Justice Cooke is entitled to an apology, says QC.
On the 31st August 2011, after a trial lasting 15 days, Mr. Justice Cooke delivered a reserved judgment consisting of 35 pages in which he found Devon Anglin not guilty of the murder of your year old Jeremiah Barnes on the 15th February 2010.
Following the delivery of the judgment and speaking on the Courthouse steps, the Commissioner of Police is reported as saying – “it was a sad day for the Barnes family and a desperate day for justice in the Cayman Islands.”
I am assuming that this statement has been correctly reported since it has not been refuted by the Commissioner of Police. For the reasons, which follow, I consider that the statement that the judge’s decision was “a desperate day for justice in the Cayman Islands” was an unwarranted and inappropriate comment.
I think it appropriate for me to refer to certain important sections of Mr. Justice Cooke’s judgment, which are contained in his careful and analytical judgment. He applauded the two leading Counsel who appeared for the Prosecution and the Defence who he said had provided the Court with every assistance. He also noted that the investigating process was as comprehensive as could be. The investigation team was commended by the Judge for their thoroughness and professionalism.
Mr. Justice Cooke then reviewed in detail the five offences with which Devon Anglin had been charged and said this: –
“In arriving at a verdict on each count it is incumbent on me to demonstrate that I am fully aware of the legal principles which touch and concern the relevant issues and that I have applied those principles in a manner that does not have to be construed I will also bear in mind always that the burden of proof is on the Crown, on the prosecution, and I am only entitled to convict if I am satisfied that I feel sure.”
In dealing with the counts of murder, attempted murder and possession of an unlicensed firearm he began by saying as follows:-
“There is no issue that Jeremiah Barnes was murdered. From the circumstances, the uncontested inference is that
the fatal bullet was meant or aimed for Andy Barnes. It passed through the headrest of Barnes’ seat in which he was seated in the car and into the head of his son. The shooting was a deliberate act with the intention to kill or cause serious bodily harm. The gunman did not achieve his objective but by reason of transferred malice he would be as guilty as if he had. There is no issue that the evidence grounds attempted murder. And, finally, at this juncture I say that there is further no issue that the gunman was in possession of an unlicensed firearm.”
So the legal requirements were all there, all there save for the critical issue as to the identity of the gunman: was it Devon Anglin, the defendant?
There can be no doubt that when Mr. Justice Cooke’s judgment is reviewed and analysed that he properly understood the issues; applied the proper principles that a judge sitting alone in a criminal trial had to apply and that he realised that the critical issue in this case was the identity of the gunman who fired the shots.
He then carefully analysed the evidence pertaining to visual identification and correctly stated that the relevant evidence on this issue came from Andy Barnes, Dorlisa Ebanks and Carlos Ebanks. He then analysed this evidence and his analysis was critical, thorough and fair. He referred to the evidence that Andy Barnes gave in chief and to his cross-examination by Mr. Ryder, leading Counsel for the defence.
He next carefully analysed the evidence of Carlos Ebanks, who he accepted as a witness of truth. He then referred to the evidence of Dorlisa Ebanks. She said under cross-examination that the gunman had the gun in his right hand. She did not recall seeing the left hand doing anything to obstruct his face.
The Judge found that there were disturbing and unexplained inconsistencies in the evidence of Andy Barnes. The Judge said of him that at the preliminary inquiry, he told the Magistrate he saw Anglin’s face in the car. In evidence he saw shadows. And he, on oath told the Magistrate “this well knowing that this damning evidence was not true”. Then the Judge found that there was irrefutable and contradictory evidence: he said “it is clear from the CCTV footage that the gunman held the gun in his left hand. He (Barnes) says that the gunman held the gun in his right hand.”
Cooke found as a fact that at all material times the gunman was masked.
The judge found and demonstrated in his judgment that the evidence of Andy Barnes was unreliable.
It is significant to note that during his closing submission the judge posed the following question to Mr. Radcliffe QC (leading counsel for the Prosecution):
“What would be the position if the visual identification is regarded as worthless?”
Mr Radcliffe answered this question with commendable frankness. He said: “that the consequence of such a finding would be as if Barnes and Dorlisa had not given evidence and an acquittal would be inevitable.”
The judge found that the evidence of Andy Barnes is of no value and that it was worthless.
As to the evidence of Dorlisa, the judge found that in respect of the critical issue of visual identification “I put absolutely no weight on her evidence. It has no value.” He says that her evidence is flatly contradicted by the evidence of Carlos Ebanks who he found to be a witness of truth.
The judge summed up that in respect of Andy Barnes and Dorlisa Ebanks the Crown had not adduced any evidence of any probative value and he therefore acquitted Devon Anglin on Counts one, two and three of the Indictment.
As a result of the Judge’s findings in respect of identification, it is absolutely clear he was obliged as a matter of law and in accordance with his oath of office to acquit the Defendant of the charges set out in Counts one, two and three. If he had done otherwise and convicted Devon Anglin his decision to do so would have been perverse, dishonest and completely unsupportable and indeed “a desperate day for justice in the Cayman Islands.”
Whilst we all sympathise with the parents of Jeramiah Barnes, an acquittal in the light of the judge’s careful decision was not a desperate day for justice in Cayman and for it to be so described by the Commissioner of Police was entirely inappropriate and regrettable.
In my view, desperate days for justice in Cayman, can arise in one of two ways:
(1) If a judge disregards cogent evidence in a case and reaches what is clearly a perverse and dishonest verdict, or
(2) If a judge blatantly disregards well settled and well established legal principles which must have been known to him and reaches a decision without taking such principles into account.
The judgment of Justice Howard Cooke does not fall within these two categories and the Commissioner of Police was completely out of order in describing his decision in the way that he did.
He is entitled to ask the DPP and leading Counsel for the Prosecution to conduct an urgent review of the judgment to determine whether there were grounds for appeal against the decision of Mr Justice Cooke. That is a right that he has exercised but he has no right to be offensive and make insulting and inflammatory statements about a judgment delivered by a Judge of our Grand court and particularly about this careful and analytical judgment of Mr Justice Cooke. It is not a decision, which could in any sense be described as giving rise “to a desperate day for justice in Cayman.”
In my view Mr Justice Cooke is entitled to an apology from the Commissioner of Police for this intemperate and unwarranted observation and it is my hope that he will receive such an apology.
Ramon D. Alberga, QC