Does Bermuda need a gun court, or should witnesses have the courage of their convictions?
The judge in the Derek Spalding murder trial banned the media from naming six prosecution witnesses, a move that prompted defence lawyer Mark Pettingill to comment, “people have to have the courage of their convictions and be prepared to put their names to things”.
However, the detective who led the murder investigation said he felt the requests were worthwhile in order to persuade witnesses to testify.
During the trial, prosecutors Carrington Mahoney and Maria Sofianos successfully asked Puisne Judge Carlisle Greaves to ban the reporting of the name of a man who was feeding feral cats when he heard the gunshot that killed victim Shaki Crockwell on August 24 2007.
There were further bans on two of the victim’s girlfriends, who spoke about his drug dealing lifestyle, and the defendant’s father, who reported to police that he was the killer. Another restriction was imposed on naming an on-duty nurse who confirmed Mr Crockwell was dead.
The prosecutors did not cite any reasons for the requests when they made them, and members of the public in the courtroom still heard the names of the witnesses. Mr Justice Greaves imposed the bans without comment, beyond issuing instructions to members of the press. However, he refused to issue a final ban requested in the case by Mr Pettingill, who wanted a restriction on the media naming defence witness Kirk Mundy.
Mundy, who was convicted of being an accessory to the Rebecca Middleton murder in 1996, claimed it was he and not Spalding who penned violent song lyrics found in the defendant’s home during the police investigation.
Requesting a ban on Mundy’s name being reported, Mr Pettingill said he did not want there to be “any type of sensation” stemming from the fact that Mundy’s name “carries a certain connotation”.
However, Mr Justice Greaves replied: “I don’t see that I could say ‘no publication of the references to Kirk Mundy on the basis of avoidance of sensation’. He doesn’t seem like a person who needs any protection. That’s the basis on which I have issued those (other) orders.”
Asked about the issue of reporting restrictions, Mr Pettingill, who is also a One Bermuda Alliance MP, told
The Royal Gazette: “I think there has to be a balance. The one big issue is the protection of the freedom of the press, which I support fully, but also the court has to balance the protection of the individual.
“I certainly think that the protection of the individual should amount to something more than mere convenience or perhaps even embarrassment, and it needs to be something that not only is substantial, but highlights a real risk of potential harm in any form.”
He added: “The allegations are what they are. I personally feel that people have to have the courage of their convictions and be prepared to put their names to things. I have never been a fan of pseudonyms.”
Detective Inspector Michael Redfern, who headed the murder investigation, said the reporting bans were sought as a result of requests from witnesses.
“We are in a time where we don’t want to do anything to discourage witnesses from coming forward, and they are sensitive about their names being in the press. If (a reporting ban) is one of the things we have to request in order to get the result we just got I think it’s worth the request,” he said.
The issue of naming witnesses has been cited before as a problem for police and prosecutors who need people to testify in trials. In May 2010, top British lawyer Jerome Lynch QC, who has acted in some of Bermuda’s recent gun cases, told this newspaper he believes it’s unnecessary for jurors and the public to know the identity of witnesses who testify, as long as lawyers are satisfied they are reliable.
Last September, Assistant Commissioner of Police David Mirfield suggested Bermuda’s courtrooms could be less daunting places for frightened witnesses to testify if “special measures” ranging from privacy screens to complete anonymity were used.
In an interview with the Bermuda Sun in August 2011 Mr Mahoney, who is from Jamaica, said: “In 90 percent of cases we don’t have a problem with witnesses but we have found, particularly in gang related incidents, there is a reluctance to appear at court because they will be named in the press.
“It’s an ongoing process but in Jamaica we have what is called gun court and the media cannot name the accused until he has been convicted or publish the names of witnesses, such is the stigma of gun crime.”
Mr Mahoney, who is Deputy Director of Public Prosecutions, added: “I would like to see the media in Bermuda come to an agreement whereby witnesses in gun cases are not named. I understand the media has a job to do but Bermuda is an incredibly small community and there is genuine fear on behalf of the witnesses.”
He was invited to comment in respect of this article, but directed the request to Director of Public Prosecutions Rory Field. Mr Field did not respond to requests for comment before press time.