HM The Queen Respondent v Joshua Brown Appellant
| Jurisdiction | Cayman Islands |
| Judge | Mottley J.A.,Mottley, J.A.,Conteh J.A. |
| Judgment Date | 25 April 2013 |
| Court | Court of Appeal (Cayman Islands) |
| Docket Number | CACR014/2012 C#04517/2011 |
| Date | 25 April 2013 |
The Hon Mr. Justice Mottley— Justice of Appeal
The Hon Mr. Justice Conteh— Justice of Appeal
The Hon Mr. Justice Ground— Justice of Appeal
James Corbett Q.C., instructed by Michael Wingrave of Stenning & Associates for the appellant. Trevor Ward, Deputy Director of Public Prosecution for the Crown.
Reasons for Judgment released: 12 August 2013
Following a trial before Mr. Justice Panton without a jury, Joshua Alexander Brown, the appellant, was convicted on an indictment containing two counts. The first count alleged that, on 8 September 2011, the appellant was in possession of a Springfield Colt hand gun without having a firearms user's licence. The second count alleged that he had in his possession six .45 caliber rounds of ammunition also without a firearms user's licence. The appellant was sentenced to a term of imprisonment of 12 years on each count to run concurrently. The court ordered that time spent in custody was to be taken into consideration.
After the hearing of the appeal, the Court announced that the appeal would be allowed. The Court quashed the conviction and set aside sentence. The Court ordered that the appellant be retried. In the light of this, the Court will refrain from commenting on the facts except when the Court considers that it is absolutely necessary.
The case for the prosecution was that early on the morning of 8 September 2011, around 2am, a report was made to the Police via 911 that an accident occurred in Prospect when a motor car collided with a wall. The person who made the report alleged that when the man who was driving the car alighted from the vehicle following the collision, a firearm dropped from his waistband.
The registration number of the vehicle alleged to have been involved in the collision with the wall matched the registration number of the vehicle owned by the appellant's mother. Following enquires made at the residence of the appellant's mother around 2:50am that same morning, the police concluded that the vehicle could be found at the residence of Ms. Darcia Parchment, a lady with whom the appellant stated that he was romantically involved, at 14 Lemon Breeze, Marina Drive, Prospect.
Later on 8 September 2011, a search warrant was executed by the police at the premises occupied by Ms Parchment. As a result of the search, a firearm, a Springfield Colt .45 together with six .45 caliber rounds were found by the police wrapped inside a t-shirt and hidden inside a freezer drawer within a fridge-freezer unit at Ms Parchment's apartment. This apartment was not the property of the appellant but was in fact leased to Ms Parchment.
Swabs were taken from the exterior of the firearm; these were later analyzed and were found to include DNA which matched the appellant's DNA. He was found to be a major contributor. DNA from another person whose identity was not established was also found on the swabs taken from the exterior of the firearm. Swabs were also taken from the interior of the firearm; examination of these swabs showed DNA from at least two donors. While the appellant could not be confirmed as one of the two contributors, he could not be excluded as a source of the DNA. No DNA was detected on the ammunition.
At the commencement of the trial, counsel for the appellant made a request of the prosecution to disclose certain information. The request sought information concerning the following: (a) whether Ms Parchment, the appellant's girlfriend the other occupant of 14 Lemon Breeze, Marina Drive, Prospect, was a police informer; (b) the reason why Ms. Parchment was not charged with offences similar to those with which the appellant has been charged and is now before the court; (c) the recording of the 911 call made to the police about the traffic accident which triggered the search at the apartment and the subsequent investigation; and (d) the basis for the application for the search warrant.
In relation to (c), counsel on behalf of the prosecution indicated that the prosecution had served a transcript of the 911 call. However, counsel indicated to the judge that the appellant was seeking a copy of the actual recording as the appellant wanted to hear the voice of the person who made the call.
It was against this background that the prosecution made the ex parte application in Chambers before Mr. Justice Paton for an Order for nondisclosure by the prosecution of the information sought on the grounds of Public Interest Immunity (PII).
Having heard the application, the judge, in granting the application for nondisclosure, made the following rulings:-
‘The request, as I understand it of the part of the defence, is really to get information as to who may have been an informant and I take note of the fact that the defence has a particular line to take. There is nothing to prevent the defence taking the line that it intends to take by the Order that I am making which is aimed at protecting whoever the informant is so the application of the Crown is granted.’
In this appeal, the sole issue is whether the judge was correct in making the order for non-disclosure on the grounds of PII.
PII in England is governed by the Criminal Procedure and Investigation Act 1996 and Rules made thereunder. In the Cayman Islands, no statutory underpinnings exist. The position as developed in England under the Common Law therefore applies to the Cayman Islands. In Connolly and Brandt v R [2006] CILR 103, it was held that ‘(t)he established English practice should be followed in the Cayman Islands.’
In the opinion of the Court, the approach adopted by the Grand Court in Connolly's case is correct. The rule of Common Law developed in England prior to the enactment of the Criminal Procedure and Investigation Act 1996 should be applied in the Cayman Islands.
For many years the rule existed that it is in the public interest that the identity of informers ought to be protected and not disclosed. In Regina v Hennessy [1978] 68 Cv App R 919, at p426 it is stated:
‘The Court appreciates the need to protect the identity of informers, not only for their own safety, but to ensure that the supply of information about criminal activities does not dry up. In general this should be the approach of the Courts but cases may occur when for good reason the need to protect the liberty of the subject should prevail over the need to protect informers. It will be for the accused to show that there is good reason.
Once the issue of PII arises in relation to non-disclosure, the burden of proof is transferred to the defendant to establish that good reason exists for the disclosure of the identity of the informant.’
In D. v National Society for the Prevention of Cruelty to Children [1978] AC 171, Lord Simon of Glaisdale at p 232 observed:
‘Then the law proceeds to recognize that the public interest in the administration of justice is but one facet only of larger public interest — namely, the maintenance of the Queen's peace. Another facet is effective policing, but the police can function effectively only if they receive a flow of intelligence about planned crime or its perpetrators. Such intelligence will not be forth coming unless informants are assured that their identity will not be divulged. See Lord Reid in Conway v Rimmer [1968] A.C. 910, 953 C-954A. The law therefore recognizes (here another class of) relevant evidence which may -indeed- must- be withheld from forensic investigation — namely, sources of police information; Rex v Hardy [1794] 24 Slate Ttv 199, 808; Hennessy v Wright 21 Q.B.D. 509, 519; Marks v Beyfus 25 Q.B.D. 494.’
Lord Simon however went on to point out that, to this statement, the law adds a rider which he expressed in the following terms :
‘The public interest that an innocent man should not be convicted of crime is so powerful that it ought to weigh the general public interest that sources of police information should not be divulged, so that, exceptionally, such evidence must be forth coming when required to establish innocence in a criminal trial.’
In Regina v Agar [1989] 90 Cr. App. R. 318 at p 324 Mustill LJ. (as he then was) in dealing with the issue of PII stated:
‘Now it is certainly not the case that a defendant can circumvent the rule of public policy so as to find out the name of the person who has informed on him, for his own future reference and possible reprisal simply by pretending that something is part of his case when in truth it adds nothing to it. And it maybe — and we emphasize “may”— that of the defence is manifestly frivolous and doomed to failure the trial judge may conclude that it must be sacrificed to the general public interest in the protection of informers’
Public policy requires that the identity of informers should be protected and not disclosed. Intelligence from informers about actual or proposed criminal activity in society is essential to assist the police in fighting crime and protecting society. Without such intelligence to assist them, the police would be handicapped in their task of fighting crime. However, this requirement of public policy may conflict with another requirement of public policy; this latter public policy requires that no innocent person should be convicted of a crime which he did not commit. To this end, the public interest of non-disclosure must give way if the disclosure is required by the defendant to establish his defence.
The court is required to carry out a balancing exercise between the two aspects of public interest claimed. In Regina v Keane [1994] 1 W.L.R. 746 at page 751, Lord Taylor Gosforth, Chief Justice, posed the question as to what approach a court ought to adopt...
To continue reading
Request your trial