R v McLaughlin-Martinez

• Jurisdiction: Cayman Islands
• Judge: (Quin, J.)
• Judgment Date: 19 January 2011
• Court: Grand Court (Cayman Islands)
• Date: 19 January 2011

Grand Court, Criminal Division

(Quin, J.)

R.

and

McLAUGHLIN-MARTINEZ

M. Tomassi and N. Dixey for the accused.

Case cited:

(1) R. (D) v. Camberwell Green Youth Ct., [2005] 1 W.L.R. 393; [2005] 1 All E.R. 999; [2005] 2 Cr. App. R. 1; [2005] Crim. L.R. 497; [2005] H.R.L.R. 9; [2005] UKHL 4, dicta of Baroness Hale applied.

Legislation construed:

Evidence Law (2007 Revision), s.37(1): The relevant terms of this sub-section are set out at para. 1.

s.37(2): The relevant terms of this sub-section are set out at para. 1.

Ms. C.M. Richards, Q.C., Solicitor General, and Ms. T. Lobban for the Crown;

Evidence-witnesses-witness out of jurisdiction-video-link evidence-leave granted to call witness by video-link if in interests of judicial administration-Evidence Law (2007 Revision), s.37(1)(a) not restricted to routine or expert witnesses-not contrary to right to fair trial in European Convention on Human Rights since accused can see, hear and challenge evidence-no right to face-to-face confrontation

The accused was charged in the Grand Court with murder.

Mr. Hinds, who lived in Jamaica where he cared for his two children, claimed to have witnessed the murder and offered to give evidence at the trial by video-link. He stated that he was unwilling to travel to the Islands, as he was in fear for his own safety. Part of the accused”s defence was that Mr. Hinds, and not the accused, was the murderer.

The Grand Court (Henderson, J., sitting with a jury) initially found the accused guilty, but the Court of Appeal (Chadwick, P., Mottley and Conteh, JJ.A.) reversed the decision and remitted the matter to the Grand Court (in proceedings noted at 2010 (2) CILR N [4]).

On the re-trial, the Crown applied for leave to question Mr. Hinds by video-link, submitting that (a) s.37(1)(a) of the Evidence Law (2007 Revision), as read with s.37(2), provided that the court may grant leave for any witness, and not just an expert witness, outside the Islands to give evidence via video-link; (b) it was in the interests of justice that the court hear Mr. Hinds” evidence, which he would only be willing to give by video-link; and (c) there would be no prejudice to the accused, since the defence would be able to see, hear and cross-examine Mr. Hinds, including on his reasons for not travelling to the Islands.

The accused submitted in reply that (a) s.37(1)(a) of the Evidence Law only applied to witnesses such as expert witnesses who were unable to travel to the Islands, and should not be used here since Mr. Hinds was the main prosecution witness and was, according to the defence, the murderer; (b) there was no good reason for Mr. Hinds to refuse to travel to the Islands, since care could be arranged for his children and there was no evidence that the accused had given him reason to fear for his own safety; (c) it would allow Mr. Hinds to give evidence in a consequence-free environment, which would be prejudicial to the accused; and (d) it would not be...