Frank McField files complaint with Chief Justice
The magistrate called the mistrial in a case involving defendant Silvana Lewis on Wednesday, Aug. 28, after viewing closed circuit television footage of the waiting area outside her courtroom earlier that day.
Sociologist and former government minister Mr. McField submitted a letter of complaint about the matter next day to Chief Justice Anthony Smellie.
Ms Lewis faces charges arising from an incident in May 2012 at the El Caboose Restaurant in George Town. Mr. McField had also been charged in the incident. After the crown closed its case, the magistrate found there was no case for Mr. McField to answer on charges of resisting arrest and obstructing police.
She also found Ms Lewis not guilty of the same charges, but ruled there was a case for her to answer on charges of permitting use of a premises for music and dancing out of hours and assault causing actual bodily harm to a police officer who came to the restaurant.
Ms Lewis told the court she had two defense witnesses and would not be calling Mr. McField as a witness.
The magistrate, in her written reasons for declaring a mistrial, said she had instructed the two witnesses to leave the courtroom, as they could not be present while Ms Lewis gave evidence. Mr. McField, not being a witness, was permitted to remain and observe the proceedings.
The magistrate noted that during earlier stages of the proceedings, she had permitted Mr. McField to question witnesses on behalf of Ms Lewis.
While crown counsel Tanya Lobban cross-examined Ms Lewis, Mr. McField left the public gallery twice, the magistrate said. At lunch time, Ms. Lewis was still being questioned, so the magistrate advised them and Ms Lewis that they were prohibited from discussing the evidence with one another.
The magistrate’s ruling then revealed: “During the luncheon adjournment, the court was advised that on one occasion when Dr. McField left the court room, he [and the two witnesses] engaged in a conversation. The court could not know what the nature of that conversation was but given the report, the court had a duty to conduct its own inquiry to confirm that no inappropriate discussions had taken place….
“As part of its inquiries, the court also viewed the CCTV which captured a prolonged discussion taking place between Dr. McField [and the two witnesses] on one of the occasions Dr. McField stepped out of the court room during Ms Lewis’s evidence.”
After lunch, and before the trial resumed, the magistrate spoke to the three men separately. “Dr. McField disclosed speaking to the witnesses before the proceedings commenced in the morning concerning court procedure and how long the witnesses would have to remain at court. He assured the court that he did not speak to the witnesses specifically about the case. He further explained that on the occasions he stepped out during the evidence he did so because he was coughing and did not wish to give the court the ‘feeling that somehow [his] cough was to give the defendant any kind of instruction or to get her attention, and therefore [he] stepped out.’”
The magistrate said one witness denied speaking to Mr. McField at all during the morning session, while the other said Mr. McField had simply asked him if he was ready to come inside and the witness said he had answered, “Yes, because I need to leave.”
Referring to the “CCTV which captured a prolonged discussion” and the inconsistencies disclosed by her questioning, the magistrate said it was not appropriate to draw any conclusions as to what the discussion entailed. However, the integrity of the evidence the witnesses might have given could have been called into question. “Public confidence in the trial may be undermined by the very occurrence of the conversation, given the circumstances,” she said.
The magistrate was certain that Ms Lewis could still have a fair trial, pointing out that magistrates, who sit as judge and jury, hear things that a Grand Court jury would never be told, but they put inadmissible matters out of their mind and proceed on the evidence presented.
“However, it is not just a question of justice being done, but that justice is seen to be done. It is therefore equally important that a bystander observing these proceedings believed that the defendant could still have a fair trial given the contact between the gentlemen outside of the courtroom and what was now within the court’s knowledge but not in evidence.”
She emphasized there was no reason to suspect that Ms Lewis was involved in any way with what may have transpired between the three men and directed her to return to court on Sept. 12 for a new trial date, with the retrial to be heard by a different magistrate.
Mr. McField’s letter to the Chief Justice also referred to the coughing incidents. He said the magistrate ordered him from the public gallery of the court to question him about why he had left the courtroom that morning.
“I gave as my explanation, which is true, that I had a bad cough and did not want to give the court the impression that I was coughing to gain the attention of the defendant,” he wrote. He said the magistrate seemed not to accept his explanation and “proceeded to expel me from the courtroom and immediately called each of the two [defense] witnesses waiting on the outside in order to question them.
“Neither of these witnesses had been summoned to court and it is my understanding that they could have left at any time. However, they appeared before the honorable magistrate and provided her with answers to her questions concerning my conversation with them.
“I tried to find out from the honorable magistrate why I was called to the dock to be questioned and if any allegations had been made against me. My grave concern is that the Honorable Magistrate Gunn spoke and shouted at me in a manner which was very disrespectful during her questioning my honesty and integrity …. I am a Justice of the Peace of the Cayman Islands and, as such, should not have been treated by a magistrate of this jurisdiction as if I was a common criminal.”
Mr. McField’s letter also referred to the role he had taken on as a “McKenzie friend” – a non-lawyer who is allowed to assist a defendant but not act for him or her as a lawyer. In this case, he said, Ms Lewis deserved to have assistance at all times while before the court, especially because English is not her native language.