R v Seymour

• Jurisdiction: Cayman Islands
• Judge: (Edwards, Ag. J.)
• Judgment Date: 14 March 2003
• Court: Grand Court (Cayman Islands)
• Date: 14 March 2003

Grand Court

(Edwards, Ag. J.)

R.

and

SEYMOUR

A.A. Mon Desir, Crown Counsel, and S. Wilson, Crown Counsel, for the Crown;

C. Miskin, Q.C. and L. Aiolfi for the accused.

Cases cited:

(1) M”Alister (or Donoghue) v. Stevenson, [1932] A.C. 562; [1932] All E.R. Rep. 1; 1932 S.C. (H.L.) 31, referred to.

(2) R. v. Shepherd, [1993] A.C. 380; [1993] 1 All E.R. 225, distinguished.

Legislation construed:

Criminal Procedure Code (1995 Revision) (Law 13 of 1975, revised 1995), s.111:

‘Subject to this Code and to any other law for the time being in force in the Islands, the practice of the Grand Court in the exercise of its criminal jurisdiction and the mode of conduct and procedure at trial of any person upon indictment shall be assimilated so far as circumstances admit to the practice of the courts of equivalent jurisdiction in England.’

Evidence Law (1995 Revision) (Law 13 of 1978, revised 1995), s.23:

‘In criminal proceedings where direct oral evidence of a fact would be admissible, a statement contained in a document tending

to establish that fact shall, on production of the document, be admissible as evidence of that fact if-

(a) the document is, or forms part of, a record relating to any trade or business and compiled, in the course of that trade or business, from information supplied (whether directly or indirectly) by persons who have, or may reasonably be supposed to have, personal knowledge of the matters dealt with in the information they supply …’

s.35: ‘In any civil proceedings a statement contained in a document produced by a computer, is, subject to Rules of Court, admissible as evidence of any fact stated therein of which direct oral evidence would be admissible, if it is shown-

(a) that the document containing the statement was produced by the computer during a period over which the computer was used regularly to store and process information …

(b) that over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived;

(c) that throughout the material part of that period the computer was operating properly …

(d) that the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.’

Interpretation Law (1995 Revision) (Laws of the Cayman Islands, 1963, cap. 70, revised 1995), s.40:

‘All such laws and statutes of England as were, prior to the commencement of 1 George II Cap. I, esteemed, introduced, used, accepted or received as laws in the Islands shall continue to be laws in the Islands save in so far as any such laws or statutes have been, or may be, repealed or amended by any law of the Islands.’

Evidence-character-criminal associations-evidence admissible if more probative of charge (e.g. disclosing motive to commit crime to assist associate) than prejudicial to accused-probative value assessed by cogency, strength of inference to be drawn and relevance to charge-cogency may be assumed, and weight and credibility of evidence determined at trial-inadmissible simply to show propensity to offend

Evidence-computer-generated records-criminal proceedings-admissible in criminal proceedings at common law if conditions in Evidence Law (1995 Revision), s.35 (civil proceedings) met

The accused was charged with murder.

The evidence against the accused on a charge of murder was circumstantial. He was reported to have called at the home of the deceased and been given a glass of water, from which his fingerprint was recovered. Shortly afterwards neighbours heard what may have been a gunshot and the deceased was found shot dead an hour later. The accused was apprehended in a car from which he had made or received a telephone call from a third party with whom, it was alleged, he had been communicating frequently during the preceding hours. He had a close association with B, a prisoner serving a sentence in Northward Prison, with whom he had been imprisoned in Jamaica for jointly-committed drugs offences and against whom the deceased, a prison guard, had been about to give evidence in connection with a further large-scale drugs distribution scheme. There was evidence that B had acted as the accused”s protector whilst in prison in Jamaica, and that the accused would have been willing to assist him in avoiding a lengthy custodial sentence upon conviction.

The accused filed an alibi notice stating that he had not been in the vicinity of the deceased”s house at the time of the shooting. He elected for trial by judge alone.

The Crown applied for a ruling that the evidence of the relationship between the accused, B, and the deceased was admissible at the trial to prove the accused”s identity as the killer by showing that he had not only been in the vicinity but also had a motive to kill the deceased. It also sought leave to adduce computer-generated records as the basis for expert evidence as to the timing, location and origin of the telephone calls made on the day in question.

The Crown submitted that (a) the evidence of the accused”s criminal connection and his willingness to assist his friend in any way was not to be tendered as ‘similar fact’ evidence, nor as evidence of criminal propensity, nor as evidence of enmity toward the deceased, but to prove their close affinity; (b) the evidence was cogent, relevant and strongly probative of the charge and the inferences of bad character to be drawn from that evidence were incidental and not significantly prejudicial to the accused; (c) although the Evidence Law contained no provision in respect of criminal proceedings equivalent to s.35 governing the admissibility of computer-generated records in civil proceedings, the legislature had intended that the common law should provide for their admission as part of the general class of business records referred to in s.23; and (d) in the absence of local authority on the issue, under s.40 of the Interpretation Law, the common law of England provided for the admission of the records.

The accused submitted in reply that (a) the evidence connecting him to a third party with a motive to kill the deceased was inadmissible, since his involvement in drugs offences was evidence of bad character which had no bearing on the present charge and was, accordingly, more prejudicial than probative; (b) there was no provision in the Evidence Law for...