3 All E.R. 95; [2010] UKPC 8, followed.

Criminal Procedure-fair trial-bias-judge”s prior awareness of allegations of accused”s violent nature not necessarily to lead informed and fair-minded observer to conclude real possibility of bias-appropriate background knowledge, including jurisdiction”s legal traditions and culture, attributed to observer-inevitable in small jurisdiction that some cases before same judge overlap, e.g. involve same parties-observer knows judges avoid bias by ignoring prior knowledge unless case extreme and unusual-no need for judge to recuse himself from sitting without jury if observer finds no real possibility of bias

The first appellant was charged in the Grand Court with murder and the second appellant with murder, attempted murder and possession of an unlicensed firearm.

The first appellant shot his victim. The second appellant attacked a group of five people with a firearm, killing one and wounding two others. Prior to the current proceedings, the second appellant had been co-accused in a trial in the Grand Court in which he was charged with murder (Quin, J., sitting without a jury). He was severed from the trial and though testimony was given which implicated him, the judge made no findings on it. The same judge also heard an application for a witness anonymity order for a different trial. Neither appellant was directly involved in this trial but the application stated that the police suspected them of being associated with a violent gang and as being men who frequently carried and used firearms.

During the preliminary proceedings for the second appellant”s trial, the court (Henderson, J.) ordered the Crown to disclose to the defence any new and relevant evidence it would later obtain. The Crown obtained, and failed to disclose, a copy of the telephone company”s records which indicated the location of the cellular phone of an individual witness, although these records did not feature in the trial. The appellants were both convicted as charged (Quin, J., sitting without a jury).

The appellants submitted that because the judge already knew of allegations about the appellants” violent natures, an informed and impartial observer would have perceived a real risk of bias and he should

therefore have disqualified himself from sitting without a jury. The second appellant also challenged the findings of fact and argued that the Crown”s failure to disclose the evidence from the telephone company had led to a miscarriage of justice.

The Crown submitted in reply that an informed and impartial observer would not perceive a real risk of bias despite the judge”s prior knowledge as judges were trained to, and habitually did, exclude certain knowledge from their minds when making decisions and that this allowed the judge not to be prejudiced by material not put before him at the trial.

The court considered how much knowledge of legal practices and procedures could be attributed to an informed and impartial observer.

Held, dismissing the appeals:

(1) An informed and fair-minded observer would not have perceived a risk of bias. Because he was ‘informed,’ the observer would have had knowledge of the legal traditions and culture of the jurisdiction (including the judge”s professional role and requirements), the facts and background of the case (including the related prior trials and hearings) and the fact the Cayman Islands had a ‘small and closely knit’ population with limited judicial resources. This would have allowed the observer to appreciate that-(a) it was inevitable that a judge would have heard overlapping cases which involved the same parties or witnesses; (b) because gun crime required such a strong concentration on the facts of each particular case, the judge was not considering previous cases when deciding the one in front of him; (c) the judge had not been influenced by testimony from the previous murder trial, especially as the testimony had been given no weight in that trial; (d) the judge had taken the information in the witness anonymity order application as allegations and not as facts; and (e) although the judge had gained some prior information, judges regularly put information out of their heads when making decisions and he would have done so here since there was nothing unusual or extreme about the situation (paras. 22–32; para. 36; para. 47; paras. 54–56).

(2) Whilst the Crown had breached its duty to disclose new evidence, as it had not used the evidence and it would not have had an effect on the trial or its outcome, there was no miscarriage of justice. Additionally, since the trial judge had not been plainly wrong in his findings of fact, the court would not disturb his findings (paras. 59–62).

1 CHADWICK, P., delivering the judgment of the court: On September 30th, 2011, Leonard Antonio Ebanks was convicted (Quin, J., sitting without a jury) of the murder of Tyrone Burrell. The offence had been committed in the evening of September 8th, 2010, at a house at 177 Birch Tree Hill Road, West Bay, Grand Cayman. The victim died from a single gunshot wound to the back of the head.

2 On February 23rd, 2012, Raziel Omar Jeffers was convicted (Quin, J., sitting without a jury) of the murder of Marcus Ebanks, of the attempted murder of four others-Jose ‘Peto’ Sanchez, Adryan Powell, Rod Aaron Ebanks and Al Martino ‘Joe’ Bush-and of possession of an unlicensed firearm. Those offences had been committed in the evening of July 8th, 2009, at Bonaventure Road, West Bay. Marcus Ebanks died of gunshot wounds to the chest and right shoulder. Adryan Powell, who was 14 years old at the time, received multiple gunshot wounds which left him paralysed from the waist down. Rod Ebanks received eight gunshot wounds to the hip, leg and hand, from which he made a full recovery. Jose Sanchez and El Martino Bush received no injuries.

3 Leonard Ebanks and Raziel Jeffers have each sought leave to appeal to this court. Each contends, amongst other grounds of appeal, that his conviction was unsafe and unsatisfactory because, in the circumstances to which we are about to refer, Quin, J. should not have been the judge at trial. We think it appropriate to grant leave in relation to the grounds argued before us and we treat the applications before us as substantive appeals on those grounds.

4 The circumstances upon which each appellant relies in advancing that ground of appeal include the following:

(1) Devon Jermaine Anglin was facing trial for the murder of Carlo Webster. That offence was said to have been committed on September 10th, 2009. The trial was to be heard by the Chief Justice, also sitting without a jury, in November 2011.

(2) In preparation for that trial the Crown had sought Witness Anonymity Orders-pursuant to s.11(1) of the Criminal Evidence (Witness Anonymity) Law 2010-to prevent disclosure of the identity of two witnesses whose evidence it was intended to induce at the trial.

(3) That application came before Quin, J. on July 29th, 2011. The grounds advanced in support of the application included a statement, pursuant to s.13(1)(c) of the Law, that the importance of each witness”s testimony was such that, in the interests of justice, he or she ought to testify; and that, if the proposed order were not made, the witness would not testify. It was said that there was a reasonable fear on the part of each witness that he or she would suffer death or injury if he or she were to be identified (s.13(2)(a) of the Law).

(4) The material put before Quin, J. on the application included a confidential statement by a police officer. The statement included, under the heading ‘Police Risk Assessment-Why the Witness”s fears are reasonable,’ a paragraph in the following terms:

‘The police believe that Anglin is one of the most dangerous men currently in the Cayman Islands. Devon Anglin and his right-hand man, Raziel Omar Jeffers, who is his cousin, are believed to be gang members. They are known to frequently carry firearms and have no hesitation in using them. Recent murders include Carlo Webster (the victim subject to this report); Marcus Duran was allegedly murdered on June 8th, 2009, by Jeffers (awaiting trial); Jordan Manderson (tried alone and acquitted) and [another named person, proceedings against whom were, in the event, withdrawn]. Damian Ming was allegedly murdered by Raziel...