R v Jacquelin Cadet

JurisdictionTurks and Caicos Islands
JudgeBaptiste J
Judgment Date05 February 2024
Docket NumberCR2 of 2022
CourtSupreme Court (Turks and Caicos)
Rex
and
Jacquelin Cadet
Before:

The Honourable Mr. Justice Davidson Kelvin Baptiste (Ag)

CR2 of 2022

IN THE SUPREME COURT

APPEARANCES:

Mr. Clement Joseph, Principal Public Prosecutor and Ms. Alima A. Alexis, Public Prosecutor, for the Crown.

Mrs. Lara Maroof for the Defendant.

RULING
Baptiste J
1

The defendant (Cadet) is being tried on an information containing three counts; one count of possession of a firearm and two counts of possession of ammunition. The police gave evidence that an authority to search the defendant's home was obtained and pursuant to the execution of that authority a firearm and ammunition were found at his home. Cadet told the police how the firearm came to be there; basically, he sent for the firearm from Haiti, after someone called Ken had threatened him.

2

Learned counsel Mrs. Maroof had requested the Crown to provide details of the information provided to the police which led to the issuance of the authority to search the defendant's home for the firearm and ammunition. On 30 th January 2024, during the trial, Mrs. Maroof raised the issue of non-disclosure of that information.

3

Thereafter, the court began hearing a Category 1 abuse of process application, with Mrs. Maroof contending that the Crown had breached its disclosure obligations and the nondisclosure of the information would result in the defendant not getting a fair trial. The application was subsequently withdrawn. Mrs. Maroof then sought a disclosure order from the court in respect of the information.

4

Mrs. Maroof contended that the information requested fell within the broad category of potentially relevant material in light of the fact that the defence statement denied possession or knowledge. The details as to what evidence was provided might assist the defence or undermine the prosecution's case. Mrs. Maroof submitted that the information which the Crown have failed to retain, obtain or provide, go to an issue of significance to the defence, namely persons who had knowledge of the firearm and its location and how they came to know of it. Mrs. Maroof relied on R v H [2004] 2 AC 134 which dealt with public interest immunity and disclosure. Reliance was also placed on other cases.

5

In resisting the application for disclosure, Mr. Joseph argued that the Crown is not asserting public interest immunity and it is not a R v H case. Mr. Joseph relied heavily on section 108 of the Evidence Ordinance CAP 2.06 of the Turks and Caicos Islands and stated that the statute trumps the Common Law. The Crown advanced the position that the police cannot be compelled to give the information as to where the information leading to the grant of the authority to search came from, by virtue of section 108. The court does not have the jurisdiction to force the police to give the information. The question as to who gave the police information is irrelevant to the case.

6

Mrs. Maroof contended that the prosecution has applied an incorrect approach to section 108 of the Evidence Ordinance. Regardless of section 108, the Crown are still obliged to request the material from the police, and review. If the material falls within the broad category of material which should be disclosed, but the police seek to rely on section 108 and public interest immunity, an application would need to be made to the court in accordance with the procedure set out in R v H. The section does not permit the Crown to proceed with a prosecution where the defendant's right to a fair trial is breached. It is understood from the Crown's response that they have not made inquiries.

7

I now consider R v H, in which the House of Lords gave its opinion on two points of law of general importance which were certified by the Court of Criminal Appeal. Are the procedures for dealing with claims for public interest immunity made on behalf of the prosecution in criminal proceedings compliant with article 6 of the Protection of Human Rights and Fundamental Freedoms? If not, in what way are the procedures deficient and how might the deficiency be remedied?

8

At paragraph 18 in R v H, the Court stated that circumstances may arise in which material held by the prosecution and tending to undermine or assist the defence cannot be disclosed to the defence, fully or even at all, without the risk of serious prejudice to an important public interest. The...

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