Attorneys apologize to Court of Appeal
Four men convicted of robbing the West Bay Road branch of Cayman National Bank of more than half a million dollars in June 2012 will have a retrial, possibly as early as the first two months of 2015.
The Court of Appeal on Friday allowed the appeals of David Tamasa, Andre Nicholas Burton, George Eric Mignott and Rennie Cole. Court president Sir John Chadwick explained the reason for these decisions “a material irregularity in the course of the trial.”
The error concerned the defendants’ right to remain silent and how the jury should be instructed on that point.
Justice Chadwick explained the procedure required by the Court of Appeal Law. When an appeal against conviction is allowed, the court will do one of two things: quash the conviction and direct a verdict of acquittal; or “if the interests of justice so require,” the court may order a new trial.
Justice Elliott Mottley told the crowded courtroom that the basis for allowing the men’s appeals had nothing to do with the facts of the case. He said it had to do with a mistake made by the judge “in which counsel participated.”
He asked if it were not in the interests of justice, and in the interest of both the prosecution and the defendants, that the matter have a fair hearing.
Simon Dennison, who appeared for the director of public prosecutions over the last two weeks, asked the court to consider ordering a retrial.
James Curtis, a lead counsel among the defense attorneys who had argued the appeals, asked the court to look at what a retrial would entail, including the time and money it would require. Other attorneys raised points pertaining specifically to each of the four successful appellants.
Justice Chadwick said the court was satisfied that the interests of justice did require a retrial. It should take place as soon as practicable, and if possible within the first two months of 2015. He noted that bail was not an issue for the Court of Appeal; any bail application should be made to the Grand Court.
The three-member court, including Justice Bernard Rix, had earlier indicated that, before they finalized their written judgment, they would give the attorneys involved an opportunity to comment on how the “material irregularity” came about.
Director of Public Prosecutions Cheryll Richards subsequently attended court and Justice Chadwick summarized the reason he explained earlier for allowing the appeals.
The Police Law requires that, at the close of the Crown’s case in a jury trial, the judge must satisfy himself that the accused is aware that the stage has been reached at which evidence can be given for the defense, and if the accused chooses not to give evidence, it will be permissible for the jury to draw such inferences as appear proper from his failure to give evidence.
That did not happen in the CNB trial. The attorneys informed Justice Alexander Henderson that their clients would not be giving evidence, so the law required the judge to say to the defendants in the presence of the jury that it would be permissible for the jurors to draw an inference.
Justice Henderson did not do this. It became a material irregularity when the judge in his summing up directed the jury that the men’s silence at trial might count against them. He pointed out that each man was entitled to remain silent; the burden of proving their guilt was on the Crown.
But two matters arose, Justice Henderson continued. The jurors try the case on the evidence. The defendants had not given evidence to undermine the case put forward by the Crown. Their silence may count against them, Justice Henderson said, because jurors might draw the conclusion that they had not given evidence because they had no answer or no answer that would bear examination.
The appeal court president said the first irregularity would not have led to a problem if Justice Henderson had told the jurors they were not to draw any inference from the defendants not giving evidence. But the irregularity became material when the judge told jurors they could draw an adverse inference.
Before addressing the jury, Justice Henderson had told prosecution and defense attorneys what he was going to say. No one reminded him of the need to comply with the Police Law regarding the effect of the accused person’s silence at trial. Justice Chadwick asked if this was not counsels’ duty.
Ms. Richards accepted it was counsels’ duty to remind the judge and they had not done so. She said the Crown had raised the Police Law with the judge earlier in the trial. Then when it reached the stage of calling on the defendants to answer the Crown’s case, the Crown should have reminded the judge to advise the defendants in the presence of the jury.
She noted that the defendants were represented by able counsel and the Crown relied on defense counsel to explain the law to them. In trials where a defendant does not have an attorney, the judge goes through this point with the defendant, Ms. Richards said. When defendants are represented, it was accepted that counsel advised their clients.
Justice Rix said it sounded as if the practice in Cayman was that the matter was dealt with fairly when the defendant didn’t have an attorney, but when there was a defense attorney, it was their job to explain the dangers of not giving evidence.
Ms. Richards indicated she could not say what the practice was, because the law regarding adverse inference had not been in effect very long. The new Police Law was passed in Legislative Assembly on Sept. 15, 2010. The governor gave his assent on Nov, 11, 2010. The CNB trial took place in April-May, 2013.
Mr. Curtis said the court could be certain that the failure to remind the judge was not deliberate: “We fall on our sword on the basis that we simply did not notice it.”
Mr. Curtis added, “We formally apologize. We regret what has happened.”
Justice Chadwick said he would regard it as extremely unlikely for there to have been a conspiracy of silence to allow the judge to fall into error.
In a related judgment, the court allowed the appeal of David Tamasa against conviction for the Weststar Television Centre robbery in May, 2012. Tamasa’s conviction was quashed and a verdict of acquittal was ordered. Andre Burton’s appeal against conviction and sentence was dismissed. Ryan Edwards’ application to appeal out of time was dismissed. The court did not order a retrial.
Ryan Edwards’s appeal regarding the CNB robbery trial was also dismissed.