Richards J
241217 R v Dayne Kareem Wilson: Ind. 43 of 2024. Coram: Richards, J KC – Verdict Judgment Page 1 of 27 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL SIDE 2 INDICTMENT NO: 43 of 2024 3 4 5 R 6 7 V. 8 9 10 DAYNE KAREEM WILSON 11 12 13 14 Appearances: Mr. Kenneth Ferguson, Crown Counsel, Office of the Director of 15 Public Prosecutions for the Prosecution 16 17 Mr. Crister Brady of Brady Law for the Defence 18 19 Before: Justice Cheryll Richards KC 20 Submissions Heard: 25th to 27th September 2024 21 Verdict Judgment: 17th December 2024 22 23 24 Criminal Law - Section 15 (1) and (5) of the Firearms Act (2008) Revision, Possession of Firearm and 25 Ammunition, Trial by Judge Alone 26 27 28 29 30 31 32 33 34 35 241217 R v Dayne Kareem Wilson: Ind. 43 of 2024. Coram: Richards, J KC – Verdict Judgment Page 2 of 27 VERDICT JUDGMENT 1 2 3
The defendant, Dayne Kareem Wilson is charged on Indictment with two offences contrary to 4 s.15 (1) and (5) of the Firearms Act (2008 Revision). Count One charges him with Possession 5 of an Unlicensed Firearm. The particulars are that he together with David Garry Akiame 6 Hurlston on the 5th day of May 2024 within the jurisdiction of the Cayman Islands had in their 7 possession a firearm, namely a 9mm Luger Calibre SCCY Industries Model CPX-2 pistol 8 otherwise than in accordance with the terms of a Firearm Users (Restricted) License. 9 10
Count Two charges them jointly with the offence of Possession of an Unlicensed Firearm 11 (Ammunition). The particulars are that they on the same date within the jurisdiction of the 12 Cayman Islands had in their possession seven rounds of 9mm ammunition, otherwise than in 13 accordance with the terms of a Firearm Users (Restricted) Licence. 14 15
The defendant was arraigned on the 21st June 2024 and pleaded not guilty to both counts. On 16 the 16th September 2024, the defendant elected trial by judge alone in accordance with s.129 of 17 the Criminal Procedure Code (2021 Revision). The trial took place over three days between the 18 25th and 27th September 2024. 19 20
The Court is mindful of the applicable principles with respect to Judge Alone trials as set out by 21 the Cayman Islands Court of Appeal in the cases of K. Richards v R1 and R v Dave Kennedy 22 Whittaker2. The task is to reach conclusions, give reasons to support the Court’s view and to 23 take note of any difficult or unusual points of law in order that it may be clearly seen how the 24 view of the law informed the approach to the facts. 25 26 SUMMARY OF THE CASE 27 28
The prosecution’s case in summary is that during the evening into the night of the 5th day of 29 May 2024, the defendant and Mr. Hurlston attended the Batabano Carnival street dance and 30 party celebrations in the center of George Town. Both men were seen together by several police 31 Officers. The party ended at about 11:45 pm. Shortly after midnight, a black Honda motor car 32 1 [2001] CILR 496, paragraph 32 2 [2010] (1) CILR 29 241217 R v Dayne Kareem Wilson: Ind. 43 of 2024. Coram: Richards, J KC – Verdict Judgment Page 3 of 27 owned by Mr. Hurlston was seen in the vicinity of the Globe Bar. When asked, Mr. Hurlston 1 indicated that he had a small amount of ganja in the car. The car was searched and a firearm 2 which had seven rounds of ammunition in it was found in a compartment in the center console. 3 Swabs were taken of the textured areas of the firearm which were examined by DNA Analyst 4 Mr. Christian Taylor. He found two DNA mixtures from which the defendant and Mr. Hurlston 5 could not be excluded. A third mixture was identified on the ammunition from which Mr. 6 Hurlston could not be excluded. Mr. Hurlston has pleaded guilty to both offences and awaits 7 sentence. 8 9
The defence case is that after the party, the defendant Wilson sought a ride to the Globe Bar. It 10 is that he does not know anything about the firearm and ammunition and was not in possession 11 of them. Any DNA found on the firearm from which he could not be excluded must have been 12 deposited by way of secondary transfer as distinct from direct deposit by him. 13 14 THE ELEMENTS OF THE OFFENCES 15 16
The Court is mindful of the burden and standard of proof. The prosecution brings this case, and 17 it is for the prosecution to prove the case so that the Court is sure. There is no burden on the 18 defendant to prove his innocence. The prosecution must prove to the required standard that: - 19 20
The defendant was in possession of an item. 21
That the item is a firearm within the meaning of the law. 22
The possession of it was not under and in accordance with a Firearm Users Restricted 23 License. 24 25
In order to prove possession, proof is required that the defendant had physical custody or control 26 of an item and that he knew that he had that item in his custody or control. Possession is not the 27 same thing as ownership. Two persons may be in possession of an item even though only one 28 has physical custody of it. A person may be in possession of an item even though the item is not 29 in the physical custody of that person. Where that item is in fact a firearm and the person or 30 persons had no license for it the offence is proven. 31 32 33 34 241217 R v Dayne Kareem Wilson: Ind. 43 of 2024. Coram: Richards, J KC – Verdict Judgment Page 4 of 27
There is also a helpful definition in the Penal Code (2024 Revision). Possession is defined in 1 the following way: - 2 3 “possession” includes not only having in one’s own personal possession, but knowingly 4 having anything in the actual possession or custody of any other person, or having anything 5 in any place (whether belonging to or occupied by oneself or not) for the use or benefit of 6 oneself or any other person, and if there are two or more persons and any one of them or 7 more of them with the knowledge and consent of the rest has or have anything in that 8 person’s or their custody or possession, it shall be deemed and taken to be in the custody 9 and possession of each and all of them.” 10 11
A firearm is defined in the Firearms Act as any lethal barreled weapon from which any shot, 12 bullet, or other missile can be discharged. 13 14 THE AGREED EVIDENCE 15 16
There is no dispute in this trial that the firearm was found in the black Honda motor car and that 17 it is a lethal barreled weapon within the definition in the Act. It is not challenged that two DNA 18 mixtures were found on various areas of the firearm. The issue is whether the Court can be sure 19 in all the circumstances that this defendant was in possession of the firearm and ammunition. 20 21 Evidence of Leesa Mullings 22 23
The statement of Leesa Mullings dated 6th May 2024 was read by agreement. Ms. Mullings is 24 an Integrated Ballistic Identification System Technician and a Firearm Examiner in the Police 25 Service. She has over twelve years’ experience in this field and is a gazetted Ballistics Expert 26 /Firearms Examiner. She holds a Bachelor of Science degree in Biotechnology and Chemistry 27 from the University of the West Indies. She has also received and completed training in Forensic 28 Firearm Identification from various institutions including the Association of Firearm and 29 Toolmark Examiners in the United States. 30 31
On the 5th May 2024, she examined SH-1, the 9mm Luger pistol and SH1-A seven rounds of 32 ammunition. The pistol was test fired and found to be in good working condition and capable 33 241217 R v Dayne Kareem Wilson: Ind. 43 of 2024. Coram: Richards, J KC – Verdict Judgment Page 5 of 27 of discharging deadly bullets from its barrel. Both the pistol and the ammunition were found to 1 be operable in accordance with the Firearms Act. 2 3
There are agreed Admissions pursuant to s.34 of the Evidence Act (2021 Revision) as follows: 4 - 5 6 i) On Sunday 5th May 2024, Police Sergeant Dave Howell collected a buccal swab 7 from David Hurlston and labeled it DH/RB# 1. 8 ii) On the said day at about 12:04 pm Detective Inspector Kevin Ricketts collected a 9 buccal swab from Dayne Wilson and labeled it KR/DW1. That same day he 10 formally charged Mr. Wilson with the offences for which he is before the Court. 11 iii) Scenes of Crime Officer Lewis Reid submitted KR/DW 1 to the Forensic Science 12 Laboratory for DNA analysis to be conducted. 13 iv) The defendant Wilson is not registered as the owner of a Firearm Users permit in 14 the Cayman Islands. 15 v) The defendant Wilson has no previous relevant convictions recorded against him. 16 17 18 THE EVIDENCE ON THE PROSECUTION’S CASE 19 20 Evidence of PC Jerome Garwood 21
PC Jerome Garwood testified that on Saturday 4th May 2024, he was on duty at around midnight 22 in a marked Firearm Response Unit vehicle together with PC 429 Carlton Dixon. They 23 responded to a radio call by going to the area of Mary Street in the vicinity of the Globe Bar. 24 On arrival he saw and spoke with PC Ferguson and PC Taylor who were standing in the roadway 25 just across from the Globe Bar. They walked across to the parking lot of the Bar. PC Garwood 26 saw the defendant Dayne Wilson whom he knew before. The defendant was in the parking area 27 at the time. 28 29
PC Garwood spoke to him and asked him by what means he got to the Globe Bar. The defendant 30 said that he got a ride from a Spaniard in a white BMW. PC Garwood searched him but found 31 nothing of interest on him. PC Garwood also saw other persons and vehicles parked in the 32 parking lot. Two of the vehicles which he saw were a white Mercedes Benz Registration no 198 33 374 and a black Honda Accord registration no134 490. He saw a male sitting behind the driver’s 34 241217 R v Dayne Kareem Wilson: Ind. 43 of 2024. Coram: Richards, J KC – Verdict Judgment Page 6 of 27 seat of the black Honda Accord. The driver of the Black Honda Accord attempted to leave the 1 parking lot in the car but was stopped by other police. He exited the car and was identified as 2 David Hurlston. PC Garwood said that he had seen Mr. Hurlston before but had not known him 3 by name. PC Garwood said he was in close proximity when the black Honda Accord was 4 searched and he observed that Mr. Hurlston was arrested. PC Garwood was thirty to thirty five 5 feet away and the defendant was about forty feet from Mr. Hurlston. 6 7
PC Garwood said that he enquired of the defendant more than once how he got there and the 8 response was by a Spaniard in a white vehicle. 9 10 Evidence of PC Khadane Hall 11 12
PC Khadane Hall testified that on the said day he was a member of the police team which was 13 on high visibility foot patrol duty in plain clothes for the Batabano street dance that was taking 14 place. While he was on foot patrol, he observed the defendant and David Hurlston. He knew 15 both men before. He saw them at the last lap event in George Town in the vicinity of the cruise 16 terminal. 17 18
PC Halls’ patrol in George Town started around 7:45pm and he saw them throughout the night. 19 They were together and appeared to be socialising. The street dance finished around 11:45pm. 20 After that, sometime after midnight he observed Wilson and Hurlston leaving the event by 21 walking away on foot. 22 23
Sometime after 12 midnight he heard a radio communication and received certain information 24 which led him to proceed to Barnes Plaza on Mary Street. He drove an unmarked police vehicle 25 with his front seat passenger PC Samuels. 26 27
When PC Hall arrived, he parked the vehicle in front of a 24-hour convenience store that is 28 downstairs to the Roof Top Bar. This is fifty feet away from Barnes Plaza and on the opposite 29 side of the road from that Plaza. He parked the vehicle, and they proceeded to the Plaza. 30 31
Upon arrival he saw Sgt. Howell, Officers Morgan, Garwood, Caswell Ferguson and other 32 Officers from the armed police unit, the FRU. He was given some instructions by Sgt. Howell. 33 As a result, he searched a black Honda Accord registration number 134 490 under the Misuse 34 241217 R v Dayne Kareem Wilson: Ind. 43 of 2024. Coram: Richards, J KC – Verdict Judgment Page 7 of 27 of Drugs Act. It was parked in front of the plaza underneath a streetlight. He inquired who was 1 the owner and a male, Mr. Hurlston identified himself as the owner. PC Hall asked him whether 2 there was anything illegal in vehicle and Mr. Hurlston said yes, there was ganja in the vehicle. 3 The defendant Wilson was close by at that time. 4 5
PC Hall and PC Samuels proceeded to search the vehicle. PC Hall searched the driver’s side of 6 the vehicle, checking under the seat as much as he could. PC Samuels searched the rear section 7 behind the driver’s seat. 8 9
PC Hall did not find anything under the seat. As a result, he asked Mr. Hurlston to come to the 10 car. Mr. Hurlston came to the front passenger seat of the car. PC Hall asked him to point out 11 where the ganja was. Mr. Hurlston pointed to the ash tray. No ganja was in the ash tray. PC Hall 12 continued to search behind the gear lever. He did not find anything. He proceeded to where the 13 radio is on the console where there is usually a button that can open a container. He realised that 14 there was no container there and became suspicious and started searching more. That is when 15 he saw the black handle of a firearm. He shouted gun to PC Samuels who was in the back. He 16 indicated to her that the search was over and the search was concluded at that point. 17 18
PC Hall informed Sgt. Howell of what he had found. Mr. Hurlston was arrested and cautioned 19 by Sgt. Howell. Mr. Hurlston said “gun nah mine, I got it from a guy named Nichols from East 20 End, he supposed to collect it from me tomorrow. You gonna find my prints on it because I 21 checked it if it was loaded.” 22 23
PC Hall said he was present when the Scenes of Crime Officer recovered the firearm after which 24 he sealed the car before it was moved to the George Town Police Station. 25 26
In cross examination, PC Hall explained that when he said he observed the two men socialising 27 they were partying and drinking. 28 29
He said that visibility patrols began at 7:45pm and the party ended at 11:45pm. During that time 30 Mr. Wilson and Mr. Hurlston would have been within his view. He observed them leaving 31 together around the same time. 32 33 34 35 241217 R v Dayne Kareem Wilson: Ind. 43 of 2024. Coram: Richards, J KC – Verdict Judgment Page 8 of 27 Evidence of PC Andre Morgan 1 2
PC Andre Morgan testified that he was on proactive patrols that Saturday evening into the night. 3 He was instructed by Sgt. Howell to go to the vicinity of the Globe Bar on Mary Street. PC 4 Morgan was a passenger in the police vehicle which went to Mary Street in the area by Grescott 5 Lane. He said that he was stationed there to stop any vehicle from going towards the Globe Bar. 6 While he was there, two vehicles stopped in the parking lot of Globe Bar. Once a search began 7 of these vehicles, he made his way to the entrance of the parking lot where a Police Firearm 8 Response vehicle was positioned. A firearm was found in the Black Honda Accord. Once this 9 was found, he was instructed to arrest the defendant Dayne Wilson. The defendant was to his 10 left at that time. He arrested and cautioned the defendant who said, “is beg I beg a ride here”. 11 He searched the defendants’ pockets and found a cell phone which the defendant said was 12 unlocked. That was PC Morgan’s only contact with the defendant that night. 13 14 Evidence of PS Dave Howell 15 16
Police Sergeant Dave Howell testified that he has been a member of the Police Service for 17 eighteen years. In May of this year, he was attached to the Serious Crime Proactive Team 18 stationed at the Coast Guard Base and working together with the Crime Task Force. 19 20
On Saturday the 4th May 2024, he was assigned with other Officers to the Batabano street 21 carnival which was taking place on Seafarers Way in George Town. There was a combination 22 of Officers on mobile and foot patrol. While at the carnival, he saw several people including 23 the defendant and Mr. Hurlston who he knew before. They were in an area to the left of the stage 24 by a jewelry store on Seafarers Way. They seemed to be just drinking and enjoying themselves. 25 26
PS Howell was present when it was finished at about 11:45pm or so. The music stopped and it 27 came to an end. He left the area on foot with other Officers, and they commenced mobile patrol 28 in an unmarked police vehicle driven by PC Khadane Hall. While he was in the vehicle, he heard 29 a radio transmission and went to Mary Street in the car park of the Globe Bar. 30 31
On foot from Seafarers way to the Bar, it is about fifteen to twenty minutes walking time. By 32 vehicle it is about two minutes’ drive depending on the traffic. 33 34 35 241217 R v Dayne Kareem Wilson: Ind. 43 of 2024. Coram: Richards, J KC – Verdict Judgment Page 9 of 27
On arrival he observed two vehicles, a dark coloured blue Honda and the other a white Mercedes 1 Benz. Both vehicles were parked in the car park of Globe Bar. The Benz was parked near to the 2 Globe Bar while the Honda was nearer to the entrance. They were about four or five parking 3 spaces apart. 4 5
He saw several persons there including the defendant and Mr. Hurlston. PS Howell searched the 6 Benz and nothing of evidential value was found in it. The driver of that vehicle was identified 7 to him by PC Ferguson to be Joshua Ebanks. At the time PS Howell did not know the driver of 8 the second vehicle. He asked who was in charge of the vehicle and Mr. Hurlston presented 9 himself and asked for a “bly”. Mr. Hurlston said that it was his birthday recently and he had a 10 draw of weed in the vehicle. 11 12
After that PS Howell instructed PC Hall and PC Samuels to search the vehicle. While they were 13 searching, he heard PC Hall say “bangle him, gun.” 14 15
He instructed that the search stop, arrested and cautioned Mr. Hurlston and gave instructions for 16 the arrest of the defendant Wilson. PS Howell made some calls including a call for a Scenes of 17 Crime Officer. SOCO Sarah Hough arrived. She retrieved the firearm, made it safe, sealed it 18 and kept it in her possession. She took photographs of the vehicle both at the scene and on the 19 following day after the vehicle had been moved to the George Town Police Station. 20 21
PS Howell interviewed the defendant the following day. He produced the recording of that 22 interview and a transcript of it. These were received in evidence as Exhibits 1 and 2. A prepared 23 statement given by the defendant was received as Exhibit 3. 24 25
During the interview, PS Howell showed the defendant seven photographs of the vehicle, 26 firearm, and magazine. These were produced as Exhibit 4. 27 28 Evidence of Sarah Hough 29 30
Sarah Hough testified that she is a Crime Scene Investigator with the Police Service. She has 31 worked for a little over twelve years in this role and prior to this for six years in the Michigan 32 State Police in the United States. She has a degree in Forensic Biology and Biochemistry from 33 the University of Portsmouth in the United Kingdom. She detailed the courses taken in 34 photography, collection of evidence and different forensic topics. She has had on the job training 35 241217 R v Dayne Kareem Wilson: Ind. 43 of 2024. Coram: Richards, J KC – Verdict Judgment Page 10 of 27 from experienced officers and continuing education courses and has previously given testimony 1 as an expert in crime scene investigation. Defence Counsel raised no objection to her experience 2 and competence. 3 4
Ms. Hough stated that on the 5th May this year she was called to 34 Mary Street in the early 5 hours of the morning. On arrival the black Honda Accord 134 490 which was in the parking lot 6 was drawn to her attention. She took photographs of it including of the compartment where the 7 firearm had been located. Then using clean gloves, she collected the firearm from the vicinity 8 of the dash in the vehicle. The firearm had a magazine which had ammunition in it. She removed 9 the magazine with ammunition and placed it in a brown paper bag which she labeled SH/1A. 10 She placed the firearm in a box which she labeled SH 1. She took the items back to the police 11 station and secured them in a safe overnight. 12 13
In the morning around 8:30am she collected the items from the safe and took them to the 14 examination room where she took photographs of them and processed them for both fingerprints 15 and DNA. She explained in detail the steps in the processing of the firearm to include wearing 16 a mask and gloves while processing, ensuring that the workspace was clean, and placing on the 17 examination surface, clean examination paper. The wearing of masks and gloves was to prevent 18 contamination from her own DNA. She then took photographs of the firearm before swabbing 19 the textured areas of it. She demonstrated on a photograph that this was the front sight, rear 20 sight and the grip on both sides of the firearm. After doing this she placed the firearm in the 21 fuming chamber to be processed with super glue for prints. This is processing with a substance 22 called Cyano Acrylate (“CA”). 23 24
She then cleaned the workspace for a second time and changed her gloves and mask for the 25 processing of the magazine. The magazine was photographed and the ammunition was removed 26 from it. It was then placed on clean paper in the fuming chamber. The ammunition was also 27 placed in the chamber. 28 29
The magazine and ammunition were swabbed after removal from the fuming chamber. The 30 firearm was swabbed a second time after removal from the chamber. 31 32 33 241217 R v Dayne Kareem Wilson: Ind. 43 of 2024. Coram: Richards, J KC – Verdict Judgment Page 11 of 27
She sealed all the swabs which she had taken during the processing (SH1 Swab, SH1 Swab CA, 1 SH 1A Swab and SH 1A Swab 2). She delivered all the sealed packages to the Cayman Islands 2 Forensic Laboratory together with a buccal swab from Mr. Hurlston. 3 4
She produced a CD of photographs which was received as Exhibit 5 and a booklet of twenty- 5 five printed photographs which was received as Exhibit 6. The photographs show the Honda 6 vehicle, compartment in the centre of the dash, firearm, magazine, ammunition and steps in the 7 processing. One of the photographs of the firearm, photograph 17 shows the markings 8 CCCY/SCP X 2 located on the left side of the frame. 9 10
In cross-examination, Ms. Hough said that she wore a mask because of not wanting there to be 11 any contamination for DNA purposes. She agreed that spit coming from the mouth could contain 12 DNA in the form of skin cells from the inside of the mouth. 13 14
She said that there were fingerprint impressions after the super glue chamber, but it is for the 15 fingerprint expert to speak about these. 16 17 Evidence of Christian Taylor 18 19
Christian Taylor is a Forensic Scientist employed at the Health Services Authority (“H.S.A.”) 20 since February 2020. He is a specialist in DNA and body fluid analysis. He described part of his 21 responsibilities as examining evidential samples received from the Royal Cayman Islands Police 22 Service and Customs and Border Control for DNA analysis. This includes examination of 23 substances such as blood, semen and saliva and anything which may have been handled to try 24 to obtain DNA profiles and compare them to the DNA profiles of known individuals. 25 26
He detailed his experience in the field. Before coming to the Health Services Authority, he 27 worked as a Forensic Scientist at the Center of Forensic Science in Toronto, Canada from May 28 2010 to January 2020. He has an undergraduate degree from McGill University in Montreal in 29 Microbiology and Immunology. He has a Masters’ degree from Kings College in London, 30 England in Forensic Science. He has taught Forensic Science at the University of Toronto. Last 31 year he published a paper concerning the transfer of DNA on various items. 32 33 34 241217 R v Dayne Kareem Wilson: Ind. 43 of 2024. Coram: Richards, J KC – Verdict Judgment Page 12 of 27
He undertakes continuing education courses annually and participates in conferences in DNA 1 and body fluid analysis. He has presented various Forensic DNA papers at conferences. He is a 2 member of the Canadian Society of Forensic Sciences and of the Cayman Islands Professional 3 Association. 4 5
He said that the H. S. A. Laboratory adheres to accreditation standards and is assessed by an 6 outside body. At the Laboratory they use the industry standard methodology of Short Tandem 7 Repeat or STR analysis. This methodology generates DNA profiles which are used by forensic 8 laboratories worldwide. He has done about five hundred examinations using the STR 9 methodology. He has testified on fourteen or fifteen occasions in Court in the Cayman Islands. 10 11
There was no challenge to Mr. Taylor’s expertise. He was received as an expert in DNA and 12 body fluid analysis. 13 14
Mr. Taylor provided general information about the science of DNA. He testified that DNA is 15 the basic building block and blueprint for all life on earth. Fifty percent of our DNA comes 16 from our mothers and the other half from our fathers. Ninety nine percent of the DNA that we 17 have is the same in all humans. This is why we each have the same functioning organs. It is in 18 the remaining one percent that there is tremendous variation. It is within that one percent that 19 scientists look when conducting DNA analysis. The examination method is a nuclear one as 20 distinct from mitochondrial. Nuclear refers to the DNA found in the nucleus of almost every 21 cell in the body. This is what provides codes for most things that make up the body. 22 23
The basic machinery used is called polymerase chain reaction which involves the replication of 24 DNA. If a DNA profile is obtained from an unknown sample using nuclear analysis, it is labeled 25 as Unknown Profile 1. If it is a mixture it is labeled as DNA Mixture 1. This is then compared 26 to the DNA profile of the known individual. If the known individual is excluded it means that 27 the person cannot be the source or contributor to the DNA mixture. If a person cannot be 28 excluded that means they might be a contributor to a mixture or be the source of the profile. In 29 that case they provide a statistic to relate what is the significance of this. This will indicate how 30 much more likely it is to observe this profile in the population. He applied this technique to the 31 processing of the several items received in relation to the instant case. 32 33 241217 R v Dayne Kareem Wilson: Ind. 43 of 2024. Coram: Richards, J KC – Verdict Judgment Page 13 of 27
As to the specific examination and findings, Mr. Taylor testified that he received a number of 1 swabs of the firearm and ammunition as well as two comparison samples from individuals 2 named David Hurlston DH/RB1 and Dayne Wilson KR/DW1. The buccal swab for the 3 defendant Wilson was received from SOCO Lewis Reid. 4 5
The laboratory received from SOCO Sarah Hough: - 6 7 - SH-1 swab, which is a swab of the textured areas of the firearm. 8 - SH-1 swab CA, a swab of the firearm after CA processing. 9 - SH 1A swab, swab of magazine after CA processing. 10 - SH-1A swab two, which is a swab of ammunition after CA processing. 11 12
Mr. Christian testified that he took the four swabs of the firearm, ammunition and magazine and 13 was able to generate profiles suitable for comparison from three of the items. Later he processed 14 the comparison samples of Mr. Hurlston and Mr. Wilson to see if they could be contributors to 15 the DNA mixtures that were successfully generated from the three items. 16 17
He said that the first item was SH-1 swab which is the swab of the textured areas of the firearm 18 SH1. That generated a DNA mixture coming from at least three people, including at least one 19 male. He labeled this mixture DNA Mixture 1. 20 21
The second item was SH-1 swab CA, which was the swab of the firearm after CA processing. 22 That similarly generated a DNA mixture from at least three people, including at least one male; 23 and he termed this DNA Mixture 2. 24 25
The third successful one was SH-1 A swab two, which was the swab of ammunition after CA 26 processing. That generated a DNA mixture from at least two people, including at least one male, 27 and he termed this DNA Mixture 3. 28 29
The last item, SH1A swab, which was the swab of the magazine after CA processing, generated 30 a DNA mixture from at least three people, including at least one male; however, the quality and 31 quantity of the DNA present in that mixture made it so that he termed it not suitable for 32 comparison. 33 34 241217 R v Dayne Kareem Wilson: Ind. 43 of 2024. Coram: Richards, J KC – Verdict Judgment Page 14 of 27
Similarly, for both David Hurlston and Dayne Wilson, he generated complete single source 1 DNA profiles, meaning unsurprisingly DNA coming from one individual. These were both 2 suitable for comparison, which he would expect, from reference samples. He compared both of 3 their reference samples to DNA Mixtures 1, 2 and 3. 4 5
He found that Mr. Hurlston could not be excluded as a contributor to all three mixtures; DNA 6 Mixture 1, DNA Mixture 2 and DNA Mixture 3. He then provided a statistic, to relate what is 7 the significance of that for each of the DNA mixtures. For DNA Mixture 1, the swab of the 8 textured areas of the firearm, the DNA results observed in that mixture are estimated to be 150 9 million times more likely if they originate from David Hurlston and two other unknown people 10 than if they originate from three unknown people unrelated to him. 11 12
In the case of DNA Mixture 2, which is a swab of the firearm after CA processing, the DNA 13 results observed are estimated to be 3.1 million times more likely if they originate from David 14 Hurlston and two unknown people than if they originate from three unknown people unrelated 15 to him. 16 17
With regard to DNA Mixture 3, the swab of the ammunition after CA processing the DNA 18 results observed are estimated to be 130 trillion times more likely if they originate from David 19 Hurlston and one unknown person than if they originate from two unknown persons unrelated 20 to him. 21 22
In relation to Dayne Wilson, Mr. Taylor found that he was excluded from DNA Mixture 3, the 23 swab of the ammunition after CA processing, so he cannot be a contributor to that DNA mixture. 24 However, he could not be excluded as a contributor to DNA Mixture 1 and DNA Mixture 2. 25 26
With respect to DNA Mixture 1, the DNA results observed are estimated to be 5.8 billion times 27 more likely if they originate from Dayne Wilson and two unknown people than if they originate 28 from three unknown people unrelated to him. 29 30
For DNA Mixture 2, the DNA results observed are estimated to be 7 billion times more likely 31 if they originate from Dayne Wilson and two unknown people than if they originate from three 32 unknown people unrelated to him. 33 34 241217 R v Dayne Kareem Wilson: Ind. 43 of 2024. Coram: Richards, J KC – Verdict Judgment Page 15 of 27
Mr. Taylor was asked whether he could proffer any explanation as to the reason that the match 1 probability ratio was higher for Mr. Wilson than Mr. Hurlston. In response Mr. Taylor said that 2 in his opinion, looking at the numbers, they are statistically actually really not that different. 3 150 million and 5.8 billion are within a factor of ten times or twenty times, which is not a huge 4 deal for them. He said that this has to do with the rarity of the DNA markers that they each 5 have. It simply means that some of the DNA markers that Mr. Wilson has are less common than 6 some of the DNA markers that Mr. Hurlston has. 7 8
He said that looking at their two DNA profiles, he found that if you accept that both men are 9 part of these mixtures, they would represent about eighty to ninety percent of the DNA there, 10 and then there is an additional ten percent from some unknown third person. 11 12
He said that the same observation is made of the match probability in respect of DNA Mixture 13 2, that is, he notes that the match probability of Dayne Wilson is higher than that of the match 14 probability of David Hurlston. The same response applies, which is that the DNA markers for 15 Mr. Wilson, statistically speaking, are slightly less common than they are for Mr. Hurlston. But 16 also, if you accept that Mr. Wilson is a true contributor in this DNA mixture, his contribution to 17 that mixture would be about seventy percent, and Mr. Hurlston's would be a bit less than that, 18 something around twenty to thirty percent. And then there is some unknown other contributor 19 representing five to ten percent. 20 21
Mr. Taylor was asked to explain the concepts of primary and secondary transfer as it relates to 22 DNA. He said that primary transfer simply refers to the direct transfer of a substance containing 23 DNA from a person onto an object. 24 25
He gave an example of shaking a hand which hand then handles a coffee cup. The coffee cup 26 may have his DNA on it although he did not handle it directly. This would be from secondary 27 transfer. 28 29
Mr. Taylor was given the following factual scenario by Counsel: 30
David Hurlston pled guilty to the possession of the unlicensed firearm in 31 this case. 32
The evidence is that the defendant was seen in Mr. Hurlston's company 33 about four hours or so before both of them were intercepted at a location 34 241217 R v Dayne Kareem Wilson: Ind. 43 of 2024. Coram: Richards, J KC – Verdict Judgment Page 16 of 27 in which the firearm was found in a car. 1
Both of them drove in the car. Mr. Hurlston being the driver; 2 Mr. Wilson being the passenger. 3
The firearm was found in a hidden compartment on the dash of this 4 vehicle. 5
Mr. Wilson, the defendant before the Court, said that he had gotten a 6 ride from Mr. Hurlston from the street dance on Seafarers Way to the 7 location where the vehicle was intercepted with them, and this is about 8 two minutes’ drive from Seafarers Way to the location where the car 9 with the firearm was found. 10 11
Mr. Taylor was asked whether given those facts, could there be any form of secondary transfer 12 of Mr. Wilson's DNA profile from Mr. Hurlston to the firearm that was found in the hidden 13 compartment? 14 15
Mr. Taylor replied that secondary transfer is always a possibility. He would have to know an 16 example of what the cause of it would be. He gave an example of what increases the likelihood 17 of secondary transfer as being the cause of observing someone's profiles. He said that the easiest 18 way to think of it is, that it's like dealing with a wall of red paint. If the wall has been freshly 19 painted, and it is still wet paint, he can touch the wall of red paint and if he rubs his hands 20 vigorously all over it, he would expect to get red paint on his hands. If he then touches the 21 banister, his pages, and his clothing, he would then get that red paint on pretty much everything; 22 and though that wall has never touched any of these items, some of it has been transferred to it 23 via him because it is wet and he has rubbed his hand vigorously and has applied friction and 24 force. All of these help to encourage the possibility of transfer. 25 26
He said that it depends on what the environment of the compartment was. If it was Mr. Wilson's 27 vehicle, and he was using that compartment regularly. 28 29
It would also depend on the firearm, assuming the other individual, Mr. Hurlston if he says it 30 was his gun, he cannot rule out that Mr. Hurlston could have transferred Mr. Wilson's DNA onto 31 the gun through some unknown mechanism that he does not know. He said that as he was 32 explaining earlier about the wall of red paint, if it is a dry wall and the paint had been there for 33 years, and he just lightly touched it, he would not expect to transfer any paint. 34 241217 R v Dayne Kareem Wilson: Ind. 43 of 2024. Coram: Richards, J KC – Verdict Judgment Page 17 of 27
Mr. Taylor was then asked this: - 1 “Q But, Mr. Taylor, given the duration of the ride from Seafarers Way, 2 where Wilson said that he got the ride, and two minutes afterwards -- 3 A So just from being in the compartment? 4 Q Yes. 5 A I would not expect there to be that level of transfer onto the firearm. 6 Q Why did you just say that? Why did you say that? 7 A Because the compartment I'm assuming would be a locked area, dry. The 8 firearm would be just loose inside it. There would have to be a source within 9 the compartment for Mr. Wilson's DNA to get onto the firearm. And if you 10 are saying that he has never had access to that compartment, I don't know 11 where that source would be from. So, I absolutely wouldn't expect it to arrive 12 just from the compartment itself.” 13 14
In cross-examination Mr. Taylor said that in his example it is correct that if his hand touched a 15 not-yet-dry wall with red paint, then he might expect that because it is not fully dry, then it 16 would be transferred to somewhere else. 17 18
Mr. Taylor said that it is absolutely possible that if Mr. Wilson and Mr. Hurlston were partying 19 together for four hours, or so, one might expect them to develop a sweat. He was asked whether 20 the presence, for example, of sweaty palms, and the shaking of arms, or the exchange of drinks, 21 would that increase the possibility of secondary transfer from Mr. Wilson to Mr. Hurlston to the 22 firearm? Mr. Taylor’s answer was that sweat itself is not a particularly rich source of DNA. He 23 said that certainly the fact that if they are in close contact over a prolonged period of time, they 24 are sweaty and if they are shaking hands, hugging, something of that nature, then, yes, you could 25 transfer DNA by that method. It could increase the likelihood of observing transfer. 26 27
Mr. Taylor said that if the suggestion of Counsel is that if it is accepted that it is Mr. Hurlston's 28 vehicle and Mr. Hurlston's firearm, that at some point over the course of the evening, 29 Mr. Hurlston and Mr. Wilson are partying, shake hands, hug, and assuming they are sweaty, it 30 is a possibility that some of Mr. Wilson's DNA gets transferred, like the coffee cup, onto the 31 firearm because Mr. Hurlston handled the firearm, not Mr. Wilson. 32 33 241217 R v Dayne Kareem Wilson: Ind. 43 of 2024. Coram: Richards, J KC – Verdict Judgment Page 18 of 27
Mr. Taylor said that generally, when they observe DNA mixtures, the major profile, the largest 1 contributor, is either the owner of the object or the last handler of the object. When they observe 2 that someone is a major contributor or larger contributor of which, particularly for DNA Mixture 3 2 as Mr. Wilson was, they are typically the last person to handle the object, or it is their 4 ownership. 5 6
Mr. Taylor gave an example. He said that if someone handled his wallet, he would fully expect 7 that persons’ DNA to get on there, but his DNA would still be on there too, so they would see a 8 mixture of both of their DNAs. But he cannot absolutely rule out that secondary transfer could 9 have caused this scenario in the manner he just described. 10 11
In answer to Counsel, he said that the small amounts of who is going to be sweatier or less 12 sweaty would not make a difference because it will depend on who is transferring more DNA, 13 and all of that is really hard to measure, if not impossible, for most people. He said that he 14 cannot really provide more direction that way, but he can simply say that if you are sweaty, you 15 are going to increase the likelihood of transfer as a possibility. 16 17
In re-examination by Counsel for the prosecution Mr. Taylor said that in the scenario put to him 18 by the defence, Mr. Hurlston would have had to handle the firearm after he came into contact 19 with Mr. Wilson. 20 21
He said that in DNA Mixture 1, if is accepted that both of their DNA was on it, they represent a 22 relatively even amount of DNA about 80 to 90 percent of the DNA there is coming from these 23 two individuals, and there is an unknown third party. 24 25
For DNA Mixture 2, Mr. Wilson is seen as being the major contributor representing roughly 70 26 percent of the DNA there, Mr. Hurlston is present after that, 20 to 25 percent, and an additional 27 5 to 10 percent of some unknown third party. He said that when you look at the major contributor 28 to a DNA mixture, it is most often the owner of an item, the usual handler, or the last handler of 29 an item. 30 31
In answer to a question from the Court Mr. Taylor said that this is because of what has been 32 seen in multiple studies involving many different items, over and over they see the same results 33 that it is the usual handler, the owner of the item, or the last person that handled it. 34 241217 R v Dayne Kareem Wilson: Ind. 43 of 2024. Coram: Richards, J KC – Verdict Judgment Page 19 of 27 1
He said that there is always the outside example, if you did run the study a hundred times, on 2 the hundredth time, you see someone else as a major contributor. It is from secondary transfer, 3 and you would trace that down to, either the intimate partner of someone that was involved in 4 the study or someone else who used the vehicle last week, something of that nature. So, we can 5 never rule it out because we know it does happen, but typically, it is the last handler or the 6 regular handler. 7 8 Interview of Defendant 9 10
The defendant was interviewed under caution in the presence of his Attorney on the 5th May 11
He provided a prepared statement in which he said that: - 12 13 “I’ve been given an opportunity to take legal advice and I have done so, I Dayne Wilson 14 wish to say that I do not know anything about any firearm in the Black Honda Accord that 15 I am told was found there on the 4th May 2024 sometime after 12am. I only asked for a 16 ride from David Hurlston who I knew before. This was after the Batabano celebrations. I 17 do not know anything else or have anything else to say.” 18 19
In response to a question from the police, he said that he had got to the Carnival with “a next 20 friend” but exercised his legal right and declined to answer any other questions. 21 22 THE DEFENCE CASE 23 24
The defendant elected not to give evidence. 25 26 THE SUBMISSIONS 27 28 Closing Submissions of the Prosecution 29
The prosecution submitted that there is circumstantial evidence, being the DNA evidence in 30 conjunction with other evidence in the case which points to the defendant being in joint 31 possession of the firearm and ammunition together with his co-defendant Hurlston. 32 33 241217 R v Dayne Kareem Wilson: Ind. 43 of 2024. Coram: Richards, J KC – Verdict Judgment Page 20 of 27
Counsel said that the defendant was not truthful when he told PC Garwood that he had traveled 1 there in a white Mercedes Benz when he had not. The question is whether he knew that the 2 firearm was in the Honda Accord. 3 4
Counsel refers to the evidence of Mr. Taylor that the defendant was a major contributor to DNA 5 Mixture 2 and that based on studies, the major contributor to a mixture is either the usual handler 6 or the person that last handled the firearm. 7 8
Counsel said that the evidence of PC Hall is that he had to press a lid for the firearm to be 9 revealed. The lid is shown on photograph 12 which is exhibited. Counsel submitted that for Mr. 10 Wilson’s DNA to have been transferred from Mr. Hurlston to the firearm, Mr. Hurlston would 11 have had to handle the firearm within that two-minute drive. In the defendant’s prepared 12 statement, the defendant stated that he only asked for a ride. Counsel submitted that the 13 defendant was a passenger in the car for such a short duration and was a mere occupant for a 14 very short period of time. There is no evidence that he owned the car. If he was the owner of the 15 car, one would expect his DNA to be on the items in the car. 16 17
Counsel submitted that the strength of the DNA profiles on the firearm, particularly DNA 18 Mixture 2 is such that the defendant must have handled the firearm either as owner or be the 19 person who last handled it. 20 21
Counsel also asked that an adverse inference be drawn from the defendant’s failure to give 22 evidence and submitted that the Court should find that he ought to have given an account to 23 explain away that evidence. 24 25 Closing Submissions of the Defence 26 27
Counsel for the defence submitted that the defendant was observed partying with the co- 28 defendant Hurlston and others at the Batabano dance along Seafarers Way in the evening of 4th 29 May this year between 7:45 pm and 11:45 pm. Counsel said that while these are the hours 30 during which the defendant was observed with the co-accused, it is likely possible that they had 31 been together even before they were observed. They were partying under observation for at 32 least four hours. 33 34 241217 R v Dayne Kareem Wilson: Ind. 43 of 2024. Coram: Richards, J KC – Verdict Judgment Page 21 of 27
Counsel said this places this defendant in likely more than ordinary physical company with 1 Hurlston for at least four hours. There was :- 2 3 - Dancing 4 - Physical contact 5 - Greeting 6 - Purchasing and sharing of drinks 7 - Companionship of food 8 9
Counsel said that the likelihood is that there would be significant sweating. There is no dispute 10 that after the event they left the party together. They travelled in a black Honda Accord from 11 where it was parked to Barnes Plaza where it was searched. Counsel said that the exact actions 12 of Mr. Hurlston between the time he left the party, and the time that the police stopped them is 13 not known. It is not known whether the firearm was left in the vehicle while at the party or 14 whether Mr. Hurlston handled, collected or took possession of the firearm immediately after he 15 left the party. Counsel said it is a question whether Mr. Hurlston had it on his person at the party 16 or was it always in the car while he was at the party and he simply handled it to ensure that it 17 was still there before he drove away. There is no evidence to confirm this or when or how the 18 DNA came to be on the firearm. 19 20
Counsel submitted that it might be more than enough for Mr. Hurlston to have handled the 21 firearm having been in physical contact with the defendant. Counsel said that the telling part of 22 the evidence is that the possibility of transfer cannot be ruled out. There is the possibility of 23 exchange of stickiness and sweat, palms, skin cells after four hours of prolonged contact and 24 travelling in the same vehicle. There is the very real possibility of secondary transfer. The 25 prosecution relies on DNA evidence, not fingerprint evidence which would have been more 26 probative. Counsel said that on the only probative evidence before the Court, the Court cannot 27 be sure and that any conviction on this evidence would be unsafe and unfair. 28 29
Counsel said that the defendant was not the owner, or the driver and the item was concealed. 30 Mr. Hurlston has confessed to its possession. 31 32 241217 R v Dayne Kareem Wilson: Ind. 43 of 2024. Coram: Richards, J KC – Verdict Judgment Page 22 of 27
Counsel referred to the judgment of the Grand Court in R v Michal Lopez Watler3 in which 1 Carter J. concluded that where the defendant does not give or call evidence at trial and does not 2 advance a positive case but merely puts the prosecution to proof, a court cannot for the purposes 3 of s.148 of the Police Act draw any inferences from this failure. Where the defendant did not 4 give evidence himself, the Court said that there is no fact that the defendant failed to mention in 5 his interview upon which he then sought to rely in his defence which could lead the Court to 6 draw an inference adverse to the defendant from such failure. 7 8
I make it plain in the instant case that no inference is drawn from the defendant Wilson’s failure 9 to answer questions in interview. 10 11 ANALYSIS 12 13
I am mindful of the burden and standard of proof. There is no burden on the defendant to prove 14 his innocence. That burden is and remains on the prosecution throughout the case. The essential 15 question in this case is whether the prosecution has discharged its burden such that I am sure 16 that this defendant was in possession of the firearm and ammunition found. 17 18
I give myself the appropriate directions from the Crown Court Compendium as are relevant to 19 the facts. The defendant has no cautions or convictions for any criminal offence. He is a man of 20 previous good character. This does not mean that he could not have committed the offences with 21 which he is charged but his good character is something that I take into account in his favour in 22 two ways. 23 24
First, although the defendant did not give evidence, the defendant did give an account to the 25 police when he was interviewed, and the defendant relies on that account in this case. I take his 26 good character into account when I am deciding whether I accept what he said in that interview. 27 28
Secondly, the fact that the defendant has not committed any previous offence may mean that it 29 is less likely that the defendant would have committed the offences with which he is charged. 30 31
The evidence relied on by the prosecution is expert evidence. The Court does not have specialist 32 knowledge on DNA Analysis. I do not have to accept the evidence of the expert, Mr. Taylor. 33 3 Ind, 75/2021 – Unreported Judgment dated 24th March 2022, paragraph 46 241217 R v Dayne Kareem Wilson: Ind. 43 of 2024. Coram: Richards, J KC – Verdict Judgment Page 23 of 27 An expert’s view is no more than an opinion. Being an expert witness does not mean that he 1 must be correct. 2 3
Importantly Mr. Taylor’s findings are in themselves only evidence of the probability of contact 4 between the defendant and the location from which the DNA sample was taken. This evidence 5 does not in itself prove that the defendant committed the offences on the Indictment. 6 Additionally, there are limitations in that the expert cannot say how and when the DNA material 7 was deposited on to the items. Expert witnesses are only able to give evidence about one element 8 in this case because DNA analysis is in their field of expertise. This means the expert’s evidence 9 is only part of the evidence in this case. All of the evidence must be considered. 10 11
In this case the defendant does not challenge the findings of Mr. Talyor. The defence position 12 is that the Court cannot be sure of possession because the DNA of the defendant could have 13 been deposited on the firearm because of indirect transfer. 14 15
The defendant has made statements in his interview. I consider the whole of what he said in that 16 interview. However, those statements were not given under oath or affirmation and were not 17 tested in cross-examination. 18 19
The defendant accepts in his statement that he traveled in the car in which the gun was found. 20 On his own account, this must have been after the party and shortly before the gun was found. 21 He said that he got a ride to the party from another friend. There is no evidence that the defendant 22 was the owner of the car. Again, on his account, he was no more than a passenger who had 23 sought a short ride. 24 25
Before he admitted to the police that he had been a passenger in the car, he attempted to distance 26 himself from it. I take note that when he was first approached by the police at Mary Street he 27 repeatedly denied travelling in that car. He said that he had been given a ride by a Spaniard in a 28 white car. 29 30
I bear in mind that a defendant who tells a lie is not necessarily guilty. Sometimes a defendant 31 who is not guilty will tell a lie for some other reason. 32 33
The defendant has not given a reason or explanation, but the circumstances are such that he may 34 have simply panicked on the approach of the police. I would have to be sure that there is no such 35 241217 R v Dayne Kareem Wilson: Ind. 43 of 2024. Coram: Richards, J KC – Verdict Judgment Page 24 of 27 innocent reason before I could hold the lie against him and use it as evidence which supports 1 the prosecution’s case. I also remind myself that the defendant is not to be convicted either 2 wholly or mainly on the basis that he lied. 3 4
In my view the timing of this lie is significant. This was before the firearm was found in the 5 black car. Other than the firearm, no other illegal item was found in it. There was no ganja in it. 6 The white car was searched, and nothing was found in it. Why would the defendant say that he 7 had traveled in the white car which had nothing and deny travelling in the black car before the 8 police found the firearm in it. On any view, the inference is inescapable that this goes to his state 9 of mind and points to his knowledge that there was something illegal in that car. 10 11
The defence accept that the defendant was a contributor to the DNA mixture found on the sights 12 and grip of the firearm before and after fuming. However, the possibility of secondary transfer 13 of the defendants’ DNA from Mr. Hurlston to the firearm is raised. Counsel submits in effect 14 that given the nature of the activity, dancing and partying over the four or more hours that the 15 two men were together earlier that night, secondary transfer is a realistic possibility which is 16 consistent with the innocence of the defendant in this case. It is a co-existing circumstance which 17 would weaken or destroy the inference of guilt for which the prosecution contends. 18 19
In light of this submission, I have reviewed the evidence of Mr. Taylor with respect to the 20 possibility of secondary transfer with some care. In DNA Mixture 1, both men represent a 21 relatively even amount of DNA of about 80 to 90 percent and there is an unknown third party 22 for the remainder. The defendant was the major contributor to DNA Mixture 2 representing 23 about 70 percent of the DNA there, Mr. Hurlston is present after that, 20 to 25 percent, and an 24 additional 5 to 10 percent of some unknown third party. 25 26
The evidence of Mr. Taylor is that when you look at the major contributor to a DNA mixture, it 27 is most often the owner, the usual handler, or the last handler of an item. He explained that this 28 is the conclusion from several studies and said that when they observe that someone is a major 29 contributor or larger contributor of which, particularly for DNA Mixture 2 as Mr. Wilson was, 30 they are typically the last person to handle the object, or they are the owner. 31 32
Mr Taylor’s evidence as to the circumstance of a departure from the major contributor being the 33 usual handler or owner was significant. He said that the tenth time where it is found to be 34 241217 R v Dayne Kareem Wilson: Ind. 43 of 2024. Coram: Richards, J KC – Verdict Judgment Page 25 of 27 secondary transfer, this is traced back to either the intimate partner of someone that was involved 1 in the study or someone else who used the vehicle last week, something of that nature. 2 3
In this case there is no suggestion of intimate partnership. Neither is there a suggestion of use 4 of either the vehicle or the firearm. This was socialising in full view of the public and a short 5 two-minute drive to the Globe Bar. The firearm was found in a closed compartment within the 6 vehicle and not in an area where a passenger may have unwittingly come into contact with it. 7 8
The defendant has chosen not to give evidence. He has a right to do so. There is no burden on 9 him. I give myself the appropriate direction on this. The fact that he has not given evidence has 10 the consequence that he has not given evidence in the trial to contradict or undermine the 11 evidence on the prosecution’s case that he is included in the DNA mixture found on the firearm 12 because he was either the usual or last handler of it. 13 14
His Attorney confirmed in open Court that the defendant understood that if he failed to give 15 evidence, I would be entitled to draw inferences from that failure; in other words that I would 16 be entitled to conclude that the defendant did not feel that he had an answer to the prosecution 17 case that would stand up to cross-examination. 18 19
In my view, on the combination of the circumstances, the prosecutions’ case is strong such that 20 it called for an answer. 21 22
I am sure that the true reason for not giving evidence is that the defendant did not have an answer 23 that he believed would stand up to questioning. 24 25
Having considered all the circumstances, I make the following findings of fact: - 26 27
The defendant lied to the police about how he had traveled to the Globe Bar. 28 29
This lie was not for an innocent reason and supports the prosecution’s case. 30 31
The lie was an attempt to distance himself from travel in the black Honda Accord. 32 33 34 241217 R v Dayne Kareem Wilson: Ind. 43 of 2024. Coram: Richards, J KC – Verdict Judgment Page 26 of 27
In seeking to distance himself from the black Honda Accord the reasonable and 1 inescapable inference is that the defendant knew of the presence of something illegal 2 in it. 3 4
The only thing illegal found in it was the firearm. 5 6
The reasonable and inescapable inference is that the defendant knew of the presence 7 of the firearm in the vehicle. 8 9
Not only was the defendant a contributor to the DNA mixtures found on the firearm, 10 but he was a major contributor of about 70% to DNA Mixture 2. 11 12
The fact that he was a major contributor to the mixture is of significance. It serves to 13 exclude the possibility that his DNA was on the firearm because of secondary transfer 14 from Mr. Hurlston with whom he had been in contact earlier in the evening and night. 15 16
It serves to exclude this possibility because studies have shown that the major 17 contributor is typically the usual or last handler of the item. 18 19
In the non-typical case, where secondary transfer is a factor, the explanation from the 20 circumstances such as intimate partner or driver of the vehicle last week do not arise 21 in the instant case. 22 23
The firearm was not found in an open area of the vehicle where a passenger may have 24 had casual contact but in a closed compartment. 25 26
The defendant chose not to give evidence as was his right, but the evidence of the 27 prosecution called for an answer. The fact of his failure to give evidence is supportive 28 of the case for the prosecution. I bear in mind that the defendant cannot be convicted 29 wholly or mainly because of that failure. 30 31
The fact that the two men were in each other’s constant company for more than four 32 hours, partying together evidences a level of association between them which is more 33 than a passing one. 34 35 241217 R v Dayne Kareem Wilson: Ind. 43 of 2024. Coram: Richards, J KC – Verdict Judgment Page 27 of 27
I conclude from all the circumstances taken together that the defendant was in knowing physical 1 custody or control of the firearm. He was either the usual or last handler of it. I have considered 2 whether the fact that the defendant’s DNA was not found on the ammunition is a factor which 3 destroys or weakens the inferences to be drawn. I have concluded that it does not. The 4 ammunition was found inside the firearm. Possession is not the same thing as ownership. 5 Everything points in this case to the firearm and ammunition being in the joint possession of 6 both men who had been together for some four hours. 7 8
I am therefore satisfied so that I am sure that the defendant is guilty as charged of Counts 1 and 9 2 of the Indictment. 10 11 Dated this the 17th December 2024 12 13 The Hon. Justice Cheryll Richards KC 14 Judge of the Grand Court 15