R v Ebanks (KF)

• Jurisdiction: Cayman Islands
• Judge: (Henderson, Ag. J.)
• Judgment Date: 09 January 2001
• Date: 09 January 2001
• Court: Grand Court (Cayman Islands)

Grand Court

(Henderson, Ag. J.)

R.

and

K.F. EBANKS and B.R. POWELL

S.W. Bulgin, Solicitor General, for the Crown;

J.R. McDonough for the Revd. Haines;

P. St. J. Stephens for the first accused.

Cases cited:

(1) Att.-Gen. v. Mulholland, [1963] 2 Q.B. 477; [1963] 1 All E.R. 767, dicta of Lord Denning, M.R. applied.

(2) British Steel Corp. v. Granada Television Ltd., [1981] A.C. 1096; [1981] 1 All E.R. 917, dicta of Lord Wilberforce applied.

(3) Broad v. PittENR(1828), 3 C. & P. 518; 172 E.R. 528, applied.

(4) Gruenke v. R.UNK, [1991] 3 S.C.R. 263; (1991), 67 C.C.C. (3d) 289; sub nom. R. v. Fosty, [1991] 6 W.W.R. 673; 8 C.R. (4th) 368, applied.

(5) Hunter v. Mann, [1974] Q.B. 767; [1974] 2 All E.R. 414.

(6) Inquiry under Company Secs. (Insider Dealing) Act 1985, In re, [1988] A.C. 660; [1988] BCLC 76; on appeal, [1988] A.C. 660; [1988] 1 All E.R. 203.

(7) Normanshaw v. NormanshawUNK(1893), 69 L.T. 468, followed.

(8) R. v. GilhamENR(1828), 1 Mood. C.C. 186; 168 E.R. 1235.

(9) R. v. Griffin(1853), 6 Cox, C.C. 219, considered.

(10) R. v. HayENR(1860), 2 F. & F. 4; 175 E.R. 933, considered.

(11) R. v. Payne, [1963] 1 W.L.R. 637; [1963] 1 All E.R. 84.

(12) Ruthven v. De Bour(1901), 45 Sol. Jo. 272, distinguished.

(13) Scott v. Scott, [1913] A.C. 417; (1913), 82 L.J.P. 74.

(14) Wheeler v. Le MarchantELR(1881), 17 Ch. D. 675; 50 L.J. Ch. 793, dicta of Jessel, M.R. applied.

Legislation construed:

Evidence Law (1995 Revision) (Law 13 of 1978, revised 1995), s.28:

‘Nothing in this Law derogates from the power of a court in any criminal proceeding to disallow evidence otherwise admissible which, in the opinion of such court, would, if allowed, operate unfairly against an accused person.’

Evidence-privilege-religious communications-confessional or other religious communications not privileged-discretion at common law and under Evidence Law (1995 Revision), s.28 to exclude criminal evidence breaching confidence as unfair to accused-witness compellable if evidence rele-vant, proper and in interests of justice

The accused were charged with murder.

The accused were alleged to have participated in a robbery which led to the murder of their victim. The first accused told his girlfriend that he had been present at the scene of the killing and was going to discuss the matter with a church minister. The minister, who had been previously unacquainted with him, told him that anything he said to her would be held in confidence. The contents of the following conversation were unknown.

The minister was summoned to give evidence at the trial of the accused, and applied to set aside the summons on the basis that her evidence, even if relevant, was protected by a priest-penitent or religious communications privilege.

The Crown submitted that no such general or class privilege existed but that the court had a discretion to refuse to compel a witness to answer questions if to do so would breach a confidence and therefore be unfair to the accused. A voir dire should be held for the court to assess the value of the evidence in the exercise of its discretion.

Held, dismissing the application:

The law of the Cayman Islands did not recognize a general or class privilege in respect of priest-penitent or religious communications. No such privilege existed under English law and nothing in the local Evidence Law (1995 Revision) suggested that the law here differed. The court had a discretion to compel a witness to answer a question in breach of confidence, and would do so only if the evidence to be given was relevant, proper and necessary to achieve justice. Moreover, it could exclude criminal evidence under s.28 of the Evidence Law if its admis-sion would be unfair to the accused, e.g. if it would violate a confidence. In cases where the probative value of the evidence could not otherwise be ascertained, a voir dire might be required to assist the court in exercising its discretion. In view of the gravity of the charge and the nature of the

evidence in the present case, the minister would be required to testify at a voir dire in chambers from which the media and public would be excluded (paras. 28–35).

1 HENDERSON, Ag. J.: When the Revd. Dee Dee Haines was ordained as a Minister of the United Church she made a solemn vow before God to preserve the confidentiality of any confession by a penitent. Kurt Ebanks is charged with a planned and deliberate murder. There is reason to believe he has confessed his role in the killing to the Revd. Haines. The Crown has served a witness summons upon her. She now applies to set it aside, arguing that any relevant evidence she could give is protected by a priest-penitent...