No defendant, no trial

When Hank Edward Barnes didn’t show up for his trial last week Monday, potential jurors were sent away for a day while attorneys debated what should happen next.

Barnes, 47, had previously pleaded not guilty to a charge of bigamy and his trial was set for five days, starting 23 February.

Crown Counsel Kirsty-Ann Gunn argued trial should proceed. She cited a section of the law that states if a defendant wilfully absents himself the trial may go ahead without him. The Crown had all its trial witnesses ready, she said.

According to Immigration records, Barnes, a Caymanian, departed from Cayman on 7 February aboard a flight to Jamaica. Records showed he had not returned to this jurisdiction.

An officer from the West Bay Police Station said Barnes reported there on 6 February and was re-bailed for 12 February. He phoned and said he was going to Jamaica for a visa and would be back in time to answer his bail. However, the officer had not seen Barnes since.

The next witness was a woman Mrs. Gunn referred to a Barnes’ current partner. She told the court she and Barnes both went to Jamaica and planned to return on 11 February. She last saw him on the 10th.

She said she and her sister went into Kingston and when they got back to where they had been staying, Barnes was not there. ‘My sister told me he said he was going to Cuba, but I do not know.’

She said she travelled back to Cayman with his clothes, but he had his passport. Since then, she had not spoken to him but did receive a message that he had called on her cell phone. However, she did not have the phone because she had left it home charging.

Justice Alexander Henderson asked if she had made any inquiries and she replied, no. Asked what if Barnes were in a hospital in Jamaica, the witness replied that her sister had said he said he was going to Cuba, so… She did not finish the sentence.

The judge told attorneys he was not dealing with a question of guilt or innocence. It was whether by his conduct Barnes had waived his right to be present at trial. The court had to decide on the balance of probabilities.

Mrs. Gunn summarised her argument: Barnes was not on the island and had made no contact to say he could not come. There was confirmation he had his passport.

Defence Attorney Edward Renvoize said the first hurdle was, was Barnes’ absence wilful? But there was no evidence of wilfulness. The Crown was asking the court to infer wilful absence in a vacuum.

In his decision, Justice Henderson said the Crown carried the burden of proof, but it was only to the civil standard of balance of probability.

Did Barnes’ behaviour constitute a waiver of his fundamental right to be present at his own trial? the judge asked.

Evidence established that Barnes was on bail, he left Cayman and went to Jamaica with his current wife, he reported to police in compliance with his bail. When his wife gave evidence, her demeanour did not display any heightened degree of anxiety.

The wife’s evidence of what her sister said Barnes said was hearsay, but admissible in this situation because the court was not dealing with guilt or innocence.

The evidence of Barnes going to Cuba was consistent with wilful refusal, as well as reckless disregard, the judge said. However, it was equally consistent with the hypothesis that some mishap has occurred in Jamaica or Cuba, such as an accident or arrest.

One could not infer from lack of contact that the act of not attending was wilful, the judge concluded.

The message was subsequently put on the jurors’ phone line that they need not return for that trial.

According to Immigration records, Barnes, a Caymanian, departed from Cayman on 7 February aboard a flight to Jamaica. Records showed he had not returned to this jurisdiction.

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