Two sides argue over magistrate’s evidence
The trial of a magistrate accused of refusal of a breath test after a car crash heard that the arresting officer at the scene said he was not going to “let someone like this get away with this s**t”.
Khamisi Tokunbo was charged with refusing a request for a breath sample without reasonable excuse after police arrived at the crash on the evening of January 19.
The 64-year-old, defended by lawyer Charles Richardson, has denied the charge.
The crash happened on South Road, Paget, near the public entrance to Elbow Beach, and the car went over an embankment.
Valdis Foldats, the Cayman Islands magistrate in charge of the case, started yesterday’s court session with a case summary, where he criticised the Crown’s lateness in the identification of potential conflicts involving Saul Froomkin QC, the original counsel for the prosecution.
The first court appearance was on May 29, but an application to disqualify Mr Froomkin, based on his personal and professional relationship with Mr Tokunbo, was only raised earlier this month.
Mr Froomkin was later replaced with lawyer Mark Diel.
Mr Foldats told the court yesterday it was important to ensure that “public confidence in the administration of justice is maintained — indeed, strengthened”.
The two sides on Monday argued over evidence from the night of the accident, when Police constable Colin Mill found Mr Tokunbo by his car, which had gone off the road, along with his friend Allen Robinson, who had suffered facial injuries.
Mr Tokunbo, who the officer said smelled of alcohol, denied driving the vehicle.
But the court heard in earlier testimony that the officer believed Mr Robinson had been incapable of driving.
At issue in court this week were two demands for breath tests made of Mr Tokunbo.
The magistrate consented to provide a sample at Hamilton Police Station at the scene — but refused a breath test request at the station by Sergeant Olasunkanmi Smart Akinmola.
The lawyers wrangled over the Crown’s reliance on the second demand for a breath sample, and whether that could legally be defined as continuing from the first.
Mr Foldats ruled yesterday that, as a matter of law, the Crown was able to rely on the second demand.
Body camera evidence from the scene included Pc Mill’s remarks, which were caught in an exchange with John Jefferis, a witness at the scene who said he had pulled Mr Robinson from the passenger side of the crashed car.
It included the statement that the officer would not “let someone like this get away with this”.
Mr Diel told the court that the officer had implied “the defendant was trying to pull a fast one saying Robinson was the driver”.
Mr Foldats told Mr Diel: “But he never actually said that. The only thing he said was it was because of his position.”
The presiding magistrate added that the officer’s statement had “jarred” him,
Mr Diel admitted the remark was “unprofessional” coming from the Crown’s main witness.
But he added: “Could the body cam evidence have been better? Absolutely — but it’s better than nothing at all.”
Mr Richardson said that a “decisive portion” of Pc Mill’s opinion that Mr Tokunbo had committed an offence came from information provided to him by Mr Jefferis at the scene.
He added that Mr Jefferis was “a man who he has seen in his custody area, as a jailer, this is a man whose reputation precedes him.”
Mr Richardson contrasted that with the word of Mr Tokunbo, a sitting magistrate, and insisted there was “no reason to doubt his integrity”.
The defence lawyer reminded the court that during cross-examination of Pc Mill, he asked whether the remark made by the policeman during his exchange with Mr Jefferis, a taxi driver, was in reference to Mr Tokunbo’s race, his position as a magistrate, or both.
Pc Mill replied at the time: “His position.”
The policeman added, when he gave evidence last week: “There was no race element involved anywhere in this case.”
Mr Richardson pointed out yesterday[Tues] that Mr Tokunbo was heard on the body camera footage to say to Pc Mill that he had told the officer “over and over again” that he had not been driving.
He suggested that the policeman had a bias against the magistrate “either because of his position, which he admitted, or his colour, which he will never admit”.
Mr Richardson added: “He definitely was not being fair to him.”
The defence lawyer earlier told the court that unless an officer had “reasonable and probable grounds to believe that Mr Tokunbo was driving while impaired, the demand would be unlawful and Mr Tokunbo is not required to comply with an unlawful demand”.
He added: “Far be it from anyone to suggest that a sitting magistrate just thumbed his nose at the law — that’s not what happened.”
The trial continues.
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