Quin J
IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE INDICTMENT NO: 74/2008 THE QUEEN V WILLIAM MCLAUGHLIN MARTINEZ Appearances: For the Crown: Ms. Cheryll Richards Q.C., Solicitor General, and Crown Counsel, Ms. Tanya Lobban For the Defendant: Mr. Mark Tomassi instructed by Mr. Nicholas Dixey of Mourant Ozannes Before: The Honourable Mr. Justice Charles Quin Heard: 6th, 7th 8th, 11th and 12th April 2011 RULING
The Solicitor General, Cheryll Richards Q.C. has applied on behalf of the Crown for leave not to call Mr. Alcott Fisher ("Mr. Fisher") as part of their case, but rather to ensure that he attends at Court, and is available to the defence, should they wish to call him.
The Crown has prepared a helpful chronology setting out the factual circumstances and background to this application, much of which I have adopted.
On the 11th December 2008 the Crown gave notice to the defence that Mr. Fisher would be called as part of their case.
In July 2009, at the first trial of this case, Mr. Fisher was called as a Crown witness. In cross examination he gave evidence which was not included in his witness statement, and which was inconsistent with the Crown’s case, namely that another Crown witness, Jason Hinds, ("Mr. Hinds") smoked ganja socially, would brag about being violent, and would describe himself as a bad man or a "Shotta."
On the 17th August 2010 the Court of Appeal, for reasons that are not relevant to this Ruling, ruled that there was a real risk that the verdict was unsafe, and therefore ordered a re-trial.
In January 2011 the defence notified the prosecution that it wished to interview Mr. Fisher in preparation for the trial. Later that month the defence said that their interview with Mr. Fisher had taken place.
On the 4th April 2011 at the beginning of the trial the Crown applied for an adjournment, as the witness, Mr. Hinds, could not be located.
On Wednesday the 6th April 2011 the Court received a statement from Detective Chief Inspector Peter Kennett ("Chief Inspector Kennett") who had gone over to Jamaica with Sergeant Joseph Wright ("Sgt. Wright") to make the necessary arrangements to have Mr. Hinds give his oral testimony by video link. Chief Inspector Kennett stated that he had met with Mr. Hinds’ sister, who informed him that she was told by someone from Cayman that he, Mr. Hinds, was going to be arrested for perjury. Further, Mr. Hinds told Sgt. Wright that he had received a telephone call from an unknown person who said that Cayman police were in Jamaica and were going to lock him up. As a result, Mr. Hinds disappeared.
Mr. Hinds’ sister also confirmed that on Tuesday the 5th April 2011 Mr. Hinds had received calls from a Cayman telephone number that Cayman police officers were in Jamaica to arrest Mr. Hinds and needed to find him by 10:00 a.m. on the morning of the 6th April 2011 when the adjourned trial was due to start.
Yesterday the defence and the Court were provided with a statement from Sgt. Wright. It appears from his statement that on Wednesday the 6th April 2011 Mr. Hinds told him that he had received calls from a Cayman telephone number, which he recognised as the telephone number of his former employer, Mr. Fisher. Mr. Hinds told Sgt. Wright that he had received three (3) calls from Mr. Fisher’s number that morning. Mr. Hinds also added that it was strange, because he had not heard from Mr. Fisher since he had been arrested in 2008. Furthermore, the Court notes that this is the same morning that the trial was due to start and Mr. Hinds was to give his evidence.
The Crown, as a result of the evidence received from Chief Inspector Kennett and Sgt. Wright, has caused an investigation to commence into this matter, to ascertain whether there has been a deliberate attempt to interfere with the witness and pervert the course of justice.
On Thursday the 7th April 2011 a statement was obtained from the prison authorities with copies of the Visitors’ Logs. These logs show that Mr. Fisher is listed as a friend of the accused and has visited him at HMPS Northward, on the 10th April 2008, 13th December 2008, 22nd February 2009, 7th June 2009, 21st June 2009, 4th July 2010, 26th September 2010, and the 8th January 2011.
On Friday 8th April 2011 the Solicitor General notified the defence that the Prosecution was reconsidering its position in relation to Mr. Fisher, and would make submissions to the Court on this matter. As a result of the investigation, the Crown now seeks to decline to call Mr. Fisher on the basis that he no longer appears to be a credible witness. Position of the Defence
Mr. Tomassi, leading counsel for the Defendant, opposes the Crown’s application.
Mr. Tomassi submits that there are five (5) possible options to introducing Mr. Fisher’s evidence namely: i. The Crown calls Mr. Fisher as their witness as he is on the back of the Indictment; ii. The Crown tenders Mr. Fisher for cross examination; iii. The Judge invites the Crown to call Mr. Fisher as a witness or alternatively orders the Crown to call Mr. Fisher as a witness; iv. The Defendant gives evidence and also calls Mr. Fisher to give evidence; v. The Defendant does not give evidence and calls Mr. Fisher as a witness.
Mr. Tomassi submits that options (iv) and (v) would be forcing the Defendant to call Mr. Fisher, which would be wholly unusual, counter-productive and doomed to fail.
The defence wishes to have Mr. Fisher’s evidence in Court. The defence submits that at the first trial he appeared to be a perfectly decent man giving credible evidence. The defence wishes the Crown or the Court to call Mr. Fisher, not only in relation to the motor vehicle and the items in the motor vehicle, but also as a witness to testify to the good character of the Defendant. In addition, the defence submits that Mr. Fisher can give evidence that is relevant in relation to the existence or not of the ice pick instrument, the non-appearance of the machete, and the possible motive for the attack by Mr. Hinds on the deceased, which the defence says took place. The Law
The legal principles relating to the Crown’s duty to call witnesses are clearly set out in Blackstone’s Criminal Practice 2011 at paragraph D15.17 onwards and can be summarized as follows. The normal practice is that the Prosecution has a duty to call all the witnesses whose statements have been served and appear on the back of the Indictment, or to tender these witnesses for cross examination.
The Privy Council in Adel Muhammed El Dabbah v. A-G for Palestine [1944] AC 156, held that although prosecution counsel has a discretion not to call a witness on the back of the Indictment, he must exercise that discretion in a proper way and not for some oblique motive such as to frighten or unfairly prejudice the accused.
The Crown relies upon paragraph D15.18 of Blackstone where the learned editors state that: "The rationale for [this] rule is that, by denoting an individual as a Prosecution witness the defence may hesitate to approach the witness or take a further statement from him. Moreover since the Prosecution would ensure the attendance of its witnesses, the defence will take no step to ensure they attend."
The learned editors of Blackstone at paragraph D15.19 quoting from Lord Parker C.J. in R v. Oliva 1965 WLR 1028 state: "Prosecuting counsel has a discretion not to call a witness whose name is on the back of the indictment if the witness no longer appears to be a credible witness worthy of belief"
The English Court of Appeal in Russell-Jones [1995] 1 Cr. App. R., reviewed both Adel Muhammed El Dabbah and Oliva and set out the principles which apply, relating to Crown witnesses at the trial of a Defendant, and they are as follows: "(1) Witnesses who are on the back of the indictment ought to be at Court, if the defence wants those witnesses to attend; (2) The prosecutor has a discretion whether or not to call them to testify, depending on the particular circumstances of the case; (3) The discretion is not unfettered, and must be exercised in the interests of justice. (4) It is for the prosecution to decide which witnesses give direct evidence of the primary facts of the case, although normally all such witnesses should be called or offered to be called; (5) The prosecutor is the primary judge of whether or not a witness to the material events is credible, or unworthy of belief. Thus, a prosecutor properly exercising his discretion will not be obliged to proffer a witness merely in order to give the defence material with which to attack the credit of other witnesses on whom the Crown relies."
In the case before me the Solicitor General, on behalf of the Crown, submits that Mr. Fisher is not a witness who can give direct evidence of the material facts, but more importantly, is of a view that Mr. Fisher is not credible or worthy of belief. Accordingly, the Crown has confirmed that it does not wish to call Mr. Fisher. However, so that his evidence is not lost, and in the interests of justice, the Solicitor General has confirmed that she will comply with her duty to ensure that Mr. Fisher is available to the defence, should the defence wish to call him.
Having read the statements of Chief Inspector Kennett and Sgt. Wright, and hearing reviewed the submissions of the Solicitor General and leading counsel for the Defendant, it is my view that the Crown are entitled not to call Mr. Fisher nor to tender him for cross examination. In light of the evidence provided by Chief Inspector Kennett and Sgt. Wright it does appear that there is sufficient basis for the Crown to consider Mr. Fisher no longer credible or worthy of belief. In my view, the Solicitor General is entitled to exercise her discretion not to call Mr. Fisher or to tender him for cross examination. The Court can find no evidence of this discretion being exercised improperly, or for some oblique motive, and therefore it is my view that the Court should not interfere with the Crown’s discretion.
However, it is important that the Court ensures that there is no prejudice to the Defendant. The defence has interviewed Mr. Fisher and has been able to use the information obtained from the interview to cross examine Mr. Hinds. As the Crown has indicated that it will make Mr. Fisher available, it is open to the defence to interview him again before opening their case. The defence can call Mr. Fisher, so that they can attack the evidence of Mr. Hinds, if they so wish. Whether the Defendant himself is to give evidence is a matter in which he can exercise his independent judgment on advice from his experienced leading counsel and attorney. Should the Defendant choose to exercise his right to remain silent, there is sufficient protection within our legal system, together with the necessary directions to the jury to ensure that he is not prejudiced by the Crown’s decision not to call Mr. Fisher or tender him for cross examination.
Accordingly, I accede to the Crown’s application. Dated this the 12th day of April 2011 Honourable Mr. Justice Charles Quin Judge of the Grand Court