Judge Priya Levers

In order to provide the public with ease of access to the historical record of the Judicial Tribunal appointed by H.E. the Governor Stuart Jack to inquire into allegations of misbehaviour against Grand Court Judge Priya Levers, Cayman Net News will be publishing the daily transcripts of the Tribunal proceedings in their entirety.

Day 1, Part 11 continues as Stanley Brodie, QC, Counsel for Justice Levers, starts his cross examination of court reporter Carol Anne Rouse.

Thursday, 7th May 2009
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CAYMAN TRIBUNAL RE: SECTION 493
OF THE CONSTITUTION
AND
LEVERS J
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Before The Tribunal:
Sir Andrew Leggatt (Chairman)
Sir Philip Otton
Sir David Simmons
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MR TIMOTHY OTTY QC (instructed by Messrs Clifford Chance LLP) appeared as Counsel to the Tribunal.
MR STANLEY BRODIE QC (instructed by Messrs Stuarts Walker Hersant) appeared on behalf of Madam Justice Levers.
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PROCEEDINGS
DAY ONE

CAROL ANNE ROUSE
Cross-examination by MR BRODIE
MR BRODIE: I wonder if you would go to I think it is paragraph 10 of your statement at divider 41.
A. 41.1?

Q. 41. The original statement.
A. Paragraph 10. Yes, I am there.

Q. This is the one to do with Queen against [REDACTED] and [REDACTED]. Do you see that one?
A. Yes, I do.

Q. And you say that you were upset by the learned judge’s behaviour. Mr Otty has correctly drawn your attention to the countervailing evidence which suggests you are wrong. Do you know Nora Ebanks?
A. Yes, I do.

Q. She is a marshal, is she not?
A. Yes, she is.

Q. Have you seen her statement?
A. No, I have not.

Q. Could the witness see the statement of Nora Ebanks which one finds in the PL bundle? (Handed) It is tab 7. Do you know Nora Ebanks?
A. Yes. Well, not well, I know her as a court colleague.

Q. Did you know that she was a retired inspector in the police?
A. I may have heard that. I believe that - I do not specifically recall.

Q. But, if it was suggested to you that she was, you are not going to quarrel with that, are you?
A. Absolutely not.

Q. If you would, in fact, look at her statement, she opens it by saying, “I am an ex-police officer”, but is modest enough not to describe herself as a former inspector. Do you see that?
A. Yes, I do.

Q. And she says what her duties are, ushering the judge into court, making sure the jury is isolated and seated, witnesses are sworn in. Then she says, “I can unhesitatingly state Justice Levers is in control of her court and is not rude or loud in court. In fact, several jurors want to come back”. Then at five she says, “I have read the statement of Carol Rouse and I was the marshal in charge on that day. The statement contains many falsities. The jury laughed only once”. Do you agree with that?
A. No.

Q. “Justice Levers was not encouraging them as they were laughing”.
A. I do not agree.

Q. “I did not see Justice Levers roll her eyes”.
A. She must not have been looking.

Q. “The conduct in the courtroom was as usual”. You disagree with all that, do you?
A. I would not necessarily disagree with number four, the conduct in the courtroom was as usual. It was a usual occurrence for that type of behaviour in Justice Levers’ courtroom.

Q. You say it was usual, but you disagree with Ms Ebanks as to what usual behaviour is or was.
A. What I am taking issue with her as saying is that the conduct in the courtroom was as usual with other courtrooms, that it was a proper court proceeding. I disagree with that.

Q. You are saying that it was as usual but bad.
A. Yes.

Q. Nora Ebanks is saying that as usual meaning good.
A. Yes.

Q. That is what it comes to, does it not?
A. The statement that you read out as well that, in fact, several jurors want to come back to serve in her court, they always had a good time because they thought it was funny. That is what I would have to say about that.

Q. I see, the jurors want to come back because it was like going to the vaudeville, was it?
A. Pretty much. I had - well, I won’t say anything you do not want me to.

Q. Please do. I would like to know what you have to say about that.
A. There was a particular jury panel and the jury panel sat for some period of time, I am not sure if it is eight weeks, but there was a member of the jury panel who works on a radio station here, who I know slightly, and she came up to me when I was out one evening and said words to the effect that “She’s a hoot. I love being there. She makes me laugh”. I never said anything. What could I say?

Q. Is that because Madam Justice Levers occasionally made witty remarks?
A. She could be very witty, she could be very funny. I myself have, you know, found her fun at times, definitely.

Q. Would you just look at paragraph 13 of your first statement, “I felt Defence counsel picked up on the attitude of Justice Levers and the jury and ran with it. During cross-examination of the victim, Defence counsel sniggered at something. At this point the victim was crying and said, ‘Do you find this funny?’ Justice Levers responded, ‘No, no, I’m just telling him [Defence counsel] don’t’ mutter because you get confused’. Justice Levers rolled her eyes as she
said this.”
Would you like to look at the transcript which you will find, I believe, at volume 2B, 604? It is internal pages 47 and 48. It is tab 30. You see there Mr Renvoize was cross-examining Mrs Wilson on a video link, was he not?
A. Yes.

Q. At line 32, she gives an answer, “I am sorry, I can’t hear you when you mutter”.
A. Line 32 of which page?

Q. Page 47.
A. Yes.

Q. And then Mr Renvoize says, “Sorry, Mrs Wilson, don’t worry. (THE COURT) Don’t mutter, Mr Renvoize.” And then the witness says, “Do you find this funny?” And the learned judge says, “No, no, I am just telling him don’t mutter because you get confused”. Then she says “Yes” for Mr Renvoize to continue. There is no indication there that they are making fun of Mrs Wilson, is there?
A. I did not think that Mr Renvoize was making fun of Mrs Wilson.

Q. Then what is the point you are making?
A. The point that I am making is that, when the witness made the comment, “Do you find this funny?” Justice Levers was very frustrated with her at that point - and I cannot be absolutely accurate that that is the point where she rolled her eyes, but there were several times during the trial that she did roll her eyes. Well, not during the trial during this witnesses’ testimony as well as during the rest of the trial.

Q. You have said in your witness statement, “I felt Defence counsel picked up on the attitude of Justice Levers and the jury and ran with it”.
A. Yes.

Q. “During cross-examination of the victim, Defence counsel sniggered at something. At this point the victim was crying and said, ‘Do you find this funny?’” and the learned judge made the response we have just seen. That is not borne out by the transcript at all, is it?
A. Mr Renvoize had sniggered at something other than the witness’ testimony. It was something else. I cannot remember what. I did not think that Mr Renvoize was laughing at the witness, but throughout the entire evidence of the witness, I felt that Mr Renvoize knew that things were going his way already by the behaviour of the judge, by the rolling of her eyes. I realise that he says that he did not see it, but by her demeanour and the way she was behaving while the witness was testified, he knew, I think, that things were going to go his way. I do not think he was rude to the witness, no, I do not.

Q. Who was not rude to the witness?
A. He was not rude to the witness. He was not laughing at the witness.

Q. And nor was the judge - at this point.
A. At this point, no.

Q. But then you relied on the evidence at this point to support what you are saying. Move on, shall we? Look at paragraph 14 in your evidence.
A. Yes.

Q. When the victim was re-examined by Ms Lobban she was asked what she meant when she described the defendant as Caymanian looking. The victim was trying to be careful with her words so she did not appear racist or abusive. Madam Justice Levers asked the victim a series of questions to make the victim look foolish, including was he my colour. Is that what your evidence is, that this passage in the transcript, Madam Justice Levers was trying to make the victim look foolish? Is that what you are saying?
A. That is what I am saying.

Q. Let us look at the transcript, pages 58 and 59 internally. It is the last page, page 607.
A. Right.

MR OTTY: If this is of assistance this is also in the core bundle at page 404 where there is a larger copy available.

MR BRODIE: Thank you. I am afraid I went to the wrong bundle. You see at page 58 Mrs Lobban is re-examining. Do you see that?
A. Yes.

Q. Mrs Wilson, in answer to the first attorney that asked you questions you said the one who threatened to put a bullet in your husband’s back was not dark, but Caymanian looking. What do you mean by Caymanian looking? (A) He was not dark skinned, he was not fair skinned, he was mixed. Mixed race looking, I do not know. (The Court): He was not dark, he was dark skinned you said. (A) He wasn’t -- I don’t want what - I was - he wasn’t dark. I don’t know, I don’t mean to be offensive. He wasn’t dark by Jamaican dark. I’m sorry, I don’t mean to be offensive at all”. And the learned judge says “Well, no, no, don’t worry about being offensive”. The witness: “He looked like a Caymanian. (The Court) Was he my colour?” There is Madam Justice Levers and you can see what colour she is. The witness “Yes.” So she agrees that is the same colour that the Caymanian man had. The Court “I see”. Then Mr Murray of counsel says “What is that, my Lady?”, and the learned judge says “Cooley. I just described myself and the people think it’s funny, so I don’t know why. But he was my colour? (A) Yes”. How is that offensive to the witness, would you like to tell the learned Tribunal?
A. I do remember specifically that when she said he was not dark like Jamaican dark, Justice Levers looked over at the jury and kind of went, like that -- I cannot describe it for the record, but it was like ...

Q. How did she go?
A. Like that.

Q. So what is that meant to convey to the Tribunal?
A. I have no idea what that is meant to convey to the Tribunal other than when this woman was talking about colour. For example, there is another portion in the transcript where she was asked to describe what the person was wearing and the witness had said a gold chain, and there was a look as though -- almost as if to say Oh yeah, they are all wearing gold chains. I do not know, I do not know what she meant by it but I found it offensive.

Q. That gratuitous piece of evidence that you have given does not appear anywhere in your witness statement, does it?
A. I would still be writing my witness statement.

Q. You did not regard it as sufficiently important to put it into either of your witness statements?
A. No, but I am trying to describe the feeling of the day.

Q. That is your feeling of the day.
A. I did hand the transcript in, it is there.

Q. Your evidence is that when this question of colour came up Justice Levers asked the victim a series of questions to make the victim look foolish. That simply is not borne out by the transcript, is it?
A. I believe it is.

MR BRODIE: Very well.

THE CHAIRMAN: Is that a convenient moment, Mr Brodie?

MR BRODIE: One other question. May I go on for a moment or two longer because we are in this transcript and then we can get out of it altogether.

THE CHAIRMAN: Yes, of course.

MR BRODIE: There is one other question I would like to ask. At paragraph 15 of the note you say I found the behaviour of Justice Levers and the jury more and more distracting and was becoming agitated. Justice Levers asked if I was OK and so on. Did you also observe that day that Miss Lobban, prosecuting counsel, got into hot water with the learned judge?
A. It is possible.

Q. Would you go to the transcript at page 32, p[age 600 in the bundle.
A. Yes, thank you, I am there.

Q. This was an occasion when it turned out that Miss Lobban, prosecuting counsel, had had a conversation with Mrs Wilson a few days earlier and had told Mrs Wilson what questions to expect in cross-examination. Do you remember that?
A. I remember the exchange.

Q. And Mr Renvoize at line 14 on page 32 internally -- have you found that?
A. Yes.

Q. (Q) Is the reason that you were smiling because you were aware of the fact that one of these young men, the two defendants, had said to the police that your husband had taken some money which was his? (A) I was aware that you were going to ask that and I just -- I am smiling because I think it is ridiculous I guess”. The learned judge said “One second, ma’am. (The witness) That the idea that my husband would take money and he would never do that.” Then she says “One second, ma’am (page 33) how did you know that counsel was going to ask you that question? (witness) Because the prosecutor had said that that was something he might ask. (The learned judge): I see. And when did you speak with the prosecutor? (A) On Saturday, my time, Friday your time”. The witness was in New Zealand?
A. Yes.

Q. “I see, this Friday gone? (A) Yes.” The learned judge says “I don’t believe this, just Friday gone? (A) Yes. (Q) OK. How long did that conversation last? (A) Just a few minutes, she was just telling us where to go and you know what we needed to do.” Then the learned judge says “And what questions will be asked? (A) What questions will be asked? Not really.” And the court says “Well I mean, you have just given us an example. (A) Not really”. And then later on --
A. She ---

Q. She takes up the matter with Miss Lobban and says I think at page 34 “It is usual in this jurisdiction, Miss Lobban, to pass to counsel what is said between you and the witness. Miss Leas did it in my last case, any conversations, am I right, Mr Renvoize? Yes. All the notes that you took during that conversation with the young lady must be given to the defence; and Miss Lobban says I am aware of that practice. The Court: Why didn’t you do that? Why didn’t you inform us that you spoke with them on Friday? The jury have just heard that you spoke to them. And then the prosecuting counsel, “My Lady, I spoke to the witness, told her what time to be there and what is to be expected.” The learned judge says “Where are the notes of that conversation”, and then cutting it quite short there was a discussion about notes. First of all Miss Lobban said she did not have them, and then she found them and it was perfectly plain that counsel for the prosecution had got it wrong. That is right, is it not? And was properly taken to task for it.
A. I have no idea if that was proper or not. I remember this exchange specifically because I was shocked that ten or 12 pages took place before the jury. It was the tone of the voice that was being used and towards Crown counsel. You had stopped reading but there was a portion just after.

Q. Very well, let us read on, shall we?
A. No, it was back a bit. You read “Well I mean you had just given us an example”, and the witness said not really. You stopped there, but then the court went on to say You have just given us a wonderful example, and I felt there was almost like the witness was being reprimanded for what happened. She knew not what was proper procedure or not. I do not know if that was incorrect. There was a ten page discussion. I am not a lawyer, I am not a judge, in fact I did not -- I was surprised at the tone of voice being used with Crown counsel during this entire exchange for the jury to see.

Q. But it came out during the course of the witness’s evidence in front of the jury. That was the problem, was not it?
A. As I say I am not a lawyer or a judge, I do not know.

Q. But that is an example, is it not, Mrs Rouse, of the learned judge exercising control over the trial to make sure that the defence is not disadvantaged. That is right, is it not?
A. I found it was more a case of Justice Levers intimidating and belittling Tanga Lobban and this happened with her constantly as Crown counsel, and manipulating the jury to think that Crown counsel was ill prepared and did not know what she was doing. The jury saw all of this and saw Justice Levers’ attitudes towards Crown counsel.

Q. So what do you think should have happened when this incident arose -- she should have sent the jury out, should she? Is that what you are saying?
A. I think that she should have controlled her tone of voice and the sarcasm, absolutely. I do not know if it was proper or improper to send the jury out. I was surprised that this all happened in front of the jury. Possibly Crown counsel should have said Maybe we should have this conversation in the absence of the jury, I do not know, but I was shocked that this all took place in front of the jury and with the tone of voice being used at the time towards Crown counsel.

Q. But if that is your view that is consistent with your appreciation that Madam Justice Levers behaves badly all the time, is not it?
A. Not all the time, a lot of the time.

Q. And you are using this case to demonstrate bad behaviour in front of the jury and things of that sort, are you not, making a fool of the witness and all that kind of thing. That is what you are using this case for, are you not?
A. Yes.

Q. Is that right?
A. Yes.

Q. And here we have another incident and you say that is another example of Madam Justice Levers behaving badly. Why did you not mention that in your statement?
A. Because I did not think -- the transcript speaks for itself as far as what was said in front of the jury. At no point do I say that the jury left. Anybody reading this would know the jury was still there. I thought that my evidence, my opinion and evidence, would be more to what I can say she did during the trial as far as the rolling of the eyes and the pounding of her fist on the desk, and Oh Lord, and this type of problem. Loud sighs, things that I do not take down as a court reporter. I do not take them down, I am saying that the judge did this, but I sighed and I heard it, and I was upset because I thought it was unfair, that it was uncalled for for the witness who was just trying to give her evidence as she was required to do.

Q. We are now talking about the exchange between Miss Lobban, Mr Renvoize and the judge, are we?
A. That is a part of it.

Q. But none of this appears in any of your witness statement, does it?
A. Well, I handed the transcript in and I thought a lot of the transcript spoke for itself. I did say in my witness statement about the loud sighs and ---

Q. What I am suggesting to you, and we will go on with this tomorrow morning, is that you will say anything to damage Madam Justice Levers, will not you?
A. Absolutely not.

Q. And even when one sees a passage where exercising proper control as a judge she ticks off Crown counsel for getting it wrong that is not good either, is it?
A. I am sorry, I do not understand the question.

Q. Madam Justice Levers is a judge, is not she, and she has to control trials. Do you agree with that?
A. She should control trials.

Q. And here was an example I am drawing your attention to where she did exercise control, when she discovered in her view and in Mr Renvoize’s view that prosecuting counsel had got it wrong, made a mistake. She is entitled to do that, is not she?
A. I think she is absolutely entitled to do that, to call up Crown counsel, but I do not think she is entitled to roll her eyes and say Oh Lord, and big loud sighs when she does not like the evidence that is being given.

MR BRODIE: My Lord, I think I can finish there.

THE CHAIRMAN: We will adjourn the case now. Thank you for giving your evidence this afternoon. I must ask you to be back at 9:30 seated where you now are, without having in the meanwhile as you probably know spoken about the case to others. Thank you.

Mr Otty, I understand that questions have been asked about public access to documents. We respond to that by saying that we will not give permission for access to specific documents until towards the end of the hearings when we will feel in a better position to appraise that matter. Meanwhile those interested must be content with access of course to the daily transcript.

MR OTTY: Thank you, sir. Could I just mention, not for the tribunal’s ruling now if it is not convenient, but as I understand it [REDACTED]s are particularly concerned to be able to show Mr Brodie’s opening submissions at least to the witnesses who they represent and who will be giving evidence before the Tribunal.

DR CLARK: Yes. Do you have any objection to that course?

MR BRODIE: We are content with that course.

MR OTTY: Thank you very much, sir.

(Adjourned till tomorrow morning at 9:30)