Quin J
IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE INDICTMENT NO: 0093/2011 THE QUEEN V ROBERT AARON CRAWFORD Appearances: For the Crown: Ms. Tricia Hutchinson, Senior Crown Counsel, on behalf of the DPP Defence Counsel: Mr. Nicholas Hoffman of Priestleys on behalf of the Defendant Before: Honourable Mr. Justice Charles Quin Heard: 1st - 9th October 2012 Preamble This Judgment is distributed with the strict understanding that, in any report of it, the anonymity of the police officers must be strictly preserved, that is, the officers may not be identified by name, badge number, rank or unit. JUDGMENT
The Defendant pleaded not guilty to one charge of possession of an unlicensed firearm contrary to s.15(1) and s.15(5) of the Firearms Law (2008 Revision). The particulars of the offence are that the Defendant, on Friday the 18th day of November 2011, at the Esterley Tibbetts highway, in the vicinity of the Island Heritage Roundabout had, in his possession a firearm, namely a Stock German Luger containing a magazine with six 9mm Luger rounds, except under and in accordance with the terms and conditions of a Firearm User’s Licence.
The Crown must prove beyond reasonable doubt that the Defendant was in possession of a Stock German Luger handgun containing a magazine with six 9 mm Luger rounds so that I, as the Tribunal of Fact, can be sure that the Defendant is guilty of possession of the firearm and the ammunition.
If after considering all the evidence, I am not sure to the requisite standard of proof, I must find the Defendant not guilty.
In order to prove possession the Crown must prove beyond all reasonable doubt that the said Stock German Luger handgun containing a magazine with six 9mm Luger rounds of ammunition was in the custody, or under the control, of the Defendant.
The Defendant elected to be tried by a Judge Alone, rather than a Judge and Jury, pursuant to s.129 of the Criminal Procedure Code of the Cayman Islands.
Our Court of Appeal first dealt with the duties of a Judge in Judge Alone trials in its judgment in K. Richards v. R 2001 CILR 496 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."
In R v. Dave Kennedy Whittaker Cr. App. R. No. 14 of 2006, the Court of Appeal gave some guidelines regarding the duties of a Judge in Judge Alone trials. In the Judgment of Mottley J.A. he adopted the Judgment of the former Lord Chief Justice of Northern Ireland Lord Lowry in R v. Thompson [1977] NI 74 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."
More recently our Court of Appeal in Randy Martin v. R Crim. App. R. 2 of 2010 delivered their reasons for dismissing the Appeal on the 7th December 2010. Mottley J.A. again adopting R v. Thompson [1977] NI 24 also adopted R v. Thain [1985] NI 457 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) recognize 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.A. 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 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." EVIDENCE ON BEHALF OF THE CROWN PC #355 WADE GORDON IN CHIEF
On the evening of the 17th November 2011 PC Gordon was on duty with WPC Minott at the car park in the Grand Pavillion complex, adjacent to Club 7.
PC Gordon said that two persons – namely Jermaine Rodney ("Mr. Rodney") (also known as "Six Killa"), and Howard Scott ("Mr. Scott") – gave him some information relating to the white Nissan motor vehicle which was parked at the end of the car park. As result of this information PC Gordon said he drove in a marked police service vehicle to the end of the car park and he "partially blocked" the vehicle that was pointed out to him. PC Gordon said that when he alighted from the police car he spoke to the driver of the Nissan, who was seated in the car. The driver was the Defendant, Aaron Crawford.
PC Gordon asked the Defendant to turn off the engine and get out of the car, but the Defendant remained seated behind the steering wheel.
At this point, Mr. Rodney and Mr. Scott came over to PC Gordon beside the Nissan, and Mr. Rodney said, "Officer, that's the man that pull the gun on me." PC Gordon said that after Mr. Rodney said those words he, Mr. Rodney, punched at the driver (i.e. the Defendant).
PC Gordon said he spun around to restrain Mr. Rodney and then the Defendant drove off.
PC Gordon said he shouted to his partner, WPC Minott, "Get in the vehicle quick." Whilst doing this a USG vehicle pulled into the car park and he shouted to the USG officers "Catch that car. The driver has a gun."
PC Gordon said he had not actually seen a gun. He said he passed on the information he received from both Mr. Rodney and Mr. Scott about the driver having a gun. CROSS EXAMINATION OF PC #355 WADE GORDON
Defence counsel said to PC Gordon that Mr. Rodney and Mr. Scott had told him that there was a gun in the car and not that the gun was held by the driver, to which PC Gordon said, "No Sir."
Defence counsel put to PC Gordon that it was only Mr. Rodney who told him that there was a gun in the white car parked at the other end of the parking lot, and not Mr. Scott as well and PC Gordon replied, "No Sir, They both said it." PC Gordon acknowledged that when they had all moved over to the white Nissan at the other end of the car park, and were standing at the car, it was only Mr. Rodney who spoke again about the driver having a gun, and, at the same time, Mr. Rodney said this whilst pointing to Aaron Crawford in the car.
Re the Defendant hearing what was said about the gun: PC Gordon said that when Mr. Rodney spoke about the gun by the car, Aaron Crawford could have heard. Defence counsel asked PC Gordon if Aaron Crawford said anything when Mr. Rodney spoke about him having a gun, and PC Gordon said that Aaron Crawford said nothing. Defence counsel put to PC Gordon that the Defendant did not hear what Mr. Rodney said. In reply PC Gordon said that the Defendant "...was not saying anything from I got to his car." PC Gordon was asked if there was a lot of activity or a rowdy atmosphere around the car and PC Gordon said, "No Sir." PC Gordon was asked if, at the time, it was difficult to hear what was being said and PC Gordon said, "No Sir."
Asked about Mr. Rodney punching at the Defendant, PC Gordon said that Mr. Rodney had to punch around him (PC Gordon) and he had turned and pulled Mr. Rodney back almost immediately, so Mr. Rodney only "...put his hand briefly into the car."
PC Gordon was asked if he could recall whether he saw the Defendant with a belt on in the car and PC Gordon said he could not deny or confirm whether the Defendant had a belt.
Defence counsel put to PC Gordon: "You were relying wholly on what you were told. You did not see any weapon in the car," to which PC Gordon agreed.
PC Gordon said he was satisfied that Mr. Rodney's punch was directed at the driver, who was the Defendant. PC Gordon said he could not confirm whether the punch connected with the Defendant, or exactly how close the punch went to landing on the Defendant. PC #184 ALFRED BRADLEY IN CHIEF
PC Bradley confirmed that he is now resident in the United States but in November 2011 he was resident in the Cayman Islands and employed to the Royal Cayman Islands Police Service (RCIPS) as a Uniformed Support Group (USG) Officer.
On the 17th November 2011 PC Bradley said he came on duty for the evening shift which began anywhere between 1800 hours to 2300 hours and he signed on for duty with PC #316 Rabess.
PC Bradley said they were on routine patrol in the area of Club 7 on West Bay Road. PC Bradley explained that when the clubs are closing "We attend these locations sort of known to cause problems for us. So we show a strong police presence there."
PC Bradley said on arrival at Club 7 his attention was drawn to the car park area of Grand Pavilion where he saw a marked police car in the parking lot next to Grand Pavilion and there appeared to be a disturbance. PC Bradley said he saw Officers Gordon and Minott outside the police car and they were trying to gain control of a crowd involved in a disturbance.
PC Bradley said as he was approaching the two officers to assist them – that is, passing Club 7 on the left and turning right into the Grand Pavilion parking lot, the entrance to the Grand Pavilion was momentarily blocked by a vehicle leaving the parking lot. When that vehicle passed, the USG vehicle continued towards the marked police vehicle.
PC Bradley said he then exited the USG vehicle from the passenger side and that was when he heard Officer Gordon shout: "Stop that vehicle." PC Bradley said he did not see the occupants of the vehicle when the vehicle passed because he more focused on the police officers in the loud crowd of people.
PC Bradley said that the next thing was that PC Rabess said something to him as a result of which he, Bradley, got back into the USG patrol vehicle. PC Bradley said that Officer Rabess, who was the driver, turned the vehicle around and proceeded to follow the vehicle they were told to stop.
PC Bradley said that in the vehicle PC Rabess told him who they were following and why and they followed the vehicle as it exited the entrance of the Grand Pavilion on to the West Bay Road. PC Bradley said the vehicle then accelerated at a high rate of speed, travelling southbound on West Bay Road toward the Gecko Link roundabout. Then the Nissan car made a left by Fidelity Bank and turned towards the Esterley Tibbetts bypass and the USG vehicle did the same. PC Bradley said that when the vehicle made the turn towards Esterley Tibbetts highway he could see it turn northbound, that is, going back towards West Bay. PC Bradley said, "Because the vehicle was travelling fast we [Bradley and Rabess] could not stay close to the vehicle.....but were close enough to maintain visual [of the vehicle] but not to maintain high-speed pursuit."
PC Bradley said that as the vehicle turned on to the Esterley Tibbetts highway it "accelerated towards the Island Heritage roundabout." PC Bradley said he saw that, just as the vehicle was entering that roundabout, the vehicle had crashed into the guard rail on the left-hand side.
PC Bradley said that he next noticed that the front seat passenger had exited the vehicle from the right door, and there was only one occupant in the vehicle, who was the driver. PC Bradley said he noted that the vehicle was a left hand drive car and the driver's door was pinned shut against the guard rail.
PC Bradley said he next saw the driver emerge from the passenger side of the vehicle. PC Bradley said, "I began to focus on him [the driver] and he ran directly into the headlights of our vehicle." PC Bradley said that when the Defendant realised that he had run into the USG vehicle he "...pushed [himself back] off the hood [of the vehicle] and began to run northbound on Esterley Tibbetts."
PC Bradley said when the Defendant ran into the USG vehicle with the headlights on the Defendant, "He [the Defendant] was directly in front of me and I could see it was Aaron Crawford."
PC Bradley said that after the Defendant pushed himself off the vehicle he turned around and ran in the opposite direction. PC Bradley said, "Knowing it was Aaron Crawford I yelled out to him 'Stop! Armed Police! Get on the ground!' I knew it was him [Aaron Crawford] because I had met with him and spoken with him for several minutes the day before." PC Bradley said the Defendant did not obey his commands to stop and he, the Defendant, continued to run up Esterley Tibbetts highway. PC Bradley said, "I followed behind him giving him more commands."
PC Bradley said that, as a police officer he had been trained to watch the hands. PC Bradley said, "As I was running I watched his hands..... I could see both of his hands came in front of his body."
PC Bradley continued to give the Defendant verbal commands to stop, but the Defendant kept on running.
PC Bradley said, "From my training ...individuals will conceal firearms for immediate access. Realising he [the Defendant] could be reaching for something I gave more commands. PC Bradley said: "He looked over his shoulder. I could see he lifted the front of his shirt."
First sight of and description of the alleged weapon: PC Bradley said he could see that when the Defendant lifted his shirt he was reaching into the front of his waistband with his right hand. PC Bradley saw the Defendant's right hand re-emerge from in front of his body and he could see that the Defendant was holding a silver coloured handgun. Asked how was the Defendant holding the gun, PC Bradley said, "Just as a track and field person would run with a baton. I could tell it was a handgun, silver in colour and was not pointed in my direction... and it, [the weapon] disappeared out of my sight momentarily... his body was between the weapon and my line of view." PC Bradley continued: "At this point I placed my hand on my service weapon ...and continued to give more commands to stop. At this point we were nearing the end of the guard rails and the weapon re-emerged, still moving forward and back ...on the right hand side of his body." PC Bradley continued: "Just past the guard rail he [the Defendant] entered the bush area on the west side of the highway. A few yards into the bush he [the Defendant] threw the gun with his right hand in a motion across his body towards the left....a motion that was about waist high.....I saw the silver-coloured handgun rotate horizontally through the air." PC Bradley said the gun was thrown in the area of the bush he, Bradley, had pointed out at the visit to the crime scene on the previous evening, that is, the 2nd October 2012.
PC Bradley said that after the Defendant threw the handgun, "Despite more verbal commands he [the Defendant] continued to try to evade arrest. He continued to run. I ran behind him another short distance and was able to catch up to him and effect the arrest....I tackled him from behind....we landed – both of us – face down in the grass. I was on top of him in a guard position. I had both of his arms extended by his wrists. He requested to be turned over."
PC Bradley said that the first words from the Defendant after he turned him over was, "That guy had a gun."
PC Bradley said that at this point he called out to PC Rabess to indicate his location in the bush. When PC Bradley reached to where he, Bradley, was with the Defendant, the Defendant was handcuffed.
As they walked back to the roadside PC Bradley told the Defendant that he was under arrest for suspicion of possession of an unlicenced firearm and the Defendant gave no response.
PC Bradley said a marked police car arrived just when he and PC Rabess reached the roadside with the Defendant and, "within minutes", the Defendant was transported away to the police station.
PC Bradley said that he remained at the scene and after the Defendant was taken from the scene other police units arrived and, "I told officers that I saw Crawford with a silver-coloured handgun."
Asked which officers he had told about the gun, PC Bradley said it was PC Rabess, PC Soto and others. PC Bradley said he told the officers where he had seen the firearm land in the general bush area.
PC Bradley said he did not leave the vicinity and he, PC Soto and PC Rabess began searching the bush area.
PC Bradley said it was PC Soto who was the first to find the weapon and when PC Soto found the weapon he, Soto, said he had found the weapon. PC Bradley said he walked over to where PC Soto found the weapon and identified it as the one the Defendant had in his hand whilst running.
PC Bradley said that PC Soto took over the custodial portion of collecting and exhibiting the weapon.
Asked, "You said this happened at 3 a.m. How were you able to see all that you saw?" PC Bradley replied that the roundabout and the road were very well lit. He said there were a number of streetlights illuminating the entire roundabout and the surrounding area, and that is why he had no difficulty seeing the firearm in the Defendant's hand as he was chasing him.
Asked to describe the weapon, PC Bradley said it was an old World War II Model, semi-automatic gun.
Distances in relation to the weapon: At the crime scene visit on the 2nd October, and in Court, PC Bradley said he was about 18 feet behind the Defendant when he saw the Defendant with the handgun moving it like a baton. PC Bradley said that at the time the Defendant threw the firearm from his right to his left, he, Bradley, was approximately 5 or 6 yards behind the Defendant.
PC Bradley was shown the weapon. PC Bradley confirmed that he saw the weapon when the Defendant was running with it in his right hand; he saw the weapon when the Defendant threw it into the bush; he saw the weapon when it was located in the bush by Soto; and, he is now seeing the same weapon today, in Court, on the 3rd October. PC #184 ALFRED BRADLEY – CROSS EXAMINATION
Shift hours and fatigue: Defence counsel asked PC Bradley what time he came on duty on the 17th November 2011 and he said it was 2300 hours. Asked if it could not been at 2000, and therefore working for seven hours and therefore coming to the end of his shift, and PC Bradley said no, it was 2300 hours. Defence counsel pointed out that if he began at 2300, he would have been on duty for 4 hours by the time this incident took place and then asked PC Bradley about his alertness, to which PC Bradley responded: "I am just as alert. If you get ample amount of sleep before the shift then you are alert throughout. I was not tired on that particular night."
The incident: Asked by Defence counsel: "When did you first see the white Nissan?" and PC Bradley’s response was, "When it was exiting on to the West Bay road."
Asked: "How far away was your car?" PC Bradley responded, "Twice the length of this courtroom...30 to 45 yards away....I was looking at it from behind."
PC Bradley said that PC Rabess was still in the vehicle and he, Bradley, was out of the vehicle, but holding on to the door, when he was alerted to stop the vehicle leaving the car park.
PC Bradley agreed that he was aware of Aaron Crawford, the Defendant, prior to the night in question and he said he was aware that the Defendant was on a long arm authority. PC Bradley said that that meant he was under suspicion for possession of a firearm.
PC Bradley said when the USG vehicle turned on to the West Bay Road to follow the Nissan Sentra there were no other vehicles between his vehicle and the Nissan. PC Bradley said, however, because the Nissan was going fast, his police vehicle could not keep up with the Nissan, so the distance of approximately 30-45 yards between the USG vehicle and the Nissan increased and they were further behind than at the start. PC Bradley said he momentarily lost sight of the Defendant’s car when it turned left on to the Esterley Tibbetts Highway. Additionally, he accepted that there is curve on the highway that blocks your line of sight momentarily. PC Bradley said he did not see the Defendant lose control of the vehicle and when he saw the Nissan, he was some 75 yards away and the vehicle had already crashed.
PC Bradley confirmed to Defence counsel that the Defendant exited the crashed vehicle from the front passenger door. PC Bradley confirmed that the Defendant ran into the police vehicle and pushed himself off the bonnet of the police vehicle. He confirmed that the headlights of the USG vehicle illuminated the Defendant in front of him and he knew it was Aaron Crawford. PC Bradley said that the Defendant did not fall or stumble, and he was on his feet the entire time.
PC Bradley said that when he started to chase the Defendant there were lights all around and he yelled at the Defendant to "Stop" but the Defendant just continued running.
PC Bradley accepted that at first he did not see anything concealed on his person when he, the Defendant, was up against the front of the police car. PC Bradley said the Defendant was wearing a long red shirt with shorts.
PC Bradley agreed that when the Defendant was running and his hands were in front of him, he could no longer see the Defendant's hands, but he knew they were in front of the Defendant's body, because he could see the Defendant's elbows – even though he could not see the Defendant's hands. PC Bradley said that from his training and experience he saw the out-of-sight hands as a "red flag" because the Defendant was reaching into his waistband where people normally conceal firearms or some other weapon.
PC Bradley was asked whether he noticed if the Defendant was wearing a belt and PC Bradley said he did not notice.
Asked whether the Defendant was stumbling or pulling at his clothing PC Bradley said, "I would have caught him a lot quicker if he was being obstructed."
PC Bradley said the Defendant was not stumbling and he was running perfectly normally. PC Bradley said the Defendant was "...moving pretty good." PC Bradley said he could see that the Defendant lifted the front of his shirt and was reaching into waistband whilst running. It was put to PC Bradley that he was mistaken and that the Defendant was only trying to pull up his trousers, and PC Bradley said, "No."
PC Bradley said that whilst the Defendant was running he partially turned his body. Asked why did the Defendant need to turn around to get rid of a firearm, and PC Bradley replied, "To see if I was still coming behind him."
PC Bradley said he was not breathing down the Defendant’s neck during the on-foot chase, but he, Bradley, was no more than 20 metres behind the Defendant. PC Bradley was reminded that, at the crime scene visit, he said that he, Bradley, was 18 feet behind the Defendant and in his statement he said that he was 30 feet behind. In response PC Bradley said these are rough estimates.
It was put to PC Bradley that he described what he saw in the Defendant’s hand as a silver handgun and he also used the word firearm, but he was not able to say anything about the make or model of the firearm. PC Bradley said to Defence counsel, "The make or model is a minute characteristic which can’t be made out from a distance and (while) running."
It was put to PC Bradley that he was not sure the Defendant had a firearm in his hand on the night in question and PC Bradley said he did not agree with that suggestion. It was put to PC Bradley that after he had caught the Defendant he told other officers that there was “possibly” a firearm, and was asked, “Did you tell anyone it might have been a firearm?” and PC Bradley said this was not so. It was put to PC Bradley that the words he used to describe what he saw were the words “resembling” and “an object” and he did not use the word “firearm”, to which PC Bradley said, "I said he just threw a gun" PC Bradley said the moment he caught the Defendant and PC Rabess came close enough he whispered to PC Rabess. "He just threw a gun." PC Bradley said perhaps PC Rabess had not heard him, but he whispered that because he did not want the Defendant to hear him. PC Bradley said when they got out of the bush and back on to the road he told PC Rabess again that the Defendant had a silver coloured handgun in his hand and he threw it into the bush. It was put again to PC Bradley that he was not sure that the Defendant had a gun, and, in fact he was not sure what the Defendant had thrown and PC Bradley said that was incorrect.
It was put to PC Bradley that in his statement he said the firearm travelled some 10 meters and he agreed that this was approximately 30 feet. PC Bradley again said he saw the firearm come from the Defendant's right hand, across his body, rotate through the air and land. PC Bradley said he did not see what tree limb it hit and he did not see what bush it hit, he just knew it landed. PC Bradley said he saw the area where it landed. Asked why did he not mention this in his statement, PC Bradley replied that he saw the general area. PC Bradley said he did not say that he saw where it landed. "I never said that. I said I saw if fall in an approximate area." PC Bradley said he did not see the firearm land on the ground, he saw it go into the bush.
PC Bradley said he wanted to ensure that there were no cross contamination issues and so he secured the area. He said he did not want to be the one to touch the firearm. PC Bradley said he knew the area where it was, but he had not gone in to pick it up. He said he knew the area where I suspected the firearm would be found.
PC Bradley said that he and PC Rabess were there at the scene and, "...after we secured the Defendant we attended to the scene and we secured the scene."
PC Bradley said that after the Defendant was taken away from the scene he "...stayed on the shoulder [of the road] and waited for everyone to come...." Asked: "Did you see anyone searching before the briefing took place?" and PC Bradley replied, "No."
PC Bradley confirmed that the search began just after PC Soto arrived and that the gun was found at 4:30 a.m. and that it was PC Soto who found the gun with the help of a metal detector.
PC Bradley said that the lighting that PC Rabess obtained helped to speed up the search and make the search easier. PC Bradley said, "The lighting was nice to have but I didn't call for it." It was again suggested by the Defence to PC Bradley that he was not sure about the gun, and that is why the lighting and the metal detector were needed and PC Bradley replied, "No. I was sure. I knew exactly what I saw in his hand. I knew he had a silver coloured firearm and I knew the area where it landed. We commenced a search of that area. Someone brought in some extra lighting. It was helpful. That's the end of the story. The firearm was recovered from directly where I canvassed and I told everybody to look for it." PC Bradley confirmed that he identified the weapon. He said PC Soto was the person who found the firearm and after it was found he went over and identified the firearm as being the one carried by the Defendant earlier. PC Bradley said, "It looked like the one I saw in his hand." Asked what was it about the gun, other than it was a handgun and it was silver, that made you sure? PC Bradley said, "Because I saw it in his hand. I saw the area where Mr. Crawford threw it. It was located in the same area where I saw it being thrown and it was silver in colour, identical to the handgun that Mr. Crawford had in his hand and I had not left the scene. The scene had been secured the entire time before the gun was recovered." It was suggested to PC Bradley that he had been told that Aaron Crawford had a handgun and that he was someone who possessed a gun, and so he assumed the Defendant must have had a gun. PC Bradley rejected this suggestion. It was put to PC Bradley that he did not actually see the gun in the Defendant’s hand and PC Bradley confirmed that he did see the firearm in the Defendant’s hand. It was put to PC Bradley that he told the other police officers that he was not sure he had seen the gun and PC Bradley rejected this.
PC Bradley said the Defendant did not appear to be injured, nor did he complain of any injuries. It was put to PC Bradley that the Defendant was injured at the scene and PC Bradley said, "No that is wrong." PC #184 ALFRED BRADLEY – RE-EXAMINAITON
PC Bradley was asked if there were any other silver looking objects or any other firearms found at the scene and PC Bradley said, "No ma’am."
PC Bradley confirmed that the lighting was adequate and the only difference at the scene between night of the crime scene visit on the 2nd October 2012 and the night of the November 2011 incident was that there was more foliage in the area.
Asked about the additional lighting PC Bradley said, "Those lights were positioned on the road and not down in the bush."
PC Rabess said he is a member of the USG and he was a USG officer in November 2011.
On the 17th November 2011 he was on the night shift with PC Alfred Bradley.
PC Rabess said that on that night he was the driver and, as part of a regular routine check on clubs where there are often problems requiring the police around closing time, they had driven to Club 7 on the West Bay Road. PC Rabess said they would normally patrol the area when the Club is closing to have a police presence in the area.
PC Rabess said that on arrival at the Grand Pavilion car park his attention was drawn to the area of the car park where a police unit was already on the scene attending to an altercation. PC Rabess said he noticed one uniformed male police officer and one uniformed female police officer on the scene. PC Rabess said he knew the male officer to be PC Gordon.
PC Rabess said he recalled PC Gordon calling them over, however, PC Rabess said, he was unable to get over to PC Gordon because there was a vehicle blocking their way. PC Rabess said, "As soon as PC Bradley got out, [of the USG vehicle] the vehicle that was blocking our path moved."
Then PC Rabess said he noticed a vehicle coming towards them and that was when he heard PC Gordon shout, "Stop that vehicle!" And he then heard PC Gordon shout, "He has a gun!"
PC Rabess said he noticed that this was a white Nissan Sentra. PC Rabess said he "had a visual of the driver not the passenger. The passenger seat had reclined." PC Rabess said the car was not tinted and the windows were down. PC Rabess said he recognised the driver to be Aaron Crawford.
PC Rabess said he called PC Bradley back to the vehicle and proceeded to follow the Nissan Sentra out of the car park. PC Rabess said the USG vehicle was not in the best condition to catch up with or make ground on the Nissan, so the Nissan gained ground on them and he lost sight of the Nissan Sentra temporarily. PC Rabess said, "The vehicle continued through the car park, veering left to the front entrance of the Grand Pavilion, on to West Bay Road. I followed the vehicle, activating the blue lights, in the direction of George Town. On West Bay Road the white Nissan Sentra had gained ground on us and turned left on to Gecko Link, which is where I lost sight temporarily. I then veered left to the bypass then paused at the bypass and came to a rolling stop."
PC Rabess said PC Bradley had given him the information that the white Nissan went left towards the Island Heritage roundabout. "As Bradley indicated, I saw the rear light and proceeded in that direction. ....On approaching the roundabout I saw that the Nissan Sentra had crashed into the crash barriers at the Island Heritage roundabout. As we got closer a male, Aaron, was exiting the right side, the passenger side, of the vehicle. The driver's side was right up against the crash barriers."
PC Rabess said that Aaron Crawford ran towards them momentarily. PC Rabess said, "Crawford ran in our direction momentarily and made contact with the police vehicle. He then turned and made off away from the police vehicle towards Cost U Less. PC Bradley immediately exited the vehicle and gave chase. I exited my side [of the USG vehicle] and in doing so I slipped on the road surface."
In relation to the passenger in the white Nissan Sentra which was driven by the Defendant PC Rabess said, "The other male I observed in the middle of the roundabout. I knew him as Jordan Ebanks. I identified myself as armed police and told him to stop, to which he turned and fled." PC Rabess added, "I had to make a decision between going after Ebanks or assisting Bradley. I knew I could identify Ebanks later, so I went to assist Bradley."
PC Rabess said he continued Northward along the bypass. He said he saw PC Bradley and the Defendant. He then observed PC Bradley and the Defendant veer sharp left down into the bushy area where he temporarily lost sight of them.
PC Rabess said that as he approached the area he called out PC Bradley who answered back, "And having answered back I could see exactly where he was. I went into the grassy area to assist PC Bradley who by now had Aaron Crawford restrained." PC Rabess said the Defendant was lying face down and he assisted the Defendant to his feet along with PC Bradley. PC Rabess said the three of them made their way back to the roadside where PC Bradley arrested Aaron Crawford. Aaron Crawford then sat down on the grass.
PC Rabess said PC Bradley then pulled him, Rabess, to the side and informed him that he saw the Defendant, "...throw something into the bush, believing it was a firearm."
PC Rabess said he then informed the Critical Incident Manager of the incident and of the information from PC Bradley, as a result of which it was decided that a search of the area would be conducted.
PC Rabess said he then called for additional units and two canine units responded – PC #197 Soto and PC Jackson.
PC Rabess then said, "I also requested additional lighting to assist us in a search of the area as best and as efficiently as possible." Asked by Crown counsel: "Why was it necessary to request light?" PC Rabess responded: "It's best to have as best light as you can." Asked by Crown counsel: "Were you able to see the search area without the additional light?" PC Rabess responded: "Oh yes."
PC Rabess said that when the lighting arrived PC Soto and PC Jackson went to search the area. PC Rabess said, "We searched the bushy area where PC Bradley believed the firearm had been thrown."
PC Rabess said he was not sure how long the search had gone on for before he, Rabess, thought about requesting the metal detector. PC Rabess said, "I thought what else could we have to assist us and it was at that point that I remembered the metal detector. I requested Soto and Jackson to collect it from the George Town police station, which they did."
PC Rabess said he and PC Bradley remained at the scene and he, Rabess, took photos of the Nissan Sentra which had crashed. PC Rabess took photos of the Defendant, Aaron Crawford and what he was wearing; and the area in which PC Bradley had chased the Defendant. PC Rabess added that, “...later on “he also took photos of where the firearm was located.
PC Rabess said that when PC Soto returned with the metal detector, officers went back into the bushy area where a line search was conducted – with PC Soto using the metal detector. PC Rabess said that shortly after, PC Soto informed him that he had located something resembling a firearm. PC Rabess said he went down to the location which is more or less the area that PC Bradley had indicated to him, and he secured the area. PC Rabess then took a photo of the firearm which is Exhibit 3(10).
PC Rabess said a mobile “ZULU” unit subsequently came to the scene and took the Defendant back to the station and the officers returned to the police station in order to begin their statements. PC #316 GABE RABESS – CROSS EXAMINATION
PC Rabess said he reported for duty at 2245 on the evening of the 17th November 2011. He said he normally reports for duty 15 minutes prior to the shift commencing at 11 p.m.
PC Rabess confirmed that he was able to identify the driver of the Nissan Sentra when it was driving out of the car park. PC Rabess confirmed that he did lose sight of the Nissan Sentra, and he relied on PC Bradley’s help to follow the Defendant’s vehicle.
After the Nissan crashed: PC Rabess said he did not know whether Aaron Crawford was first out of the vehicle. PC Rabess agreed that Aaron Crawford ended up running into the USG police vehicle.
In relation to the scene, PC Rabess said he was still on the roadway when he heard PC Bradley calling for him. PC Rabess said PC Bradley called and he called back, and he assisted PC Bradley by handcuffing the Defendant.
PC Rabess was asked about the Defendant’s complaint of any injuries and PC Rabess said he remembered asking the Defendant and the Defendant had said that he was not injured. In fact PC Rabess recalled the Defendant saying, "I’m fine. I’m alright Mr. Gabe." Defence counsel suggested that the Defendant was injured to his foot and to his hand, and the Defendant told Mr. Rabess about the injuries. PC Rabess responded that the Defendant did not tell him that he was injured.
PC Rabess was cross examined on what PC Bradley told him after they apprehended and arrested the Defendant.
PC Rabess’s evidence was that PC Bradley told him that he saw the Defendant throw something which he believed to be a firearm. Under further cross examination about his notes, PC Rabess agreed that his notes said “something resembling a firearm.” PC Rabess explained that officers are told to use the word “resembling” until it is actually proven whether it is a firearm or drugs. PC Rabess was subject to further cross examination on this and then said, “Whether PC Bradley was sure, wasn’t sure, it was enough for me to take the decision to search the area and to make the checks.”
Defence counsel put to PC Rabess that he, PC Rabess, did not think the chances of finding a firearm were particularly high, and that is why he got the additional lighting and PC Rabess did not agree with this suggestion and added that he thought he would use the best resources available. PC Rabess said the bush area was a difficult area to search particularly in the dark and that is why he requested the additional lighting.
PC Rabess said he recalled PC Bradley giving him and PC Soto a briefing of where he thought the Defendant threw the object.
PC Rabess stated that he recalled PC Bradley telling him and the other officers that it was a silver handgun, but he, PC Bradley, did not give any additional features. PC Rabess said he was looking for a firearm and not necessarily a silver-coloured handgun. PC Rabess said the important word that PC Bradley used was "firearm."
PC Rabess said PC Soto was away for about 10-15 minutes and when he returned they commenced a line search. PC Rabess said it was difficult because it was a bush area, but PC Soto would go further ahead or drop behind us. PC Rabess said that the area that PC Bradley had identified was about 15 to 20 metres square.
PC Rabess agreed that the firearm was found at 4:30 a.m. PC Rabess said nothing was touched and nothing was done that would lead to any type of contamination.
PC Rabess agreed that they photographed the scene and secured the evidence.
PC Rabess recalled PC Soto calling them over to where he found the firearm.
PC Rabess said he took the photograph but he did not recall any bullet beside the firearm. PC Rabess said he is not a Scenes of Crime Officer, but he has no recollection of seeing a bullet and there is no suggestion in his statement that he saw a bullet. Defence counsel showed PC Rabess the Scenes of Crime photo – Exhibit 2(10) – which shows a single bullet above the sliding mechanism of the firearm and PC Rabess confirmed that he did see that in the photo. PC Rabess was asked how he thought the bullet got there and PC Rabess said the bullet could have fallen out of the slide, or it could have been obscured by some of the bush or growth in his photo.
PC Rabess accepted that he could not see a bullet in his photograph, but there was a bullet in the Scenes of Crime photograph.
PC Rabess was asked if a bullet had ever fallen out of the guns which he carries and he replied that he had no knowledge of bullets falling out the guns the police officers carry, but he acknowledged that he is not a firearms expert. PC Rabess said that if there was a fault with the weapon due to its age, the bullet may have fallen out.
Defence counsel questioned PC Rabess on the colour of the gun and PC Rabess said he was not sure, but he would say it looked silver to him from the side. PC Rabess accepted that it was not a shiny silver new-looking gun. PC #316 GABE RABESS – RE-EXAMINATION
PC Rabess said that when the call was made to 911 the information he gave was that a firearm might have been thrown and he accepted that those were the words that he may have used. Asked why he would have used the word “might” he said it was just protocol. He compared it to saying someone is “passed” instead of saying “they are dead” even if they are presumed to be dead. PC #197 FERNANDO SOTO – IN CHIEF
PC Soto is another member of the USG of the RCIPS and he recalls attending the scene with PC Jackson at approximately 3:45 a.m. on the 18th November 2011.
PC Soto said he began a search as a result of information given to him by PC Bradley and PC Rabess.
PC Soto recalled commencing the search and searching the bush and the area identified.
PC Soto said that after searching for about 10 minutes it was suggested by PC Rabess that he go to get a metal detector, and to get the metal detector they had left the scene for about 10 to 12 minutes and they returned they continued the search and he, himself, used the metal detector.
PC Soto said they searched for about 25 minutes before locating a metal object resembling a firearm. PC Soto said he located it.
When asked to describe what he found PC Soto said it had a black stock and the rest of the firearm was like silver.
PC Soto said he also observed a live round close to the breach area of the weapon. He said the breach area is in the top open area of the gun, "...and that is where you look to see if there are any rounds in the gun."
PC Soto said that after finding the firearm he told his colleagues – PC Rabess, PC Bradley and PC Jackson – and they then called for the Scenes of Crime Officer.
PC Soto said it was at that time that he recalled PC Rabess taking a photograph of the firearm.
PC Soto said when the Scenes of Crime Officer arrived he took pictures of the firearm and where the firearm was located.
PC Soto said nobody touched the weapon between the time he discovered it and the time that PC Taylor of Scenes of Crime arrived. PC Soto said nobody moved it and nobody placed anything beside it and he, PC Soto, saw PC Taylor take photographs of the firearm where it was located.
PC Soto then used gloves and took the firearm and proceeded to remove the magazine. PC Soto said he showed the firearm to Scenes of Crime Officer Taylor. PC Soto said he cleared the firearm and Officer Taylor continued to take photographs.
PC Soto said the firearm (the object resembling a firearm) was put in bag. The magazine was put in a bag and the live round was put in a bag.
PC Soto said he observed that there were 5 live rounds in the magazine.
PC Soto said the firearm was FS1; the rounds were FS2; and the magazine FS3. PC #197 FERNANDO SOTO – CROSS EXAMINATION
PC Soto was shown his statement, which stated that the firearm along with the magazine and the six live rounds were booked into the police station as Exhibit FS1. PC Soto accepted that there was no mention of FS2 or FS3. PC Soto agreed that this was a mistake on his part and he accepted that it was very sloppy procedure to have omitted the other two. Defence counsel put it to PC Soto that the gun, the magazine and the bullets were all bundled together, whilst he told the Court they were FS1, FS2 and FS3. PC Soto said he assumed that Officer Taylor had put the gun, the bullets and the magazine all in the same bag.
PC Soto could not tell which bullet was the one found outside the gun. PC Soto said that before he gave them to Scenes of Crime Officer they were separated, that is the live round was separated, but now, in Court, he would not be able to say which one was the live round outside the gun.
PC Soto accepted that he arrived at the scene at 3:45 a.m. and was briefed by PC Bradley and given the area for the search. Also the area where PC Bradley believed the object to have been thrown was pointed out to him.
PC Soto said he recalled being told that PC Bradley had seen the Defendant reaching into his waist and pulling at an object resembling a pistol.
PC Soto agreed with Defence counsel that he, Bradley, Rabess and Jackson were searching the general area, and, after about 8 to 10 minutes they stopped because PC Rabess suggested they go for the metal detector.
PC Soto said it was a difficult search in the circumstances and that it was dark. PC Soto agreed that it was darker on the ground that it was at eye level.
PC Soto said his perception of the general area was that it was 30-40 sq. feet.
PC Soto said they did a gridline search which lasted approximately 25 minutes. PC Soto recalled that some of the other Officers stopped and left him to do the searching with the metal detector.
PC Soto confirmed that nobody touched the firearm and said that it was essential to leave it untouched until the Scenes of Crime Officer arrived.
PC Soto agreed that Officers Rabess and Bradley came over and saw what resembled a firearm.
PC Soto said he clearly saw a bullet above the breach, but he does not recall mentioning the bullet to anybody else.
PC Soto was shown PC Rabess’s photos and he agreed that the ground looked wet. PC Soto accepted that the photograph PC Rabess took does not show any bullet.
PC Soto accepted that there were now six boxes all describing a 9mm Luger round in exactly the same way, with nothing distinguishing one from the other.
The bullet outside the weapon: PC Soto accepted that he was not able to indicate which bullet was the one he found outside the gun. PC Soto was asked by Defence counsel why in Officer Rabess’s photograph of the weapon there is no bullet, whereas in the photo taken by the Scenes of Crime Officer, PC Taylor, there is a bullet. PC Soto said he could not explain this. PC Soto said he found the weapon and the first that caught his attention was the bullet in the position it was in outside the weapon. PC Soto said, "I don't how this picture (the Rabess picture)... I can't explain it. I am just saying what I saw." PC Soto said he doesn't have an explanation as to why PC Rabess's photo has no bullet and PC Taylor's photo has a bullet. PC Soto said, "At the scene I saw a bullet..." PC Soto said he was on his own when he found the weapon and he stayed with the weapon until the Scenes of Crime Officer, PC Taylor, arrived. It was put to PC Soto that he is the only Officer who was with the gun throughout and never left the scene from the time the gun was found until the time it was photographed by PC Taylor. PC Soto said, "No. Jackson was there with me at the scene." PC Soto said he did not place the bullet above the gun and he did not see anybody placing the bullet. In addition, PC Soto said he did not place the firearm there. He said he found the firearm using a metal detector. PC Soto said, "When I found it they (the other officers) were on the shoulder of the road, at least 10 metres away."
PC Soto said he had knowledge that the Defendant was on a long arm authority for possession of a firearm. PC Soto was therefore asked whether he would accept that, from the Defendant’s point of view, it would look like he, the Defendant, has been set up, to which PC Soto said, “I don’t agree.”
In response to questions from the Court PC Soto accepts that, after he saw the gun, very shortly after that PC Rabess came along and PC Rabess, in order to preserve the evidence, takes a picture and PC Rabess’s photo clearly shows the firearm without a bullet outside the gun, and PC Soto agreed to all this. PC Soto said when he saw the weapon the first time he saw the bullet. PC Soto said he saw PC Rabess take the photo and he does not know why his camera or his photo does not show the bullet. The Court suggested to PC Soto that someone had taken the bullet away when the photograph was taken and then someone had replaced the bullet in position. PC Soto replied, “I can attest that nobody touched the weapon or bullet.” PC Soto said that he did not remove the bullet and place it back in position. He said he did not touch any bullet and he did not place any bullet there.
It was agreed between the Crown and the Defence that PC Rabess took his photo a few minutes after 4:30 a.m., and PC Taylor, the Scenes of Crime Officer, took his photo at 5:11 a.m., so there were 41 minutes between the two photographs. PC #197 FERNANDO SOTO – RE-EXAMINATION
PC Soto said that when he found the round beside the firearm he did not make any special note of the type of the round, but he thought that the colour of the round was slightly different (from the one he viewed in the Courtroom).
PC Soto confirmed that the gun was test fired after the event using one of the rounds.
In response to the Court, PC Soto said that the firearm holds 8 rounds of ammunition. He said that although he is not a firearms expert he is familiar with firearms, because of his work in the USG. He said that if a bullet is fired, the fired round is ejected. PC TOMMY TAYLOR – IN CHIEF
PC Taylor has worked in Crime Scene Investigations for 7 years and was the Scenes of Crime Officer attached to this case.
PC Taylor said that at 5:11 a.m. he arrived on the scene at the Esterley Tibbetts Highway and he said that on arrival he "...observed a marked (police) unit and a generator on the side of the road."
PC Taylor said that he spoke to PC Soto and the only other officer there was PC Jackson.
PC Taylor said the area in question had been pointed out to him and he put on gloves and began taking photos with his digital camera.
PC Taylor said he went into the bush and he observed a weapon known to him as German Luger. He took the photo of the weapon and in the photograph there was what appears to be a live round.
PC Taylor said that after he took the photo of the weapon he observed PC Soto wearing a pair of gloves and making the weapon safe.
PC Taylor said he noticed that, aside from the round of ammunition being on top of the gun or next to it, he observed that the breach was open. PC Taylor said the breach was open when he first saw the weapon. PC Taylor said the breach was open and the round was above the firearm and the grass was damp.
PC Taylor said that when PC Soto extracted the magazine and pulled the breach back he took photographs and also took photographs as PC Soto was in the process of making weapon safe.
PC Taylor said he packaged the weapon in a brown paper bag. The magazine was placed in another paper bag. A single round was placed in a separate bag.
PC Taylor said that the weapon was FS1. He said the magazine and the live rounds were FS2 and FS3, respectively.
PC Taylor produced his album of photographs. Photo 13 is the single round found at the scene. Photo 14 is PC Soto pulling back on the breach. Photo 15 is PC Soto holding the firearm.
PC Taylor said the rounds were swabbed for the purposes of DNA as was the firearm and the magazine.
PC Taylor said the firearm was test fired and found to be a functional weapon. PC Taylor said the swabs taken from the firearm and the rounds were sent to the DNA laboratory in the United States.
PC Taylor also took some measurements. He said the distance from the edge of the sidewalk to the firearm was 33 feet and 1 inch. PC TOMMY TAYLOR – CROSS EXAMINATION
PC Taylor said FS1 was the firearm and, in fact, the magazine was FS3 and the single bullet was FS2. PC Taylor said he recalled the firearm being in bag, the single round in a bag and the magazine in a bag.
Defence counsel referred to PC Taylor’s statement which showed FS1 was the Luger, FS2 was the six live Luger rounds and FS3 the magazine.
PC Taylor said he agreed that he put all the rounds together.
PC Taylor agreed that he had not secured the items separately and he had not accurately recorded what he had packaged. PC Taylor accepted that he had made an error. PC Taylor accepted that he did not realise that all the bullets were not the same, so he placed them all in one exhibit bag together.
Defence counsel asked PC Taylor if he had marked on any of the boxes the one live round found outside the gun and PC Taylor said he did not.
PC Taylor admitted that he would not be able to identify the round found outside the gun. PC Taylor said when he observed the firearm on the scene with the breach open, it would suggest to him that the round of ammunition fell from the weapon. He said the bullet outside the weapon was “together” with the weapon, so both were treated as one item.
PC Taylor, in answer to the Court, said that when he observed the weapon he assumed the round had fallen from the weapon. PC Taylor elaborated and said that when he observed the weapon in the rest position, the breach was open and the round was right in front of the breach, and that is why the round itself and the ones in the magazine were treated as one. In response to Mr. Hoffman PC Taylor said that that was his assessment of the scene – although he accepted that he did not actually see any bullet fall from the breach, nor was he told that it had fallen from the breach.
PC Taylor said he was trained in using a firearm and cleaning a firearm. He was a member of the police force in Jamaica for nine years and he was with the RCIPS for two years. PC Taylor said he was trained how to use a firearm, how to pull down a weapon, how to clean the weapon and how to load it.
PC Taylor said he is not a firearms expert and he did not know whether the weapon found at the scene was a WWII Luger firearm.
PC Taylor said he would accept that he does not know how ammunition may escape from this type of weapon and he accepted that he is not able identify the round found outside the weapon.
Defence counsel put to PC Taylor that what happens when the weapon is fired is that the “arm” goes up and pushes the projectile out of the barrel and the arm goes back into the resting position, so one would need to pull the breach back – and PC Taylor said he could not agree with that. PC Taylor said, from his experience, if the breach catch is back, that would mean that the round would be exposed, and for that weapon to fire, the breach catch should in fact be active in taking that round and sending the breach forward. PC Taylor agreed with Defence counsel that when you fire the trigger the arm goes down and the projectile is sent out of the weapon and, in the process between the firing and the re-loading the cartridge escapes out of the top. Defence counsel put it to PC Taylor that the bullet cannot escape from the breach because the jacket is made not to escape, otherwise it could not be fired and this would cause the bullet to fall out as it is being fired: PC Taylor said he did not accept that. PC Taylor said that, looking at photo 15, the firearm is at its ready position to be fired. When the trigger is pulled the breach catch would go back and release the spent casing and then pick up another from the magazine, then send the breach forward so it is secure and ready to fire again.
PC Taylor said he did not know whether this weapon had to be recharged manually.
PC Taylor said he did have the gun tested for fingerprints, but the results were negative. PC Taylor said he omitted to put that in his statement, which must have been an oversight.
In conclusion, PC Taylor accepted that the results from the fingerprint examinations were negative.
Inspector Brellisford’s statement was read in with the agreement of the Defence.
He is a national police firearms instructor and he initially qualified as an authorized firearms officer in 1993. He is the chief firearms instructor for the RCIPS.
On the 18th November 2011 Inspector Brellisford took possession of the firearm SF1 from PC Taylor. Inspector Brellisford said it had the appearance of a Luger style handgun capable of discharging 9 mm ammunition.
Inspector Brellisford said that although the firearm was rusty in appearance it was apparent that the working parts were all in order. He was able to select and de-select the safety catch situated at the rear of the weapon below hammer. He said he was able to cycle the slide and “dry fire” the weapon.
During his examination he test-fired the weapon in the presence of Officer Taylor. Inspector Brellisford said the working parts were all in good order. He loaded the magazine with a RCIPS operational round – 9mm in calibre. Replacing the magazine (round) in the magazine well, and seeking to engage the same, it was apparent that the magazine would not sit properly. It kept slipping out of the well – by about a ¼” and this prevented the weapon from cycling the round into the chamber. Inspector Brellisford explained that in order to prevent this happening, he held the magazine in place across the base of the magazine well (the bottom of the handle grip) and the round then cycled into the chamber. Inspector Brellisford then placed the weapon muzzle on the designated bullet catcher and fired one round. Inspector Brellisford confirmed that the weapon is a lethal barrelled weapon and the ammunition is capable of being discharged from this weapon within the definitions of the appropriate firearms legislation. ALLEN GREENSPAN
He is a firearms tool mark examiner.
The German Luger model P08 pistol #459 with one magazine and the six 9mm cartridges were sent for examination.
Mr. Greenspan confirmed that this pistol was examined and found to be in operable condition, and was test fired using one of the submitted 9 mm cartridges – one that was picked at random. He confirmed that the firearm is capable of causing death or serious injury if discharged.
He further confirmed that the six cartridges are viable and capable of causing death or serious injury if discharged.
On the 18th November 2011 at 8:35 a.m. she attended the scene near the Island Heritage roundabout. A further search of the area was carried out and nothing was found.
WDS Scott also attended the area near Club 7 and enquired about any CCTV footage, but none was ever received.
WDS Scott submitted a request for certain items to be examined for DNA and fingerprints, and also she submitted a request for the phone records of the cell phone taken from Mr. Jordan Bush, who was the passenger in the car driven by the Defendant in this case.
WDS Scott said a fingerprint examination was done on the Nissan Sentra but there were no prints matching the Defendant.
WDS Scott also submitted a request for GSR from the clothing and the hands of the Defendant and Mr. Bush however, these swabs were never sent off for examination. WDS Scott said this was possibly because there was no evidence that the firearm had discharged a bullet.
On the 21st November 2011 WDS Scott conducted an interview with the Defendant. The interview was recorded on DVD disc. After the interview she formally charged the Defendant with the offence of possession of an unlicenced firearm, to which the Defendant said he did not know "... the hell why they charge me for." WOMAN DETECTIVE SGT. DAUESA SCOTT – CROSS EXAMINATION
WDS Scott identified the disclosure for the Defendant which was given to his then attorney, Ms. Facey-Clarke. WDS Scott confirmed that, in the disclosure document, the disclosure record stated that, “Aaron Crawford was seen to take a silver Luger 9mm automatic pistol from his waistband whilst running from the police, and throw the weapon into the bush.”
Defence counsel showed WDS Scott an incident report which recorded, “Mike 2” requested lighting to conduct a search as the suspect might have thrown a firearm in the bush area of Island Heritage roundabout off Esterley Tibbetts highway.
WDS Scott was shown two custody records. One was handwritten and the other, typed. She confirmed that the Defendant was arrested on suspicion of possession of an unlicenced firearm and driving under the influence. WDS Scott also said this report said that the Defendant received bruises on his right foot, and that he complained of pain to the body. The custody report showed that one belt was taken, and further, there was no mention of any gloves.
WDS Scott agreed that the handwritten custody report and the typed custody report should have matched, but there were differences.
WDS Scott accepted that the Defendant had been subject to an intoxilyzer reading of .91% and, further, that the Defendant had visited hospital and was seen by physicians and had been seen for an X-ray. It was also confirmed that the Defendant had been given pain killers. THE ADMISSIONS – DATED THE 9TH OCTOBER 2010
The following facts are agreed as between the prosecution and defence. SCIENTIFIC EVIDENCE
On Friday 18th September [November] 2011 police constable Ronald Best processed motor vehicle, registration number 98 969 a white Nissan Sentra. During this search he found a partial palm print on the left rear window frame. This was not found to be capable of attribution as no one fitting the profile of this palm print was found to be present on the fingerprint bureau’s database.
On the same day, Officer Best swabbed the steering wheel and handbrake. These swabs were not sent for analysis.
Clothing seized from Robert Aaron Crawford and GSR swabs taken from his hands on 18th November 2011 at George Town Police Station were not sent for gunshot residue analysis.
Exhibit FS1 (German Lugar) and FS2 (six live 9mm rounds of ammunition) were analysed for fingerprints and none were found but this was not disclosed by the SOCO officer prior to giving his evidence.
On 20th December 2011 Crystal Oechsle of DNA Labs International, Florida, USA prepared a report in which she analysed exhibits (swabs) TT2 – TT7 against a standard DNA profile of Robert Aaron Crawford. She was able to conclude with respect to TT2- TT5 that partial DNA profiles obtained from those swabs indicated a mixture of at least two individuals with at least one male contributor and that Robert Aaron Crawford could be excluded as a contributor to the mixed DNA profile obtained. As to Exhibits (TT6 and 7) Ms Oechsle reported that there was either no DNA detected or an insufficient quality in order to obtain a profile.
On 12 September 2011 the Cayman Islands Forensic Science Laboratory produced a National Database of the Cayman Islands Database “Hit” Memorandum (“Memo”). The Memo disclosed that a positive match was made in relation to TT2 against a Shane Bodden, date of birth 11th August 1976. MISCELLANEOUS
On 18th November 2011, the Cayman Islands Fire Service received a call via the 911 system and responded between 03:46-04:00 by providing “Ingersoll Rand Portable Lighting” which also has a generator with four (4) lighting bulbs, each 1500 watts. The height of the telescopic light tower extends to approximately 12-25 feet and can rotate 360 degrees.
On 18th November 2011, PC Keisha Minott, prepared and signed a statement in which she stated: “At about 0305 hours PC 355 Gordon and I returned to the location of Club 7 and were driving around in the parking lot making checks. We were approached by two men now known to me as Jermaine Rodney otherwise known as ‘Six Killa’ DOB 11051983 and Howard Ian Scott DOB 12061980; who stated there was a gun in a white car parked to the other side of the parking lot.” This was in reference to the first time that the men spoke to her and PC Gordon. She also states that the second time the men spoke to PC Gordon she didn’t hear what they said as she wasn’t close enough to hear.
Checks of the Criminal Records database for the Cayman Islands reveal that neither Jermaine Rodney nor Howard Scott have convictions recorded against them.
Checks made of the Firearms Registry of the RCIPs revealed that no firearm permit had ever been granted to Robert Aaron Crawford.
On being booked into custody and processed included among the personal property taken from Aaron Crawford was a black belt.
Police Constables Rabess and Bradley have been asked to confirm whether they observed Robert Aaron Crawford in the early hours of 18th November 2011 wearing gloves. Both officers have confirmed that they did not.
The custody record of Robert Aaron Crawford, following his arrest for the possession of an unlicensed firearm on 18th November 2011, does not show any indication that gloves were recovered from him on his arrest or at all.
PC Soto has been disciplined by the Royal Cayman Islands Police for the late submission of a file which resulted in it being Statute barred.
Checks made of the Legal Case Management System for the Cayman Islands reveal that no charges were ever laid against Shane Bodden in respect of this alleged shooting incident. [There is nothing in the possession of the police to suggest that a firearm/the firearm associated with this incident was ever recovered.]
On the 21st of November 2011 between 8:35 and 9:02 am, the accused was interviewed by DC Bryan and DS Scott and given a special warning under the provisions of the Police Law 2010. He was asked a number of questions about the chase both by foot and by car and the firearm. The questions in respect of the firearm included: a. Whether he had been in Possession of it. b. Had a permit for it; and c. Why he threw it into the bush. He was also shown photographs of the firearm. He answered no comment in response to all the questions asked save and except for when asked if he had ever seen the firearm before and shown a photo of same he responded; 'No Sir.' SUMMARY OF THE CROWN'S CASE
The Defendant takes off as soon as Mr. Rodney said, "That is the man who pulled the gun on me," and then tried to punch the Defendant. Once the Defendant heard this he drove off and immediately PC Rabess summoned PC Bradley back into the USG vehicle and chased the Defendant, who was driving the white Nissan Sentra – turning on the blue lights.
There was no other car between the Nissan and the USG vehicle at any time.
The Crown therefore asks the questions: a. Why did the Defendant drive off as soon as these words were spoken – leading PC Gordon to say "Stop that car. He has a gun!" b. Why did the Defendant drive at such a high speed down the West Bay Road, round the Gecko Link and back on to the Esterley Tibbetts highway? The Crown says the Defendant was driving so fast to evade the police that he crashed his car into the guard rails at the Island Heritage roundabout on the Esterley Tibbetts highway.
The Crown submits that this all leads to an inference of guilty knowledge of what he had in his possession, and hence his extreme efforts to avoid the police finding the firearm.
Once out of the car the Defendant was told repeatedly to stop and the Crown submits that it is because the Defendant had a gun in his possession that he ran off down the Esterley Tibbetts Highway.
The Defence made much of the fact that PC Bradley’s evidence was that the Defendant partially turned around whilst running. The Crown submits that this was a normal reaction as the Defendant knew it was the police chasing him and he was trying to evade the police and therefore it is normal for the Defendant to turn around to see how far he is away from the police and to see if he can make good his escape.
The Crown points to the fact that PC Bradley saw the Defendant pull the Luger out of his waistband and the Crown rejects the suggestion that the Defendant was pulling up his shorts, because Bradley’s evidence is that he saw the gun come out. PC Bradley described the gun as a silver handgun between 6” to 8” in length, and said that the Defendant was holding the gun by its handle with his right hand.
In relation to the criticism by the Defence of the lack of description of the firearm, the Crown submits that PC Bradley did not identify the make or the model of the gun, but this goes to show that he was giving his best description without any embroidery.
The Crown submits that PC Bradley focused on the Defendant’s hand and knew exactly what he saw. PC Bradley saw the handgun in the possession of the Defendant, and then saw the Defendant run into the bush. PC Bradley then saw the Defendant throw the gun into the bush in an attempt to get rid of the evidence.
PC Bradley’s evidence is that, when he tackled the Defendant and pulled him to the ground, the Defendant said, “That guy had a gun.” The Crown therefore submits that the Defendant knew that PC Bradley had seen the gun and therefore the Defendant was attempting to point the finger elsewhere. The Crown also relies on the fact that these words from the Defendant have not been challenged by the Defence.
The Crown further relies on the fact that PC Bradley told the other police officers – PC Rabess and PC Soto – where he saw the Defendant throw the gun.
The Crown contends that the Defence makes much of PC Bradley’s apparent uncertainty, because the notes of Rabess and the call to 911 record words like, “An object was thrown which resembled a gun,” or “might possibly be a gun.” The Crown contends that these are words used by Officers, merely out of caution, before any object is actually recovered and identified.
The Crown submits that the strongest corroboration is that the Luger handgun matching the description given by PC Bradley was found in the area where PC Bradley said he saw the Defendant throw the object.
In relation to the suggestion that the gun could have been there for some time, and owned by somebody else, the Crown submits this is not credible because the gun was clearly operable, the rounds were in very good condition and there was no evidence of soil or vegetation on the gun.
The Crown submits that it was never put to PC Bradley that he had written anything else other than a handgun or a silver handgun.
In relation to the two photographs the Crown submits PC Taylor had a Scenes of Crime photograph which he took with a camera that had an external flash, which produced a clearer and more critical image. The Crown also submits that the photos are taken from different angles. PC Taylor’s photograph – Exhibit 2(10) – is unimpeded by shrub and foliage.
The Crown accepts that PC Rabess said he did not see the round outside the gun, whereas PC Soto saw the round. The Crown points to the fact that PC Soto acknowledged that this difference between the photos “didn’t look good”, but he could not give any explanation for this. On this point the Crown relies on the fact that PC Taylor said that when he saw the gun the breach was open and therefore the bullet could fall out – which the Crown submits is no more speculative than the suggestion that the bullet was planted. The Crown adds that a suggestion is not evidence and there is no evidence to support the “plant” allegation.
Furthermore PC Soto was briefed to search and look for an object which resembled a gun. PC Soto was never told what type of gun or what type of ammunition or even whether any ammunition was present. In the absence of this type of information it would be absolutely remarkable if PC Soto just happened to have a 9 mm round in his possession, which he then planted beside the Luger. In conclusion on this point the Crown submits that the presence of the round outside the gun does not make any difference to the offence with which the Defendant is charged.
Senior Crown counsel states that whilst mistakes cannot be brushed aside, the Officers readily admitted their mistakes and, in any event, these do not go to the issue as to whether the Defendant was in possession of the Luger or not.
In relation to DNA the Crown submits that it is not every case that DNA will be left behind. DNA does not always attach to objects, and also there is the possible shedding of DNA. The third party in relation to the DNA has been identified as a contributor to a mixed profile, which is at least two people. However, the Crown submits there is no statistical interpretation for this and Crown counsel submits that this does not take the Defendant out of the hot seat.
In conclusion, the Crown submits that PC Bradley was a truthful and reliable witness, and the Court can rely upon his clear evidence that the Defendant was in possession of the firearm on the 18th November 2011.
The Court established through counsel for the Defendant that the Defendant was aware that the stage had been reached at which evidence could be given for the Defence, and if he chose not to give evidence, without good cause, it would be permissible for the Court or the Jury to draw such inference as may appear proper from his failure to give evidence. Defence counsel stated that the Defendant was exercising his right to remain silent was not going to give evidence. DIRECTION: FAILURE TO GIVE EVIDENCE
The Defendant can give evidence from the witness box or alternatively he can choose not to give evidence. I remind myself that the Defendant has a perfect right to remain where he is and to require the Crown to prove its case against him. I must not jump to the conclusion that his silence proves the case against him, it does not. The burden remains on the prosecution to prove its case against the Defendant. That obligation means that the prosecution must prove, so that I am sure, that the Defendant did possess an unlicenced firearm on the 18th November 2011 at the Esterley Tibbetts Highway in the vicinity of the Island Heritage roundabout.
I remind myself that the Defendant is entitled to remain silent. That is his right and that is his choice. I cannot assume that he is guilty because he has not given evidence. The fact that he has not given evidence proves nothing one way or the other. It does nothing to establish his guilt.
A jury, or in this case, myself as the Tribunal, must be satisfied that the Prosecution has established a case to answer before drawing any inferences from the Defendant’s silence. Otherwise stated, I have to ask myself the question: Has the Crown established a case that is sufficiently strong as to call for an answer from the Defendant?
It is my view that, having regard to all the evidence put before me, the case laid out by the prosecution is sufficiently strong to require an answer from the Defendant.
Having considered the evidence and the submissions of Defence counsel, the only explanation I can give for the Defendant’s silence is his awareness that he has no answer, or none that would stand up to cross examination by the Crown and therefore I am entitled to draw an adverse inference. REASONS FOR RUNNING AWAY
Counsel for the Defendant counteracts the Crown case which alleges that the Defendant was running away from the police because he had a gun in his possession, by suggesting that there were many other reasons why the Defendant would run away from the police.
First, the Defendant knew that he was driving whilst under a period of disqualification.
Second, the Defendant had been drinking, and this was borne out by the .91% intoxilyzer reading.
Third, the Defendant had obviously driven dangerously at a high speed and crashed the car and did not want to be apprehended.
Accordingly, Defence counsel submits that, in light of all these possible scenarios, the Court cannot find that, just because the Defendant ran from the police, that is evidence to support the allegation that he had a gun in his possession.
The Defence case is that Officer Bradley’s view at the point where it is alleged that the Defendant threw the weapon away was poor due to the fact that it was night and they were no longer at the roundabout or on the Esterley Tibbetts Highway.
The Defence submits that PC Bradley was not sure that what he saw was a gun and that is why there are the varying accounts to 911 and reports from other officers which included: "Bradley informed Rabess that he saw Crawford toss what appeared to be a firearm into the bushes." "The Defendant threw what possibly might be a firearm into the bushes." "The Defendant threw an object resembling a firearm into the bushes." The submission by the Defence is that these varying accounts indicate that PC Bradley was not sure that he had seen a gun – which supports the contention made by the Defence that PC Bradley assumed the Defendant had a gun. The Defence submits that PC Bradley was mistaken. THE WEAPON
The Defence submits that the gun is an old gun and therefore it is possibly somebody else’s gun, and, there is no proof that it is the Defendant’s gun.
The Defence relies upon the fact that there was no DNA of the Defendant or fingerprints on the gun. The Defence also submits that there was no GSR to link the Defendant with the firearm. In this regard, the Defence point to the fact that there were no gloves found on the Defendant, which could have given a reason for the absence of the Defendant’s fingerprints and DNA.
The scientific evidence from the DNA expert included that there was a partial DNA profile with respect to TT 2 - TT5 – the trigger and the trigger guard on the weapon. The DNA report concluded that there was a mixture of at least two individuals with at least one male contributor, but it confirmed that the Defendant could be excluded as a contributor to the mixed DNA profile. However, there was positive evidence to suggest that a third party could be a contributor to the DNA found on the trigger and the trigger guard.
This, the Defence submits, supports its contention that this particular weapon could have been in the bush for some time, and could have been the weapon belonging to the third party. The evidence shows that the third party had previous convictions and indeed there was an allegation against the third party in relation to possible possession of a firearm in 2007.
Defence counsel relies upon the case of *R v. Mitchell* 2004 Times Law Reports 8th July and submitted that non-matched DNA profile was powerful evidence in the accused’s favour, which the jury could consider and weigh in the scale of the prosecution evidence. *PC Bradley’s Identification of the Luger*
The Defence submits that the finding of the weapon made PC Bradley sure about, not what he saw prior to the finding of the gun, but what he assumed he saw. The aforementioned expressions of doubt raise the spectre of a reasonable doubt that what PC Bradley saw was in his own mind. Again, the Defence submits that PC Bradley was mistaken in his identification of the gun in the Defendant’s hand.
The Defence submits that PC Bradley assumed from the outset that the Defendant had a gun because: i. PC Gordon shouted that the driver of the Nissan had a gun; ii. PC Bradley knew that the Defendant was on a long arm authority and was therefore suspected to have a gun; and iii. PC Bradley found an old gun in the bush at the scene of the incident.
Defence counsel asked the Court to consider how long PC Bradley had the purported firearm in his sight and states that it would have to be a maximum of one minute.
In addition, PC Bradley accepts that he was chasing the Defendant before the purported gun is pulled out and observed.
Defence counsel submits that PC Bradley’s view is always from behind and that the Defendant represents a significant obstruction to PC Bradley’s view of the purported firearm.
Defence counsel submits that it is night and therefore more difficult to observe any firearm.
Defence counsel submits that the object (the firearm) is small – some 6 to 8 inches.
Defence submits that on PC Bradley’s own evidence the distance changes from 30 metres to 18 feet. If anything, the evidence of PC Bradley – both at the visit to the crime scene and in Court – reduces this distance, therefore making his evidence more unreliable.
Defence counsel highlights the fact that whilst PC Bradley says that he sees the Defendant, and then sees the firearm, at the same time, he is distracted by the fact that he is watching the ground in front of him, watching the direction in which the (other) suspect is running, and, he has to keep his mind on the other suspect and on PC Rabess. The Defence submits that these distractions undermine PC Bradley’s evidence.
Defence counsel submits that PC Bradley could not see what was in front of the Defendant and also the Defendant would not turn around to show the police officer chasing him a gun, if he had one in his possession.
The Defence suggests that rather than retrieving any firearm from the front of his waistband, the Defendant was merely pulling up his trousers and therefore PC Bradley is mistaken.
Defence counsel submits that all these difficult circumstances demonstrate to the Court that whilst PC Bradley may be an honest witness, he is a mistaken witness.
The Defence also submits that there is a significant lack of evidence corroborating PC Bradley’s testimony. Counsel for the Defence submits that PC Bradley, whilst he is not lying, is very mistaken, and understandably so, considering what is operating on his mind when the chase begins. THE BULLET AND THE LUGER AS FOUND
Defence counsel submitted that this was the most unfortunate part of the Crown’s case.
The Defence submits that PC Rabess’s photo – Exhibit #3 (10) – does not show any bullet, but merely the gun. In addition, the Defence relies upon the fact that neither PC Rabess nor PC Bradley say they saw a bullet.
PC Soto says he saw a bullet with the gun and 41 minutes later the Scenes of Crime Officer, Tommy Taylor, takes a photograph (Exhibit #2 (10) which shows a bullet above the breach of the firearm.
The Defence says that the bullet must have got there somehow and asks: Did Soto place it there? Did Taylor place it there?
Despite all the denials the Defence submits that somebody must have moved the gun or placed the bullet beside the gun. The Defence suggests that it is a set up.
The Defence submits that one cannot say which Officer touched the gun/the bullet, but one of the Officers touched the gun/the bullet, picked it up and moved it back. Defence counsel states there is no sensible explanation for this discrepancy. Something must have happened which involved the handling of the gun, and the bullet dislodged or placed there.
The Defence submits that, consequently, the Court cannot be sure about the integrity of the Officers and the Court should not rely on their evidence.
Defence counsel describes the Scenes of Crime Officer, PC Taylor, as an unmitigated disaster. He failed to label the bullet found outside the gun, so all the bullets were put together and it was impossible to identify the bullet that PC Soto saw beside the gun. In addition PC Taylor did not realise that all the bullets were not the same until giving evidence to the Court. Furthermore PC Taylor only revealed to the Court that a fingerprint test had been done. This was not disclosed to the Crown or the Defence, and it begs the question: What else was done or what else was not done?
Counsel for the Defendant says this all leads to the compelling conclusion that the Court cannot be sure of the reliability of what they have been told by these officers. The Court cannot be sure of the circumstances of the retrieval or analysis of the bullet or the labeling or the disclosure.
The Defence rhetorically asks: How do we know a bullet can fall out of the breach? Defence counsel states that PC Taylor is not a firearms expert.
Defence counsel asks: Why is grass covering the weapon right after it has been thrown and has landed? The ground is wet. The rust on the weapon is an indication of exposure to the elements, which suggests that the gun may have been there for some time and therefore it was not the object thrown by the Defendant.
Defence submits that PC Bradley may have been honest, but asks the questions: Was he reliable and was his evidence undermined by this episode?
The Defence case is that the Defendant had never seen that particular gun, nor did he have it and the six rounds of ammunition in his possession.
Defence counsel submits that he has rarely encountered more failures and omissions by separate police officers in the same investigation, as he has encountered in this one and consequently, there is no doubt that there is a reasonable doubt, and asks for an acquittal. ANALYSIS AND CONCLUSION
I must remind myself that the Defendant is innocent and that the burden of proving the Defendant guilty beyond all reasonable doubt lies with the Crown throughout the entire case. ABSENCE OF DNA AND FINGERPRINTS
In this case it is accepted that the Laboratory found partial DNA profiles, but the Court notes that the Defendant could be excluded as a contributor to the mixed DNA profiles obtained.
I take into account that the DNA Lab obtained a positive match in the mixed DNA profile against a third party.
There is no evidence that a person who handles a gun necessarily leaves some DNA which is amenable to analysis by expert examination. Furthermore, the gun, when handled by two or more people, can leave a partial profile indicating at least two contributors. In this case, the DNA examination indicates a match with a third party as a contributor, but with no occurrence ratio or match probability.
The absence of fingerprints and DNA is evidence that supports the Defendant’s case. I take it into account, and also note that there is no evidence that the Defendant was wearing gloves on the 18th November 2011.
Unfortunately, it is not always possible in every case for Scenes of Crime Officers to be able to lift fingerprints from important items, nor is it always possible for them to find expert evidence of quantifiable DNA on the items in question. Indeed, it has to be accepted that the presence or absence of both DNA and fingerprints is not determinative of the guilt or innocence of any Defendant. DEFENDANT'S EFFORTS TO GET AWAY
One has to ask oneself why did the Defendant go to such extreme and dangerous efforts to evade the police. The Defence suggests that the Defendant knew he could be arrested for drunken driving – justified by the reading of .91%. Another suggestion is that the Defendant knew he was driving whilst disqualified and therefore wanted to evade the police. Yet another reason for the Defendant’s efforts to flee from the police, according to Defence counsel, is that the Defendant had driven dangerously and at a very high speed.
When I examine the evidence, the Defendant refused to turn off the engine and get out of the Nissan car when asked by PC Gordon to do so. The Defendant did not answer any questions put to him by PC Gordon. There is evidence that the Defendant heard Mr. Rodney say that he, the Defendant pulled a gun on him and further, there is evidence that, at that time, or very shortly after making that statement Mr. Rodney attempted to punch the Defendant. It was at that point that the Defendant sped off in the white Nissan Sentra. Even if he did not hear PC Gordon shouting “Stop that car! He has a gun,” the Defendant was aware that the Police would have heard Mr. Rodney saying, “He pulled a gun on me.” It is reasonable to assume that the Defendant would also have been aware of the blue lights from the police car and aware of the police chasing him down the West Bay Road and back on to the Esterley Tibbetts Highway.
The Defendant drove so fast in his efforts to escape from the police that he ended up crashing the white Nissan in to the Island Heritage roundabout.
The USG vehicle in pursuit of the Nissan arrived on the scene of the crashed car almost immediately after the crash and even before the Defendant got out of the Nissan. When the Defendant got out of the front passenger seat he ran into the USG vehicle and he then turned and ran North, along the Esterley Tibbetts Highway. The Defendant would have been aware of PC Bradley giving chase and ordering him to stop. The Defendant continued to run and to try and avoid being apprehended by the police – running along the highway before veering off into the bush.
The Defendant did everything he possibly could to escape the police and avoid being detained by them. The Crown submits that this is a wild overreaction if the Defendant were only trying to escape a DUI charge or a charge of driving without a licence.
It is the Crown’s submissions that these actions by the Defendant demonstrate the Defendant’s guilty knowledge of what he had in his possession. The Crown contends that it is this guilty knowledge that caused the Defendant to employ such extreme measures to avoid the discovery of the firearm in his possession.
The Defence submits that there are too many unanswered questions and errors relating to the gun that was found in the bush, such as, the photos of the weapon and whether there was a bullet outside of it or not; the absence of the Defendant’s fingerprints and DNA on the weapon; the inability of the officers who found the weapon to identify which bullet was outside the weapon, and the failure to discover that the six bullets are not all the same. I accept, and indeed the police officers themselves accepted, that they had made a number of errors in relation to securing and recording the evidence against the Defendant. PC Taylor and PC Soto accepted that the gun, the magazine and the bullets had all been labelled incorrectly. The bullet seen by PC Soto outside the firearm when it was found – which was purportedly the same bullet seen in the photo taken by PC Taylor – could not be identified or differentiated from the other bullets by either PC Soto or PC Taylor during live evidence in Court. PC Soto can give no firm or clear explanation as to why PC Taylor’s photo (Exhibit 2(10)) shows a bullet and PC Rabess’s photo (Exhibit 3(11)) – which was taken some 41 minutes earlier – does not appear to show a bullet.
PC Taylor’s photograph is taken with a specific Scenes of Crime camera, whilst the evidence is that PC Rabess’s photo is taken with an inferior camera from his unit. When I compare the two photographs I see a number of differences in relation to the foliage around the gun. Exhibit 3(11) shows the ground as wet, with grass covering the gun, while Exhibit 2(10) does not show the moisture or the same grass coverage. But, it is fair to say that the gun looks as if it is the same gun, and further, the arm attached to the breach of the gun appears to be pulled back in both photographs. PC Rabess confirms that he did not see anyone touch the gun. PC Soto confirms that he was with the gun at all times and that nobody moved the gun. PC Soto candidly admits that he cannot provide an explanation for the absence of the bullet in Exhibit 3(11). PC Rabess and PC Taylor admit that although they have been trained to use firearms, they are not firearms experts. PC Rabess suggests that the round outside the gun may have fallen out of the slide. PC Rabess also suggested that the bullet could have been obscured by the bush or growth in photo Exhibit 3(10), or, there was a fault with the gun due to its age and the bullet may have fallen out. PC Taylor also suggests that with the arm of the breach in the position in which it was photographed, the breach would be open, and the bullet may have fallen out.
As a result of PC Soto’s evidence, and the difference between the two Exhibits, the Defence suggests that somebody tampered with the gun or, alternatively, placed the one 9 mm round on top of the gun.
From my review of the Exhibits there is no evidence that the firearm had any soil or vegetation attached to it to suggest that the firearm had been in the bush for some time. The evidence of the Chief Firearms Officer – Inspector Brellisford – is that the working parts were all in order, and he was able to select and then de-select the safety catch situated at the rear of the weapon below the hammer. Inspector Brellisford said that when he loaded the magazine with an operational 9 mm calibre round, he said it was apparent that the magazine would not sit properly. Inspector Brellisford said the magazine kept slipping out of the well, and this prevented the weapon from cycling the round into the chamber. Inspector Brellisford said that if one were to hold the magazine in place across the base of the magazine well, the round then would cycle into the chamber and it could be fired.
I agree with Senior Crown counsel when she states that none of the police officers would have known that the firearm was a Luger with 9 mm Luger rounds, and therefore it would be impossible for anybody wishing to plant a bullet to have any prior knowledge that it would have to be a 9 mm round to match the Luger firearm. Furthermore, the bullet above the gun in Exhibit 2(10) does not, in my view, strengthen the case for the Crown.
I also agree with Senior Crown counsel that the issue of the bullet does not relate directly to whether the Defendant had the Stock German Luger handgun in his possession or not. The sole issue for my consideration is whether the Defendant is guilty or not guilty of having the Luger handgun in his possession. That is the sole issue that the Court must determine. PC BRADLEY'S EVIDENCE
One has to look at all the evidence against the Defendant and, in this case, the evidence against the Defendant really stands or falls on the evidence of PC Bradley.
If the Court is satisfied beyond all reasonable doubt that PC Bradley saw the Defendant with a gun in his hand, that PC Bradley saw the Defendant stop and throw the gun into the bush just before he was apprehended, and that PC Bradley is truthful and reliable with his evidence, then the Defendant is guilty. If the Court has any doubt that PC Bradley saw the gun, and that rather, he mistakenly assumed that he saw the Defendant with the gun, then the Defendant must be found not guilty.
The Crown's case against the Defendant depends to a large extent, if not wholly, on the correctness of PC Bradley's identification of the Stock German Luger in the Defendant's right hand and therefore in his possession and under his control.
The Defence submits that PC Bradley is mistaken and he is understandably mistaken because the Defendant is on a long arm authority, and PC Bradley was told by PC Gordon that the driver, namely the Defendant, had a gun – information that PC Gordon acknowledges was based solely on what he was told by Mr. Rodney and Mr. Scott, and not based on him, (PC Gordon), having seen the Defendant with the firearm for himself.
To avoid the risk of any injustice in this case, I must warn myself of the special need for caution before relying on the evidence of identification. In this case, it is not the identification of the Defendant but the identification of the handgun which PC Bradley said in his evidence he saw in the Defendant's hand. I must remind myself that a witness such as PC Bradley who is convinced in his own mind may, as a result, be a convincing witness, but may nevertheless be mistaken. Therefore, I must examine the circumstances in which the identification by PC Bradley of the firearm in the Defendant’s hand took place and I must ask myself the following questions: How long PC Bradley had the firearm under observation?: This, based on the evidence before me would have to be a matter of some 30 to 40 seconds and probably not as long as the maximum the Defence have suggested of 60 seconds. What was the distance from which (at what distance) PC Bradley had the firearm under observation?: PC Bradley said that these distances he described (which varied) were only estimates, but his estimates at different times were somewhere between 18 feet and 30 metres. What was the lighting like during the time PC Bradley saw the firearm in the Defendant’s hand?: Having visited the locus on the evening of the 2nd October 2012, the light at the roundabout and on the Esterley Tibbetts highway could be properly described as bright. PC Bradley’s evidence in Court also described the lighting on the highway as good. It is accepted that the lighting deteriorates once the Defendant runs into the bush. Was the observation impeded in any and, if so, what way?: The Defendant’s own body, and his arms and shoulders would impede the observation of anything in his hand. Had PC Bradley ever seen the Defendant before?: The answer is yes, and shortly before this incident.
PC Bradley issued several commands for the Defendant to stop running away. PC Bradley told the Court that he had been trained to pay particular attention to the hands of suspects as they are trying to evade police detection or capture.
In his evidence PC Bradley said he saw the Defendant’s hands in front of his body. Obviously, PC Bradley could not see the hands whilst they were in front of the Defendant, but he told the Court that the location of the elbows would indicate that his hand was there. PC Bradley told the Court that he saw the hand re-emerge, and the Defendant was holding what he described as a silver-coloured handgun.
It is clear from PC Bradley that the Defendant was a good athlete - as he ran quickly. I reject the Defence’s suggestion that the Defendant was pulling up his trousers and not reaching for something out of his waistband. I also reject the Defence’s suggestion that because the Defendant was pulling up his trousers he could not run freely. There is no evidence that the Defendant’s trousers were loose and there is positive evidence that on the 18th November 2011 the Defendant was wearing a belt.
PC Bradley conceded that the firearm disappeared out of his view, momentarily. However, at that point, having seen the handgun again, PC Bradley was nervous enough to place his hand on his service weapon whilst continuing to give more commands for the Defendant to stop. The Defendant did not stop and continued to run, and PC Bradley told the Court he saw the gun, and when the Defendant ran into the bush area PC Bradley said he saw the Defendant throw the gun with his right hand in a motion across his body towards the left. PC Bradley said he saw the silver-coloured handgun rotating horizontally through the air.
I have carefully reviewed PC Bradley’s evidence in the face of extensive, skilful and proper cross examination by Defence counsel.
PC Bradley conceded that he was not breathing down the Defendant’s neck during the foot chase, but he was no more than 20 metres behind the Defendant. When reminded about the 18 feet and 30 metres distances he formerly referred to, PC Bradley said these are all rough estimates.
PC Bradley said he could only describe the firearm as a silver handgun, and was unable to decipher its make or model, or any other identifying features.
When it was put to PC Bradley that he had used words which conveyed uncertainty about seeing a firearm when he was reporting the incident to other officers, he said he was sure and he denied saying that it was “possibly” a firearm or it “might have been” a firearm. When it was put to him that he had used words like “resembling” or “an object resembling” a firearm, he responded that what he had said was “the Defendant just threw a gun.”
PC Bradley’s evidence is that he sees the Defendant holding a silver handgun in very good light from the streetlights, and, also from the lights of the police car and the lights of the Nissan car that the Defendant got out of. It cannot be described as a fleeting glance. PC Bradley sees the gun in the Defendant’s hand for some time. He then sees the Defendant throw the firearm in the air and he says he sees the gun rotate in the air.
Shortly afterwards, PC Bradley apprehends the Defendant and the first and only words that the Defendant said were: "That guy had a gun."
PC Bradley said he did not see the firearm land, but he told the other officers the general area in the bush where he saw the Defendant throw the firearm.
When it was suggested to PC Bradley that the additional lighting and the metal detector were required because he was uncertain about the firearm he said, "No, I was sure. I knew exactly what I saw in his hand. I knew he had a silver-coloured firearm and I knew the area where it landed."
In addition PC Bradley said that when PC Soto found the gun, PC Bradley said, "It looked like the one I saw in his hand."
On being further cross examined as to how he could say it was the gun he saw in the Defendant's hand, apart from the weapon being a handgun that was silver, PC Bradley replied: "Because I saw it in his hand. I saw the area where Mr. Crawford threw it. It was located in the same area where I saw it being thrown and it was silver in colour, identical to the gun that Mr. Crawford had in his hand." Additionally, PC Bradley said he had not left the scene. CORROBORATION
In light of the special need for caution in cases of identification I must also consider if there is any evidence which supports PC Bradley’s positive identification of the gun in the Defendant’s possession. WPC #293 MINOTT AND PC GORDON
WPC Keisha Minott’s statement stated that Mr. Rodney and Mr. Scott said that there was a gun in the white car.
PC Gordon said that both Mr. Rodney and Mr. Scott referred to the gun at the car park and, in particular, Mr. Rodney said that the Defendant pulled a gun on him. The evidence of PC Gordon is that, it was after Mr. Rodney tried to punch the Defendant that, as a consequence of the information he, PC Gordon, received about the gun, that he shouted to PC Rabess and PC Bradley. “Stop that car. He has a gun.” DEFENDANT’S STATEMENT
One must ask the question why did the Defendant say to PC Bradley, “That guy had a gun.” The inescapable inference is that he is referring to Jordan Bush, and that he knew that the police were likely to find the gun that he had thrown into the bush a few seconds earlier.
At this stage there is no evidence from PC Bradley that he, Bradley, had ever mentioned any gun, and it is the Defendant who first utters these words regarding a gun – using words to indicate that it was the passenger in his car, Jordan Bush, who had a gun, and, consequently, not him.
The inescapable inference to be drawn from the Defendant’s statement is that he was trying to deflect the blame that he anticipated would immediately be attached to him when the gun was found less than one hour later. ARREST FOR POSSESSION OF FIREARM
I also take note of the evidence shortly after the Defendant is apprehended, and before the Luger handgun is found, that PC Bradley arrested the Defendant for possession of an unlicenced firearm. This, I find is evidence to contradict the submission by the Defence that PC Bradley was uncertain as to whether he actually saw the Defendant throw a silver-coloured handgun into the bush. FINDING THE GUN
At approximately 3:45 a.m. the police began the search. After approximately 10 minutes they stopped the search to get the additional lighting, and for PC Soto and PC Jackson to go back to the police station to retrieve the metal detector. The officers returned with the metal detector and they began a gridline search. After approximately 25 minutes PC Soto located the Luger handgun in the very location in which PC Bradley said the Defendant threw it.
I find that the physical finding of the gun, which met with PC Bradley’s description and where PC Bradley says he saw the Defendant throw it, is very strong corroborative evidence that PC Bradley saw the gun in the possession of the Defendant as he ran away from the police and into the bush.
The Defence submits that PC Bradley was mistaken, in that, he assumed he saw the gun in the Defendant’s hand, because of what he had been told by PC Gordon, and because of what he knew of the Defendant. I can find no reliable evidence to support this submission.
The Court also observes that it is the Defendant’s choice not to give evidence, which means that there is no evidence from the Defence to undermine, contradict or explain the evidence against the Defendant by the sworn testimony of PC Bradley.
In light of all the factors and the circumstances I have outlined above, I do not believe that PC Bradley was mistaken. I find PC Bradley’s evidence to be clear and unequivocal.
I observed PC Bradley give his evidence in chief and under extensive cross examination and he was calm, unshaken and clear. Consequently, I have no hesitation in believing his account of the facts on the 18th November 2011.
PC Bradley sees the Luger emerge from the Defendant’s waistband. He sees the Defendant bring out the Luger in his right hand from his waistband. He sees the Defendant running with the gun in his right hand and described it as similar to an athlete holding a relay baton. The gun momentarily disappears from his sight, but he sees it again in the Defendant’s possession and then sees the Defendant throw it into the bush. PC Bradley’s evidence is that he also sees the gun in the air before it lands in the bush.
When I consider PC Bradley’s evidence, and the evidence which supports his identification of the gun in the Defendant’s possession, of PC Gordon regarding the information that the Defendant had earlier pulled a gun on Mr. Rodney, of the Defendant’s unchallenged statement to PC Bradley when apprehended, “That guy had a gun!”, and, of the finding of the gun shortly afterwards – a handgun that matched PC Bradley’s description and the area in which he reported that he saw the Defendant throw the gun – I am sure that the Defendant is guilty as charged.
Accordingly, I am satisfied beyond all reasonable doubt that the Defendant is guilty of possession of an unlicenced firearm, and that he did have in his possession a Stock German Luger containing a magazine with six Luger rounds at the Esterley Tibbetts highway in the vicinity of the Island Heritage Roundabout on the early morning of Friday the 18th November 2011. Dated this the 31st October 2012 Honourable Mr. Justice Charles Quin Judge of the Grand Court