Attorneys appeal anonymous witness order

First challenge under new evidence law

Three defence attorneys appeared in
Grand Court
on Friday to argue against an order made at the Summary Court level that would allow a
witness to give evidence anonymously in a preliminary inquiry.

Chief Magistrate Margaret
Ramsay-Hale made the order at the request of the Crown under legislation passed
three months ago – The Criminal Evidence (Witness Anonymity) Law.

Nicola Moore, a former Crown Counsel
now in private practice with Priestleys, argued the bulk of the appeal. Her
submissions were adopted by Attorneys Lee Freeman and Ben Tonner.

“I do accept it is appropriate in a
climate of fear to have anonymous witnesses,” Ms Moore told Justice Charles Quin.
“I am not saying it’s not a good law; I’m saying it’s been applied wholly
inappropriately.”

The court has to balance the right
of the defendant to a fair trial with the witness’ right to life, safety and
protection of property, she indicated.

The problem with the case she was
arguing was that there are no guidelines for the legislation, she said. There
are no Grand Court
rules and no government regulations.

“That has led to the order being
made in a wrongful manner.” She suggested that, since Cayman had chosen to
enact legislation identical to the UK,
one should look at what the UK
has done for interpretation.

No provisions

As things stand, there are no
provisions to guarantee a defendant’s right to disclosure of certain evidence,
Ms Moore said. For example, in a typical case, the Defence has the right to
know if a Crown witness has criminal convictions. In this case, no such information
had been forthcoming. “If a witness has criminal associations, he may well have
reason to make something up,” she suggested.

As to the actual procedure, Ms
Moore objected that the order had been made without the Defence being heard
from.

Crown Counsel Kirsty-Ann Gunn began
her reply late Friday. She argued that the Grand Court did not have the jurisdiction
to hear the appeal at this point. The Grand
Court does hear appeals from any person who is
dissatisfied with any judgment, sentence or order of the Summary Court, she agreed, but that
refers to final orders made at the completion of a matter, not while it is
continuing.

She also noted that, on the
question of disclosure, full disclosure had been made to the court when the witness
anonymity order was applied for.

At one point, Justice Quin remarked
that it would have been helpful if regulations came into effect at the same
time as the law.

He agreed with all counsel that
this was clearly an important matter. With submissions nowhere near completion,
and with the defence attorneys having the right to reply, the judge said he
would continue this hearing on 15 June, after another matter that could not be
put off.