Crown admits to breaching disclosure obligation
An application by defence attorney Peter Polack for a stay of proceedings in a case of alleged murder, as the result of a claim of abuse of process, was dismissed by Justice Alexander Henderson on 27 July.
Mr. Polack, who represents Raziel Omar Jeffers against a charge of murder stemming from an incident in 2009 in which Marcus Ebanks was killed, had argued the Crown failed to meet their disclosure obligations and as a result his client had been prejudiced.
Statements released to the defence before a Long Form Preliminary Enquiry, which took place on 6 July, 2010, totalled 22. After the Preliminary Enquiry, 58 witness statements were given, which had always been in the Crown’s possession.
In his remarks, Crown prosecutor Trevor Ward said to his knowledge, disclosure requirements are such that partial disclosure is acceptable once the crux of the case has been disclosed and the other material does not counteract that to a glaring extent.
“In light of the what the case was, 22 statements were disclosed. What was disclosed was a full picture at the time, in terms of a summary of the cased and the witnesses,” Mr. Ward said. He said the defence at the time accepted a Prima Facia had been established and did not make submissions otherwise at the time.
Still, Mr. Ward did concede the Crown had breached their obligation for disclosure, but not in such a way as to prejudice the defendant to an extent that it would have affected the outcome of his committal.
Mr. Polack is the third attorney to represent Jeffers in the matter and was not the defendant’s attorney at the time of the PI in question.
He told the court that it was unacceptable for the Crown to operate in such a way and surmised that further disclosure could have affected the outcome of committal, as statements of other witnesses, which he said were relevant and contradicted other statements, as well as crime scene photos were not disclosed.
Justice Henderson read through the statements that were proffered during the PI and said, “The function of a Magistrate is to determine whether there is a Prima Facie case. She must decide if the evidence – once believed – is sufficient. She is not there to weigh the credibility of witnesses.”
In admonishing the Crown for their admitted lack of disclosure, Justice Henderson said it was an, “unedifying spectacle to have the Crown concede to non-disclosure.” He said he was concerned there was not a clear, written policy in the legal department for all to follow, adding that he hoped there would be no repetition.
During the proceeding, it was established the laws concerning disclosure are different in the Cayman Islands than in Britain, where the disclosure obligation on the prosecution is less rigid.
Upon returning from adjourning proceedings to consider the matter, Justice Henderson said, “In the Cayman Islands the Crown has a duty to disclose all information on events, and circumstances, with only special exceptions,” adding that, “The CI obligation is different than that of United Kingdom, where the obligation is circumscribe.”
He said that though the accused man’s rights to disclosure have been breached, it seemed to have been in good faith, as Mr. Ward was apparently assuming the same rules applied in the Cayman Islands as those in Great Britain.
“My task is to access whether he has been prejudiced unfairly by the non-disclosure,” said the Justice, who pointed out the matter must be considered as a whole.
“If all the statements had been handed over, the Magistrate would have still been bound to send the matter to trial …. The evidence justifies trial and other witnesses do not totally negate this.” He said the statement of the chief witness in the matter was enough to commit the matter to trial and the defendant has suffered, “no real prejudice from what has happened.”
The Justice directed Mr. Polack to advise the Crown in seven days of any further disclosure to which his client is entitled. The Crown has been ordered to produce a list of witnesses in seven days.
A case management conference has been scheduled for 5 August. No trial date has been set in the matter.