R v Borden

• Jurisdiction: Cayman Islands
• Judge: (Smellie, C.J.)
• Judgment Date: 20 March 2014
• Court: Grand Court (Cayman Islands)
• Date: 20 March 2014

Grand Court, Criminal Division

(Smellie, C.J.)

R.

and

BORDEN

R.

and

TAMASA

A. Radcliffe, Q.C. and Ms. T. Hutchinson, Crown Counsel, for the Crown;

N.E. Hoffman for Borden;

Ms. L. Organ for Tamasa.

Cases cited:

(1) R. v. Assim, [1966] 2 Q.B. 249; [1966] 3 W.L.R. 55; [1966] 2 All E.R. 881; (1966), 50 Cr. App. R. 224, applied.

(2) R. v. Groom, [1977] Q.B. 6; [1976] 2 W.L.R. 618; [1976] 2 All E.R. 321; (1976), 62 Cr. App. R. 242; [1976] Crim. L.R. 382, referred to.

(3) R. v. Hoggins, [1967] 1 W.L.R. 1223; [1967] 3 All E.R. 334; (1967), 51 Cr. App. R. 444, applied.

(4) R. v. JosephsUNK(1977), 65 Cr. App. R. 253, referred to.

(5) R. v. LakeUNK(1977), 64 Cr. App. R. 172, applied.

(6) R. v. Miah, [2012] 1 Cr. App. R. (S.) 11; [2011] Crim. L.R. 662; [2012] Crim. L.R. 67; [2011] EWCA Crim 945, followed.

(7) R. v. MoghalUNK(1977), 65 Cr. App. R. 56; [1977] Crim. L.R. 373, referred to.

(8) R. v. RhodesUNK(1959), 44 Cr. App. R. 23, referred to.

(9) R. v. Townsend, [1997] 2 Cr. App. R. 540; [1998] Crim. L.R. 126, referred to.

(10) R. v. TurnerENR(1832), 1 Mood. C.C. 347; 168 E.R. 1298, referred to.

(11) R. v. WilsonUNK(1973), 58 Cr. App. R. 169, referred to.

Legislation construed:

Criminal Procedure Code (2013 Revision), s.118(3): The relevant terms of this sub-section are set out at para. 6.

s.129: ‘(2) . . . [A] judge may permit an accused person to make an oral or written election [to be tried by judge alone] at any time before a jury is empanelled where such accused person has proven that, because of exigent circumstances, it was not possible for him to make an election within the time limit . . .

(5) Where there are two or more accused persons joined in the same indictment, the election [to be tried by judge alone] shall only be exercisable by all such accused persons jointly.’

s.162: The relevant terms of this section are set out at para. 5.

Cayman Islands Constitution Order 2009 (S.I. 2009/1379), Schedule 2, s.7(1): The relevant terms of this section are set out at para. 40.

Criminal Procedure-charges-joinder-joinder of accused-court may join multiple indictments if concern single offence and so related that interests of justice best served by trying accused together-may not join indictments if violates right to fair hearing under 2009 Constitution, s.7-court to balance rights of accused (considering all facts of case, even if not on face of indictment) against public interest in single trial-short postponement of trial insufficient reason not to join indictments if already postponed for long period due to defendant”s choices

Criminal Procedure-charges-joinder-joinder of accused-court may join separate indictments even if certain evidence only admissible against particular accused-no risk to right to fair trial (2009 Constitution, s.7) if risk of prejudice offset by directions to jury-risk jury will ignore directions only justifies separate trials in exceptional circumstances, but accused not required to show such circumstances exist

Criminal Procedure-charges-joinder-joinder of accused-public interest in joining indictments includes saving time and money, and desirability that parties involved in same offence subject to same treatment-against public interest for multiple juries to consider same evidence as may lead to inconsistent results

The first defendant was charged with murder and the second defendant was separately charged with aiding and abetting that murder.

A witness alleged that the first defendant had admitted to having murdered the victim by shooting and that the second defendant had admitted to having provided him with ammunition for doing so. The witness informed the police of the first defendant”s admission in August 2012, and the first defendant was arrested and indicted shortly afterwards. A year later, the witness informed the police of the second defendant”s admission, and he was indicted separately in January 2014. The same witness had also been a witness in high-profile proceedings against the second defendant for armed robbery, in which he had been convicted.

There were delays in bringing the first defendant to trial. His first scheduled trial date (in February 2013) was vacated when leading counsel was injured. A second trial date was set for June 2013, but this was postponed by the Crown because of the information received about the second defendant”s involvement. A third trial date was set for January 2014, but this was further delayed because the first defendant”s defence team wished to consider whether they should apply for his indictment to be joined with that of the second defendant. The closest available trial date for the first defendant, who had elected to be tried by a judge and jury, was in May 2014. The trial of the second defendant, who had elected to be tried by judge alone, was scheduled for September 2014.

The Crown applied for the defendants” indictments to be joined under the Criminal Procedure Code (2013 Revision), s.162, which would mean that the earliest possible trial date would be July 2014. The defendants accepted that the court had jurisdiction to grant the Crown”s application and that their indictments could be properly joined, but applied for the immediate severance of their indictments under the Criminal Procedure Code, s.118(3).

The first defendant submitted that (a) the joinder would cause further delay to his trial and therefore be unjust; (b) the second defendant”s previous convictions would be unfairly prejudicial to him, particularly as the second defendant had previously been convicted on the strength of the same witness”s testimony; and (c) in a joint trial, the jury would hear testimony against the second defendant implicating the first defendant which would not be admissible in a trial against the first defendant alone and would be unfairly prejudicial against him for the jury to hear. Further, a direction from the judge for the jurors to put these issues from their minds would not be sufficient.

The Crown submitted in reply that the resulting delay would not cause

injustice and that any potential prejudice could be avoided by directions to the jury.

The second defendant submitted that (a) as the first defendant had not elected to be tried by judge alone, the second defendant would (by virtue of the Criminal Procedure Code, s.129(5)) unfairly lose his election to do so if the indictments were joined; (b) he would be unfairly prejudiced by evidence given by the witness against the first defendant; and (c) the public interest could be readily served by holding separate trials because there would be no basis for a conviction against the second defendant if the first defendant were found not guilty. It was therefore preferable for the first defendant to be tried before the second defendant.

The Crown submitted in reply that (a) there was nothing inherently unfair or unconstitutional about losing the right to elect to be tried by judge alone; (b) any potential prejudice could be corrected by directions to the jury; and (c) the public interest would be better served by combining the trials as the witness”s evidence would otherwise have to be considered by two different juries, with possibly inconsistent outcomes.

Held, granting the Crown”s application:

(1) The court had jurisdiction to join the indictments. Multiple indictments could be joined if the court found that they concerned a single offence and were so related (whether in time or by any other factor) that the interests of justice would best be served by their being tried together. In order to ensure that all parties involved in the same offence received the same treatment, it was therefore desirable that, in the majority of cases, defendants charged with the commission of a single offence be tried together. The paramount consideration, however, must be that, under the 2009 Constitution, s.7, each defendant had a right to a fair hearing by an independent and impartial court within a reasonable time. The court must therefore weigh the rights of the defendants (considering all of the relevant facts of the case, even if they did not appear on the face of the indictment) against the public interest in the advantages of having a single trial (e.g. the saving of time and money and the desirability that those involved in the same offence would be subject to the same verdict and the same treatment) (paras. 9–12; para. 15; para. 40).

(2) The defendants” right to a fair trial would not be unfairly prejudiced by joining the indictments. Although certain elements of the witness”s testimony were only admissible as against each individual defendant (and this could have an impact on their right to a fair trial), this risk could be offset by giving appropriate directions to the jury. It was well established that juries followed directions given to them by judges and the court could only find that the risk of their not doing so would justify holding separate trials in exceptional circumstances-although the defendant was not required to show these existed. As no such circumstances existed, the defendants” right to a fair trial was not prejudiced. Further, the delay in joining the indictments qualified as an exigent circumstance under the Criminal Procedure Code, s.129(2). This allowed the first defendant to

elect trial by judge alone even if the time limit for doing so had expired. The first defendant would therefore be able to avoid any potential prejudice by electing trial by judge alone, particularly as the second defendant had already done so (para. 10; paras. 46–56; para. 63; paras. 67–68).

(3) The joining of the indictments would not unfairly prejudice the second defendant, even if it deprived him of his choice to be tried by judge alone. The...