Judge instructs jury to be cautious about eyewitness evidence in Tamil ship case

VANCOUVER — A British Columbia Supreme Court judge has instructed a jury to be “very cautious” about relying on eyewitness evidence to find guilt in the case of four men accused of smuggling hundreds of Tamil migrants to Canada.

Justice William Ehrcke noted that the jury had heard evidence from witnesses that on more than one occasion, they were shown photographs by the RCMP and Canada Border Services Agency and asked if they could identify anyone pictured.

The judge said problems with the photo lineup raised by defence lawyers are a “serious concern.”

“You should consider these matters very carefully in deciding how much weight you choose to put on the identification evidence,” he told the jury Tuesday.

The MV Sun Sea left Thailand on July 5, 2010. The dilapidated cargo ship was intercepted off the coast of B.C. on Aug. 12, 2010, carrying 492 Sri Lankan Tamils who intended to claim refugee status in Canada.

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Two Sri Lankan men and two Canadians have pleaded not guilty to organizing the voyage contrary to the Immigration and Refugee Protection Act.

Ehrcke began his final instructions to the jury on Tuesday and is expected to finish Wednesday.

The two Canadian men, Nadarajah Mahendran and Thampeernayagam Rajaratnam, were not aboard the ship. They are accused of being agents who travelled to Bangkok to arrange migrants’ journeys.

Their lawyers have argued that eyewitness identification of the men can not be trusted because Canadian authorities conducted a flawed investigation.

Ehrcke told the jury that Mahendran’s lawyer had pointed out “numerous problems” with the eyewitness evidence, including that the photo lineup procedures did not conform to RCMP protocol and Canada border services did not provide details of every circumstance where a photograph was used.

The judge said some witnesses testified under cross-examination that the photos they were shown by Mounties and border agents had influenced their identification of the accused men. On one occasion, a witness identified a different man in a photo before he later identified an accused.

Earlier Tuesday, Crown attorney Charles Hough said police had to diverge from usual procedure when interviewing hundreds of migrants who had been aboard the MV Sun Sea.

“The police adapted,” he told the jury. “Use your common sense and think about it. Putting a photo book to a witness, asking them open-ended questions: ‘Who did this?’ ‘Do you recognize them?’

“Ask yourself whether that would produce reliable information. I submit that it would.”

Lesly Emmanuel, one of the Sri Lankan men, is accused of being the ship’s captain. His lawyer, Sandy Ross, has argued that he did not intend to pilot the ship but was “thrown into the role of captain,” and the act doesn’t apply because his actions were humanitarian in nature.

Hough, however, told the jury that the actions of the men could not be humanitarian.

The MV Sun Sea was a “terribly overcrowded vessel” that had been in service for 30 years, rather than the standard 15 years for cargo ships, he said. It had a single lifeboat with room for about 20 people, not enough life-jackets for adults and none for children, he said.

“Everyone could have died on that ship on the way to Canada. Fortunately that didn’t happen, but it could have happened,” he told the jury.

He said migrants have testified that they were charged about US$20,000 or US$30,000 for the voyage, most often paying about US$5,000 up front with the expectation they would pay the remainder upon arrival to Canada.

“Is this something the Red Cross would do?” he asked. “Charging people money is inconsistent with it being a humanitarian operation.”

The other Sri Lankan man, Kunarobinson Christhurajah, is accused of being the owner of the ship.

Hough told the jury he made an error last week when he said Christhurajah’s lawyer had argued his client had divested himself of the company that owned the ship. In fact, Hough said Tuesday, lawyer Casey Leggett had not made that argument.

Leggett argued there was no evidence his client profited from his actions and the Crown had failed to prove he hadn’t acted for a humanitarian purpose, the Vancouver Sun reported.

— Follow @ellekane on Twitter.

Laura Kane , The Canadian Press