Judge: Murder case goes ahead

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. 

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5 COMMENTS

  1. Yesop: because they are NOT allowed to. They are permitted to report what is said in court but they MUST NOT comment or allow comments to be published that might be prejudicial to the trial.

    Might be worth reminding everyone that the law of contempt and the moratorium on commenting on on going criminal matters applies from THE MOMENT A PERSON IS ARRESTED.

    Editor’s note: Beachbum’s last comment on this matter is a subject of some debate we’ve had with the attorney general’s office. To this date, we have not been provided with clear direction regarding precisely when a matter is considered ‘subjudice’ under Cayman Islands law.

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  2. The Editor may be interested in the recent case in the UK (which does set precedents for Cayman) where two newspapers were fined for contempt and, at the conclusion of the case the Attorney General, Dominic Grieve said, This prosecution is a reminder to the press that the Contempt of Court Act applies from the time of arrest.

    There is a discussion ongoing in the UK around the naming of suspects which kay mean that anyone arrested could not be named in the media until such time as they are charged. Of course, I accept that the circumstances in cayman where everyone seems to know everyone else, but perhaps the principle is one that is worth pursuing.

    The recent issue of a person suspended from their job in the Court House is a very good example of this.

    I should be interested in the Editor’s view on this, in particular if they feel that they should or should not be able to name suspects before charge or what their justification is for comment between arrest and first appearance in court, recognising that there are several possible stages to the process.

    (This link provides details of a very interesting discussion around these matters:- http://www.journalism.co.uk/news/attorney-general-media-could-be-banned-from-naming-arrested-suspects/s2/a543220/)

    Editor’s note: Thanks Beachbum. It is interesting to note that until the last couple of years, RCIPS always named suspects once they were charged. The police service no longer does that.

    It has been the Compass’ long-standing policy not to name an individual arrested in a criminal case until they are charged with that crime, unless the individual could legitimately be considered a public figure.

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  3. Thanks to the Editor for comments: I entirely agree with the RCIPS stance on not naming suspects when they are charged and I do this for 2 reasons:
    1) It is not the role of the Police to provide information for the media. They do so, I would presume, only when it is in their interests to do so.
    2) There might be occasions when the court would not wish to have a suspect named. This would be rare but I can think of one area – where an adult appears before them but where naming them could identify a victim

    I have been on both sides of this particular fence having been both a police officer and, more recently, worked for the media. In this case I applaud the RCIPS for they stance and I applaud the Compass for theirs.

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