H.M The Queen Respondent v David Tamasa Rennie Cole George Eric Mignott Andre Nicholas Burton Ryan Adrian Edwards Appellants
| Jurisdiction | Cayman Islands |
| Judge | Chadwick P,Sir John Chadwick,Mottley JA |
| Judgment Date | 12 January 2015 |
| Judgment citation (vLex) | [2014] CICA J1121-2 |
| Docket Number | CACR023/2013 (Tamasa CNB) #03538/2012 CACR024/2013(Cole) IND 63/12 #03564/2012 CACR022/2013(Mignott) IND 60/12A #03466/2012 CACR026/2013(Burton) IND 60/12 #03465/2012 CACR025/2013 (Edwards) IND 14/13 #04170/2012 |
| Court | Court of Appeal (Cayman Islands) |
| Date | 12 January 2015 |
The Rt Hon Sir John Chadwick, President
The Hon Elliott Mottley, Justice of Appeal
The Right Hon Sir Bernard Rix, Justice of Appeal
For reasons which we will put in writing and hand down as soon as convenient, we allow the appeals of David Tamasa, Rennie Cole, George Mignott and Andre Burton relating to the CNB robbery. We dismiss the appeal of Ryan Edwards against conviction in that matter. Although, as I have said, our decision is based on reasons which are to be put in writing and handed down, it is appropriate that I should state briefly why we have reached the conclusion that the appeals of four of the appellants should be allowed and that the appeal of the remaining appellant should be dismissed.
Section 9(1) of the Court of Appeal Law (2011 Revision) requires that. subject to section 12 (which is not in point in this case), the Court shall allow an appeal against conviction if it thinks ‘… (c) that there was a material irregularity in the course of the trial’. In the present case there is no doubt that there was an irregularity in the course of the trial.
Section 149(2) of the Police Law 2010 requires that, where that subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself and, in the case of proceedings on indictment with a jury, in the presence of the jury, that the accused is aware that the stage has been reached atwhich evidence can be given for the defence and that he can, if he wishes, give evidence and that if he chooses not to give evidence it will be permissible for the jury to draw such inferences as appear proper from his failure to give evidence. The section does not apply if at the conclusion of the evidence for the prosecution, the accused's attorney informs the court that the accused will give evidence. That was not the position in the present case. At the conclusion of the prosecution evidence, the advocates representing each defendant informed the judge that their client would not be giving evidence. So the law required the judge to satisfy himself in the presence of the jury that each defendant was aware that if he chose not to give evidence it would be permissible for the jury to draw such inferences as might appear proper from his failure to do so.
In the present case the judge did not satisfy himself in the presence of the jury — or, so far as appears from the transcript, at all — that each defendant or any of them was aware that if he did not give evidence, inferences might be drawn from his failure to do so. That, as I have said, was plainly an irregularity: it became a material irregularity, because in the course of his summing up to the jury, the judge directed the jury that the defendants' silence at trial might count against them. He said this (transcript, 11 April 2013. page 121 line 22 to page 123 line 9):
‘Ladies and gentlemen, everyone has a legal right to remain silent in the face of police questioning. There are only limited circumstances in which you can make use of that kind of silence to draw an inference against a defendant. Those circumstances have not arisen in this case with regard to any defendant; therefore, I instruct you as a matter of law that you must disregard all of the evidence and all of the admissions of fact which touch upon the subject of questions asked by the police which the defendant in question failed to answer or declined to answer. The defendants have not given evidence. That is their right. Each of them is entitled to remain silent and to require the prosecution to make you sure of his guilt. The burden of proving...
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