" • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 IN THE GRAND COURT OF THE CAYMAN ISLANDS HOLDEN AT GEORGE TOWN, GRAND CAYMAN Appearances: Before: REGINA V. IND. NOS. 60 OF 2012, 62 OF 2012, 63 OF 2012 & 14 OF 2013 DAVID JOSEPH MORRIS TAMASA RENNIE COLE GEORGE MIGNOTT ANDRE BURTON RYAN ADRIAN EDWARDS Mr. Trevor Ward of the Office of the Director of Public Prosecutions for the Crown Mr. James Curtis Q.C. instructed by Lucy Organ of Samson and McGrath for the Defendant Tamasa Ms. Prathna Bodden of Samson and McGrath for the Defendant Cole Mr. Nick Hoffman instructed by Guy Dilliway-Parry of Priestleys for the Defendant Mignott Mr. Anthony Akiwumi instructed by Margeta Facey-Clarke for the Defendant Burton Ms. Keva Reid of McKinney Reid & Company for the Defendant Edwards Hon. Justice Henderson Regina v. Joseph M Tomaso, Rennie Cole, George Mignott, Andre Bur/on, Ryan A. Edwards Ind. Nos. 60 of2012, 62 of2012, 63 of 2012 & 14 of2013 03.05.13 Page 1 of5 " 1 2 Heard: May 3, 2013 3 4 5 6 7 8 ORAL RULING
The defendant Andre Burton, supported to an extent by the other defendants, 9 applies at this juncture for a judicial stay of proceedings on the ground that the 10 process of the Court has been abused, 11 12
The law is set out authoritatively in Warren and others vs. Attorney-General for 13 Jersey 2012 1 AC 22 (Privy Council). In that decision their lordships identified 14 two categories of case in which the Court might exercise its jurisdiction to stay 15 proceedings on the ground of an abuse of process. The first, which is not relied 16 upon here, is where it would be impossible to give the defendant or defendants a 17 fair trial. The second, which is the gravamen of this motion, is where it is 18 necessary to protect the integrity of the criminal justice system. The Court made 19 it clear that the two grounds are distinct and must be considered separately. 20 21
The second category of case requires an analysis by the Court which is to some 22 extent subjective. The Court must ask whether the impugned conduct on the 23 part of the authorities -- usually the police -- offends the Court's sense of justice 24 and propriety. It is not it seems to me, the Court's subjective view alone which Regina v. Joseph M Tamasa, Rennie Cole, George Mignott, Andre Burton, Ryan A. Edwards Ind. Nos. 60 of2012, 620[2012,63 of 2012 & 14 of2013 03.05.13 Page 2 of5 I 2 3 4 5 6 7 8 9 10 11 12 13 14 counts; the Court must also take into account its own perception of the public view on the facts presented to it. Would the public in general find that its sense of justice and propriety is offended by permitting the proceeding to continue?
Here the application is grounded in the conduct of Detective Constable Rachel Johnson, She was directed by her superior to act as she did. 5, She interviewed Marlon Dillon on at least four occasions while he was a suspect and under arrest. In the second and subsequent interviews she brought to bear a considerable amount of pressure upon Mr, Dillon which eventually had the desired result. He resiled from his rather far-fetched initial story, admitted full involvement in the robbery, and then identified the five defendants presently on trial as his co-conspirators, IS
In bringing about that result Detective Constable Johnson offered what I would 16 17 18 19 20 21 22 23 judge to be inducements to Mr, Dillon and made what I consider to be threats towards him. There is no doubt that the Judges' Rules were violated (and I think intentionally so) and therefore little doubt that at a trial of Mr. Dillon his second and subsequent interviews would be found to be inadmissible, The question, however, is whether the process has become so tainted by unfairness that my sense of justice and propriety would be offended by allowing the trial of these defendants to continue. Regina v. Joseph M Tamasa, Rennie Cale, George Mignott, Andre Burton, Ryan A. Edwards Ind. Nos. 60 of2012, 62 of2012, 63 of 2012 & 14 of2013 03.05.13 Page 3 of5 I
Of course, what I have said goes directly and fundamentally to the credibility of 2 Mr. Dillon and the jury will be told that not only by counsel but by myself. 3 4
It seems to me that the practice of putting pressure upon defendants for the 5 purpose of getting them to incriminate their co-conspirators is a wide-spread one 6 in western democracies, which all strive in their own way to conduct fair 7 criminal proceedings. My understanding of the practice in the United Kingdom 8 is that infonnants who were participants in a crime are used from time to time as 9 Crown witnesses. It goes without saying that their co-operation must be gained 10 through some sort of inducement or threat. It is highly unlikely that such 11 persons will testify because they think it is simply the right thing to do. 12 13 '9. While it can in some ways be seen as troubling that the Judges' Rules would 14 have been breached in Marlon Dillon's case, it is nevertheless a matter which is IS primarily concerning to Mr. Dillon. The question for these five defendants 16 ultimately is the credibility of Mr. Dillon's evidence. The way in which he was 17 induced to change his story is highly relevant to that. But the rights enjoyed by 18 Mr. Dillon under the Judges' Rules are personal to him. They are not rights 19 enjoyed by his alleged co-conspirators or anyone else whom he may choose to 20 incriminate. 21 22
I find that the conduct of Detective Constable Johnson did not go so far that the 23 integrity of the criminal justice system would be damaged by allowing the trial Regina v. Joseph M. Tamasa, Rennie Cole, George Mignott, Andre Burton, Ryan A. Edwards Ind. Nos. 60 of2012, 62 of2012, 63 of 2012 & 140[2013 03.05.13 Page 4 of5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 to continue. Second, I am satisfied that public opinion in this country would agree with my assessment, assuming that the relevant members of the public were fully aware of the essential facts and considered the matter reasonably.
I should not leave this application without commenting upon its timing. The application is brought without any real notice to the Crown immediately prior to the final addresses to the jury. I, of course, have jurisdiction to exclude evidence where to admit it would result in the trial operating unfairly. It was open to any defence attorney to make an application that Marlon Dillon's evidence be excluded on that ground. Not one of the five attorneys made such an application. It seems to me that if there was no significant reason to think that the admission of Mr. Dillon's evidence would operate unfairly, then that fact itself speaks volumes about the somewhat more radical proposition that the integrity of the criminal justice system would be compromised by allowing the case to go to the jury.
The application is dismissed. Dated this 3rd day of May, 2013 Henderson, J. Judge of the Grand Court Regina v. Joseph M Tomaso, Rennie Cole, George Mignott, Andre Burton, Ryan A. Edwards Ind. Nos. 60 of2012, 62 of2012, 63 of 2012 & 14 of2013 03.05.13 Page 5 of5