In the trial of Devon Anglin for the 2009 murder of Carlo Webster, two witnesses who gave evidence anonymously have had their anonymity preserved.
Chief Justice Anthony Smellie gave his ruling on Tuesday after defence attorney Dorian Lovell-Pank applied to have the witness anonymity orders lifted.
Reviewing some of the evidence of what happened at the Next Level Night Club the night Mr. Webster was fatally shot, Mr. Lovell-Pank said serious contradictions in the Crown’s case showed or might show that both anonymous witnesses were not simply mistaken or confused in their evidence, but they were lying.
“As long as they remain anonymous, we are unable to explore why they have got things so wrong,” Mr. Lovell-Pank said. Unless the anonymity order were lifted, the trial would cease to be fair, he argued.
Director of Public Prosecutions Cheryll Richards acknowledged there were apparent inconsistencies, but they did not mean the witnesses were deliberately lying or they had an improper motive for giving evidence against Anglin.
The chief justice said his primary concern was to ensure that the defendant has a fair trial. He cited a 2009 case in which the presiding judge said the law seeks to preserve “the delicate balance” between the rights of the defendant and the rights of the witness. The defendant is entitled to a fair trial and public hearing, and to question or have witnesses who testify against him properly questioned. The witness has the right to life and physical security “and, indeed, the right to respect for his or her private life.”
In this trial and the application to lift anonymity orders, he said the main question that should guide his decision was “whether circumstances have arisen such as to give real cause for concern that a fair trial would no longer be achievable without the anonymity orders being lifted and thus whether that ‘delicate balance’ to be maintained for the preservation of witnesses’ rights has been tipped in favour of the defendant’s right to a fair trial.”
The chief justice accepted the legal basis of the application by the defence. The Criminal Evidence (Witness Anonymity) Law was passed last year. It allows a judge or magistrate to grant an order to ensure that a witness will be heard anonymously. However, it also provides the order may be varied or lifted. The trial judge is required to keep the matter under constant review.
This is the first trial in which the presiding judge has been asked to lift a witness anonymity order at the stage where the Crown has called all of its evidence but has not yet closed its case.
The Chief Justice said it was understandable that there would be concerns about the trustworthiness of an anonymous witness. He also said he was the only person who had heard and seen the anonymous witnesses, via video link, while everyone else in the courtroom only heard the witnesses.
“Both the defence and the prosecution are therefore wholly reliant upon my assessment of the reliability and credibility of the two witnesses,” he said.
Since Anglin chose to be tried by judge alone, the chief justice was sitting as the trier of fact as well as the trier of law, and that underscored his obligation to constantly review the question of witness trustworthiness.
The question was: Was there any reason to doubt the witnesses’ trustworthiness? The judge said there had been effective cross-examination as to the crucial issue of the view each witness had of the incident. There had been opportunity to explore whether their evidence might have been tainted by rumour, suggestions or discussions among themselves.
The chief justice said he had reviewed detailed information about the background of the two witnesses and he was satisfied the Crown had fulfilled its obligation to disclose any further information. He was satisfied he had all the material with which to make an informed decision.
He was satisfied the anonymity orders should not be lifted.
First, he said, there was nothing in the witnesses’ background to suggest they had a motive to lie.
Second, there was nothing about the inconsistencies identified in their evidence that must inexorably lead to the conclusion that either witness had deliberately lied.
“Such as those inconsistencies or contradictions may be, I am satisfied that a fair trial of the defendant remains eminently achievable without the need to disclose the identity of the witnesses,” he said.
Ms Richards, assisted by Crown Counsel Elisabeth Lees, then closed the case for the Crown.
Mr. Lovell-Pank, instructed by attorney Lucy Organ, then submitted there was no case for Anglin to answer. He said the sole issue in the case was the correctness of the identification of the gunman. He argued there was not sufficient reliable evidence on that point for a jury to convict and he listed contradictions.
Ms Richards was scheduled to respond on Wednesday.