R v Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr - Verdict Judgment

¶ __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 1 of 50 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL SIDE 2 3 INDICTMENT Nos. 12/2021 & 13/2021 4 5 6 REGINA 7 V 8 KASNIQUE PATRICE AUSTIN-CUPID 9 & 10 RICHARD EDWARD NASH, Jr. 11 12 13 14 Appearances: Mr. Garcia Kelly for the Crown 15 Mr. Jonathan Hughes for Kasnique Cupid 16 17 Mr. Crister Brady for Richard Edward Nash, Jr. 18 19 Before: Honourable Justice McDonald-Bishop (Actg.) 20 Judge Alone Trial: 27th October 2021 – 10th November 2021 21 Verdict Judgment Delivered: 25th February 2022 22 23 24 HEADNOTE 25 Criminal Law – Robbery – Section 243(1)(b) of the Penal Code (2019 26 Revision) – Verdict following trial by Judge Alone. 27 28 29 VERDICT JUDGMENT 30 31 32 33 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 2 of 50

¶ [1] The defendants, Kasnique Austin-Cupid and Richard Edward Nash Jr. are charged on 34 an indictment with the offence of Robbery, contrary to s.243(1)(b) of the Penal Code 35 (2019 Revision). 36 37

¶ [2] Defendant Kasnique Cupid goes by the name "Eve High Voltage" or "Eve", and 38 Defendant Richard Nash is also called "Sickka Dan", “Sikka”, among other aliases. 39 40

¶ [3] The particulars of the offence for which they are charged are that on the 7th February 41 2020, at Tortuga Liquor Store, Lime Tree Bay Road, George Town, Grand Cayman, 42 Cayman Islands ("the liquor store"), they stole CI$2,361.13 and US$181.00 in cash 43 from Heigna Andrade, and immediately at the time of doing so, and in order to do so, 44 used force on her. 45 46

¶ [4] Both defendants pleaded not guilty and subsequently elected to be tried by Judge 47 Alone, pursuant to s.129 (1) of the Criminal Procedure Code (2010 Revision). 48 49

¶ [5] My task is to consider all the evidence adduced on behalf of the Prosecution, and the 50 Defence, and to determine whether the defendants are guilty of the charge laid against 51 them. As I am obliged by law to do, I have examined the evidence against and for 52 each of them separately to arrive at a verdict in respect of each. 53 54

¶ [6] An overview of the evidence adduced at the trial will first be outlined to provide the 55 necessary background for the decision to which I have arrived. 56 57 OVERVIEW OF THE EVIDENCE 58 59 The Prosecution's case - The Robbery 60 61 Ms. Beverly Ebanks 62 63

¶ [7] The evidence adduced from Ms Beverly Ebanks disclosed that at approximately 64 8:50p.m. on the 7th February 2020, she and Ms Heigna Andrade were the two 65 employees at the liquor store. It was approaching closing time, and Ms Andrade was 66 mopping the floor while Ms Ebanks was attending to her cash register. Two men 67 armed with knives entered the store. The first man, whom the prosecution referred to 68 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 3 of 50 as “Robber no.1”, is alleged to be Defendant Richard Nash, and the second man, 69 referred to as "Robber no. 2”, was never apprehended. 70 71

¶ [8] Ms Ebanks did not see who had entered the store, but she felt a hand on her back or 72 neck (she did not quite remember which), and the person pushed her and said, "get 73 down". She said it was a male voice, which "sounded like a Caymanian accent". 74 CCTV footage showed this man to be “Robber No 2”. 75 76

¶ [9] Ms Ebanks was faced down on the ground and could not see Ms Andrade or the man 77 suspected to be Defendant Nash, but she could hear the slamming of the cash register 78 drawers and "a lot of rustling" as if someone was holding up Ms Andrade and pulling 79 her around. 80 81

¶ [10] Ms Ebanks then saw Ms Andrade on the ground. The man suspected to be Defendant 82 Nash then took Ms Andrade to an area inside the store where the money from daily 83 sales would be secured at night. She heard the man saying, "give me the money", and 84 Ms Andrade saying there was no money. At that time, Ms Ebanks was being held on 85 the floor by “Robber no. 2”. He took a $10.00 note from Ms Ebanks, grabbed her, and 86 put her where Ms Andrade was in the store. Ms Ebanks told them there was no 87 money, and they ran from the back of the store. 88 89

¶ [11] Ms Ebanks raised an alarm and went outside the liquor store. She saw two persons 90 coming from neighbouring Cost U Less and spoke to them. Those persons followed 91 behind the fleeing robbers on a motor vehicle, but the robbers were not caught. Ms 92 Ebanks contacted the police through their emergency number and made a report. She 93 also called her supervisor. 94 95

¶ [12] Ms Andrade sustained injuries during the attack, while Ms Ebanks, although not 96 injured, reportedly feared for her life. 97 98

¶ [13] There were three cameras in the store, one above each cash register and another that 99 gave a view of the entire store. 100 101 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 4 of 50

¶ [14] At the time of the robbery, Defendant Kasnique Cupid was an employee of Tortuga 102 Rum Company and worked on rotation at the liquor store. She knew about the day-to- 103 day operation of the store. 104 105

¶ [15] These additional facts regarding the robbery are agreed upon: 106 107 a. Ms Andrade is a Filipino national who relocated to the island about one year 108 before the incident. 109 110 b. She described the man who approached her (suspected to be Defendant Nash) as 111 about 5 feet 9 inches tall, skinny, spoke with a Cayman accent and had a “coffee 112 colour” around his eyes. She indicated that she was more focused on preserving 113 her life during the robbery. 114 115 The police investigation 116 117 Detective Constables Ricardo Lauder and Tamar Thomas 118 119

¶ [16] The statements of Detective Constables Ricardo Lauder and Tamar Thomas were read 120 into evidence as agreed. 121 122

¶ [17] They reported that at about 9:05p.m. on the 7th February 2020, they, along with a party 123 of police, went to the subject liquor store following the report of the robbery. They 124 were permitted to view CCTV camera footage of the liquor store. This footage showed 125 three males running to the liquor store at about 8:53p.m. from behind the containers at 126 the entrance/exit towards the Esterley Tibbetts Highway. The two men who entered 127 the store were dressed in dark clothing, long-sleeved shirts, and facial covering as a 128 disguise. Robber no. 1, suspected to be Defendant Nash, was dressed in light blue long 129 pants with distressed patterns; a black hooded long-sleeved top; a pair of black shoes; 130 blue underwear with black bird-like figures imprinted on it; a gold-coloured watch 131 with a black face; a black belt with a white-coloured centre and black-coloured gloves. 132 Robber no. 2 wore all black-coloured clothing. The third male, dressed in a red- 133 coloured shirt, stopped in the corridor near the store. He did not enter the store. 134 135 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 5 of 50

¶ [18] A few minutes later, the two men who entered the store, left. 136 137

¶ [19] DC Lauder and DC Thomas made checks around the premises and walked the route 138 they saw the persons took. DC Lauder observed a government CCTV camera mounted 139 at the roundabout at Governor's Square, which he brought to the attention of DC 140 Thomas. DC Lauder contacted 911 and spoke to a monitoring personnel who could 141 see the location. The monitoring personnel gave him certain information regarding a 142 minivan-type vehicle seen at the rear exit of Cost U Less around the same time as the 143 robbery. 144 145

¶ [20] DC Lauder and DC Thomas then went to the George Town Police Station, where they 146 viewed the government CCTV footage. They observed a white minivan, which later 147 was identified as a Toyota Noah, travelling on Esterley Tibbetts Highway and then 148 stopped at the entrance/exit of Cost U Less at 8:55p.m. Three persons exited the van 149 and ran into Governor's Square Plaza. 150 151

¶ [21] The Toyota Noah then turned onto Esterley Tibbetts Highway and travelled towards 152 George Town. It then turned left onto Safe Haven Road, where it appeared to have 153 stopped as the headlights stopped moving. The lights then went off. At about 9:00 154 p.m., DC Lauder observed a person, who seemed to have been the male standing in the 155 corridor of the liquor store dressed in the reddish shirt, walking across from the 156 Esterley Tibbetts Highway from the exit of Cost U Less. He walked towards the 157 roundabout and out of view of the camera. Within minutes, two persons dressed in 158 dark clothing were seen running from the same exit/entrance of Cost U Less. They 159 crossed Esterley Tibbetts Highway onto the soft shoulder and then out of the sight of 160 the camera as they exited the roundabout at Cost U Less. At about 9:02 p.m., lights 161 came on at the same place that the Toyota Noah had stopped at Safe Haven. Nothing 162 on the camera showed that the vehicle had travelled into George Town. 163 164

¶ [22] When DC Thomas opened all CCTV footage in the area, he noticed that the same 165 vehicle that had let off the men at Cost U Less, had travelled to Lime Tree Bay Road, 166 West Bay Road, and then on to Governor's Beach. Some features of the vehicle were 167 noted as it proceeded through the intersection of Lime Tree Road and West Bay Road, 168 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 6 of 50 including that the last three digits of the registration plate were observed to be 342. 169 DC Lauder captured a screenshot of the digits and subsequently communicated their 170 discovery to police control for a check of the vehicle plates. 171 172

¶ [23] Connected to the evidence of these officers is the formal admission during the trial 173 that, on the 8th February 2020, following the request of the police, Automatic Number 174 Plate Recognition data from national CCTV cameras being monitored by the National 175 CCTV System was retrieved and produced to the police. On the 8th February 2020, the 176 Department of Public Safety Communications (DPSC) received a request from the 177 police to run a search using the search parameters of last digits 342 and to look for a 178 white Toyota Noah. The initial investigation turned up two vehicles: a white Toyota 179 Noah and a silver Toyota Noah ending with 342. The plate number for the white 180 Toyota Noah was 186-342 and was seen to be registered by Vicky Britany McGaw. 181 This information was given to the police for further investigation. 182 183

¶ [24] It is also an admitted fact that a 2003 white Toyota Noah bearing registration number 184 186-342, registered in the name of Vicky Britany McGaw, was first licensed in the 185 records of the Department of Vehicle and Drivers Licensing (DVDL) on 3rd August 186

¶ [2018] Ms McGaw had been registered as the vehicle's only owner since August 2018. 187 188 DC Winston Harrison and DC Dave Barnett 189 190

¶ [25] On the 8th February 2020, DC Winston Harrison of the Serious Crime Task Force was 191 assigned the case as the Investigating Officer. He embarked on further investigations 192 with assisting officer, DC Dave Barnett, also of the same task force. These officers 193 gave viva voce evidence and were cross-examined. For convenience, the main aspects 194 of their evidence are collated and summarised below. 195 196

¶ [26] DC Harrison testified to having spoken to Miss Ebanks and Ms Andrade concerning 197 what had transpired at the liquor store. It is formally admitted that the property 198 manager of Governor's Square received a request for CCTV footage from the RCIPS 199 from 8:30p.m. to 9:45p.m. on the 7th February 2020. The relevant cameras examined 200 showed: 201 202 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 7 of 50 a. The rear entrance to the liquor store and the parking lot in the area of Cost U Less; 203 204 b. West Bay Road and the entrance to Governors Beach; 205 206 c. West Bay Road and Lime Tree Bay Avenue; 207 208 d. The front entrance to the liquor store and the parking lot; and 209 210 e. The parking lot to the north of the compound. 211 212

¶ [27] Based on observations of CCTV footage regarding the activities of the white Toyota 213 Noah with registration number 186-342 ('the Toyota Noah") and the men in question, 214 DC Barnett viewed the government CCTV cameras to get an appreciation of whether 215 the Toyota Noah had gone on to the compound of the liquor store before the incident. 216 When he did his viewing, he observed that it did not go on the premises, but instead, it 217 had travelled from the junction of West Bay Road and Lime Tree Bay Road and then 218 turned on to Governor's Beach. This information was relevant to the investigation, and 219 he asked the property manager to download the footage to see what else he could 220 gather for the investigation. 221 222

¶ [28] DC Barnett further viewed the CCTV footage and determined that the Toyota Noah 223 went into the Pinehurst Road area to the left of the Esterley Tibbett Highway. It turned 224 into a dark open lot. The police searched the empty lot, but nothing of value to the 225 investigation was found. 226 227

¶ [29] Having received information that the Toyota Noah’s registered owner was Ms McGaw, 228 both DC Harrison and DC Barnett eventually spoke to her. After receiving 229 information from her, they went to speak with Defendant Kasnique Cupid at the 230 Tortuga Rum Company's head office. There, Defendant Cupid gave the officers her 231 full name and confirmed that she was the owner of the Toyota Noah but had asked 232 Miss McGaw to license it for her. 233 234

¶ [30] DC Harrison informed Defendant Cupid that they were investigating the robbery at the 235 liquor store on the 7th February 2020 and that a white Toyota Noah motor vehicle was 236 seen at the rear of Cost U Less, letting off two men sometime before the robbery 237 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 8 of 50 occurred. DC Harrison told Defendant Cupid of the registration number 186-342. She 238 responded that she had no idea what he was talking about. She told him she was home 239 with her family after 6:00p.m. on the 7th February and did not leave her house. She 240 also told the constables that her vehicle was parked at her house all night. 241 242

¶ [31] Further, she informed DC Harrison that she had sold the vehicle on the 12th or 13th 243 February 2020 to Mr. Ricardo Campbell. She gave him a contact number for Mr 244 Campbell and his residential address at Bonsol Crescent, West Bay. The police visited 245 the area and found the house she described. 246 247

¶ [32] DC Harrison eventually met and spoke with Mr Campbell. He saw the Toyota Noah at 248 Mr. Campbell's workplace when he spoke with him. 249 250

¶ [33] On 20th February 2020, Detective Harrison went to the George Town Police Station to 251 view government CCTV cameras showing two main entry and exit points to Bonsol 252 Crescent on the 7th February 2020. DC Barnett also requested downloads of specific 253 cameras within the West Bay and George Town areas. Checks of the cameras at these 254 locations showed movements of the Toyota Noah from about 3:40p.m. on the 7th 255 February 2020 to 1:03 a.m. on the 8th February 2020. 256 257

¶ [34] In so far as is immediately material, the Toyota Noah was observed driving into the 258 parking lot of Foster's Republix at Willie Farrington Drive in West Bay at 8:23p.m. on 259 the 7th February. After, a female (proved and eventually admitted to being Defendant 260 Cupid) alighted from the vehicle and proceeded to the supermarket. She picked up 261 grocery items and, more specifically, two pairs of dark-coloured gloves that resembled 262 those later worn by the robbers at the time of the robbery. She then left inside the 263 supermarket and went back to the Toyota Noah. She drove from the supermarket and 264 turned toward Governor's Square and Kimpton Hotel. She then went in the direction 265 of the Esterley Tibbett Highway. This was the opposite direction to her home. There 266 was a point at which there was no CCTV opportunity, but the Toyota Noah was seen 267 approaching Cost U Less. It did not turn at West Bay Road; it stopped at the service 268 entrance of Governor's Square. There, three persons exited the vehicle and ran toward 269 Governor's Square. 270 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 9 of 50

¶ [35] One CCTV footage with a timestamp of 9:30p.m., which was after the robbery had 271 occurred, showed the Toyota Noah turning in to Governor's Beach. Shortly after, it 272 was seen exiting Governor's Beach and turning left in the general direction of West 273 Bay. The Toyota Noah did not go to the right of Kimpton Hotel. An aerial tour of the 274 route travelled by the Toyota Noah on the night in question, undertaken by DC Barnett, 275 showed that it travelled from Bonsol Crescent to Governor's Beach, stopping at the 276 service entrance of Cost U Less. The police searched the Governor's Beach area but 277 found nothing useful. 278 279

¶ [36] Based on a review of the CCTV footage, DC Harrison and DC Barnett visited Foster's 280 Republix. They were permitted to view CCTV footage of the inside of the supermarket 281 and a portion of the parking lot. 282 283

¶ [37] DC Harrison also received copies of receipts from two cash registers concerning the 284 purchases made by Defendant Cupid on the night of the robbery, which included 285 gloves. These receipts led the officers to conduct a second interview with Defendant 286 Cupid regarding, among other things, her initial assertion that she had not left her 287 home on the 7th February 2020. However, upon being confronted with the receipts and 288 details of the card she used at the supermarket, she then admitted that she had gone to 289 the supermarket and had driven the Toyota Noah there. 290 291

¶ [38] DC Harrison prepared a search warrant for the residential premises of Defendant 292 Cupid. On the 20th March 2020, she was arrested at her workplace as a suspect in the 293 robbery. She was taken to her home, where the search warrant was executed. DC 294 Harrison was the search leader and logbook keeper. During the search, DC Harrison at 295 no time observed dark-coloured or black-coloured gloves. After the search, he 296 transported Defendant Cupid to the Detention Centre at Fairbanks. 297 298

¶ [39] On the same day of the search, the police saw one, Mr. Wilbert Williamson, at the 299 premises. Upon seeing the police, Mr. Wilbert Williamson tried to run but was caught. 300 He gave his name to DC Barnett. Defendant Cupid was in the police car when DC 301 Barnett spoke to Mr. Williamson. Mr. Williamson was later handed over to the 302 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 10 of 50 Immigration Department and deported to Jamaica. This was before the police received 303 the call data record and analysis. 304 305

¶ [40] DC Harrison also conducted further investigations and recorded statements from other 306 persons, including Ms McGaw. 307 308

¶ [41] On the 9th July 2020, the police executed a search warrant at the residence of 309 Defendant Nash. DC Harrison was the team leader and the logbook keeper. Among 310 the items recovered from the home of Defendant Nash were one blue boxer with a 311 black bird pattern taken from the bottom drawer of a dresser in his bedroom; one gold 312 wristwatch with a black face, found on top of the dresser; and a pair of black suede 313 shoes found on the floor in the bedroom. These were items DC Harrison considered of 314 relevance to his investigations. Following the search, DC Harrison arrested and 315 cautioned Defendant Nash on suspicion of robbery. He made no statement upon being 316 cautioned. 317 318

¶ [42] After the arrest of Defendant Nash, the police seized his cellphones for investigative 319 purposes. During the police investigations, phone number 517-3209 was attributed to 320 him. 321 322

¶ [43] Subsequently, Mrs. Joanne Delaney, the Intelligence Analyst at the Royal Cayman 323 Islands Police Service (RCIPS), recovered photographs from the phone. From those 324 photographs, the police were able to make comparisons between certain items of 325 clothing seen in the photographs with those worn by Robber no.1, who the prosecution 326 alleges was Defendant Nash. 327 328

¶ [44] On the 28th July 2020, DC Harrison, in the presence of DC Barnett, recorded a further 329 statement from Ms McGaw regarding a phone call Defendant Cupid made to her on the 330 night of the robbery. 331 332

¶ [45] Defendant Cupid was interviewed by the police twice in the presence of her attorney- 333 at-law. 334 335 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 11 of 50

¶ [46] During the first interview, she denied any involvement in the commission of the crime. 336 She denied being in the area of Lime Tree Bay Road or Cost U Less on the night of the 337 incident. She provided an exculpatory prepared statement. 338 339

¶ [47] During the second interview, Defendant Cupid was presented with evidence of receipts 340 and details of the card used by the female seen on the CCTV footage inside Foster's 341 Republix on the night of the 7th February 2020. She then admitted to having left her 342 home on the night of the incident and driving the Toyota Noah to Foster's. She, 343 however, refused to say who was driving the van when it went to Cost U Less. She 344 was also presented with the call data evidence but denied knowing Defendant Nash and 345 having called him on the night of the robbery. 346 347

¶ [48] Defendant Nash was also interviewed under caution in the presence of his attorney-at- 348 law. He stated that he had no recollection of the 7th February 2020. More particularly, 349 he was unable to say where he was on the night of the robbery as he could not recall. 350 He, however, denied committing the robbery and denied knowing Defendant Cupid or 351 the name "Eve". He also did not distinctly admit in the interview to being the owner or 352 user of the phone with the number attributed to him. He said he could not remember if 353 that was his number. 354 355

¶ [49] On the 8th March 2021, Defendant Nash was formally charged with the offence of 356 robbery, and when cautioned, he replied: "don't know wha gwaan." 357 358

¶ [50] On the 9th March 2021, Defendant Cupid was formally charged and made no statement 359 when cautioned. 360 361 Ricardo Campbell 362 363

¶ [51] Mr. Campbell is a tour bus driver. In or around February 2020, he met Defendant 364 Cupid by doing business with her. He had bought the Toyota Noah from her. The 365 registration number was 186-342. He contacted Defendant Cupid and met her to 366 inspect the vehicle. He recalled inspecting it somewhere between the 6th and 7th 367 February 2020. He drove the vehicle and found that it was in good working condition. 368 He had no problem with it. On the 12th February 2020, he paid for it and took 369 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 12 of 50 possession of it. He was cross-examined primarily about the nature of his relationship 370 with Defendant Cupid. He also indicated that he did not get in the back of the Toyota 371 Noah when inspecting it but agreed that one of the side doors could not open properly. 372 373 Vicky McGaw 374 375

¶ [52] Defendant Kasnique Cupid was married to Ms McGaw's cousin. She described 376 Defendant Cupid as a motivating and nice person and considered her now to be her 377 family. Ms McGaw's name was registered on the white Toyota Noah from August 378 2018 because Defendant Cupid could not register it in her name. 379 380

¶ [53] She accepted, as shown by the phone data record, that on the 11th March 2020, she had 381 a conversation on WhatsApp with Defendant Cupid in which Defendant Cupid sent her 382 a photograph of the person they called "Sikka" (Defendant Nash). She did not know 383 Defendant Nash, but she had seen him around. 384 385

¶ [54] Further, she agreed that she gave the police an account regarding a call she received 386 from Defendant Cupid on the 7th February 2020. She said she had received a "please 387 call me" text message from Defendant Cupid. She called Defendant Cupid, who told 388 her to call a person (who turned out to be Wilbert Williamson) to pick her up at Seven 389 Mile Beach. Ms. McGaw called the number, but no one answered. She reported this 390 to Defendant Cupid. Defendant Cupid called back and asked her to do a three-way call 391 to the same number. The person answered, it was a male. She left the conference call 392 and told Defendant Cupid when she was finished, she should hang up the phone. She 393 maintained this was the account she gave to the police in her statement and that she did 394 not say anything about Defendant Cupid telling her to ask the person to meet her at 395 Governor's Beach. 396 397

¶ [55] The police came to her house on the 28th July 2020 and recorded a second statement 398 which she signed. Upon refreshing her memory, from this statement she admitted that 399 there was a difference between what she told the court and what was in the statement 400 to the police regarding where Defendant Cupid told her Mr. Williamson should meet 401 her. She maintained, however, that what she said in court was what she told the police, 402 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 13 of 50 which is that Defendant Cupid told her to ask Mr. Williamson to pick her up on Seven 403 Mile Beach. 404 405

¶ [56] Her explanation for the inconsistency was that she could not remember if the statement 406 was read back to her, and she did not get an opportunity to review it because she was 407 babysitting three children at the time. She was adamant that she never told the police 408 that Defendant Cupid told her to ask Mr. Williamson to meet her at Governor's Beach. 409 The prosecution was permitted to impeach her credit on this point pursuant to s.4 and 410 s.33B(1)(b) of the Evidence Act (2019 Revision). 411 412 The telephonic evidence 413 414 Formal admissions 415 416

¶ [57] The following facts are formally admitted pursuant to s.34 of the Evidence Act (2021 417 Revision): 418 419 i. When [Defendant] Cupid was arrested, a search was conducted of her 420 person, and a Samsung Note 9 was recovered from her back pants pocket. 421 422 ii. Mr Alvan Boxwell, a Detective Constable employed to the RCIPS, has 423 certifications in Cellebrite Mobile Forensic Fundamentals, is a Cellebrite 424 Certified Logical Operator and has certifications in Encase Neutrino 425 Mobile Forensics. He downloaded the contents of [Defendant] Cupid's 426 phone and made additional extractions upon the request of Mrs Delaney. 427 428 iii. Mr Boxwell also carried out extraction on the black Samsung GSM 429 Galaxy J5 Prime phone recovered from [Defendant] Nash's home by DC 430 Harrison on 4th August 2020. 431 432 iv. The Regional Law Enforcement Liaison and Court Process Officer 433 employed to Cable and Wireless Jamaica Limited (now known as FLOW) 434 provided subscriber information for the cellphone number associated with 435 [Defendant] Cupid for the period 24th January 2020 to 20th March 2020. 436 437 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 14 of 50 Evidence of Mrs. Joanne Delaney 438 439

¶ [58] In addition to the formal admissions, Mrs. Delaney gave viva voce evidence in open 440 court and was cross-examined. 441 442

¶ [59] She is employed with the RCIPS, as an Intelligence Analyst, and has been engaged in 443 this area of specialisation since 2003. DC Barnett asked her to conduct handset, cell 444 site and toll data analysis regarding cell phones recovered during the investigations. 445 DC Barnett provided her with cellphones download exhibits, toll data exhibits and 446 CCTV viewings relative to the robbery investigations. She also made requests of 447 different service providers in respect of relevant toll data. She received cellphones 448 with numbers 927-2277 attributed to Defendant Cupid; 517-2309 attributed to 449 Defendant Nash; and 326-7824 attributed to Wilbert Williamson. 450 451

¶ [60] On examination, Mrs. Delaney found numbers stored in Defendant Cupid's phone for 452 the following relevant persons: Defendant Nash as "Sikka"; Mr Williamson as "Wayne 453 West Bay" (and a voice note referring to him as Wayne Wilbert); Ms McGaw's as "Cuz 454 Vicky"; Mr Campbell as "Ricky"; and Marcella as "Marcella Cayman Mobile Cash". 455 456

¶ [61] Based on the telephone toll data, cellphones downloads and CCTV, she produced 457 Exhibit JD/1A/1, the attribution of key telephone numbers. Where voice notes were 458 identified within WhatsApp messages, she undertook the audio transcriptions and 459 produced Exhibits, JD/IA/2 – JD/IA/I 6. These exhibits identified communication data 460 among the phones of Defendant Cupid, Defendant Nash and Mr Williamson between 461 6:00p.m. on the 7th February 2020 and 10:00p.m. on the 8th February 2020. Mrs. 462 Delaney also produced three maps of the cell sites used by the relevant cellphones; 463 CCTV of the Toyota Noah; and key events and locations as detailed in the 464 communication data of Defendant Cupid's phone between 8:22p.m. and 9:30p.m. on 465 the 7th February 2020. 466 467

¶ [62] Mrs. Delaney used her exhibited maps to visually represent the cell masts and sectors 468 utilised by the cellphones of interest. She explained her analysis and demonstrated 469 how she arrived at her findings and conclusions. Mrs. Delaney was able to identify 470 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 15 of 50 from the toll data record the most sectors used by the phones of Defendant Cupid, 471 Defendant Nash and Mr. Williamson before, at the time of, and, after the robbery. She 472 observed that the cell sites used by Defendant Cupid's phone were located within the 473 geographical areas observed in the CCTV footage relating to the moving Toyota Noah. 474 475

¶ [63] She established that there was communication between the cellphones of Defendant 476 Cupid and Defendant Nash and Defendant Cupid and Mr Williamson within the 477 locality of the crime scene around the time of, and shortly after, the robbery. She 478 explained that at the first contact between the cellphones of Defendant Cupid and 479 Defendant Nash, the Toyota Noah was seen travelling through the West Bay camera. 480 Defendant Nash's cellphone was observed to have moved from using the Red Bay mast 481 at 8:36p.m. to utilising the Safe Haven mast 12 minutes later while on a call with 482 Defendant Cupid. As she explained, one may infer movement of the phone from a 483 change in mast, but it does not necessarily mean the phone has changed location. A 484 stationary phone could be shown within a neighbouring mast. 485 486

¶ [64] Additionally, from the review of the exhibits, Mrs Delaney was able to identify 487 communications between various accounts associated with Defendants Cupid and 488 Nash. Defendant Nash's telephone number was an identified WhatsApp contact under 489 the name "Sikka" on Defendant Cupid's phone. DefendantNash was also an identified 490 Facebook and Instagram contact on Defendant Cupid's phone as "Sikka Dan". The 491 active Facebook contact between the two accounts started from December 2019 until 492 18th February 2020. There was an active single WhatsApp chat between the two 493 cellphones on 25th February 2020, with a message sent to Defendant Cupid from 494 Defendant Nash's phone. 495 496

¶ [65] Mrs. Delaney also produced evidence of WhatsApp conversations Defendant Cupid 497 had with Defendant Nash, Ms McGaw and someone named Marcella at different times 498 before, on the night of, and after, the alleged robbery. In one WhatsApp conversation 499 with Miss McGaw on the 11th March 2020, Defendant Cupid referred to Defendant 500 Nash as her friend and asked Ms McGaw to assist him with a temporary work permit. 501 During voice notes, Defendant Cupid gave Defendant Nash's name in full and sent two 502 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 16 of 50 images of Defendant Nash to Ms McGaw. In return, Ms McGaw referenced the person 503 in the image as "Sikka". And Defendant Cupid agreed he was Sikka. 504 505

¶ [66] From the WhatsApp record on Defendant Cupid's phone, it was seen that Defendant 506 Cupid was indebted to Marcella up to the 7th February 2020, and Marcella was 507 threatening her with repossession of a vehicle by the 8th February 2020. Marcella 508 demanded a minimum payment of CI$300.00. On the 6th February, Defendant Cupid 509 told Marcella that repayment by the 8th February was "impossible" at the time. 510 Thereafter, by the early morning of the 7th February, there was a conversation between 511 Marcella and Defendant Cupid in which Defendant Cupid indicated that she would 512 make full payment of $828.00. She told Marcella to collect the money at the liquor 513 store on the afternoon of the 7th February as her boss was going to assist her in making 514 the payment. Defendant Cupid did not meet the person despite having told Marcella 515 she would make the payment. On the 8th February, Defendant Cupid called Marcella 516 by phone and told her that her boss had only given her $714.00, and she had to "hustle 517 the rest", which she did "while she was at a party last night" (that being the 7th 518 February 2020, the night of the robbery). 519 520

¶ [67] Mrs. Delaney could not recover messages from Defendant Nash's cellphones. 521 However, some photographs were downloaded showing images of him wearing 522 multiple items of clothing, which were similar to the clothing worn by Robber no.1 523 during the robbery. These were provided to the police. 524 525

¶ [68] Mrs. Delaney, although cross-examined, was not discredited in any way, and the 526 methodology she employed in obtaining the telephonic evidence and the conclusions 527 she arrived at were not rendered unreliable under the searchlight of cross-examination. 528 529 THE CASE FOR THE DEFENCE 530 531 Defendant Cupid 532 533

¶ [69] Defendant Cupid gave sworn evidence on her own behalf. I am mindful that in doing 534 so, she has not assumed the duty to prove her innocence or anything at all. I know that 535 even if I do not believe her, I cannot convict her on that alone. I am obliged to return to 536 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 17 of 50 an examination of the evidence presented by the prosecution, and only if I am satisfied, 537 by that evidence, to the extent that I feel sure of her guilt, having taken into account the 538 evidence she has advanced in her defence, that I can conclude that she is guilty. 539 540

¶ [70] Defendant Cupid gave evidence of, among other things, her age, marital status, familial 541 relationships and employment history with the Tortuga Rum Company. She also 542 spoke about her duties at the liquor store around the time of the robbery. In so far as is 543 immediately relevant, she said she knew Defendant Nash in February 2020 as "Short 544 Boss" but not as "Richard Nash". According to her, the names "Sikka" and "Kilo", by 545 which Defendant Nash is also known, "did not mean anything" to her. She had seen 546 him around since 2018 and spoke to him before February 2020. She did not know him 547 personally, she said, but just as a "young youth around". She would describe 548 Defendant Nash as being known to her rather than knowing him. She knew his father, 549 who was her tailor. Defendant Nash had asked her for assistance in securing a work 550 permit because he was getting a divorce and needed a work permit. She helped him 551 because she is helpful and has a history of providing that kind of assistance. 552 553

¶ [71] Ms McGaw is her husband's cousin, and she had a friendly relationship with her. She 554 knew Mr. Campbell, with whom she had a business and social relationship. Mr. 555 Williamson was her neighbour in February 2020, and she was in telephone contact 556 with him at the material time. Marcella was her good friend. She had a long-standing 557 relationship with Marcella lending money to her. In February 2020, she owed 558 Marcella $828.00, but she settled the debt with a payment of $714.00 because she had 559 received her salary from Tortuga Rum Company on the 7th February 2020. She was 560 not sure what happened to the remaining $114.00 she owed. 561 562

¶ [72] Regarding the 7th February 2020, the date of the robbery, she gave this account. 563 564

¶ [73] In the morning, after attending to her children for school, she went next door where her 565 neighbour was cooking for a party to be held at Seven Mile public beach later in the 566 day. On her way to the party, she stopped at Foster's Republix. By then, it was night. 567 She purchased items with an NAU card and two miscellaneous gloves for personal use. 568 She then returned to her bus and drove from the supermarket to the beach. 569 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 18 of 50

¶ [74] Whilst exiting the bus in the parking lot at the beach, Wilbert Williamson approached 570 her and asked for a ride to purchase cigarettes. She had no reason to doubt the reason 571 he gave for borrowing the bus, so she handed him the key. He left with the bus, and 572 she went and had a "good time" at the party. The vehicle was not returned to her in 573 time. Therefore, she tried calling Mr. Williamson to ask him where he was and to tell 574 him she needed to go home. He did not respond. She then called Ms McGaw and 575 asked her to contact Mr. Williamson to inform him to pick her up at Seven Mile Beach. 576 Ms McGaw eventually connected her to Mr. Williamson through a three-way 577 telephone call, and she told him she wanted to go. Mr. Williamson never returned to 578 the beach, and so she left for home with her neighbours as a passenger in their motor 579 vehicle. She was not sure of the time she left the beach. 580 581

¶ [75] Before leaving the beach, she had called Defendant Nash because they had spoken 582 about her collecting two work permit forms from him. She had told him to bring them 583 to the beach where she was, and he did as instructed. She called him again after he left 584 to ask him to get photographs that he should have also given with the forms because 585 none was in the envelope. He never came back. 586 587

¶ [76] After she got home, she borrowed her tenant's car and went to Windsor Park, where 588 she spent the rest of the night. She washed pots at that location and was paid $500.00. 589 She then left for home. 590 591

¶ [77] The police eventually spoke with her, and she was arrested and interviewed. She did 592 not give the account she gave to the court to the police in March because she 593 "genuinely could not remember" what happened on the day in question. In March, 594 there was nothing significant about the 7th February 2020. She gave her "no comment" 595 responses in the interviews because of the advice from her lawyer. Also, she did not 596 comment because she knew nothing about Cost U Less. 597 598

¶ [78] She stated in evidence that she could remember details about the events of the 7th 599 February 2020 during the trial, because she learnt some things from the police and 600 other persons after her interviews. 601 602 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 19 of 50

¶ [79] In cross-examination, Defendant Cupid explained that her memory was mainly 603 refreshed when she saw the still photographs of Foster's Republix at Fairbanks. She 604 did not refresh her memory of the chain of events on the 7th February 2020, but after 605 March 2020, she managed to piece most things together. She could not identify herself 606 on the CCTV footage from Foster's because the photos were unclear. When the police 607 showed her the Fosters' receipts, it jogged her memory that she went there on the 7th 608 February 2020. She denied Crown Counsel's suggestion that her evidence was a recent 609 fabrication. 610 611

¶ [80] During cross-examination, Defendant Cupid could not show the road she used to get to 612 the Seven Mile Public Beach, where she said the party was being held. She was also 613 unable to say on which side of the beach at the Kimpton Hotel she attended the party. 614 She said she did not remember. She told Crown Counsel under cross-examination that 615 she could not assist him with the direction she took to the Seven Mile Beach on the 616 night in question, although she was shown the aerial footage. She accepted that she 617 had her phone on her person all night on the 7th February 2020. 618 619

¶ [81] Defendant Cupid also testified that she sold the Toyota Noah in February 2020 because 620 it had problems. The engine was not working properly, and both side doors could not 621 open. She maintained that she gave no one the motor vehicle to drive to commit a 622 robbery. She denied the prosecution's case that she was part of a joint enterprise to rob 623 the liquor store. 624 625 Tevin Thomas 626 627

¶ [82] Defendant Cupid called her tenant, Mr. Tevin Thomas, to give evidence on her behalf. 628 The material aspects of his evidence may be summarised as follows. He rented a room 629 from Defendant Cupid at her residence in West Bay, where he lived for over six 630 months. At the time he lived there, Mr. Williamson lived at the premises. He did not 631 know Mr. Williamson "that good", but he would lend Mr. Williamson his car. 632 Whenever he lent Mr. Williamson his car, Mr. Williamson would delay returning it. 633 Sometimes, he had to call Mr. Williamson to return the car. He was not cross- 634 examined. 635 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 20 of 50 Defendant Nash 636 637

¶ [83] Defendant Nash chose to remain silent. He was content to rest on what he told the 638 police in his audio-recorded interview. 639 640 ANALYSIS AND FINDINGS OF THE COURT 641 642

¶ [84] In executing my task as the sole judge of law and fact, I have been guided by the 643 Cayman Islands Court of Appeal (CICA) pronouncements in K. Richards v R1 and 644 Randy Martin v R2, regarding the approach that a judge sitting alone in a criminal trial 645 should take in determining the verdict. Therefore, I do not propose detailing all 646 principles of law and to expressly detail the evidence to which I have regard in coming 647 to my conclusion. Only those salient aspects of the case will be discussed during my 648 analysis of the case. I have been guided by the general law applicable to the 649 consideration of the case, critical aspects of which I will discuss. 650 651

¶ [85] I am mindful that the burden rests on the prosecution to prove the guilt of both 652 defendants to the extent that I am sure of their guilt; nothing less than that will do. 653 654

¶ [86] The evidence was adduced by different means: the viva voce evidence of witnesses 655 appearing in court and via video link, agreed statements and formal admissions. 656 Reliance is also placed on documentary, real and circumstantial evidence. Each item 657 and form of evidence has been considered in accordance with the applicable law. 658 659

¶ [87] Concerning those witnesses whose written statements were read into evidence, I am 660 mindful that although they all made declarations of truth attached to their statements, 661 they did not testify on oath and were not subject to cross-examination for their 662 accounts to be tested. It follows that they were not subjected to the scrutiny of the 663 court for their demeanour to be assessed in the same manner as those who attended and 664 gave sworn evidence. So, in evaluating the weight to be attached to their evidence, I 665 have borne all these matters in mind. I have considered their evidence in the context of 666 all the rest of the evidence in the case, including that of the Defendant Cupid, and her 667 1 [2001 CILR 496], paragraph 32 2 CICA Crim. Appeal No 2/2010 (Ind 27/2009) __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 21 of 50 witness, and have accorded the evidence of each witness such weight as I think it 668 deserves. However, in considering the weight to be attached to the evidence of each 669 witness, I have borne in mind that the evidence stands unchallenged. 670 671

¶ [88] The prosecution also relies on the evidence of Mrs Delaney, whom I have accepted as, 672 and regard as, an expert witness. Even though her evidence stands as uncontradicted, I 673 have, nevertheless, treated her like every other witness; that is to say, I have subjected 674 her evidence to the same scrutiny as the evidence of other witnesses in the case, whilst 675 bearing in mind that I am not duty-bound to accept the opinion she has expressed on 676 any matter. 677 678

¶ [89] I have also paid due regard to all the admissible evidence adduced, including the 679 evidence given by and on behalf of Defendant Cupid, that is pertinent to my 680 determination as to whether the offence is proved to the requisite standard against each 681 defendant. 682 683

¶ [90] I have paid close attention to matters that not only go to show whether the offence is 684 proved to have been committed as a matter of fact and law but also those matters that 685 go to the credibility, reliability, weight and cogency of the evidence of each witness, 686 particularly, those whose evidence is in dispute. These matters include, in the main, 687 inconsistencies, discrepancies and omissions. 688 689

¶ [91] In recognising that critical aspects of this case turn on the credibility and reliability of 690 some of the witnesses who gave viva voce evidence, including Defendant Cupid, their 691 demeanour was of critical importance to me, and so I have observed them with the 692 closest scrutiny. 693 694

¶ [92] In considering the evidence, I bore in mind that I can reject part or accept part of what 695 a witness said and that I can prefer the evidence of one witness to the evidence of 696 another who testified about the same fact or circumstance. 697 698

¶ [93] I am also mindful that it is open to me to draw reasonable and inescapable inferences 699 from facts, which have been proven to my satisfaction, to assist me in coming to my 700 decision, but I am not permitted to speculate. I have considered the evidence 701 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 22 of 50 objectively, that is, being uninfluenced by sympathy, prejudice and any extraneous 702 matter. 703 704

¶ [94] The prosecution has relied on several principles of law to ground the allegations that 705 the defendants are guilty of the crime charged. The defence has put forward the legal 706 principles on which they are relying. I have identified the matters listed below as 707 warranting special consideration and directions in the light of the case presented by the 708 prosecution and defence and taking into account the submissions of counsel: 709 710 a. Circumstantial evidence. 711 712 b. Joint enterprise. 713 714 c. Evidential value of police interview. 715 716 d. Lies as corroboration. 717 718 e. Adverse inference from defendant's silence at trial. 719 720 f. Failure to mention facts relied on at trial in police interview. 721 722 g. Good character. 723 724 h. Alibi defence. 725 726

¶ [95] When necessary, the consideration and resolution of the issues relating to each 727 principle of law will be demonstrated explicitly within the context of the analysis of 728 the evidence and aspects of the case to which they relate. 729 730

¶ [96] Finally, I have carefully considered the helpful submissions of counsel on both sides, 731 and have taken them into account - even though, during my analysis of the evidence, I 732 may not refer to all that they have urged on me in its entirety. 733 734

¶ [97] Three broad questions for the court's consideration in determining the ultimate 735 question of whether the defendants are guilty of the offence of robbery are: 736 737 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 23 of 50 a. Whether a robbery was committed at the liquor store; 738 739 b. Whether Defendant Cupid committed the robbery; and 740 741 c. Whether Defendant Nash committed the robbery. 742 743 WHETHER A ROBBERY WAS COMMITTED AT THE LIQUOR STORE 744 745

¶ [98] According to s.242(1) of the Penal Code (2019 Revision): 746 747 "242. (1) A person commits robbery if he steals, and immediately 748 before or at the time of doing so, and to do so, he uses 749 force on any person or puts or seeks to put any person in 750 fear of being then and there subjected to force." 751 752 753

¶ [99] There is no issue between the prosecution and the defence regarding the fact that a 754 robbery was committed at the Tortuga Liquor Store at Governor's Square on the 7th 755 February 2020, as alleged in the indictment. The robbery has been formally admitted 756 pursuant to s.34 of the Evidence Act (2021 Revision). This admission is, therefore, 757 conclusive evidence that the robbery occurred in fact and law. 758 759

¶ [100] The critical disputed question is who committed the offence. 760 761

¶ [101] The prosecution contends that Defendant Cupid orchestrated the robbery and aided and 762 abetted its commission by Defendant Nash and others as part of a joint criminal 763 enterprise to rob the store. On the other hand, Defendant Cupid and Defendant Nash 764 have vehemently denied the allegations and have put the prosecution to strict proof in 765 keeping with the incidence of the burden of proof. 766 767

¶ [102] I have examined the case against Defendant Cupid first. This, therefore, takes me to 768 the determination of the second issue, which relates to the culpability of Defendant 769 Cupid. 770 771 772 773 774 775 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 24 of 50 WHETHER DEFENDANT CUPID COMMITTED THE ROBBERY 776 777

¶ [103] The prosecution relies wholly on circumstantial evidence to prove its case against this 778 defendant. In keeping with the law relating to circumstantial evidence, the ultimate 779 question for me as the finder of fact is whether the evidence relied on by the 780 prosecution has satisfied me to the extent that I am sure she is guilty. 781 782

¶ [104] I take counsel from the authorities that circumstantial evidence must always be 783 narrowly examined because evidence of this kind may be fabricated to cast suspicion 784 on another. It is also necessary that before I may draw the inference of the defendant's 785 guilt from circumstantial evidence, I must be sure that there are no other co-existing 786 circumstances that would weaken or destroy the inference (See Teper v R3). 787 788

¶ [105] The prosecution seeks to prove separate events and circumstances, which it contends, 789 can only be explained rationally by the defendant's guilt. The circumstances include an 790 opportunity for her to commit the offence, proximity to the crime scene, 791 communications between the defendant and other participants suspected to have 792 committed the crime, and, motive. The prosecution also relies on the conduct of the 793 defendant after the commission of the offence as evidence of guilt, which Crown 794 Counsel contends are lies and her failure to provide relevant information to the police 795 during her interviews but which she sought to rely on at trial. 796 797

¶ [106] It is against this background that the various strands of evidence being relied on by the 798 prosecution to prove the allegations against this defendant's guilt have been examined. 799 The strands of evidence on which the prosecution relies have been conveniently 800 enumerated by Prosecution Counsel, Mr. Kelly, in his written closing submissions for 801 the court’s consideration. I have considered them all, but to promote a clearer 802 appreciation of the route to verdict, I have placed each item of evidence that I have 803 deemed relevant and probative under the main planks on which the prosecution's case 804 against the defendant rests. 805 806 807 808 3 [1952] UKPC 15, page 3 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 25 of 50 Opportunity: Defendant Cupid's connection to and knowledge of the store 809 810

¶ [107] Defendant Cupid worked in most of the Tortuga Rum Company liquor stores in 811 various capacities up to her arrest. At the time of the robbery, she worked at the 812 Governor's Square liquor store. The men entered the liquor store just before closing 813 and immediately proceeded to the cash register. Furthermore, in demanding money, 814 they took the employees to the area where the safe was in the store where money was 815 kept. Before taking the employees to the section of the store where the safe was, they 816 asked none of the employees whether there was a safe. This points to prior knowledge 817 on their part as to where the money from the day's sale would have been kept. I am 818 satisfied that there is compelling evidence that suggests that Defendant Cupid had 819 inside knowledge of the crime scene that would have been integral to the execution of 820 the robbery and was relied on by the perpetrators. The prosecution's reliance on the 821 evidence of her connection to and special knowledge of the Tortuga Rum Company is 822 not misplaced. She had the opportunity to commit the offence. 823 824 Defendant Cupid’s contact with the perpetrators: The use of the motor vehicle 825 826

¶ [108] Defendant Cupid was the owner of the white Toyota Noah, bearing registration number 827 186-342. The evidence disclosed that there were 59 white Toyota Noah vans in Grand 828 Cayman at the material time. There were, however, only two Toyota Noah vans in the 829 Cayman Islands with the last three digits ending 342; the other was silver-coloured. 830 That leaves Defendant Cupid's vehicle as the only white Toyota Noah with the 831 registration plates ending 342. The evidence of DC Lauder and DC Thomas, which 832 stands unchallenged, is that on the night in question, they were able to capture a close- 833 up view of the motor vehicle on camera at the West Bay Road and Lime Tree Bay 834 intersection. DC Barnett was also able to do so from his observations of CCTV 835 footage from the relevant cameras. 836 837

¶ [109] Defence counsel Mr. Hughes submitted that it is unclear whether the Noah was the 838 vehicle that returned to Cost U Less after it had passed it on its way from West Bay. 839 According to counsel, what we do know is that one of the island's 59 white Toyota 840 Noah vehicles was involved in the robbery. In summary, counsel's contention is that 841 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 26 of 50 the CCTV footage, on which the police relied to see the partial registration number of 842 the vehicle they contend was Defendant Cupid's, is not enough to say that it was the 843 same motor vehicle that would have been involved in the robbery. 844 845

¶ [110] I find it difficult to accept Mr. Hughes' submissions. The prosecution has a sufficient 846 evidentiary basis to rely on an inference that the registration number seen on the 847 footage belonged to the same Toyota Noah owned by Defendant Cupid and which was 848 at the entrance of Cost U Less on the night in question. This conclusion can properly 849 be arrived at in the light of other evidence in the case on which the prosecution relies. 850 851

¶ [111] I now turn to other evidence regarding observations made from CCTV footage, which 852 is closely connected to this finding of the involvement of Defendant Cupid's vehicle. 853 854

¶ [112] The evidence of the police witnesses had established what the prosecution contends 855 were the movements of Defendant Cupid's vehicle on the night in question from 856 Bonsol Crescent in West Bay to when it left Governor's Beach and turned back in the 857 direction of West Bay. The court has seen this footage of the movements of the white 858 Toyota Noah and made certain crucial observations outlined below. 859 860

¶ [113] On its way from West Bay in the evening, the Toyota Noah stopped at Foster's 861 Republix. Defendant Cupid was the driver. No one else alighted from the vehicle, and 862 no one else joined her at that point in her journey. In the supermarket, she purchased, 863 among other things, two pairs of dark-coloured gloves similar to those worn by the 864 robbers. She resumed driving the vehicle from the car park at Foster's. 865 866

¶ [114] After leaving Foster's, she turned in the direction of George Town, which was opposite 867 her home. The vehicle then continued past Cost U Less. Her vehicle was later seen 868 driving back in the direction of Cost U Less and stopped at the rear of Cost U Less 869 (service entrance). Three persons alighted from the vehicle and ran onto the 870 Governor’s Square compound. Two were in dark clothing and one in a reddish- 871 coloured shirt. The two men in the dark clothing and gloves were the ones who 872 eventually entered the store and robbed the employees. 873 874 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 27 of 50

¶ [115] After the men left the motor vehicle at Governor's Square, the vehicle left the area 875 where the men exited from it, drove a little way off, and then stopped at the dark 876 parking lot off Pine Hurst Road. There it waited with lights off. When the men left the 877 store after the robbery, they ran in the direction of the waiting vehicle. There was no 878 CCTV opportunity for viewing to establish that they had entered the vehicle. 879 However, shortly after, the men were seen running in the direction of where the vehicle 880 was parked in the dark open lot, the vehicle lights came on, and the vehicle left the 881 empty lot. It drove along the roadway and then eventually turned at Governor's Beach. 882 The registration plate number was partially visible as it went through the intersection 883 of Lime Tree Bay Road and West Bay Road. The vehicle parked at Governor's Beach 884 for a considerable time before it left and drove toward West Bay at about 9:30p.m. 885 886

¶ [116] The prosecution contends that Defendant Cupid was still the driver of her vehicle, and 887 she was the one who let the men off at Cost U Less to commit the robbery and waited 888 on them before proceeding to Governor's Beach. Counsel Mr Hughes' submission, on 889 behalf of Defendant Cupid, is that, on the evidence of DC Barnett, there was a 15- 890 minute break in the CCTV opportunities for viewing the Noah from it left Foster's and 891 when it returned to Cost U Less and let off the men. So, according to counsel, the 892 police would have lost sight of the vehicle at some point for 15 minutes, would not 893 have known where it went in those 15 minutes and would not have known who 894 interacted with it, that is to say, who got in and out. According to counsel, the police 895 did not uncover any concrete evidence that Defendant Cupid was still driving it when it 896 returned to Governor's Square on its way from West Bay. Put simply, the prosecution 897 cannot say with any degree of certainty who was driving the van when the men 898 alighted from it. This gap in the evidential chain, Mr Hughes submitted, is fatal to the 899 prosecution's reliance on circumstantial evidence in proving the case against Defendant 900 Cupid. 901 902

¶ [117] The question arises as to whether Defendant Cupid could have handed over the vehicle 903 to someone else along the way to support a finding that she was not in it when it 904 returned to Cost U Less with the men. 905 906 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 28 of 50

¶ [118] Having considered all the evidence, I am satisfied that the break in the CCTV viewing 907 of the vehicle does not break the continuity of Defendant Cupid's control over her 908 vehicle and her presence in it on the 7th February 2020, immediately before, during and 909 after the robbery. Whether she continued to drive it or not, which I believe she did 910 from all the evidence in the case, the evidence of Mrs. Delaney regarding the 911 movement of her phone supports the conclusion that wherever her vehicle went, her 912 cellphone went also. 913 914

¶ [119] Furthermore, the evidence relied on by the prosecution that she went to Governor's 915 Beach and the absence of credible evidence that she went to Seven Mile Beach or the 916 beach at Kimpton, where she claimed a changeover occurred with Mr. Williamson, is 917 strongly supportive of the prosecution's theory that at no time did she leave that vehicle 918 between Foster's (before the robbery) and the time it turned onto Governor's Beach 919 (after the robbery). There is strong evidence that satisfies me that Defendant Cupid's 920 van, to her certain knowledge and with her complicity, was used to assist the robbers in 921 executing the robbery. As will be demonstrated shortly, other evidence relied on by the 922 prosecution, especially the telephone evidence discussed below, also strengthens this 923 viewpoint. 924 925 Ms McGaw's evidence 926 927

¶ [120] Ms McGaw's written statement to the police in which she asserted that she received a 928 request from Defendant Cupid by telephone to ask someone to meet her at Governor's 929 Beach is also relied on by the prosecution to establish Defendant Cupid's movements 930 and whereabouts on the night in question. Mr. Hughes argued that the evidence is not 931 of any probative value as Ms McGaw had stated that she did not say anything to the 932 police about Governor's Beach. In court, she had said in evidence that Defendant 933 Cupid told her to tell someone to pick her up at “Seven Mile”, which is in keeping with 934 Defendant Cupid's account of the events. There is no question that her evidence in 935 court had proved unfavourable or adverse to the prosecution. 936 937

¶ [121] The question therefore arises as to how Ms McGaw's witness statement and viva voce 938 evidence should be treated, she having been cross-examined by the prosecution who 939 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 29 of 50 had called her. The first point of departure in treating with Ms McGaw's testimony on 940 this issue are s.4(1) and s.33B(1)(b) of the Evidence Act (2021 Revision) on which 941 Prosecution Counsel Mr. Kelly relied. 942 943

¶ [122] Ms McGaw has proved adverse not only because her evidence would have been more 944 consistent with Defendant Cupid's case than the prosecution's, regarding where 945 Defendant Cupid went immediately after the robbery, but also because she has cast an 946 aspersion on the credibility and honesty of DC Harrison and DC Barnett concerning 947 what she told them about that conversation. Therefore, the credibility of Ms. McGaw 948 and the police witnesses arose as an issue to be resolved on this point. 949 950

¶ [123] Having considered the evidence and taking account of the demeanour of the witnesses, 951 I am driven to accept the police witnesses as witnesses of truth. Therefore, I reject Ms 952 McGaw's explanation for the inconsistency between her statement and the evidence 953 she gave in court. 954 955

¶ [124] I note that Ms McGaw's previous inconsistent statement (that Ms Cupid asked her to 956 tell the person to meet her at Governor's Beach) would have been given at a time when 957 the incident would have been fresher in her mind and memory. 958 959

¶ [125] That evidence also accords more with the evidence of the movement of the Toyota 960 Noah on the night in question, as seen in the CCTV footage. 961 962

¶ [126] Defendant Cupid, when asked in cross-examination to point out, in court, the road she 963 would have taken to Seven Mile Beach or the beach at Kimpton, where she claimed a 964 change-over of driver occurred, was not able to do so. She was utterly discredited 965 under cross-examination on this point. 966 967

¶ [127] There is, therefore, no credible evidence that the Toyota Noah went to Seven Mile 968 Public Beach or the beach at Kimpton on the night in question at any time 969 contemporaneous or closely contemporaneous with the robbery. I firmly believe that 970 Ms McGaw's adjustment to her police statement and refusal to admit what is in the 971 statement, was borne solely out of a belated desire to assist Defendant Cupid. 972 973 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 30 of 50

¶ [128] It has not escaped attention that Ms McGaw's evidence in court now aligns perfectly 974 with Defendant Cupid's evidence regarding where she was on the night in question and 975 what she said to Ms McGaw. This is not at all surprising given their familial 976 relationship. 977 978

¶ [129] This now takes me to the law regarding the weight to be applied to the evidence of Ms 979 McGaw, who has proved unfavourable or hostile. 980 981

¶ [130] I have had regard to Blackstone's 2020 edition paras F6.54-F6.55. Having directed 982 myself on the law applicable to Ms McGaw's position as an adverse witness, I am 983 persuaded to the view that although her credibility has been eroded, the totality of the 984 circumstances and the rest of the evidence in the case have rendered the Governor's 985 Beach account given in her statement more plausible, credible and reliable than her 986 evidence in court. The evidence regarding Governor's Beach is supported by the 987 CCTV evidence of the vehicle's movements after the robbery. 988 989

¶ [131] I, therefore, reject Ms McGaw's Seven Mile Beach account given in court and find as a 990 fact that Defendant Cupid asked her to tell Mr. Williamson to meet her at Governor's 991 Beach. Whether Defendant Cupid was the driver or not at that point is not material 992 (although I have no reason to doubt she was) because not only would she have been 993 present with the perpetrators in the vehicle when they were let off to commit the 994 robbery, but she would have made her van available to be used for their unlawful 995 enterprise with the knowledge of what they were going to do and the clear intention to 996 assist them in their illicit activity. 997 998 The telephone and expert evidence of Mrs. Delaney 999 1000

¶ [132] I go now to the expert evidence of toll data and cell site analysis that is intricately 1001 bound up with the movement of the motor vehicle and the interaction between 1002 Defendant Cupid and the persons alleged to be her co-conspirators. 1003 1004

¶ [133] The phone evidence shows that Defendant Cupid's phone was also in contact with 1005 numbers associated with Defendant Nash (suspected to be Robber no. 1) and Mr. 1006 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 31 of 50 Williamson, who she asked Ms McGaw to tell to meet her at Governor's Beach. 1007 Defendant Cupid's own evidence in seeking to explain the evidence regarding the 1008 interaction of her phone with Defendant Nash and Mr. Williamson has established that 1009 she was not only in phone contact with them but that she saw and spoke with them on 1010 the night of the robbery. Mr. Williamson, she said, spoke with her and borrowed her 1011 van, and Defendant Nash met her to drop off his work permit forms. According to her, 1012 therefore, both men spoke when she was at Seven Mile Beach. Defendant Cupid was 1013 never cross-examined by counsel for Defendant Nash, and Defendant Nash gave no 1014 evidence to contradict her. Therefore, he can be taken to have adopted her evidence 1015 that they met on the night in question, at least, somewhere close to the crime scene. 1016 Defendant Cupid’s evidence that she met with Defendant Nash on the night of the 1017 robbery is used against her. Therefore, Defendant Cupid's direct evidence of 1018 communication with Defendant Nash serves in lending credence to the prosecution's 1019 case that she saw and spoke to him on the night in question. 1020 1021

¶ [134] Therefore, the question for the court in these circumstances is whether they met at the 1022 place and for the reasons stated by Defendant Cupid or whether they met at some other 1023 place and in the execution of the joint enterprise to rob the store. The resolution of this 1024 question does not turn solely on the reliability of the telephonic evidence from Mrs. 1025 Delaney but, partly, on the strength and probative value of the inferences that can 1026 reasonably and inescapably be drawn from other evidence in the case. 1027 1028

¶ [135] Having considered all the evidence, I do not accept her evidence that it was while at 1029 the party at Seven Mile Beach that she met Defendant Nash and that it was solely for 1030 collecting a work permit form from him. I did not find her a witness of truth in this 1031 regard. 1032 1033 Proximity to the crime scene 1034 1035

¶ [136] Mrs. Delaney's evidence was that the areas at which the Toyota Noah was sighted on 1036 the CCTV footage and the movement of Defendant Cupid's phone were all within the 1037 same locality as the crime scene. I accept that evidence. 1038 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 32 of 50

¶ [137] The evidence of the movement of Defendant Cupid's vehicle and her cellphone has 1039 established that she was within the locality of, or within proximity to, the liquor store 1040 just before, during, and immediately after the robbery. 1041 1042

¶ [138] In summary, the telephonic evidence has not been undermined, in any way, in linking 1043 Defendant Cupid to the Toyota Noah van, the suspected perpetrators of the robbery 1044 and the locality of the liquor store. 1045 1046 Motive 1047 1048

¶ [139] The analysis does not end at Proximity. The phone evidence also revealed another 1049 critical aspect of the case mounted against Defendant Cupid by the prosecution: Her 1050 possible or likely motive for the commission of the offence. It is to a consideration of 1051 the question of motive that I will now turn. 1052 1053

¶ [140] The phone evidence has disclosed that Defendant Cupid owed Marcella $828.00. 1054 Marcella intended to repossess a vehicle owned by Defendant Cupid. Marcella said she 1055 would repossess the vehicle on the 8th February 2020. However, Marcella was 1056 promised payment by Defendant Cupid on the 7th February 2020, the same date as the 1057 robbery. 1058 1059

¶ [141] It has not escaped attention that Defendant Cupid had indicated to Marcella on the 6th 1060 February that payment on the 8th February was impossible. No payment was made on 1061 the 7th February, when Marcella sent someone to collect the money from Defendant 1062 Cupid at the liquor store. Having failed to make payment at her workplace, as 1063 promised, Defendant Cupid did not contact Marcella on the evening of the 7th 1064 February, although she had promised to make the payment that day. She also failed to 1065 take Marcella's call or reply to her messages. She, however, contacted Marcella on the 1066 8th February 2020, the morning following the robbery, informing her that she had the 1067 money to pay the loan balance in full. 1068 1069

¶ [142] Defendant Cupid, in her evidence, accepted that she owed Marcella and paid her on the 1070 8th February 2020. She stated she got paid at work and earned money washing pots on 1071 the night of 7th February 2020. The fact that she was indebted and under threat of the 1072 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 33 of 50 repossession of her vehicle just around the time of the robbery and was able to make 1073 payment immediately following the robbery provides strong evidence from which a 1074 reasonable inference may be drawn as to her motive for her involvement in the 1075 robbery. 1076 1077

¶ [143] I find that her need to get money to prevent the repossession of her vehicle on the 8th 1078 February 2020 was the motive or reason for her involvement in the robbery. This is 1079 even more evident from the evidence of her message to Marcella, one day before the 1080 night of the robbery, that payment on the 8th February was impossible. Yet, she was 1081 able to make the impossible possible within a day or two. I am satisfied, to the extent, 1082 I am sure she was only able to do so because of her involvement in the robbery. 1083 1084 Conduct of Defendant Cupid after the commission of the offence: Lies told by 1085 Defendant Cupid in her police interviews. 1086 1087

¶ [144] The prosecution highlighted several aspects of Defendant Cupid's police interviews 1088 that they contend disclose lies told by her, which they seek to rely on in partially 1089 proving the case against her. Prosecution Counsel Mr. Kelly directed the court's 1090 attention to the following: 1091 1092 i. On the 19th February 2020, she told DC Harrison and DC Barnett that she 1093 was at home all night and her car was parked outside all night. This is 1094 proved to be a lie by the evidence of her having gone to Foster's Republix 1095 on the night of the incident just before the robbery and her ultimate 1096 acceptance in court that she went there. 1097 1098 ii. She told the police in her interview on the 23rd July 2020 that she went 1099 home after shopping at Foster’s. However, CCTV footage shows clearly 1100 that she went in the direction of the Yacht Club Roundabout and up 1101 Esterly Tibbetts Highway in the direction of George Town. Furthermore, 1102 saying in her interview on the 23rd July 2020 that she went home after 1103 shopping at Foster’s is proved to be a lie by her evidence that she did not 1104 go home immediately after leaving Foster's but instead went to a party at 1105 the public beach. 1106 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 34 of 50 iii. In her interview on the 23rd July 2020, she told the police that she did not 1107 know anyone called Sikka. This is proved to be a lie by the evidence of 1108 Facebook Chats between her as Eve High Voltage and Defendant Nash as 1109 Sikka Dan. Also, there is phone evidence that in March 2020, she asked 1110 Ms McGaw to apply for a work permit for this Sikka, who she described, 1111 among other things, as her friend. Furthermore, her knowledge of and 1112 acquaintance with Defendant Nash was, ultimately, borne out in her 1113 evidence at trial. 1114 1115 iv. She also told the police that she did not know how Defendant Nash's 1116 number would have been in her phone, yet the number was found stored in 1117 her phone under the name Sikka. There were also conversations between 1118 them through different media on the same device. 1119 1120 v. In her interview on the 20th March 2020, Defendant Cupid was 1121 unequivocal in her assertions that she did not lend or give anyone her 1122 vehicle to drive on the 7th February 2020. However, she testified at trial 1123 that she lent it to Mr. Williamson to buy cigarettes on the night of the 1124 robbery. 1125 1126

¶ [145] It is clear from the preceding paragraphs that Defendant Cupid lied to the police in her 1127 interview. 1128 1129

¶ [146] In treating, with the proven and admitted lies she told the police, I have given myself 1130 the directions prescribed by the United Kingdom Appellate Court in R v Lucas4 and 1131 also by the Cayman Islands Appellate Court in Ebanks and B.R. Powell v R 5. 1132 Therefore, I must consider why she lied because I have borne in mind that a defendant 1133 who tells a lie is not necessarily guilty. Sometimes a defendant who is not guilty may 1134 lie for some other reason unconnected to guilt. 1135 1136 4 [1981] 2 All ER 1008; QB 720 (1981) 5 [2002] CILR 197 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 35 of 50

¶ [147] Defendant Cupid has explained that she told the police she did not know Defendant 1137 Nash because her view of knowing someone is different from what the police may 1138 consider it to be. She maintained that her “knowing” someone is different from when 1139 someone is known to her. So, in her understanding of what it is to know someone, she 1140 did not know Defendant Nash. I find this hard to accept, so I reject it as a credible 1141 explanation for what she told the police. She knew Defendant Nash well enough to 1142 associate with him for the commission of the robbery. 1143 1144

¶ [148] In respect of the other proven lies, especially regarding whether she left her home on 1145 the 7th February 2020 and lent her vehicle to anyone, she had no explanation or a 1146 satisfactory explanation for those lies. I am sure that Defendant Cupid did not have 1147 any good and excusable reason for lying to the police, and so I find her lies, on critical 1148 aspects of her case, to be such as to lend some support to the prosecution's case against 1149 her. 1150 1151

¶ [149] However, I am mindful that I cannot convict her either wholly or mainly because she 1152 lied. I have only considered her lies as additional support for the prosecution's case in 1153 deciding whether her evidence about the facts she seeks to rely on to establish her 1154 defence, is true. 1155 1156 Conduct of Defendant Cupid after the commission of the offence: Failure to mention 1157 'facts' in police interviews ('no comment' responses) 1158 1159

¶ [150] Closely connected to the lies Defendant Cupid told is that when she was pressed in her 1160 interviews on several matters about which it would have been expected that she would 1161 provide an explanation, she was content to say "no comment". Though she was 1162 cautioned that failing to mention something in the interview about which she was 1163 asked, could harm her defence at trial if she should seek to give evidence about such 1164 matter, she failed to mention some critical facts she sought to rely on at trial. Indeed, 1165 she gave detailed evidence on matters she refused to answer during her interviews. 1166 1167

¶ [151] As part of her defence, she has relied upon matters she did not mention when 1168 questioned by the police. For instance, she did not mention the crucial fact that she had 1169 lent her motor vehicle to Mr Williamson on the night of the robbery. Also, she did not 1170 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 36 of 50 mention an equally significant fact that she was at a party on the beach that night and 1171 left for her home with her neighbours. 1172 1173

¶ [152] I find that when she was interviewed, she would reasonably have been expected to 1174 mention the facts on which she now seeks to rely in establishing her defence. The only 1175 sensible explanation for her failure to mention those facts is that she has no answer at 1176 the time or none that would stand up to scrutiny. I also find that apart from her failure 1177 to mention those facts, the prosecution's case, as was put to her at the interviews, was 1178 so strong, that it clearly called for an answer from her. 1179 1180

¶ [153] I also note her evidence that she did not answer some questions on the advice of her 1181 lawyer. I accept that she might have received the advice of her lawyer as to what 1182 questions to answer. But she had the choice of whether to accept or reject the advice. 1183 In fact, she was answering some questions and refusing to answer some. From the 1184 start of the first interview, she was warned that failing to mention facts, on which she 1185 would seek to rely at trial, might harm her defence. Given her age, maturity, and level 1186 of intelligence, the facts on which she sought to rely at trial concern simple matters that 1187 she could easily have addressed in her interviews to explain her position regarding the 1188 night in question. As Counsel for the Prosecution Mr. Kelly argued, she suddenly 1189 provided an alibi notice at the commencement of the trial, having answered "no 1190 comment" to various questions during the police interviews that could have established 1191 where she was and who she was with on the night of the incident. She could 1192 reasonably have been expected to mention the facts on which she now relies, touching 1193 and concerning her activities, whereabouts, and interaction with Defendant Nash and 1194 Mr. Williamson on the 7th February 2020. 1195 1196

¶ [154] I do not believe Defendant Cupid genuinely relied on legal advice to remain silent on 1197 those matters. I watched her keenly as she responded to the police during the video- 1198 recorded interview. I believe she remained silent because she had no satisfactory 1199 answer to give and merely latched onto the legal advice. 1200 1201 1202 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 37 of 50

¶ [155] Even though I have arrived at this conclusion, I know I cannot convict her wholly or 1203 mainly on the strength of it. But, as in the case of my conclusion regarding the lies she 1204 told, I have taken it into account as some additional support for the prosecution's case 1205 in deciding whether her evidence about the facts on which she seeks to rely in 1206 establishing her defence is true. 1207 1208

¶ [156] I conclude that her strategy in deploying her defence seriously undermines her 1209 credibility. 1210 1211 Conduct of Defendant Cupid after the commission of the offence: Defendant Cupid's 1212 evidence in court 1213 1214

¶ [157] The prosecution has also presented for the court's consideration Defendant Cupid's 1215 evidence regarding what she said she remembered of the occurrences of the 7th 1216 February 2020, the night of the robbery. Crown Counsel Mr. Kelly pointed out several 1217 times when Defendant Cupid indicated, during her interview with the police, that she 1218 could not recall some basic information. Yet, she would have the court believe that she 1219 has had a "perfect recall" of the night and its events while giving evidence. Within this 1220 context, Mr. Kelly raised these specific points for consideration in support of his 1221 contention that her defence is incredible and a recent fabrication: 1222 1223 i. On the 19th February 2020 – 12 days after the incident – she was home 1224 with her family and her car was parked outside. 1225 1226 ii. On the 20th March 2020 – 42 days after the incident – she recalls nothing 1227 significant about the day. 1228 1229 iii. O the 23rd July 2020 – 167 days after the incident – she could not recall 1230 details of the night. 1231 1232 iv. On the 4th November 2021 – 636 days after the incident (at trial) – she 1233 could recall details of the night, including the menu at the beach party. 1234 1235 v. During cross-examination, she told the court she has a faulty memory. 1236 1237 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 38 of 50 vi. She says that photographs of wipes she bought at Foster's Republix made 1238 her recall that she was at the supermarket rather than the images of herself 1239 walking into the supermarket. 1240 1241

¶ [158] Crown Counsel Mr. Kelly further pointed to several aspects of Defendant Cupid's 1242 evidence, apart from the lies already identified above, that he regarded as "salient 1243 points" in her evidence that have rendered her account even more incredible and her 1244 alibi unacceptable. He focused on the following matters: 1245 1246 i. Knowledge of Defendant Nash: Defendant Cupid indicated that she does 1247 not know Defendant Nash and that she told the police that whilst he is 1248 known to her, she does not know him. There were instances in cross- 1249 examination in which the names Richard Nash and Sikka were put to 1250 Defendant Cupid, and she said that she did not know those names. 1251 1252 ii. During examination-in-chief, she told her counsel, Mr. Hughes, that on the 1253 7th February 2020, when she spoke to Defendant Nash by telephone, she 1254 was collecting the filled-in forms for his work permit application and had 1255 only called him back about passport pictures. Defendant Cupid even 1256 volunteered that she is still in possession of the form. However, in cross- 1257 examination, she told the court that the forms were blank. 1258 1259 iii. Under cross-examination, Defendant Cupid suggested that her car might 1260 have been used in the commission of the offence but by Mr. Williamson 1261 without her knowledge. However, this account is rendered implausible 1262 when one examines Mrs. Delaney's evidence regarding Defendant Cupid's 1263 cellphones and the movement of the Toyota Noah, as shown by the CCTV 1264 evidence. In this regard, the phone evidence and the aerial footage of the 1265 distance of travel of Defendant Cupid's van on the night of the robbery 1266 become relevant. 1267 1268 iv. After living in the Cayman Islands for 13 years, Defendant Cupid could 1269 not tell the court the direction she travelled to get to the party she said she 1270 attended. It is more likely that she travelled from the Yacht Club 1271 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 39 of 50 roundabout directly to the Cost U Less Roundabout than that her vehicle 1272 was used in the commission of the offence after she stopped at Kimpton 1273 Beach and Mr. Williamson borrowed it from her. 1274 1275

¶ [159] Furthermore, Prosecution Counsel, Mr. Kelly, pointed to aspects of Defendant Cupid's 1276 evidence that were never suggested to the witnesses but were eventually relied on by 1277 her. These relate to problems she said were affecting the motor vehicle when Mr. 1278 Campbell bought it, including engine problems and the two side doors could not open. 1279 The failure of Defendant Cupid to confront Mr. Campbell with this evidence means 1280 that I will have to determine what weight I attached to her assertions in this regard. 1281 1282 The Court’s Considerations 1283 1284

¶ [160] Having assessed the reliability of her evidence, I conclude that her evidence that the 1285 van doors were not working properly does not take away from the fact that at least, one 1286 of them opened on the night in question to allow the men to alight at Cost U Less. 1287 1288

¶ [161] As is often said, "a picture is worth a thousand words". I have seen the CCTV footage 1289 of her vehicle, and persons were able to exit her vehicle from the side at Cost U Less. 1290 Therefore, even if she had put what she said in her evidence to Mr. Campbell, and he 1291 had agreed with her that the vehicle had problems, that would not have undermined the 1292 prosecution's case in this regard. 1293 1294

¶ [162] Additionally, in considering the evidence of Defendant Cupid and the evidence against 1295 her, I took into account her good character, which has been agreed. While her good 1296 character is not a defence, I am obliged to take it into account. Therefore, I have 1297 considered her good character on the two established limbs – credibility and 1298 propensity. Thus, in assessing whether to believe her, I have considered her good 1299 character and directed myself that a person of good character is more likely to be more 1300 truthful than one of bad character. I also bear in mind that given her good character, 1301 she is less likely, than otherwise would have been the case, to have committed the 1302 offence for which she is charged. 1303 1304 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 40 of 50

¶ [163] In the light of her good character, I have subjected the prosecution's case to the closest 1305 scrutiny. In so doing, I have borne in mind the burden and standard of proof and the 1306 shortcomings in the circumstantial evidence that Defence counsel for Defendant Cupid, 1307 Mr. Hughes, was at pains to highlight. I can only properly find her guilty in the face of 1308 evidence consistent with her guilt beyond a reasonable doubt, with there being nothing 1309 on the evidence that would weaken this inference of guilt. 1310 1311

¶ [164] I have examined her evidence and have accorded to it the same standard of fairness and 1312 respect I have applied to the case for the prosecution, having borne in mind that she is 1313 a person of good character. 1314 1315

¶ [165] The prosecution has asked me to reject her evidence regarding where she was and what 1316 she did between 8:00 p.m. and 9:30 p.m. on the 7th February 2020, as a falsehood, and I 1317 am moved to do so. I have found, however, that Defendant Cupid has spun a tale for 1318 this court that is not only a recent fabrication but is wholly incredulous. I note the 1319 evidence of her witness, who she called to establish that Mr. Williamson would usually 1320 drive his vehicle from time to time and sometimes take a long time to return it. I have 1321 no reason to doubt the witness' credibility, but it was of no help to Defendant Cupid's 1322 case in the light of the overwhelming evidence against her pointing to her involvement 1323 in the commission of the offence. 1324 1325

¶ [166] I am satisfied, on the evidence presented by the prosecution, that at the time the 1326 robbery occurred, Defendant Cupid was the driver of her vehicle or, at the very least, 1327 was present in it when the robbers were transported to the crime scene. She was 1328 present in it when it was parked at the dark open lot off Pine Hurst Road, evidently 1329 waiting on the return of the robbers, and she was in it when it left for Governor's Beach 1330 after the robbery occurred. 1331 1332

¶ [167] While acknowledging that the burden of proof is not on her to prove her alibi but on 1333 the prosecution to negate it, I reject her defence that she was at a party on the beach at 1334 the Kimpton Hotel or Seven Mile at the time of the robbery. In rejecting her defence, I 1335 am convinced of her falsehood not only by the evidence led by the prosecution but by 1336 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 41 of 50 the fact that she could not point to or describe the route she took to get to that beach. 1337 She was also unable to say at which section of the beach the party was held. 1338 1339

¶ [168] In examining her defence, I am mindful that even though the prosecution has proved 1340 that her alibi is false, that does not, in itself, mean that she is guilty. 1341 1342

¶ [169] I have borne in mind that sometimes an innocent person, who fears that the truth will 1343 not be believed, may instead invent an alibi. So, persons may present a false alibi for 1344 various reasons even when they are innocent, and so I have warned myself of that 1345 possibility in considering Ms Cupid's evidence. However, on the totality of the 1346 evidence and having assessed her demeanour, I felt sure that she was not speaking the 1347 truth when she said she was at a party on the beach. 1348 1349

¶ [170] I am quite mindful that I cannot properly convict her based on the incredulity of her 1350 evidence, but having considered her evidence, including that of her witness and the 1351 agreed and admitted facts favourable to her, I went back to examine the case presented 1352 by the prosecution in its totality. Having done so, and having taken into account the 1353 evidence she presented, while at the same time, having due regard to her good 1354 character, I am convinced of her guilt beyond a reasonable doubt or to the extent that I 1355 am sure of it. 1356 1357

¶ [171] I find, as a fact, that she was in the company of the robbers; she assisted them by 1358 providing gloves used in the robbery and transportation to the scene of the crime. She 1359 also intended to assist and encourage them in the commission of the offence that they, 1360 in fact, committed. Indeed, even if she did not aid and abet the actual commission of 1361 the offence in the manner indicated above, there is also ample evidence that would 1362 support a finding that she counselled and procured the commission of the crime by 1363 virtue of her connection to the store, her inside knowledge of its operations and where 1364 the money was kept, her taking of photographs or making of videos of the cash register 1365 areas in the stores she worked and her need for money to address Marcella's demand 1366 for repayment of her loan that was past due. 1367 1368 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 42 of 50

¶ [172] Accordingly, on any view of the case, as I have accepted it to be, she is liable as an 1369 accessory/secondary party to the robbery. This is so because whatever transpired in 1370 that store was within the scope of the joint enterprise. 1371 1372

¶ [173] In other words, the offence of robbery for which she is charged falls squarely within 1373 the scope of the unlawful joint enterprise in which she participated with a clear 1374 intention to encourage and assist the principal offenders. The evidence has established, 1375 beyond a reasonable doubt, that she was an active and critical figure in an unlawful 1376 joint enterprise to rob the liquor store. 1377 1378

¶ [174] Accordingly, the verdict is guilty. 1379 1380 WHETHER DEFENDANT NASH COMMITTED THE ROBBERY 1381 1382

¶ [175] The prosecution says that Defendant Nash was one of the three men Defendant Cupid 1383 transported to Cost U Less. It is alleged that he was the man who first entered the 1384 liquor store and held up Ms Andrade (Robber no. 1). He wore a head covering and a 1385 mask, and so his facial features and ethnicity were not apparent. In seeking to prove 1386 the case against him, the prosecution relies on these strands of evidence: 1387 1388 i. His phone number is confirmed through formal admissions to be 517- 1389

¶ [3209] 1390 1391 ii. During a search of his home in July 2020, a phone was recovered from 1392 him, which was found to have been linked to the 517-3209 number 1393 between the period 6th January 2020 and 20th March 2020 (the day of 1394 Defendant Cupid's first interview and the seizure of her phone). 1395 1396 iii. The expert witness places his phone in the area where the robbery was 1397 committed and also to have been in contact with Defendant Cupid's phone 1398 moments before the robbery took place. 1399 1400 1401 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 43 of 50 iv. CCTV footage showing his attire and a watch worn at the time of the 1402 robbery was recovered. Also recovered were photographs from his phone 1403 which showed him in similar attire and wearing a similar watch on a date 1404 prior to the robbery. These also matched items taken by the police from his 1405 residence. 1406 1407 v. The similarities in the physical description of Robber no.1 and 1408 photographs recovered from his phone show his build and appearance at 1409 the time. 1410 1411

¶ [176] The prosecution also relies on several assertions of Defendant Nash in his police 1412 interview, which, the Prosecution contends, were proven to be lies or showed he was 1413 less than forthright. These include, in particular, the following matters: 1414 1415 i. He denied knowing Defendant Cupid apart from seeing her on the internet 1416 and at his father's tailor shop. He heard about her as "Eve". 1417 1418 ii. He denied that he had ever been out with Defendant Cupid or knew her 1419 phone number. However, there is telephonic evidence of Defendant Cupid 1420 helping to get a work permit for him and the Facebook Chats – showing, 1421 among other things, that they were to "link up" at the Waterfront. There 1422 were other items of communication between them by phone. 1423 1424 iii. He could not remember the phone number 517-3209, and he was not in a 1425 position to say to the police whether it was his number. However, this 1426 number was proved to be his that he had provided to the Department of 1427 Family Services and formally admitted during the trial. 1428 1429 iv. He said there were only two aliases that he would answer to: "Short Boss" 1430 and "National". He disassociates himself from the names "Sikka" and 1431 "Sikka Dan", by which he is also called, and which appear in Defendant 1432 Cupid’s phone contact details. 1433 1434 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 44 of 50 v. He initially denied that he wore underpants, yet when shown the 1435 underpants worn by Robber no. 1, he said they looked like the underpants 1436 taken from his house. 1437 1438 vi. He denied being within the locality of the liquor store on the night of the 1439 7th February 2020 as illustrated in his response to the police: "Wah mi a 1440 goh dem place dey go do, ah whey a Town I live yah nah". However, the 1441 phone evidence placed him outside the area where he lived and within the 1442 locality of the liquor store. 1443 1444 vii. There is also Defendant Cupid's evidence that they met and spoke that 1445 night, albeit in different circumstances from those alleged by the 1446 prosecution. He did not challenge that evidence on cross-examination, 1447 which he could have done. Therefore, he may be taken to have adopted 1448 Defendant Cupid's evidence that they met and spoke not only by phone but 1449 also face to face within the geographical location of the crime scene on the 1450 7th February 2020. 1451 1452

¶ [177] Mr. Crister Brady, counsel on behalf of Defendant Nash, contended that the 1453 circumstantial evidence the prosecution relies on to prove the case against Defendant 1454 Nash is weak. He maintained that a fatal blow to the prosecution's case is the evidence 1455 of the witnesses who were in the store that the robber, suspected to be Defendant Nash, 1456 had a Caymanian accent. According to him, Crown Counsel has suggested that the 1457 witnesses may have been mistaken due to the fear and trauma they had experienced at 1458 the time of the robbery. However, Mr. Brady submitted, in response, that for both 1459 witnesses to have been mistaken about an observation they made at the same time, 1460 during the same incident, but somehow come to the same mutually mistaken 1461 conclusion, "would be nothing less than remarkable". This evidence of the accent of 1462 the robber believed to be Defendant Nash is exculpatory and significant, he said. 1463 1464 1465 1466 1467 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 45 of 50

¶ [178] Mr. Brady also pointed out that Ms. Andrade had said that Robber no.1 had a “coffee 1468 colour around his eyes". It is unclear, he said, whether that description was intended to 1469 convey the "colour of coffee with milk or black coffee". According to counsel, either 1470 scenario is unhelpful for identification or comparative purposes. 1471 1472

¶ [179] In respect of the items of clothing relied on by the prosecution, Mr. Brady stated that 1473 there is nothing to show that they were the same as those worn or owned by the 1474 defendant, and the evidence was generally unreliable and weak to ground a conviction. 1475 1476 1477

¶ [180] Mr. Brady also criticised the cell site analysis evidence as unhelpful as it only provides 1478 the possibility that the defendant may have been in one of two very general locations. 1479 He maintained that the cell site evidence is not of significant weight and is insufficient 1480 to lead to an inference of Defendant Nash's presence with Defendant Cupid for 1481 purposes of committing a crime. 1482 1483

¶ [181] In seeking to explain Defendant Nash's inability to give an account of his whereabouts 1484 on the night of the robbery, Mr. Brady pointed out that Defendant Nash was 1485 interviewed when the likelihood of him being able to recall his exact whereabouts, 1486 "may well have been low". Further, he submitted that there is an absence of messages 1487 between Defendant Cupid and Defendant Nash, which would suggest any involvement 1488 in the robbery. 1489 1490

¶ [182] In challenging the prosecution's reliance on lies it is contending were told by 1491 Defendant Nash, Mr. Brady also argued that it is unclear whether Defendant Nash told 1492 any lies. The court, Mr. Brady said, would have to consider the relevant law in R v 1493 Luca6s as to how to treat any perceived lies and whether those lies, if any, point to 1494 guilt rather than any other motive. 1495 1496

¶ [183] Finally, counsel submitted that even if the court found a case to be answered by 1497 Defendant Nash, and he failed to do so, it still would have to examine the prosecution's 1498 case to satisfy itself that the offence for which he is charged is proved against him to 1499 the requisite standard. Mr. Brady contended that the prosecution has failed to prove 1500 6 Supra __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 46 of 50 the case against Defendant Nash beyond a reasonable doubt, and so, in the 1501 circumstances, the "proper and safest verdict must be one of not guilty".= 1502 1503 The Court’s Considerations 1504 1505

¶ [184] I have considered the evidence relied on by the prosecution in respect of Defendant 1506 Nash, the relevant law, especially the law relating to lies and silence of the defendant at 1507 trial, and, the submissions of Mr. Brady, Counsel for Defendant Nash. 1508 1509

¶ [185] Regarding the evidence, I start with the striking similarities between the clothing and 1510 watch worn by Robber no. 1 in the CCTV footage and those in the photographs taken 1511 of Defendant Nash and from his home. 1512 1513

¶ [186] The similarities are too profound to be dismissed as merely coincidental, especially 1514 when considered in conjunction with other evidence in the case. 1515 1516

¶ [187] This takes me to the evidence of his prior knowledge of, and interaction with, 1517 Defendant Cupid before and on the night of the incident. They were on the telephone 1518 and other social media communication with each other, on friendlier terms than 1519 Defendant Nash would want the court to believe. They were seemingly more than just 1520 passing acquaintances, as proved by other evidence in the case. Yet, he denied having 1521 any interaction with Defendant Cupid, even though the evidence would have 1522 established to the contrary. 1523 1524

¶ [188] Furthermore, he was not at all forthright in his interview when he claimed not to have 1525 recalled crucial facts, such as his phone number, which he later admitted at trial. 1526 1527

¶ [189] His denial of any close contact or association with Defendant Cupid was a lie, and it 1528 raises the question of his motive for lying on this matter. Why, too, was he not 1529 forthright about his phone number? The question arises as to his reason for lying about 1530 the extent to which, and the circumstances in which, he knew Defendant Cupid. If the 1531 association was innocent and had nothing to do with the robbery, why conceal their 1532 association, especially having regard to his answer that they did not have an intimate 1533 relationship? 1534 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 47 of 50

¶ [190] The need to hide this relationship must have been borne from a desire to conceal his 1535 involvement with her in the illegal activity. I can find no other rational explanation for 1536 his motive to lie in this regard. 1537 1538

¶ [191] Furthermore, he disassociated himself from being within the locality of the liquor 1539 store, maintaining that he lived in "town” and had no reason to be in the area in 1540 question. Yet, the telephone evidence, which I accept as reliable, incontrovertible, and 1541 highly probative, places his phone in or around the same area as the crime scene. 1542 However, rather than proffering a likely explanation for this in his police interview, he 1543 claimed he did not remember the phone number attributed to him, which would have 1544 placed him within the vicinity of the liquor store. 1545 1546

¶ [192] Also, Defendant Cupid gave sworn evidence in his presence that he was at Seven Mile 1547 Beach or, at least, within the same locality of the liquor store. He never challenged 1548 this evidence, which he could have done through cross-examination of Defendant 1549 Cupid. Again, the question arises, why did he deny all these matters if he had nothing 1550 to hide, and his movements, communication, and association with others on the night 1551 of the robbery were innocent? 1552 1553

¶ [193] He also tried to disassociate himself from wearing the subject underpants. If there was 1554 nothing of significance about those blue underpants, why not admit from the outset that 1555 he wore underpants? He tried to disassociate himself from even wearing underpants 1556 until he had no choice but to change his mouth about that. 1557 1558

¶ [194] I have pondered this question: Is it out of a guilty mind or for some other motive, 1559 unrelated to the events for which he is charged, that led to the lies and what appeared 1560 to be convenient lapses in memory? 1561 1562

¶ [195] I have considered all the questions raised in relation to Defendant Nash within the 1563 framework of the law as expounded in R v Lucas7; R v Burge and Pegg8. 1564 1565 7 QB 720 (1981) 8 [1996] 1 Cr App Rep. 163 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 48 of 50

¶ [196] I have given myself the appropriate warning that a lie, on its own, does not necessarily 1566 prove guilt and that persons may lie for reasons other than that they are guilty. 1567 1568

¶ [197] However, I have formed the view that the motive for the lies told by Defendant Nash 1569 emanated from the knowledge of his involvement in the robbery with Defendant Cupid 1570 and for no other innocent and rational reason. He has lied to cover his guilt. 1571 1572

¶ [198] I have noted Mr. Brady's submissions regarding the witnesses' description of the 1573 robbers’ accent being Caymanian. There are many possible explanations for this. The 1574 robbers could have faked an accent and given that they wore masks and did not utter 1575 many words or talk for any prolonged period, it would have been an insufficient 1576 opportunity for an accurate accent recognition. Furthermore, Ms Ebanks said she was 1577 frightened, and Ms Andrade was physically attacked and more focused on preserving 1578 her life (an agreed fact). The terrifying circumstances could have affected their ability 1579 to correctly identify the accent of the perpetrators. 1580 1581

¶ [199] So, while I accept that the evidence about the accent of the robbers is a potential 1582 weakness in the case for the prosecution, which remains unexplained on the evidence, 1583 it is not of overwhelming weight to displace the cogency of the other evidence that 1584 points to the involvement of Defendant Nash in the robbery on the night of the 7th 1585 February 2020. It has done nothing to undermine the other evidence relied on by the 1586 prosecution to prove the case against Defendant Nash. 1587 1588

¶ [200] This strength of the prosecution's case derives some support from the failure of the 1589 defendant to give evidence at trial, which is closely connected to the lies he told in his 1590 interview. Although called upon to answer and was given the statutory direction 1591 pursuant to s.29(1) of the Police Act, Defendant Nash chose to remain silent. The 1592 court fully advised him that his refusal to give evidence would entitle the court to draw 1593 such inferences as appear proper from his silence. 1594 1595

¶ [201] Of course, I am mindful that Defendant Nash had an absolute right not to give 1596 evidence because the burden of proving the case against him rests throughout on the 1597 prosecution. 1598 1599 __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 49 of 50

¶ [202] However, the fact that he did not give evidence means that there is no evidence from 1600 him to rebut, contradict, or explain the evidence of the prosecution witnesses or 1601 circumstances pointing to his involvement in the robbery. Nor did he contradict or 1602 explain aspects of Defendant Cupid's evidence that, at most, placed him within the 1603 locality of the crime scene and not in George Town, where he lived at the time. 1604 Defendant Nash gave an account to the police, which his counsel said he would stand 1605 by. That interview is part of the evidence to which I have had regard, whilst bearing in 1606 mind that it was not given on oath and tested by cross-examination. Nevertheless, I 1607 have accorded it such weight as I think it deserves, having considered all the other 1608 evidence in the case. 1609 1610

¶ [203] In considering the defendant’s silence at trial, I am guided by the law that an adverse 1611 inference is open to the court if the defendant's guilt is in issue; his physical or mental 1612 condition is not such that it is undesirable for him to give evidence; and he, having 1613 been given the statutory warning at the time when he could have given evidence, 1614 declined without good cause to do so9. Accordingly, I am satisfied that it is open to me 1615 to draw an adverse inference from his failure to give evidence. In my view, the 1616 prosecution's case advanced against Defendant Nash is sufficiently strong to call for an 1617 answer. 1618 1619

¶ [204] Accordingly, I conclude that there is no sensible reason for him not to have given 1620 evidence other than that he has no response to the prosecution's case or none that 1621 would stand up to cross-examination. In this regard, I conclude that the fact that he did 1622 not give evidence lends some support to the prosecution's case against him. I have 1623 warned myself, however, that the inference drawn from the fact that he did not give 1624 evidence cannot, by itself, prove his guilt. Like in the case of lies told by him, it is just 1625 added support for the prosecution's case against him, so I cannot use his failure to give 1626 evidence wholly or mainly as evidence on which he can be convicted. 1627 1628 1629 1630 9 See the Crown Court Compendium Part 1, August 2021, Chapter 17 – 5, paragraph 24. __________________________________________________________________________________________________________ Verdict Judgment. R v. Austin-Cupid (Kasnique) and Nash (Richard Edward) Jr. Ind. 12 and 13/2021. Coram: McDonald-Bishop J. (Actg.). Date: 25th February 2022 Page 50 of 50

¶ [205] Therefore, I have not convicted him merely because he lied or failed to give evidence. 1631 Nor have I convicted him on anything said by Defendant Cupid, because I have 1632 rejected Defendant Cupid regarding the circumstances under which she said she met 1633 him. He did not challenge her on the solitary probative fact that could be used against 1634 him: that they saw and spoke to each other on the night in question. I need not attach 1635 any weight to that evidence, however, because there is still enough evidence, without 1636 that, to connect him with Defendant Cupid on the night of the robbery, including the 1637 fact that he alighted from the Toyota Noah she was in and entered the liquor store. I 1638 have used nothing prejudicial against him that could have arisen from Defendant 1639 Cupid's evidence in court. I have convicted him, having examined all the strands of 1640 evidence presented by the prosecution against him and drawing them together as a 1641 composite whole. 1642 1643

¶ [206] I find that the inferences drawn from proven facts, when viewed against the 1644 background of the applicable law, have led to the conclusion that he is guilty of 1645 robbery of the liquor store as a principal offender. 1646 1647

¶ [207] Accordingly, the verdict in relation to him is guilty. 1648 1649 THE VERDICT 1650 1651

¶ [208] The Defendant Kasnique Austin-Cupid: Guilty. 1652 1653

¶ [209] The Defendant Richard Nash, Jr: Guilty 1654 1655 Dated this the 25th February 2022 1656 1657 MCDONALD-BISHOP J 1658 ACTING JUDGE OF THE GRAND COURT 1659