Quin J
```html IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE INDICTMENT NO：33/08 THE QUEEN V KEITH BRIAN ORRETT BRIAN EMMANUEL BORDEN BJORN CONNERY EBANKS KEITH ROHAN MONTAQUE Appearances： Crown- Ms Trisha Hutchinson and Ms Candia James Defence Counsel- Mr. John Fox and Mr. James Stenning of Stenning & Associates for Keith Brian Orrett； Mr. Nick Hoffman instructed by Priestleys for Brian Emmanuel Borden； Mr. Nicholas Dixey of Mourant for Bjorn Connery Ebanks； Mr. Ben Tonner of Samson & McGrath for Keith Rohan Montaque Before： The Hon. Mr. Justice Charles Quin 18th February 2010 RULING ON SEVERANCE 1. Mon behalf of makes an ap 39 orden， invite to exercison Defend for Mr. Ir. Hoffman f Brian Bordrsuant to Sec 13 Criminal application pu 1 te Criminal e it by his client separate t 18(3) of the Procedure enction 38 1893) of the Procedure the orde whent and orderial Keith Orrett. 1 reteret discreti a s ， Brian Defend ``` ```latex \textbf{IN THE GRAND COURT OF THE CAYMAN ISLANDS} \\ \textbf{CRIMINAL SIDE} \\ \textbf{INDICTMENT NO：33/08} \\ \textbf{THE QUEEN} \\ \textbf{V} \\ \textbf{KEITH BRIAN ORRETT} \\ \textbf{BRIAN EMMANUEL BORDEN} \\ \textbf{BJORN CONNERY EBANKS} \\ \textbf{KEITH ROHAN MONTAQUE} \\ \textbf{Appearances：} \\ \textbf{Crown-} \\ \textbf{Ms Trisha Hutchinson and Ms Candia} \\ \textbf{James} \\ \textbf{Defence Counsel-} \\ \textbf{Mr. John Fox and Mr. James Stenning of} \\ \textbf{Stenning & Associates for Keith Brian} \\ \textbf{Orrett；} \\ \textbf{Mr. Nick Hoffman instructed by Priestleys} \\ \textbf{for Brian Emmanuel Borden；} \\ \textbf{Mr. Nicholas Dixey of Mourant for Bjorn} \\ \textbf{Connery Ebanks；} \\ \textbf{Mr. Ben Tonner of Samson & McGrath for} \\ \textbf{Keith Rohan Montaque} \\ \textbf{Before：} \\ \textbf{The Hon. Mr. Justice Charles Quin} \\ \textbf{18th February 2010} \\ \textbf{RULING ON SEVERANCE} \\ \textbf{1.} \\ \textbf{Mon behalf of makes an ap} \\ \textbf{Ir. Hoffman f Brian Bordrsuant to Sec} \\ \textbf{18(3) of the Procedure enction} \\ \textbf{Keith Orrett.} \\ \textbf{39} \\ \textbf{orden， invite} \\ \textbf{te Criminal e it} \\ \textbf{1893) of the Procedure} \\ \textbf{the} \\ \textbf{reteret} \\ \textbf{discreti a s} \\ \textbf{， Brian} \\ \textbf{Defend} \\ \textbf{Ruling on Severance. R v. Keith Orrett, Brian Borden, Bjorn Ebanks, Keith Montaque. Ind. 33/08. Coram: Quin} \\ \textbf{J. 19.2.2010} \\ \textbf{Page 1 of 9} ```
The Defendants are jointly charged with possession of unlicensed firearms, contrary to Section 15(1) and 15(5) of the Firearms Law. Mr. Borden is charged under Count II and the particulars of the offence on that count are that Keith Orrett, Brian Borden and Keith Montaque, between the 4th and 7th day of April 2008, at 4 Town Hall Courts, West Bay, Grand Cayman, had in their possession a firearm, namely a Remington Model H70 12-gauge shotgun, serial number A52367 not under, and in accordance with the terms of a Firearms Users Licence. Mr. Borden’s counsel argues that for Mr. Orrett, unlike for the other Defendants, the Crown will place a reliance on matters alleged to have been said by him to the police on his arrest and interview. Mr. Hoffman argues that this evidence cannot have any probative value against any other Defendant and is not admissible against Mr. Borden. Mr. Hoffman argues that such evidence, if adduced, is highly prejudicial to Mr. Borden, as it implicates him in the offence. Furthermore, Mr. Hoffman argues that Mr. Orrett should be tried separately because his defence implicates Mr. Borden by the anticipated introduction of the bad character of Mr. Borden which, again, is inadmissible. S. 118 (3) of the Criminal Procedure Code states: ``` Where, before a trial upon indictment or at any stage of such trial, the court is of the opinion that the accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment, or that for any reason it is desirable to direct that where there are two or more accused persons they should be tried separately, the court may order the separate trial of any count or counts in such indictment or the ``` I note that Mr Borden’s counsel is not submitting that there is a misjoinder, but for the sake of completeness, and for the record, Section 162 of the Criminal Procedure Code states: Ruling on Severance. R v. Keith Orrett, Brian Borden, Bjorn Ebanks, Keith Montaque. Ind. 33/08. Coram: Quin J. 19.2.2010 Page 2 of 9
```html 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 36 37 “The following may be joined in one indictment and tried together (a) persons accused of the same offence committed in the course of the same transaction; (b) persons accused of an offence and persons accused of abetment or of an attempt to commit such offence; (c) persons accused of different offences committed in the course of the same transaction; and (d) persons accused of different offences all of which are founded on the same facts or form, or are part of, a series of offences of the same or a similar character.” 8. Mr. Hoffman submits that the evidence against Borden “primarily rests”, or, to put it another way, “effectively exclusively rests”, on the probity of the DNA evidence against Mr. Borden. 9. Mr. Borden’s counsel argues that the evidence against Mr. Orrett is very prejudicial to Mr. Borden and it is inadmissible against Mr. Borden. This is an “it is not me it is him” defence. 10. Furthermore, Mr. Hoffman submits that Orrett’s defence will likely to include an attack on Mr. Borden’s character, which is inadmissible evidence against Mr. Borden. 11. Mr. Borden’s counsel cites the well-known dicta of Justice Darling in R v. Gibbons and Proctor (1919) 13 Cr. App. R. 134 which states: “The discretion of a judge at the trial, whether the defendants jointly indicted should be tried separately must be judicially exercised.” 12. Mr. Hoffman submits that the combined effect of Mr. Orrett’s likely evidence, i.e. duress, it’s-not-me-it’s-him, and the likely introduction of Mr. Borden’s bad character, means that the reality is, that any direction, however robustly given, must rf not having ct, or to put 34 in the risk of the desired eay, would fa 35 36 37 Mr Hoffman submits that they are separate circumstances which bring this case into the R v. O’Boyle (1991) 92 Cr. App. R 202 category and the effect of the totality of the inadmissible evidence will be that Mr. Borden cannot have a fair trial. Ruling on Severance. R v. Keith Orrett, Brian Borden, Bjorn Ebanks, Keith Montaque. Ind. 33/08. Coram: Quin J. 19.2.2010 Page 3 of 9 ```
```markdown # Ruling on Severance: R v. Keith Orrett, Brian Borden, Bjorn Ebanks, Keith Montaque. Ind. 33/08. Coram: Quin J. 19.2.2010 ## Crown Case
In summary Mr. Hoffman says that these are exceptional circumstances which allow this Court to depart from the general rule that it is in the public interest to try co-defendants jointly charged on one offence, together.
Mr. Dixey adopts submissions in favour of Mr. Bjorn Ebanks for the same reasons, and likewise Mr. Tonner for Mr. Keith Montaque.
The Crown opposes Mr Hoffman’s application. The Crown submits that the discretion to allow joint trial is codified in Section 162 and in particular Section 162(d) which allows for a joint trial in matters founded on the same facts or form, or in matters which are part of a series of offences of the same or similar character.
The Crown submits that: a. The charge is one of joint possession; b. The accused Borden was present in number 4 Town Hall Courts at the time the offence was committed; c. The firearms which are the subject of the charges against the accused are the same; d. The police witnesses who would be required to give evidence against all the accused are the same; e. The ballistic expert evidence against the accused is the same; f. All documentary evidence, save and except for the statement and interview of Orrett, is the same.
Accordingly by implication the Crown submits that its case does not “rest on DNA evidence.”
The Crown also submits that there is sufficient evidence to support the joint trial of the accused. ```
```html 1 a. Mr. Borden's counsel can cross examine the witnesses and put his client's case which the jury will hear; 2 b. Mr. Borden's counsel will have the opportunity to address the jury on his client's case; 3 c. There can be clear directions from the judge to ensure that the jury disregards any inadmissible evidence against Borden to ensure that he has a fair trial. 20. The Crown also cites from the same well known authorities. In particular they rely on the case of R v. Assim [1966] 2 Q.B. 247 and the judgment of the Court of Appeal as read by Sachs L.J. which was summarized by the Crown as follows: 13 a. Whether the matters which constitute the individual offences of the several offenders are, upon the available evidence, so related; 14 b. Whether in time or by other factors, that the interests of justice are best served by them being tried together; 17 c. If the answer to b. is yes then they can properly be the subject of counts in one indictment and can, subject to the discretion of the court, be tried together. 21. The Crown submits that, bearing in mind the factors earlier outlined, it is submitted that there are sufficient factors to justify a single trial of all the accused, as they are all being tried for joint possession of the firearms recovered and the evidence against all is virtually the same. 22. The Crown further submits that the overriding test is what would be in the interests of justice, and this will involve taking into consideration the issue of having the prosecution evidence given twice before different juries, and the added potential inconsistent ve 29 increase of indict s. 32 in R v. Grondkowski，R v. Malinowski [1946] K.B. 369： 33 34 Ruling on Severance. R v. Keith Orrett，Brian Borden，Bjorn Ebanks，Keith Montaque. Ind. 33/08. Coram：Quin J. 19.2.2010 ```
```html 1 2 3 4 5 6 7 24. Lord Goddard also considers the issue of one prisoner’s defence amounting to an 8 attack upon the other prisoner and states: 9 10 11 12 13 14 15 16 17 18 19 20 21 25. The Crown submits that there are many cases where we have cut throat defences, 22 which inevitably mean that the jury hears admissible evidence against one 23 defendant, but the same evidence is inadmissible against another defendant and 24 cites Rv. Joseph and Christie [1997] 165 Cr. App. R. 253 and Rv. Cairns, Zaidi 25 and Chaudhary [2003] 1 Cr. App. R. 662. 26 27 26. The Crown also relies on the classic dicta of the former Chief Justice Lord Widgery 28 in Rv. Lake [1977] 64 Cr. App. R. 172 in which he stated: 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418 419 420 421 422 423 424 425 426 427 428 429 430 431 432 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 454 455 456 457 458 459 460 461 462 463 464 465 466 467 468 469 470 471 472 473 474 475 476 477 478 479 480 481 482 483 484 485 486 487 488 489 490 491 492 493 494 495 496 497 498 499 500 501 502 503 504 505 506 507 508 509 510 511 512 513 514 515 516 517 518 519 520 521 522 523 524 525 526 527 528 529 530 531 532 533 534 535 536 537 538 539 540 541 542 543 544 545 546 547 548 549 550 551 552 553 554 555 556 557 558 559 560 561 562 563 564 565 566 567 568 569 570 571 572 573 574 575 576 577 578 579 580 581 582 583 584 585 586 587 588 589 590 591 592 593 594 595 596 597 598 599 600 601 602 603 604 605 606 607 608 609 610 611 612 613 614 615 616 617 618 619 620 621 622 623 624 625 626 627 628 629 630 631 632 633 634 635 636 637 638 639 640 641 642 643 644 645 646 647 648 649 650 651 652 653 654 655 656 657 658 659 660 661 662 663 664 665 666 667 668 669 670 671 672 673 674 675 676 677 678 679 680 681 682 683 684 685 686 687 688 689 690 691 692 693 694 695 696 697 698 699 700 701 702 703 704 705 706 707 708 709 710 711 712 713 714 715 716 717 718 719 720 721 722 723 724 725 726 727 728 729 730 731 732 733 734 735 736 737 7
```html 1 27. The Crown submits that the facts in this case are not of the exceptional character 2 that was found in Rv. O'Boyle. The Crown submits this case is different from Rv. 3 O'Boyle on the facts. In this regard the Crown relies heavily on the case of Rv. 4 Eriemo [1995] 2 Cr. App. R. 206. 5 6 28. Indeed the English Court of Appeal stated that Rv. O'Boyle was wholly 7 exceptional, if not unique. Furthermore the Eriemo decision is some four years after 8 O'Boyle, and, it is quite clear that the Court in Eriemo reviewed the O'Boyle 9 judgment. 10 11 29. In Eriemo the co-defendant's defence involved an attack on the character of the 12 appellant and also the co-defendant put forward a defence of duress. I quote Justice 13 Gidewell at page 211: 14 15 16 “When Carrington came to be tried, he duly put forward his defence of duress 17 and it succeeded and he was acquitted. His defence involved an attack on the 18 character of this applicant. Carrington gave evidence and was allowed to 19 go further than that. Quite properly the judge ruled that general evidence, such 20 as was suggested in Carrington's solicitor's notice, that this applicant was 21 terrorizing the people on the estate generally, that he had a propensity to 22 commit offences of violence in matters of that sort, the judge ruled was not 23 admissible, and not properly part of Carrington's defence. 24 Of course we appreciate that for the jury to hear this applicant's previous 25 convictions would make it much more likely that they would not believe any 26 protestations he had made, that he had not taken part in the particular burglary 27 with which he was charged together with Carrington, and it would make it 28 much more likely that they would believe Carrington. That of itself does not 29 make it so unfair that he should be tried together with Carrington that the judge 30 should have severed their trial. The normal rule, and this has frequently been 31 reiterated, is that where it is alleged that defendants are jointly guilty of the 32 same offence they should be tried together; (see the matter set out in paras 1- 33 167 and 1-168 of the current edition of Archbold 1994). 34 The fact that one defendant is intending to say that he has acted under duress 35 er defendant is not of itself a valid reason for severing the trial of the 36 defendants. me it sever 37 individual Indeed, the doctrine that 38 should be so that in the 39 but they an that all ners, 1 can be pe judant has a 40 of justice of catje whole mut ticular dea faroperly b 41 should be so demand. uthd that a fen which ean ary. The 42 interests o thourse deparrtial ma itn phefore the our trial. 43 in the circumstances of a particular case are elicited. For those reasons, had 44 we come to it, we would concluded in any case that the judge was certainly acting well within his discretion, in coming to the conclusion to which he did come, and we should have refused leave to appeal on that ground, if indeed we thought there was any valid right to appeal.” Ruling on Severance. Rv. Keith Orrett, Brian Borden, Bjorn Ebanks, Keith Montaque. Ind. 33/08. Coram: Quin J. 19.2.2010 Page 7 of 9 ```
```html 1 30. What is interesting is that the English Court of Appeal in the O'Boyle case stated, 2 “The instant case was wholly exceptional， if not unique.” 3 4 This Court notes that the English Court of Appeal decision in Eriemo and Lord 5 Justice Glidewell's ruling was four years after O'Boyle and the Court of Appeal 6 clearly reviewed the O'Boyle decision and cited it. 7 8 31. Accordingly， it is only in truly exceptional cases in which the Court should order 9 separate trials when two or more accused are jointly charged with participation in 10 one criminal offence. 11 12 32. The question of the likelihood of a cut-throat defence， Orrett claiming that he acted 13 under duress and also raising possible inadmissible evidence regarding Mr. 14 Borden's character does not， in my view， mean that Mr. Borden cannot have a fair 15 trial. 16 17 33. Mr. Borden is represented by an experienced criminal junior counsel who can 18 present his case and with strong and clear directions from the judge， can ensure that 19 he receives a fair trial. In that regard I should state that I am happy to welcome 20 suggestions from counsel as to directions when the time comes to address the jury. 21 22 34. I have listened to the well-presented arguments of both Mr. Borden's counsel and 23 Mr. Ebanks' counsel， but on the facts as we know it， and on the submissions before 24 me， I cannot identify any features of this case which bring it into the high O'Boyle 25 threshold of truly exceptional circumstances. 26 27 28 31 29 30 32 Ruling on Severance. R v. Keith Orrett， Brian Borden， Bjorn Ebanks， Keith Montaque. Ind. 33/08. Coram： Quin 8 J. 19.2.2010 Page 8 of 9 ```
The facts appear to be that the Defendants were found in the same house as the guns were found and at the same time, and accordingly, in all the circumstances of this case I reject Mr. Borden’s application for severance. Dated this 19 th day of February 2010 The Hon. Mr. Justice Charles Quin Judge of the Grand Court Ruling on Severance. R v. Keith Orrett, Brian Borden, Bjorn Ebanks, Keith Montaque. Ind. 33/08. Coram: Quin J. 19.2.2010 Page 9 of 9