Hull J
CAYMAN ISLANDS
IN THE GRAND COURT
Criminal Side
IND. NO. 7/85
THE QUEEN
versus
DELROY WEBB
AND
JAMES DARRELL STEWART
Mr. Jones for the defendant Delroy Webb.
Mr. Giglioli for the defendant James Darrell Stewart.
Mr. Smellie for the Crown.
REASONS FOR DECISION
On Tuesday 7th May, 1985, I refused applications by the defendants to be tried separately, and I said I would subsequently give short reasons in writing.
Mr. Jones accepted at the outset that the indictment could include the counts against each defendant. They are not jointly charged on any one count but he conceded that they could be joined on the indictment under either of paragraphs (c) and (d) of section 153 of the Grand Court Law. Mr. Giglioli adopted the same arguments as Mr. Jones, and Mr. Smellie for the Crown relied also on section 233 (1) of the Penal Code.
In fact, it was not apparent from reading the indictment as it stood that the two counts against Stewart are connected to any of those against Webb, but counsel agreed that count 4 is connected with count 7, that count 5 is connected with count 8, that the Crown will be applying to amend the indictment to show why this is so, and that no objection will be taken to this course.
Although there are no joint charges as such on any count it appears to me that the principle referred to in Lake (1977) 64 Cr. App. Reports 172 at page 175, ie. that normally joint offences should be tried jointly, applies equally to this case.
The issue here was whether each defendant might be prejudiced by a joint trial. If such a trial would create improper prejudice against either, then I ought to have granted their applications. However I am
not satisfied that this would be so.
Mr. Jones relied primarily on the statement made under caution by Stewart on 22nd September, 1983 (at which time Webb was not present). In this, Stewart made admissions about himself but said in effect that he had been led into the activities by Webb. He went into some detail as to the part allegedly played by Webb. Mr. Jones also referred to—
(a) the statement of Sergeant Wesley Gibson which describes a prior interview of Stewart by Detective Superintendent Mirfield in which the latter officer put to Stewart a number of lengthy questions, some of which involved the assertion at some length of the allegations against Webb; and
(b) the statement of Jack Newby Junior describing a discussion, at which he was present, between Stewart and the Chief Medical Officer which contains a reference implicating Webb.
All three statements are inadmissible against Webb and Mr. Jones maintained that the first would be highly prejudicial to him, if put before the jury at his trial. To a lesser extent, he advanced the same argument in respect of the other two statements. He said that no matter how strongly and clearly directed, the jury would not be able to put them out of their minds.
I cannot agree. The prima facie case against Webb does not depend on any of these statements. In relation to the first, I think it is overstating the matter to contend that it will be highly prejudicial. There will be some degree of risk of prejudice but I consider that it can be kept to a minimum by appropriate directions, and that it is not such as to warrant separate trials. The risk of prejudice in relation to the other statements is very slight; Mr. Smellie in fact indicated that the evidence could be called in such a way as to virtually eliminate it.
Mr. Giglioli's application rested on the proposition that if Stewart, who only faces two counts, is tried jointly with Webb who faces six counts, the jury will tend to associate him with those counts for which he is not tried, but I can see no real reason why this should be so if they are given proper directions.
The directions will need to be clear and firm, but they will not have to be complicated. The nature of the allegations against the defendants is such that they ought in my view to be tried jointly.
David Hull
Puisne Judge
8th May, 1985.