R v Bush

• Jurisdiction: Cayman Islands
• Judge: (Chadwick, P., Mottley and Conteh, JJ.A.)
• Judgment Date: 26 November 2010
• Court: Court of Appeal (Cayman Islands)
• Date: 26 November 2010

Court of Appeal

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

R.

and

BUSH, SANCHEZ and CRAWFORD

Ms. C.M. Richards, Q.C., Solicitor General and Ms. K.-A. Gunn, Crown Counsel, for the appellant;

T.J. Spencer, Q.C. and Ms. N. Moore for the first respondent;

O. Pownall, Q.C. and L.A. Freeman for the second respondent;

B.J. Tonner for the third respondent.

Cases cited:

(1) R. v. Bola, Northampton Crown Ct., June 18th, 2003, unreported, dicta of Hughes J. applied.

(2) R. v. Chisholm, [2010] EWCA Crim 258, dicta of Toulson, L.J. considered.

(3) R. v. Davis, [2008] 1 A.C. 1128; [2008] 3 W.L.R. 125; [2008] 3 All E.R. 461; [2008] 2 Cr. App. R. 33; [2008] Crim. L.R. 915; [2008] UKHL 36, referred to.

(4) R. v. Mayers, [2009] 1 W.L.R. 1915; [2009] 2 All E.R. 145; [2009] 1 Cr. App. R. 30; [2009] Crim. L.R. 272; [2008] EWCA Crim 2989, dicta of Lord Judge, C.J. applied.

Legislation construed:

Criminal Evidence (Witness Anonymity) Law 2010, s. 11: The relevant terms of this section are set out at para. 7.

s.12: The relevant terms of this section are set out at para. 7.

s.13: The relevant terms of this section are set out at para. 7.

s.14: The relevant terms of this section are set out at para. 7.

s.15: The relevant terms of this section are set out at para. 7.

Evidence-witnesses-witness anonymity order-Criminal Evidence (Witness Anonymity) Law 2010, s.13(1)(b) not satisfied if accused known to witness for many years and witness on fringe of criminal community, since witness may have motive for lying which accused could only raise if aware of witness”s identity-court to consider whether witness”s evidence can be tested properly if anonymous-sufficient to refuse order that trial might be unfair and probably be perceived as unfair by accused

The respondents were jointly charged in the Grand Court with murder and the possession of unlicensed firearms.

A person living in Grand Cayman claimed to have witnessed the alleged murder, and made police statements to the effect that he had seen the respondents in a car close to the alleged murder scene, heard gunshots and seen the victim”s body. He claimed to have known the respondents for a number of years, having grown up with them. He had a number of convictions for consumption or possession of ganja, and a further conviction for failure to surrender to custody. He claimed that if the respondents became aware of his identity, his own safety and that of his family would be at risk, and stated that if he were not permitted to give evidence anonymously, he would not do so at all. The police made arrangements for him to stay off-island until the trial was over, and the Crown applied to the Summary Court under the Criminal Evidence (Witness Anonymity) Law 2010 for a witness anonymity order in respect of him. The Summary Court granted the application and made the order, which included provisions intended to ensure that the witness”s identity would not become known to the respondents. The respondents appealed to the Grand Court against the making of the order.

The Grand Court (Quin, J.) dismissed the appeal (in proceedings reported at 2010 (1) CILR 437), holding that it had no jurisdiction to hear it. The matter subsequently came back before the Summary Court, which held that it could no longer be satisfied that the order was necessary, and refused to continue it. The Crown indicated its intention to appeal against the refusal; the Summary Court therefore made an order in the terms sought, adding the words ‘subject to appeal,’ in accordance with s.15(3) of the Law.

The Crown appealed against the refusal to continue the witness anonymity order, submitting that all the relevant requirements of s.13(1)(a)–(c) were fulfilled, since (a) the measures in the order were necessary to protect the safety of the witness”s family, whom it would be impractical to relocate safely, and although the witness would remain off-island until after the trial, he would be in danger on his return since there would be a motive to cause him harm as an example to others; (b) a trial in which he gave evidence anonymously could still nonetheless be fair; and (c) the witness”s evidence was sufficiently important that it was in the interests of justice that he testified, and he would not testify-or his testifying would cause real harm to the public interest-if he could not do so anonymously.

The respondents submitted in reply that the appeal should be dismissed and the order made under s.15(3) discharged, as the condition in s.13(1)(b)-that the measures in the order would be consistent with the respondents” receiving a fair trial-was not fulfilled, since (a) an accused would generally be entitled to know the identity of a witness; (b) given that the respondents and the witness knew each other, and that the witness had previously committed criminal offences, it was possible that he might have a motive for giving untruthful evidence against them; (c) s.14(2)(d) provided that the court needed to have regard to whether the witness”s evidence could be properly tested if given anonymously, and it would not be possible to test the witness”s credibility without revealing his identity to them, since only they would be able to offer any evidence they might have as to whether the witness had such a motive; and (d) if the witness were able to give evidence anonymously, the trial might therefore be unfair and would be perceived as such by the respondents.

Held, dismissing the appeal:

(1) The witness would not be entitled to give evidence anonymously under the Criminal Evidence (Witness Anonymity) Law 2010. An accused would generally be entitled to know the identity of a witness, and a court could only make an anonymity order if the conditions in s.13(1)(a)–(c) were fulfilled. It was convenient to consider first the conditions in para. (c), which were that it was ‘in the interests of justice the witness ought to testify,’ and that either ‘the witness would not testify if the proposed order were not made; or there would be real harm to the public interest if the witness were to testify without the proposed order being made.’ In this case, these conditions were clearly satisfied. The witness”s evidence was sufficiently important that it was in the interests of justice that he testified, and he would not testify-or his testifying would cause real harm to the public interest-if he could not do so anonymously (paras. 28–29).

(2) Moreover, para. (a), which required that that the measures in the anonymity order were necessary-not merely desirable or convenient-to ‘protect the safety of the witness or another person,’‘prevent any serious damage to property,’ or ‘prevent real harm to the public interest,’ was also satisfied. Although the witness would remain off-island during the trial, para. (a) was not limited to the period up to the point when he gave

evidence, and he would be in danger on his return. Moreover, the safety of his wife and children could not be secured-and it would be impractical to relocate the family, especially given that, Grand Cayman being a small island community, any relocation would need to be off-island (paras. 8–9; para. 30).

(3) However, the requirement in para. (b) that the order ‘would be consistent with the defendant receiving a fair trial’ was not fulfilled. It would be enough to justify refusing an anonymity order on this ground that the proposed order might lead to an unfair trial-it was not necessary to show that such a trial definitely could not be fair. The court needed to have regard to the considerations listed in s.14(2), para. (d) of which referred to whether the witness”s evidence could be properly tested without his identity being disclosed. Given that the respondents and the witness had known each other for many years, and that the witness was at least on the fringe of the local criminal community, it was possible that the witness might have a motive for giving untruthful evidence against the respondents. If the respondents knew the witness”s identity, they would be able to offer any evidence they might have as to whether that witness had such a motive-whereas this would be impossible if the witness remained anonymous. There was therefore no real way for the credibility of this witness”s evidence to be properly tested without informing the respondents of his identity. Consequently, if the witness gave his evidence with the protection of an anonymity order, the trial might be unfair, and would be likely to be perceived as such by the respondents. The Crown”s appeal against the refusal to continue the witness anonymity order would therefore be dismissed, and the order made under s.15(3) discharged (paras. 31–34).

1 CHADWICK, P., delivering the judgment of the court: On April 1st, 2010, Roger Bush, Jose Sanchez and Robert Crawford were charged jointly with the murder of Alrick Ricardo Peddie. The material which led to the arrest and charge of the three accused included the statement, dated March 26th, 2010, of a witness who, for reasons of anonymity, has been known as ‘Tom Cruise.’ Tom Cruise made a second witness statement on March 31st, 2010. Further witness statements were made, on March 27th, and April 1st, 2010, by a second witness known as ‘James Brown.’

2 On April 20th, 2010, the Crown applied to Ramsay-Hale, Chief Magistrate, pursuant to s.11(1) of the Criminal Evidence (Witness Anonymity) Law 2010, for a witness anonymity order in respect of the witness Tom Cruise. That application was made without notice to the accused. The Chief Magistrate, having expressed herself satisfied that the conditions for making such an order were met, made the order sought in the following terms:

‘(a) the witness”s name and other identifying details are to be withheld from the defendants and their legal representatives;

(b) the witness”s name and other identifying details are to be removed from materials disclosed to any party to the proceedings;

(c)...