The trial for Josue Carrillo-Perez, accused of murder, will start on 14 September.
He is accused of murdering Martin Gareau at Mr. Gareau’s home in Beach Bay between 16-20 May 2008 — the long weekend of the Discovery Day holiday.
The defendant, 28 at the time, is a Honduran national.
Mr. Gareau, 47, was a Canadian who had been working in Cayman since shortly after Hurricane Ivan in September 2004.
The trial date was set last Friday by Justice Leighton Pusey after hearing from Defence Attorney Anthony Akiwumi and Senior Crown Counsel Trevor Ward.
Mr. Perez was first brought to court on 13 June 2008.
The preliminary inquiry into the charge took place over several days during which Crown witnesses gave their evidence. The inquiry concluded on 17 December and he was committed to the Grand Court.
After committing Mr. Perez to Grand Court, the magistrate realised she had not complied with certain provisions of the Criminal Procedure Code. She had the defendant brought back to court the next day. After hearing from attorneys, she concluded she had no authority to remedy the defects in the proceedings.
In February, Mr. Akiwumi argued in the Grand Court that the indictment should be set aside on the ground that the committal was a nullity. Mr. Ward replied that the defects were procedural only and could be remedied.
Justice Alexander Henderson heard the arguments and dismissed Mr. Akiwumi’s application.
He did agree there was a time when failure to comply with a mandatory procedural requirement would have been fatal. The indictment would have been set aside. But the question has been considered in a modern context, the judge pointed out in his written ruling.
In 2002 the Privy Council said, among other things, that some breaches of procedural rules are less grave than others. The degree of gravity may vary not only according to which rule was broken but also according to the circumstances in which the breach occurred.
‘It is now accepted that in order to determine what is the result of failure to comply with something prescribed by a statute, one has to look beyond the language and consider such matter as the consequences of the breach and the implications of nullification in the circumstances of the particular case,’ Justice Henderson quoted.
The judge said the magistrate’s omissions had resulted in four deficiencies: Mr. Perez was not asked if he understood the charge; he was not asked if he wished to give evidence in his defence; he was not asked if he wished to call witnesses at the preliminary inquiry and was not asked if he intended to call witnesses for his trial.
‘The significance of these omissions must be assessed individually and in light of the circumstances,’ Justice Henderson said.
He noted that Mr. Perez was represented by an experienced criminal practitioner throughout the preliminary inquiry.
‘The charge against him is in simple terms. It is inconceivable that he did not understand the charge. The failure to ask him if he understood it can therefore be dismissed as inconsequential,’ the judge said.
As to giving evidence, there was no indication given at any time during the relatively lengthy preliminary inquiry that Mr. Perez wished to give evidence or call witnesses.
The magistrate did tell Mr. Perez at the outset that he would have an opportunity later in the enquiry of making a statement or calling witnesses, the judge pointed out.
‘No indication was given throughout the hearing that Mr. Perez wished to avail himself of the opportunity. It is relatively uncommon for a defendant to call witnesses, even alibi witnesses, at a preliminary enquiry in this jurisdiction. Most prefer to reserve their defence until trial,’ the judge said.
‘Mr. Perez has been unable to demonstrate that he has suffered any prejudice from the magistrate’s failure to invite him to give evidence and call witnesses. On the other hand, setting aside the committal for trial would result in a repetition of a relatively lengthy preliminary inquiry at which many of the witnesses would have to be recalled. In the circumstances, that would serve little purpose.’
The judge said he was satisfied it would not be in the interests of justice to set aside the committal for trial and direct that the committal process begin again.
He said the requirement for asking a defendant whether he intends to call witnesses is intended as a protection for someone who is not represented by an attorney. When the defendant is represented, his attorney may obtain witness summonses from the court registry in the usual way.
Justice Henderson concluded that the modern approach to procedural omissions at a preliminary inquiry ‘requires a consideration of the prejudice, if any, which has been caused to the defendant, and a weighing of that against the implications of setting aside the committal for trial.’
In the case before him, the equities favoured leaving the committal for trial untouched.