R v Brown
| Jurisdiction | Cayman Islands |
| Judge | (Mottley, Conteh and Ground, JJ.A.) |
| Judgment Date | 12 August 2013 |
| Date | 12 August 2013 |
| Court | Court of Appeal (Cayman Islands) |
(Mottley, Conteh and Ground, JJ.A.)
J. P. Corbett, Q.C. for the appellant;
T. M. Ward, Q.C., Deputy D.P.P., for the Crown.
(1) Att. Gen.”s Ref.(No. 2 of 2001), [2004] 2 A.C. 72; [2004] 2 W.L.R. 1; [2004] 1 All E.R. 1049; [2004] 1 Cr. App. R. 25; [2003] UKHL 68, dicta of Lord Bingham applied.
(2) Connolly v. R., 2006 CILR 103, applied.
(3) D. v. N.S.P.C.C., [1978] A.C. 171; [1977] 2 W.L.R. 201; [1977] 1 All E.R. 589, considered.
(4) R. v. Agar, [1990] 2 All E.R. 442; (1990), 90 Cr. App. R. 318; [1990] Crim. L.R. 183, considered.
(5) R. v. Brixton Prison Gov., ex p. Osman, [1991] 1 W.L.R. 281; [1992] 1 All E.R. 108; (1991), 93 Cr. App. R. 202; [1991] Crim. L.R. 533, considered.
(6) R. v. H, [2004] 2 A.C. 134; [2004] 2 W.L.R. 335; [2004] 1 All E.R. 1269; [2004] 2 Cr. App. R. 10; [2004] UKHL 3, applied.
(7) R. v. HennessyUNK(1979), 68 Cr. App. R. 419, considered.
(8) R. v. Keane, [1994] 1 W.L.R. 746; [1994] 2 All E.R. 478; (1994), 99 Cr. App. R. 1; [1995] Crim. L.R. 225, considered.
(9) R. v. Turner, [1995] 1 W.L.R. 264; [1995] 3 All E.R. 432; [1995] 2 Cr. App. R. 94, considered.
Criminal Procedure-fair trial-opportunity to challenge evidence-order for non-disclosure of 911 caller”s identity (or recording of 911 call) may prevent fair trial-accused usually entitled to know identity of accuser-derogation from principle not justified when judge himself has insufficient information to assess whether accused”s interests properly protected despite non-disclosure
Evidence-privilege-public interest immunity-order for non-disclosure of informant”s identity may prevent fair trial-court to balance public interest in protecting informants against public interest in not convicting the innocent-if disputed information may prove accused”s innocence, balance tips in favour of disclosure
The appellant was charged in the Grand Court with being in possession of a firearm and ammunition, in both cases without a licence.
In the early hours of September 8th, 2011, the police received a 911 call reporting that a car had crashed into a wall and that the man driving the car had been seen to drop a firearm. The registration number given by the caller was that of the appellant”s mother”s car. After enquiring at the appellant”s mother”s house, the police executed a search warrant at the home of Ms. Parchment, the appellant”s girlfriend, where they believed the car to be. They found a gun and ammunition, wrapped in a t-shirt, in her freezer.
The appellant”s DNA was found on the outside of the gun, as was the DNA of another person. DNA samples from inside the gun were inconclusive, but included that of at least two people. No DNA was found on the ammunition.
At the start of the trial, counsel for the appellant requested that the prosecution disclose, inter alia, the actual recording of the 911 call, not just the transcript. The prosecution applied for an order of non-disclosure of this information, on the basis of public interest immunity (PII). The Grand Court (Panton, Ag. J.) granted the application. The appellant was convicted of the charges and sentenced to 12 years” imprisonment.
On appeal, the appellant submitted that the judge had erred in making an order for non-disclosure on the ground on public interest immunity. His
defence was that he suspected Ms. Parchment had framed him as punishment for ending their relationship. She had, he submitted, made the 911 call, lied about the car crash and seeing a gun, and put the firearm in her own freezer after placing the appellant”s DNA on it, knowing her home would probably be searched. Given that the gun was found in Ms. Parchment”s freezer, and there was another person”s DNA on it, she should have been at least as likely a suspect as the appellant himself, but there was no evidence that she had been charged, or samples of her DNA taken. If Ms. Parchment had made the 911 call, he submitted, she would have been considered hostile to the appellant and the court would have to consider whether it was possible she had been trying to frame him, strengthening his defence.
The Crown submitted in reply that the appellant had the burden of establishing that the disclosure was so important to his defence as to outweigh the necessity of protecting informants and further that he had not discharged that burden. The defence, it submitted, would have been the same regardless of the identity of the informer and was frivolous and doomed to failure; the appellant”s explanation of how his DNA came to be on the firearm had been totally undermined by forensic evidence and it was implausible that Ms. Parchment had hatched and carried out her alleged plan, including obtaining a firearm and knowing how to place the appellant”s DNA on it, in such a narrow window of time. Accordingly, the public interest in protecting informers should prevail over such a defence.
Held, allowing the appeal:
The judge had erred in ordering that the identity of the 911 caller not be disclosed to the appellant. The order for non-disclosure prevented him from having a fair trial as guaranteed by the common law and the Constitution. The judge had not carried out the necessary balancing exercise between the public interest in protecting informers, for their own safety and to ensure future informers were not dissuaded from coming forward, and the public interest that no man should be convicted of a crime he did not commit. Where disputed material might prove a defendant”s innocence, the balance had to tip in favour of disclosing it; the identity of the 911 caller might have strengthened the appellant”s defence or weakened the prosecution”s case and, without knowing the caller”s identity, the judge could not have been in a position properly to ensure the appellant”s interests were protected. The appellant was entitled to know the identity of his accuser and whilst, in certain circumstances, public policy would allow derogation from this principle to protect informers, the appellant”s defence could not be characterized as so frivolous and doomed to failure that it should be sacrificed to the public interest in protecting the informer. The issues raised by the appellant in his defence could only have been properly canvassed if the recording of the 911 call, or the identity of
the caller, had been provided to him (paras. 25–26; para. 32; paras. 35–39).
1 MOTTLEY, J.A., delivering the judgment of the court: Following a trial before Panton, Ag. J. without a jury, Joshua Alexander Brown, the appellant, was convicted on an indictment containing two counts. The first count alleged that, on September 8th, 2011, the appellant was in possession of a Springfield Colt handgun without having a firearms user”s licence. The second count alleged that he had in his possession six .45 calibre 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.
2 After the hearing of the appeal, the court announced that the appeal would be allowed. The court quashed the conviction and set aside the 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.
3 The case for the prosecution was that early on the morning of September 8th, 2011, around 2 a.m., 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.
4 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...
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