R v Meadors (David Dean) - Judgment

¶ ____________________________________________________________________________________ Judgment on Application for the Defendant to participate in and give evidence at trial by video link: R v. Meadors (David Dean). Ind. 0060/2017 Coram: Chapple J. (Actg.). Date: 29.05.19 Page 1 of 13 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL SIDE 2 3 IND NO: 0060/2017 4 5 6 REGINA 7 8 v. 9 10 DAVID DEAN MEADORS 11 12 13 14 Appearances: Mr. Patrick Moran, Deputy Director of 15 Public Prosecutions for the Crown 16 17 Mr. Ben Tonner Q.C. of McGrath Tonner 18 for the Defendant 19 20 21 Before: Justice Roger Chapple (Actg.) 22 Heard: 24th May 2019 23 24 25 HEADNOTE 26 Criminal Law – s.7 of the Bill of Rights – s.60 of the Criminal Procedure Code – 27 s.37 and s.38 of the Evidence Law - Application for the Defendant to participate 28 in, and give evidence at trial, by video link. 29 30 31 JUDGMENT 32 ON APPLICATION FOR THE DEFENDANT TO PARTICIPATE IN, AND GIVE 33 EVIDENCE AT TRIAL BY VIDEOLINK 34 35 36 37 38 ____________________________________________________________________________________ Judgment on Application for the Defendant to participate in and give evidence at trial by video link: R v. Meadors (David Dean). Ind. 0060/2017 Coram: Chapple J. (Actg.). Date: 29.05.19 Page 2 of 13

¶ [1] On 7th September 2017, David Meadors, the Defendant, appeared before the Grand 1 Court and was arraigned upon an indictment containing five counts. He pleaded 2 guilty to counts 1 and 2 (importation and possession of an unlicensed firearm – a 3 Glock 9 mm handgun – on 7th July 2017) and not guilty to counts 3, 4 and 5 4 (importation/possession of 240 rounds of 9mm ammunition and possession of an 5 unlicensed BB gun, also on 7th July 2017). 6 7

¶ [2] At the conclusion of that hearing, David Meadors’ bail was varied to permit him to 8 leave the jurisdiction for 10 days in order for him to inspect and deal with recent 9 hurricane damage at a property he owns in Florida. An application to allow him 10 further time out of the jurisdiction was refused. The Defendant accordingly 11 returned to the Cayman Islands. 12 13

¶ [3] The trial on counts 3, 4 and 5 was scheduled to commence on 19th April 2018. On 14 18th January 2018, following an application, not opposed by the prosecution, bail 15 was again varied to allow David Meadors to leave the jurisdiction until 4th 16 February 2018 – on this occasion, for medical reasons. 17 18

¶ [4] Further applications were made and granted for David Meadors to remain outside 19 the jurisdiction, since it was said that a series of medical tests and procedures were 20 required and that his condition had worsened. Following a hearing - at which the 21 Defendant appeared by live video-link - bail was again varied, effectively requiring 22 him to return to the Cayman Islands by 27th April 2018. He did not do so. A 23 warrant was issued for his arrest. 24 25 26 27 28 29 30 31 ____________________________________________________________________________________ Judgment on Application for the Defendant to participate in and give evidence at trial by video link: R v. Meadors (David Dean). Ind. 0060/2017 Coram: Chapple J. (Actg.). Date: 29.05.19 Page 3 of 13

¶ [5] David Dean Meadors remains outside the jurisdiction. He has made it clear, via his 1 legal advisors, with whom he remains in communication that he will not return to 2 this jurisdiction for his trial. It is in these circumstances that the prosecution apply 3 for the trial of counts 3, 4 and 5 of the indictment to proceed in his absence. 4 5

¶ [6] David Meadors’ position is that although he would very much like matters to be 6 resolved, his medical condition is such that he cannot, reasonably or safely, travel 7 from the United States of America to the Cayman Islands for his trial. 8 9

¶ [7] David Meadors has consented to disclosure of his medical records and medical 10 examination by an independent expert. A substantial volume of medical evidence 11 and opinion is now available. The Prosecution, relying principally upon the reports 12 and opinions of Dr Yancey, contend that whilst David Meadors may have some 13 medical problems, they are not such as to prevent him from surrendering to his bail 14 in this jurisdiction and submitting to the trial process. The views of Dr Cox, 15 instructed on behalf of David Meadors and Dr Yancey are, on the face of it, 16 diametrically opposed. 17 18

¶ [8] When this case first came before me earlier this month, it was intended that I 19 should hear oral evidence from both Dr Cox and Dr Yancey, in order for me to 20 decide whether or not the Defendant was, in reality, able to return to the Cayman 21 Islands and stand his trial – effectively determining whether his absence was 22 voluntary or involuntary. 23 24

¶ [9] The starting point, it is agreed, is the Cayman Islands Constitution Order, 2009, 25 which established a Bill of Rights, Freedoms and Responsibilities for this 26 jurisdiction. Section 7 of the Bill of Rights provides, insofar as it is relevant to this 27 application, as follows: 28 29 ____________________________________________________________________________________ Judgment on Application for the Defendant to participate in and give evidence at trial by video link: R v. Meadors (David Dean). Ind. 0060/2017 Coram: Chapple J. (Actg.). Date: 29.05.19 Page 4 of 13 “Fair trial 1

¶ [7] (1) Everyone has the right to a fair and public hearing in the 2 determination of his or her legal rights and obligations by an 3 independent and impartial court within a reasonable time. 4 (2) Everyone charged with a criminal offence has the following 5 minimum rights – 6 (a) to be presumed innocent until proved guilty according 7 to law; 8 (b) to be informed promptly, in a language which he or 9 she understands and in detail, of the nature and cause 10 of the accusation against him or her; 11 (c) to have adequate time and the facilities for the 12 preparation of his or her defence; 13 (d) to defend himself or herself in person or through legal 14 assistance of his or her own choosing or, if he or she 15 has not sufficient means to pay for legal assistance 16 and the interests of justice so require, through a legal 17 representative at public expense provided through an 18 established public legal aid scheme as prescribed by 19 law; 20 (e) to examine or have examined witnesses against him or 21 her and to obtain the attendance and examination of 22 witnesses on his or her behalf under the same 23 conditions as witnesses against him or her; 24 (f) to have the free assistance of an interpreter if he or 25 she cannot understand or speak the language used in 26 court; 27 and, except with his or her own consent, the trial shall not take 28 place in his or her absence, unless he or she so behaves in the 29 court as to render the continuance of the proceedings in his or 30 her presence impracticable and the court has ordered him or 31 her to be removed and the trial to proceed in his or her 32 absence, or unless, having had reasonable notice of the 33 hearing and of the nature of the offence charged, he or she is 34 voluntarily absent from the proceedings.” 35 36 37

¶ [10] I have the benefit of full skeleton arguments from Mr Tonner QC on behalf of the 38 Defendant and from Mr Moran on behalf of the prosecution. I am grateful to both 39 attorneys for their industry and assistance. 40 41

¶ [11] In the course of submissions, I have been referred to a number of authorities – and 42 inevitably, many of those authorities were from England and Wales. I should at 43 the outset note one important difference between this jurisdiction and England and 44 Wales. In England and Wales, it is clear that a court has a general discretion to 45 ____________________________________________________________________________________ Judgment on Application for the Defendant to participate in and give evidence at trial by video link: R v. Meadors (David Dean). Ind. 0060/2017 Coram: Chapple J. (Actg.). Date: 29.05.19 Page 5 of 13 proceed with a trial in the absence of a defendant (a similar provision is to be found 1 in the European Convention on Human Rights) – even where a defendant’s 2 absence is involuntary. No such discretion exists in this jurisdiction. That 3 distinction must be borne in mind particularly when considering English 4 authorities. 5 6

¶ [12] The position here is that unless I am satisfied that David Meadors’ absence is 7 voluntary, no trial can take place. I have no residual discretion. 8 9

¶ [13] Since I first became involved in this case, matters have, as Mr Tonner puts it, 10 become more “nuanced.” 11 12

¶ [14] At that first hearing, I raised, in the unusual circumstances of this case, the question 13 of whether the Defendant could participate in his trial by live video-link from 14 Florida. If that were legally permissible and acceptable to both parties, I had 15 thought this may obviate the need to hear and resolve disputed medical evidence, 16 with an obvious saving of court time. It was agreed that both sides would consider 17 matters further. 18 19

¶ [15] I now have additional skeleton arguments from Mr Tonner and Mr Moran. Having 20 taken further instructions, Mr Tonner explains David Meadors’ revised position as 21 follows: “[he] is willing to consent to the trial proceeding in his physical absence 22 provided he is given the opportunity to participate in the trial via live video link.” 23 It became obvious, in the course of oral submissions, that David Meadors’ proviso 24 about participation included his giving evidence via live video link. 25 26

¶ [16] The questions which arise are these: 27 28 29 ____________________________________________________________________________________ Judgment on Application for the Defendant to participate in and give evidence at trial by video link: R v. Meadors (David Dean). Ind. 0060/2017 Coram: Chapple J. (Actg.). Date: 29.05.19 Page 6 of 13 i. Does the Grand Court have the power to allow a defendant who is 1 outside the jurisdiction and is either unwilling or unable to attend his 2 trial in person to attend his trial by video-link? 3 ii. If so, may that defendant, should he wish to do so, give evidence at 4 that trial via live video-link? 5 iii. If, as a matter of law, David Meadors can both attend his trial and give 6 evidence via live video-link, should he be allowed to do so, assuming 7 that the court has a discretion in the matter? 8 9

¶ [17] If all three questions can be answered affirmatively, the trial can take place – either 10 because it is not a trial in his absence or if it is, David Meadors has given his 11 consent to it. In arriving at my decision, I may or may not need to answer all three 12 questions. 13 QUESTION 1: 14

¶ [18] Section 60 of the Criminal Procedure Code (2019 Revision) reads as follows: 15 “Accused persons entitled to be present at trial and related proceedings and may 16 be represented by a legal practitioner 17

¶ [60] (1) Every person accused of any criminal offence shall be entitled to be 18 present in court during the whole of any proceedings relating to such 19 offence unless he is excluded by the court because he so conducts 20 himself in the court as to render the continuance of the proceedings in 21 his presence impossible. 22 (2) Notwithstanding subsection (1) and subject to section 54(2) — 23 a) where an accused person so conducts himself in the court as to 24 render the continuance of the proceedings in his presence 25 impossible, as an alternative to excluding the accused under 26 subsection (1), the court may direct for such period as the 27 court determines, that the accused shall appear by counsel or 28 by live television link or by any other means that would allow 29 the court and the accused to engage in simultaneous visual 30 and oral communication; or 31 (b) except where section 60A applies, the court may, in its 32 discretion — 33 (i) where an accused is confined in prison (whether on 34 remand or otherwise); and 35 ____________________________________________________________________________________ Judgment on Application for the Defendant to participate in and give evidence at trial by video link: R v. Meadors (David Dean). Ind. 0060/2017 Coram: Chapple J. (Actg.). Date: 29.05.19 Page 7 of 13 (ii) where the prosecutor and an accused so agree at any 1 time during any proceedings relating to an offence 2 other than a part in which the evidence of a witness is 3 taken, 4 direct that the accused may appear by counsel or by live 5 television link or any other means that allow the court and the 6 accused to engage in simultaneous visual and oral 7 communication. 8 (3) A court shall not give a direction under subsection (2) unless the court 9 is satisfied that it is in the interests of the efficient or effective 10 administration of justice for the accused person to appear in the 11 proceedings through a live link or other means. 12 (4) In deciding whether to give a direction under this section, the court 13 must consider all the circumstances of the case; and such 14 circumstances shall include the suitability of the facilities at the place 15 where the accused or a witness would give evidence through a live 16 link. 17 (5) For the purposes of this section, the consent of the accused person to 18 the conduct of the proceedings in his absence may be deemed to have 19 been given in a case in which he enters a written plea of guilty under 20 any law or in any case in which the court is satisfied that, having been 21 duly summoned to appear before the court a reasonable time before 22 the date appointed, the accused person wilfully refuses to attend at any 23 time appointed by the court. 24 (6) Every person accused of any criminal offence, whether present in 25 person or absent in accordance with this section, may be defended 26 before any court by a legal practitioner. 27 (7) A statement made on oath and given in evidence through a link by 28 virtue of this section shall be treated for the purpose of section 101 of 29 the Penal Code (2019 Revision) as having been made in the 30 proceedings in which it is given in evidence. 31 (8) The Rules Committee of the Grand Court may make such rules as 32 appears to it to be necessary for the purposes of this section.” 33 34 35

¶ [19] This section provides that “every person accused of a criminal offence shall be 36 entitled to be present in court during the whole of any proceedings relating to such 37 offence unless he is excluded by the court because he so conducts himself in the 38 court as to render the continuance of the proceedings in his presence impossible.” 39 40

¶ [20] Subsections (2) - (4) of s.60 are concerned with disruptive defendants remanded in 41 custody – and the arrangements that can be made for them to “appear in the 42 proceedings through a video link” (the words used in s.60(3)). 43 44 45 46 ____________________________________________________________________________________ Judgment on Application for the Defendant to participate in and give evidence at trial by video link: R v. Meadors (David Dean). Ind. 0060/2017 Coram: Chapple J. (Actg.). Date: 29.05.19 Page 8 of 13

¶ [21] Section 60 speaks of a defendant’s entitlement to be “present in court”. However, 1 there would seem to me no statutory prohibition upon a physically absent 2 defendant appearing by live video-link, should he wish to do so. If there is a good 3 reason for a defendant’s physical absence, a court should surely permit him to 4 “attend” by any reasonable means. 5 6

¶ [22] In R v Welland1, the English Court of Appeal observed as follows: 7 “we agree that this is not a case where a trial has taken place in the absence of 8 the defendant or without his participation. Apart from his absence for part of 9 the third day……..… he was throughout the trial either present in court or 10 observing the proceedings over video link and was able to give instructions to 11 his counsel.” 12 13 14

¶ [23] In R v Ukpabio2, the English Court of Appeal said as follows: 15 “there may well be circumstances in which… it may be appropriate that a 16 defendant on his own application should not be present in court for all or part 17 of the trial, provided that his participation in the trial can be adequately 18 secured by, if the relevant equipment is available, his being in touch by video- 19 link or in some other way. In other words, there may be circumstances, 20 exceptionally, where that might be a sensible method of ensuring participation 21 for a defendant who would otherwise not be able to participate properly in all 22 sum of the trial process.” 23 24

¶ [24] I am satisfied that this court has the power to permit David Meadors to attend his 25 trial by video-link from outside this jurisdiction. I am equally satisfied that 26 whether he should be permitted to do so is a matter for the discretion of this court. 27 QUESTION 2: 28

¶ [25] The courts have been increasingly willing over the years to permit witnesses to 29 give evidence by live video-link when, whether by reason of vulnerability or 30 otherwise, there is good reason. The law continues to evolve. 31 32 1 [2018] EWCA Crim 2036 2 [2007] EWCA Crim 2108 ____________________________________________________________________________________ Judgment on Application for the Defendant to participate in and give evidence at trial by video link: R v. Meadors (David Dean). Ind. 0060/2017 Coram: Chapple J. (Actg.). Date: 29.05.19 Page 9 of 13

¶ [26] The relevant provisions in this jurisdiction are to be found in s.37 and s.38 of the 1 Evidence Law (2019 Revision) – and s.41A et seq. dealing with special measures. 2 3 “Evidence through television links 4

¶ [37] (1) A person other than an accused person may give evidence 5 through a live television link in proceedings to which 6 subsection (2) applies if — 7 (a) the witness is outside the Islands; 8 (b) the witness is a child, or is to be cross examined 9 following the admission under section 39 of a video 10 recording of testimony from him and the offence is one 11 to which section 39(2) applies; or 12 (c) the witness is to give evidence as to a violent or sexual 13 offence, 14 but such evidence may not be given without the leave of the 15 court. 16 (2) This section applies to — 17 (a) trials on indictment; 18 (b) appeals to the Court of Appeal; 19 (c) summary trials of Category B offences; 20 (ca) summary trials of Category C offences; 21 (d) proceedings in any youth court; and 22 (e) preliminary inquiries. 23 (3) A statement made on oath by a witness outside of the Islands 24 and given in evidence through a live television link by virtue of 25 this section shall be treated for the purpose of section 101 of 26 the Penal Code (2019 Revision) as having been made in the 27 proceedings in which it is given in evidence. 28 (4) Where the court gives leave for a person to give evidence 29 through a live television link then, subject to subsection (5), 30 the person concerned may not give evidence otherwise than 31 through a live television link. 32 (5) A court may give permission for a person to give evidence 33 otherwise than through a live television link if it appears to the 34 court to be in the interests of justice to give such permission. 35 (6) Permission may be given under subsection (5) — 36 (a) on an application by a party to the case; or 37 (b) of the court’s own motion, 38 but no application may be made under paragraph (a) unless 39 there has been a material change of circumstances since the 40 leave was given by virtue of sub-section (1). 41 (7) The Cabinet may make such rules as appears to him to be 42 necessary for the purposes of this section.” 43 44 “Evidence through television links by accused 45

¶ [38] An accused person may give evidence through a live television link 46 in accordance with section 60 of the Criminal Procedure Code 47 (2019 Revision).” 48 49 50 ____________________________________________________________________________________ Judgment on Application for the Defendant to participate in and give evidence at trial by video link: R v. Meadors (David Dean). Ind. 0060/2017 Coram: Chapple J. (Actg.). Date: 29.05.19 Page 10 of 13

¶ [27] Section 37, provides: 1 “a person other than an accused person may give evidence through a 2 live television link in proceedings to which subsection (2) applies.” 3 4 This includes trials on indictment: 5 “if (a) the witness is outside the Islands, (b) the witness is a child…..or 6 (c) the witness is to give evidence as to a violent or sexual offence.” 7 8 9

¶ [28] Section 38, as noted above, permits an accused to give evidence via video-link if 10 the provisions of s.60(2) of the Criminal Procedure Code (2019 Revision) - 11 disruptive custody defendants – are satisfied. I should note that in this jurisdiction 12 defendants are not eligible for special measures directions. 13 14

¶ [29] Mr Moran submits that the Evidence Law provides a complete and plainly 15 expressed statutory scheme as to the circumstances in which evidence can be given 16 via video-link. They are, Mr Moran contends, the only circumstances in which 17 evidence can be given by video-link in proceedings to which s.37 applies. The 18 legislature clearly turned its mind to the question of an accused giving evidence via 19 video-link and decided this should not be permitted (save in the case of a disruptive 20 custody defendant). Mr Moran helpfully drew attention to the case of Ukpaibo3 21 the judgment which I have found helpful and persuasive. Mr Moran’s submissions 22 are I am sure correct. 23 24

¶ [30] Section 37 is plain and straightforward. The default position is that a defendant’s 25 evidence must be given in court and not by live video link; the only exception to 26 that position is provided in s.38/s.60(2). 27 28 29 3 supra ____________________________________________________________________________________ Judgment on Application for the Defendant to participate in and give evidence at trial by video link: R v. Meadors (David Dean). Ind. 0060/2017 Coram: Chapple J. (Actg.). Date: 29.05.19 Page 11 of 13

¶ [31] Section 37 envisages precisely the position of David Meadors – an accused person 1 outside the Islands. Mr Tonner’s submissions to the contrary were valiant but in 2 my judgement cannot be right. To allow this Defendant to give evidence via video 3 link at his trial would be to flout the plainly expressed words of s.37, interpreting 4 “a person other than the accused” to mean “a person including the accused.” 5 6

¶ [32] I am sure no discretion exists in the matter. No court can go behind the plainly 7 expressed provisions of s.37 and s.38 of the Evidence Law. 8 9

¶ [33] Question 3 does not fall to be answered, given my conclusion as to question 2 10 above. 11 12

¶ [34] The next step must then be to hear and resolve the disputed expert medical 13 evidence, in order for the court to decide whether or not David Meadors is able, 14 reasonably and sensibly, to surrender to his bail and stand trial – whether or not he 15 is “voluntarily absent from the proceedings.” 16 17

¶ [35] The Defendant, I understand, would wish to attend that hearing via video link. He 18 has attended at least one previous hearing by video link, without objection from the 19 prosecution or the court. I see no reason why he should not do so on this occasion, 20 should he so wish. 21 22

¶ [36] I am further asked to rule upon whether, in the context of that hearing – enquiring 23 into whether David Meadors is or is not voluntarily absent – he can give evidence 24 relevant to that issue - over a video link, should he so wish. 25 26

¶ [37] This must depend upon whether this pre-trial hearing falls within the scope of s.37. 27 Section 37(2) applies the statutory scheme to a broad range of hearings, as follows: 28 29 30 ____________________________________________________________________________________ Judgment on Application for the Defendant to participate in and give evidence at trial by video link: R v. Meadors (David Dean). Ind. 0060/2017 Coram: Chapple J. (Actg.). Date: 29.05.19 Page 12 of 13 a. trials on indictment; 1 b. appeals to the Court of Appeal; 2 c. summary trials of category B offences 3 i. (ca) summary trials of category C offences 4 d. proceedings in any youth court 5 e. preliminary inquiries. 6 7

¶ [38] The forthcoming hearing certainly relates to trial on indictment, but of course it is 8 not the trial itself. 9 10

¶ [39] Had the intention of the legislature been to apply the scheme to all hearings 11 “relating to trial on indictment”, or “all proceedings in the Grand Court” it could – 12 and I think would - have said so. Section 37(2) instead applies the scheme to five 13 (5) specific types of hearings. 14 15

¶ [40] I should add here for the avoidance of doubt that in this jurisdiction “preliminary 16 inquiries” is a term of art and clearly a reference to a particular type of hearing 17 (that laid down by s.88 of the Criminal Procedure Code (2019 Revision), rather 18 than preliminary hearings in the more general sense. 19 20

¶ [41] Not without some hesitation, I conclude that the forthcoming hearing is not a trial 21 on indictment but a pre-trial hearing. That being so, it falls outside the scheme 22 provided by s.37. There is then no statutory prohibition upon the court receiving 23 evidence from David Meadors, in this context, over a video link. 24 25

¶ [42] As with all occasions upon which it is proposed that evidence be given via video 26 link, the court has discretion as to whether to receive it in this way. I exercise that 27 discretion to permit David Meadors to give evidence in this way with this proviso: 28 the video link is to be arranged and funded by the defence; in fairness to all, it is to 29 ____________________________________________________________________________________ Judgment on Application for the Defendant to participate in and give evidence at trial by video link: R v. Meadors (David Dean). Ind. 0060/2017 Coram: Chapple J. (Actg.). Date: 29.05.19 Page 13 of 13 be a good quality and secure link, provided by professionals who have experience 1 and expertise in providing video-conferencing facilities. It is important that the 2 participants in the video link can see and hear each other clearly. For the avoidance 3 of doubt the use of a cell phone, iPad, and/or Skype or similar would not be 4 appropriate. I leave it to the Defendant’s representatives to liaise with the court in 5 this regard. 6 7

¶ [43] I will hear the evidence relating to this issue, as arranged, commencing on 13th 8 June 2019. 9 10 Dated this the 29th May 2019 11 12 Justice Roger Chapple 13 Acting Judge of the Grand Court 14 15 16 17