Cayman Brac resident artist Ronald Gregory Kynes appeared in Summary Court on Friday for another case management hearing before his trial for possession of an obscene publication.
Details of the charge allege that, on or before July 17, 2017, for the purpose of public exhibition, Mr. Kynes possessed “objects which were obscene or tended to corrupt public morals.”
The objects are statues made by Mr. Kynes, 64.
“My art is an expression of my religious convictions and I do not understand why I’m being prosecuted for it,” he said.
He told the court that he is a Roman Catholic and his previous art was based on the Apocalypse and the Bible. The statues now in question represent “my thoughts, my feeling, my emotions,” he said. He handed up a letter to Magistrate Kirsty-Ann Gunn requesting that the matter go to Grand Court because it was “a constitutional issue” – freedom of expression.
The magistrate pointed out that, under Cayman’s Penal Code, the charge against him could be dealt with only in Summary Court.
Deputy Director of Public Prosecutions Patrick Moran said he assumed that Mr. Kynes was saying that the Penal Code was incompatible with the Bill of Rights.
He pointed out that there is a balance to be considered – not just Mr. Kynes’s freedom of expression, but the freedom and rights of other individuals.
He invited the magistrate to proceed on the basis that she would be the judge of both law and fact – not just whether Mr. Kynes was guilty, but whether a conviction (if there was one) would violate his Article 11 rights under the Constitution.
Article 11 deals with Freedom of Expression. The first section states, “No person shall be hindered by government in the enjoyment of his or her freedom of expression, which includes freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his or her correspondence or other means of communication.”
Mr. Moran suggested that the best way to approach the issue was to establish the facts as the court found them to be. If the Summary Court found the evidence to be insufficient, that would be the end of the matter. If there were a conviction, it could be appealed to the Grand Court, which would then have the benefit of the facts as found by the magistrate. Either way, Mr. Kynes’ rights would be protected, the prosecutor said.
Magistrate Gunn agreed that there is a separate provision in the Constitution that allows a person to take a matter to Grand Court, but that was not something she could do. Mr. Kynes would have to make the application, she told him.
Section 26 of the Constitution, under the heading “Enforcement of Rights and Freedoms,” states that “Any person may apply to the Grand Court to claim that government has breached or threatened his or her rights and freedoms under the Bill of Rights and the Grand Court shall determine such application fairly and within a reasonable time.”
The magistrate reminded Mr. Kynes that he had the right to apply for legal advice concerning this stand-alone issue.
Earlier, she reminded him that, at a previous hearing, she had offered him a “duty counsel” who could give him free advice. She asked if Mr. Kynes had spoken to that attorney.
“Yes, ma’am, and I wasn’t impressed,” he replied.
Asked if he wanted another opportunity to apply for legal aid, he said, “No, I wish to continue to represent myself.”
Other matters dealt with on Friday morning included further disclosure requests from Mr. Kynes concerning previous complaints about his work.
The magistrate asked whether there was a clear definition of obscenity and what should happen if witness evidence conflicts with her own opinion.
She also asked about who in Cayman Brac would see the statues, and whether they were visible from the road.
Mr. Moran replied that he could not say if the statues were in the same position now as they were in July 2017.
The magistrate said arrangements should be made for a site visit and any audio/visual equipment needed in the courtroom.
Because much progress had been made in discussing preliminary issues, and because of scheduling conflicts, the magistrate proposed that the trial by judge start in Cayman Brac on Thursday, April 26, at 11:30 a.m. and continue on Friday, April 27. The Court might need to sit after 5 p.m. on both days, she noted.