St. John-Stevens J
IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE IND. NO: 0002/2018 THE QUEEN v. ELMER WATLER WRIGHT Appearances: Mrs. Nicole Petit for the Crown Mr. Keith Myers for the Defendant Before: Justice St. John-Stevens (Actg.) Heard: 23rd and 24th January 2020 HEADNOTE Criminal Law – Possession of an Unlicenced firearm (ammunition), Possession of a Bullet Proof vest – Trial by Judge Alone. VERDICT JUDGMENT
This defendant, Elmer Walter Wright, is charged upon an indictment containing two counts, namely: a. Count 1 – Possession of an Unlicensed Firearm (Ammunition) contrary to s.15 of the Firearms Law (2018 Revision), and; b. Count 2 – Possession of Bullet-proof Vest contrary to s.15 of the Firearms Law (2018 Revision) THE LAW & LEGAL DIRECTIONS Judge - Alone Trial
This defendant has elected to be tried by a Judge alone pursuant to s.129 of the Criminal Procedure Code (2014) which reads: "If an accused person is of the opinion that, due to the nature of the case or of the surrounding circumstances, a fair trial with a jury may not be possible, he may, ........., elect to be tried by a Judge alone......";
I remind myself of the approach that I must adopt. To this end I have reviewed a number of authorities.
The Cayman Islands Court of Appeal (CICA) first dealt with the duties of a Judge in Judge Alone trials in its judgment in K. Richards v. R1 when Justice Rowe stated: "When a trial judge sitting alone has advised himself to the applicable principles of law, and given himself any necessary warning, he must indicate clearly in his judgment his reasons for acting as he did, in order to demonstrate that he has acted with the requisite degree of caution in mind and has therefore heeded his own warning. No specific form of words is necessary for this demonstration, what is necessary is that the Judge’s mind upon the matter should be clearly revealed." 1 2001 CILR 496
In R v. Dave Kennedy Whittaker², the CICA gave some guidelines regarding the duties of a Judge in Judge Alone trials. In the Judgment of Mottley J. adopted the Judgment of the former Lord Chief Justice of Northern Ireland Lord Lowry in R v. Thompson³ in which he stated at page 83: "While on the subject I might say a word on the duty of the judge when giving judgment in a trial under the 1973 Act. He has no jury to charge and therefore will not err if he does not state every legal proposition and review every fact and argument on either side. His duty is not as in a jury trial to instruct laymen as to every relevant aspect of the law or to give a full and balanced picture of the facts for decision by others. His task is to reach conclusions and to give reasons to support his view and, preferably, to notice any difficult or unusual points of law in order that if there is an Appeal, it may be seen how his view of the law informed his approach to the facts."
The CICA in Randy Martin v. R⁴ delivered their reasons for dismissing the Appeal on the 7th December 2010. Mottley J.A. again adopting R v. Thompson⁵ also adopted R v. Thain⁶ where Lowry LCJ said at page 478: "Where the trial is conducted and the factual conclusions are reached by the same person, one need not expect every step in the reasoning to be spelled out expressly, nor is the reasoning carried out in sealed compartments with no inter-communication or overlapping, even if the need to arrange a judgment in a logical order may give that impression. It can safely be inferred that, when deliberating on a question of fact with many aspects, even more certainly than when tackling a series of connected legal points, a judge who is himself the tribunal of fact will (a) recognise the issues and (b) view in its entirety a case where one issue is interwoven with another."
Following Lowry LCJ in R v. Thompson and R v. Thain, Mottley J. said in Randy Martin v. R, at paragraph 31: "From these cases the following guidance may be discerned. A judge sitting in a criminal case without a jury, in rendering his decision and giving his reasons for so concluding, is not required to review every fact and to detail each argument on which the prosecution and defence rely as if he were summing up ² Cr App No 14 of 2006 ³ 1977 NI 74 ⁴ Cr App No 2 of 2010 ⁵ 1977 NI 74 ⁶ [1985] NI 457 to a jury. The judge must set out the conclusion reached and make clear the reasons for arriving at that conclusion. He is required to have regard to any difficult or unusual points of law and to show how those points of law have in anyway impacted the conclusion that he has reached." GENERAL APPROACH TO THE FACTS OF THE CASE
In judging the facts and reaching my verdict I have not decided every point or issue which has been raised - only such matters that have enabled me to determine whether the charge laid against the defendant has been proved. My task is to reach a reasoned conclusion upon the evidence, to approach the evidence in accordance with applicable law in an objective and dispassionate way.
I have had regard to the whole of the evidence including the agreed read evidence. I have reflected carefully upon all the evidence to determine which evidence is reliable and which is not. I have come to common sense conclusions based on the evidence which I have accepted. I have guarded against speculating against what evidence there might have been.
The defendant has chosen to give evidence, he need not have. I have judged his evidence by precisely the same fair standards as I apply to any other witness in the case. He comes from no position of disadvantage because he is the defendant. BURDEN AND STANDARD OF PROOF
I remind myself of the Burden and Standard of Proof. The prosecution must prove that the defendant is guilty. He does not have to prove his innocence. That burden of proving the defendant's guilt is and remains upon the prosecution. The standard of proof that the prosecution have to attain in order to succeed in proving the defendant's guilt, is to make me sure. Nothing less than that will do.
If after considering all the evidence I am are sure that the Prosecution has proved its case, then my verdict must be guilty. If am not sure, my verdict must be not guilty. SEPARATE VERDICTS
I must consider the case against and for the defendant on each count separately.
The important obligation to consider each count separately on its merits does not mean that I should ignore all the evidence of background circumstances, which may well, and it is a matter for me, be evidence which will assist me in reaching a verdict.
It could be that in this case decision on the facts of one count might well assist in coming to a conclusion on another counts. Nevertheless, I must reach separate verdicts on each count having focused on each separately and having formed a separate decision about it. THE INDICTMENT
The Defendant is charged upon an indictment containing two counts, namely: a. Count 1 - Possession of an unlawful firearm, contrary to s.15(1) of the Firearms Law (2008 Revision) which provides: "Subject to subsection (2), no person shall be in possession of any firearm except under and in accordance with the terms of a Firearm User’s (Restricted) Licence" The particulars being that on the 29th July 2017 in the vicinity of Desmond Drive, George Town, Grand Cayman the Defendant had in his possession 112 rounds of ammunition, which were not under and in accordance with the terms of a Firearms User’s (Restricted) License. b. Count 2 - Possession of a bullet-proof vest, contrary to s.15(3) of the Firearms Law (2008 Revision) which provides: "Subject to subsection (4), no person shall be in possession of a bullet-proof vest except with the prior written approval of the Commissioner." The particulars being that on the 29th July 2017 in the vicinity of Desmond Drive, George Town, Grand Cayman the Defendant had in his possession a bullet-proof vest without the prior written approval of the Commissioner of Police.
The defence accept that that none of the statutory permissive defences are applicable in this case. "POSSESSION"
The fundamental issue in relation to each count, separately considered, is whether the Prosecution has satisfied the Court so that it is sure, that the Defendant possessed the particularised items.
I remind myself that the question of possession is a matter of fact. The article must be physically in the custody or under the control of The Defendant. A person does not have to be present at the place that the article is kept in order to be in possession of it. CIRCUMSTANTIAL EVIDENCE
Sometimes a tribunal of fact is asked to find some fact proved by direct evidence. However it is often the case that direct evidence of a crime is not available, and the prosecution relies upon circumstantial evidence to prove guilt.
In this case the Prosecution is relying upon evidence of various circumstances relating to the crime and the defendant which they say, when taken together, will lead to the sure conclusion that it was the defendant who committed the crime.
Circumstantial evidence can be powerful evidence. But it is important that the Court must consider whether the evidence upon which the prosecution relies in proof of its case is reliable and whether it does prove guilt. Furthermore, before convicting on circumstantial evidence the Court must consider whether it reveals any other circumstances which are or may be of sufficient reliability and strength to weaken or destroy the prosecution case.
Finally, the Court is careful to distinguish between arriving at conclusions based on reliable circumstantial evidence, and mere speculation. PREJUDICIAL MATERIAL THAT IS NOT PROBATIVE
The Prosecution has placed evidence before the court that at the time of the alleged offence the Defendant had an electronic monitoring tracking device fitted on him. Further, the historical tracking data download of his movements on the day in question is before the court.
Its potential probative value is not in dispute. However the court is mindful that it must not speculate nor in anyway hold the fact that the Defendant was being so monitored against this defendant. It cannot and will not prejudice the court. The mere fact he was on a “monitor” does not, and cannot be regarded as supporting the Prosecution’s case. COURT SECURITY
There has also been a higher than normal level of security surrounding this trial. It is clear to this court that the defendant is in custody. I am resolute in my approach that this in no way has any bearing upon the decision of the court. NO COMMENT IN POLICE INTERVIEW
On 18th October 2017, the Defendant was interviewed under caution. During the course of the interview he answered no comment to some of the questions. He did however set out his defence, and the facts he relies upon. He has made some comments upon the Prosecution case, this being in the spirit of possible answer to the Prosecution case rather than assertions of fact.
The fact that The Defendant exercised his right not to answer provides no support for the Prosecution case. The court in no way holds this against the Defendant. THE PROSECUTION CASE
The Prosecution case is that: a. The Defendant hid the items in the dense bushes, for him or another to retrieve. b. It is beyond coincidence that the Defendant happened to go to this location and move around for 5 minutes. c. Further, it is beyond coincidence that a plastic bag wrapping the ammunition had his fingerprint on it.
The Prosecution contend that the Defendant’s account that he may have touched a bag, perhaps at his cousin’s house is fanciful – as is the suggestion that someone has falsely implicated him. THE EVIDENCE
A great deal of the Prosecution case has been reduced in to Formal Admissions - pursuant to section 34 of the Evidence Law (2019 Revision).
On 19th July, 2017, the defendant was enrolled in the Electronic Monitoring program by the Royal Cayman Islands Police Service (RCIPS) and was fitted with a Wearable Tracking Device ("the Monitor"). THE DEFENDANT’S MOVEMENTS
The historical data for the Monitor demonstrates that on 29th July, 2017 the Defendant was in the vicinity of 165 Shamrock Road (15:09:56), and then in the bushes opposite Desmond Drive (15:18:56). He was stationary in those bushes for 5 mins. He moved between 5 locations during this time. (15:17:56 to 15:23:56).
The electronic monitoring maps JA/1-9 (exhibited to the Statement of Jessica Austin [Ex.5] - which was read as agreed evidence) - reflect this.
The area as can be seen from the exhibited photographs [Ex.3 photo.p1-3] is densely bushy. It is all noted that the route, mapped by the monitoring map, from the road into the bushes - appears not be a footpath nor any discernible passage. The satellite image [Ex.1] illustrates this.
Indeed it is the defence case that the Defendant went into the bushes to either defecate or hunt for carbs and/or iguana.
Formal Admission (#8) summarises the situation: “The electronic monitoring history of the defendant places him in the bushes where the ammunition and bullet proof vest were recovered.” THE FINDING OF THE AMMUNITION & BULLET-PROOF VEST
On the 8th August, 2017, a search team comprising RCIPS and Customs Officers conducted a search of this bushy area.
Recovered approximately 56 feet into the bushes from Desmond Drive, was a bag which contained a blue bullet proof vest, (the subject of count 2). This bag was hidden under a sheet of corrugated zinc.
A second black plastic bag (WH#2) was also found under a sheet of zinc approximately 68 feet from the roadway.
The bag contained two transparent plastic jars with a yellow-looking substance, which appeared to be cornmeal, and 112 rounds of ammunition (the subject of count 1).
The locations where these items were found have been annotated on the satellite image [Ex.1]. FINGERPRINT EVIDENCE
A single fingerprint was recovered from the black plastic bag (WH#2) which contained the transparent jars with the ammunition. This was established to be the left forefinger impression of the defendant. EXAMINATION OF THE AMMUNITION & BULLET-PROOF VEST
The 112 rounds of ammunition were all found to be lethal and capable of being discharged. They therefore fell within the definition of a firearm.
The defendant is not a licensed firearms holder, nor is he licensed to hold a ballistic vest. Also, the defendant does not have the prior written approval of the Commissioner of Police to be in possession of a ballistic or bullet proof vest (Admission #11.) ARREST & DEFENDANT’S POLICE INTERVIEW
On 18th October 2017, the Defendant was arrested at his home address in Prospect, on suspicion of possession of firearms. On 19th October 2017, he was interviewed under caution in the presence of his attorney.
During the course of the interview he answered no comment to some of the questions. He did however set out his defence that he had no dealing with the items. He accepted that he went into the bushes. He elaborated that he could not remember the exact day – saying it was months earlier – but stated that he went in to either defecate or hunt for carbs and/or iguana.
He explained that the single fingerprint found on the plastic bag could have got there as he touches bags – and he gave examples. He also suggested that he could implicated by others. THE DEFENDANT’S EVIDENCE
The Defendant, who is 26 years old, explained that he was living at Birch Avenue, Prospect, on the day in question (29th July 2017).
He explained further that he knows the location Desmond Drive, and accepts that if the monitor put him there, then he was there.
He was asked why he was there. He said he had no specific recollection of that day but assumes that he went there to use the bathroom. He said "I have a cousin Neill Thomas who lives in Clarence Drive near Desmond Drive. Can't recall if I went to see him that day"
The Defendant was asked to account for his presence at that location during his police interview on the 19th October 2017. During that interview he said. "I can't recall why moving around in the bush, normally go in the bush to take a shit but can't recall if I did that day".
He said he may have gone looking for crabs. In evidence he said he may also have been hunting iguanas. He also said: "I like to smoke when shit. Can't do that in the bathroom."
He accepted that his Monitor shows him moving from spot to spot, (5 stops in 5 minutes).
At no point can the Defendant recall corrugated metal in the bushes.
He was asked about the fact that his fingerprint of his fore-finger (left-hand) was found on the plastic bag containing the ammunition. In response the defendant explained that he may have touched the bag at some other location. He said that his cousin lived on Desmond Drive, – which is a one-minute walk from the scene. The Defendant said there were black plastic garbage bags there and he said that at times he had put bags out there.
He emphatically denied that he ever possessed the ammunition or the bullet-proof vest. He said that the items did not belong to him. He said, further, that he would not go to that location with “them knowing” he had the monitor on. He also said that there was a possibility that he had been set-up by others unknown. THE DEFENCE SUBMISSIONS
I do not propose to set out all of the defence submission - but I have taken them all into account in my adjudication of this case.
The defence invite the court to take into account that: a. The Defendant was interviewed months after July 2017, therefore his inability to account precisely for his movements on the day in question is wholly explicable; b. The Defendant did not have to give evidence; c. There is no supporting scientific forensic evidence obtained from the glass jars containing the ammunition and none from the ammunition. There is only a single fingerprint delivered by a finger of the left hand. No other marks; d. There is no supporting scientific forensic evidence on the plastic bag containing the bullet-proof vest, and none on the zinc sheeting; e. There is no evidence both articles were left by the same person; f. It is mere speculation that the Defendant left the articles there and the Defendant would not do so when he knew he was being monitored; g. It is speculation that it was the Defendant who left the articles there - it could have been anyone; h. The Defendant puts garbage out at his cousin who lives a minute away from the subject location which could account for the fingerprint. CONCLUSION
Applying the legal directions to the facts, I am driven to the sure conclusions as follows: i. Both the ammunition and the bullet-proof vest were left by the same person. 1. The possibility that it could be by coincidence that they would be hidden in such close proximity (12 feet) one to another can be excluded; 2. They were both wrapped in plastic and hidden under zinc sheeting. 3. I also take account nature of the bushy area and fact it was not a thoroughfare or other place where persons generally would have reason to visit. ii. The Defendant "possessed" the ammunition and the bullet-proof vest he hid in the bushes. 1. I am sure on the two strands of circumstantial evidence (Monitor positioning and fingerprint) that, when taken together, I am led to the sure conclusion that it was the defendant who hid the items in the bushes. 2. I have considered carefully whether the circumstantial evidence reveals any other circumstances which are or may be of sufficient reliability and strength to weaken or destroy the prosecution case. 3. I reject the possibility that: a. Some other person happened to go that same location to hide the items; b. The Defendant innocently touched the bag; c. The bag with his (accidental) fingerprint was coincidently used by another person to place the ammunition in; d. The Defendant was set-up – in the sense that another person used a bag with the Defendant's fingerprint. These are valuable items that may or may not have been found by a person who could or would implicate The Defendant.
I had the opportunity of hearing and seeing the Defendant give evidence. He is a consummate liar.
I am sure that the defendant’s account for visiting the bushes on the day in question was a lie. I am also sure that the defendant’s explanations as to how his fingerprint was on the bag were lies.
I am satisfied that the Prosecution have made me sure of the other ingredients of each offence.
The verdicts of the Court are: a. Count 1 - Guilty. b. Count 2 - Guilty. Dated this the 28th day of January 2020 Justice St. John-Stevens Acting Judge of the Grand Court