More than a month before McKeeva Bush’s indecent assault trial began, a judge at a pre-trial hearing rejected efforts by his defence team to get the court to order a search for correspondence they felt would show a conspiracy theory involving a former police commissioner and governor.
Grand Court Justice Cheryll Richards, in her ruling on 9 Jan., dismissed that application, calling it a “quantum leap” to even assume such correspondence existed.
Bush’s team had sought an order from the court for the prosecution to disclose correspondence they believed may have existed between senior officials, including former Governor Martyn Roper, former Commissioner of Police Derek Byrne, police officers, the complainants and a witness.
Richards described an assertion by the defence that a message sent by Roper the day after the alleged 13 Sept. 2022 indecent assault offences, pointed to the existence of related correspondence and a conspiracy between senior officials to bring the case against Bush, as a “quantum leap” and entirely speculative.
The court had heard that Roper’s message, referring to the allegations, had stated, in part, “And, from what I know, there seems no reason to doubt them, I am shocked at this behaviour… unacceptable at any time, as far as I am concerned.”
Roper’s message had been written after news of the alleged incidents involving Bush and two female civil servants at a government-hosted cocktail reception emerged. It was subsequently stated in court that Bush had kissed one woman’s shoulders and left a love bite, or hickey, on the other woman’s hand.
Bush was charged in June last year with two counts of indecent assault, and two alternate charges of common assault, all of which he emphatically denied during his trial. That trial collapsed on 29 Feb. when Justice Stanley John stopped the proceedings and discharged the jury, citing an abuse of process in the way Bush was prosecuted and brought to court.
Bush claims ‘interference in investigation’
During the pre-trial hearing before Richards, the defence team, represented by Dennis Brady, had told the court that the former governor’s 14 Sept. 2022 message gave the defence cause to believe that other messages existed which would indicate there was conspiracy against Bush.
“The material will assist in determining the credibility of witnesses,” Brady stated in the submission. “It is relevant to determine who else was present, and a possible motive for false allegations made against Mr. Bush, inconsistency regarding the statements and what was reported and when.
“And there appears to be interference in the investigation and process from members of the governor’s office and the government of the Cayman Islands.”
The defence team had asked that five sets of materials be released – including a range of correspondence between senior governor officials, investigating police officers, witnesses and the complainants.
In its submission to the court, Bush’s legal team accused the Office of the Director of Public Prosecutions of being biased and carrying out a “proxy prosecution” and that there was a conspiracy to embarrass Bush in his professional capacity by wrongfully accusing him of a crime.
The defence claimed Roper “had his finger on the scale”, which was indicated by his message on 14 Sept 2022 – two days before the first complainant made her complaint to police.
The former governor’s message, the defence claimed, had seemed to indicate Bush had “done something wrong”, and at the time that message was sent – the day after the alleged offences at The Ritz-Carlton hotel, there was nothing on record about any kind of inquiry. Thus, the defence argued, there must have been other communication that led up to the governor sending that message.
Judge: ‘Speculative in the extreme’
Richards, in her ruling, which she read aloud in court on 9 Jan. before legal counsel – Bush was not present – said there was no evidence the material sought by the defence “actually exists”.
She stated, “As it relates to the governor, the expression of an opinion in a single message is said to mean that other messages or correspondence is likely to exist. In my view, that is not a reasonable conclusion to make.
“The application seems to make what can only be described as a quantum leap between a single message and what is said to be a conspiracy among of number of persons… there is no evidence of any conspiracy,” Richards said.
She added, in her view, it was “speculative in the extreme” to conclude that the opinion expressed by one person was evidence that there was a conspiracy among five people
She described the defence’s application as being “little more than a discovery exercise which is not viewed with favour”, and added that such a summons “cannot be used to search for material which may not exist”.
Despite this, Richards urged the Crown prosecution, that if it were aware of such correspondence – if it existed at all – to reveal that to the defence as part of the case’s discovery process.
During the trial last month, there was late disclosure to the defence of a number of pieces of correspondence between one of the alleged victims and her civil service boss, police and a staff member of the Office of the Director of Public Prosecutions, about her reluctance to be involved in the case. This led Bush’s attorney Sallie Bennett-Jenkins, KC, to successfully argue there had been an abuse of process in bringing Bush to court.
Richards, in her ruling, said the core of the case rests on the complainants making their reports on the incident, and she recommended that a search be made for any material that pointed to that issue.
“In the view of this court, it would be prudent and appropriate for the prosecution to undertake a full review of the disclosure to date and inquire whether all material evidence in direct or indirect contact with complainants 1 and 2 with any of the named persons in the five aspects of the application have been obtained and disclosed,” she advised.
Richards placed reporting restrictions on her ruling, ordering that it be embargoed from being released publicly until after Bush’s trial.
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