R v Wright (Elmer Watler) - Verdict Judgment

¶ ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 1 of 55 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL SIDE 2 3 IND. NO: 0011/2018 4 5 6 THE QUEEN 7 8 v. 9 10 ELMER1 WATLER WRIGHT 11 12 13 14 Appearances: Mr. Patrick Moran, Deputy DPP (at the 15 time of the trial) for the Crown 16 17 Ms. Amelia Fosuhene of Brady Attorneys 18 for the Defendant (from 9th May to 27th 19 September 2019) 20 21 Mr. Keith Myers instructed by Stenning 22 Associates for Defendant (from 10th 23 October 2019 to 27th November 2019) 24 25 Before: Justice Roger Chapple (Actg.) 26 Judge Alone Trial: 9th – 21st May 2019. Thereafter, on varying 27 dates up to the 27th November 2019 28 29 30 31 HEADNOTE 32 Criminal Law – Aggravated Burglary, Robbery, Attempted Burglary, Possession 33 of an imitation firearm – Trial by Judge Alone. 34 35 VERDICT JUDGMENT 36 37 Note: 38 This Judgment, dated the 29th January 2020, was not released for circulation on any website or 39 publication until the conclusion of the case of Ind. 102/19 R v Shane Edward Connor. 40 Mr. Shane Connor was sentenced on Ind. 102/19 on the 10th December 2021 and thus this Judgment was 41 approved for circulation following that date. 42 43 1 On the 28th January 2020 confirmed as the correct spelling of the defendant’s name as this indictment bore the incorrect spelling “Elemer”. Application to amend the indictment was approved on the 28th January 2020 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 2 of 55

¶ [1] This defendant, Elmer Walter Wright, together with Caine Demetree Thomas and 1 Nikel Emanuel Thomas, are charged on an indictment containing six counts, as 2 follows: 3 Ind. # Count Offence Particulars 11/18 1 Theft Honda Civic 2 Attempted Burglary #2 Camelot Palms 3 Possession of an imitation firearm with intent to commit an offence # 2 Camelot Palms 4 Damage to property # 2 Camelot Palms – doors and a CCTV camera - $11,800 5 Aggravated Burglary Amity Street – firearms 6 Robbery Amity Street - $30,000 4

¶ [2] All offences are alleged to have taken place over a period of about 4 hours in the 5 early hours of 17th June 2017. 6

¶ [3] Nikel Thomas and Elmer Wright entered pleas of not guilty to the indictment and 7 elected trial by judge alone. On the 20th July 2018, Caine Thomas entered guilty 8 pleas to all counts of the indictment. Sentence in his case was adjourned until the 9 conclusion of the trials of Elmer Wright and Nikel Thomas. 10

¶ [4] That trial commenced as long ago as 9th May 2019; it was beset with problems 11 necessitating substantial delays – a topic to which I will return later in the course of 12 this judgment. 13

¶ [5] On 24th October 2018, when the trial was due to resume after further delay, upon 14 Nikel Thomas’ application, counts 2 and 5 of the indictment were put to him again. 15 He then pleaded guilty to count 2 (attempted burglary at #2 Camelot Palms) and, 16 upon count 5 (10 Amity Street), not guilty to aggravated burglary but guilty to 17 simple burglary. Those pleas were acceptable to the prosecution and accordingly, 18 the trial then proceeded against Elmer Wright alone. Nikel Thomas now awaits 19 sentence along with his brother, at the conclusion of Elmer Wright’s trial. 20 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 3 of 55 TRIAL BY JUDGE ALONE 1

¶ [6] Given that this is a trial by judge alone, I have reminded myself, borne in mind and 2 followed the legal analysis helpfully provided by Quin, J in R v George Dexter 3 Evans2. I must advise myself on the applicable principles of law, give myself 4 appropriate warnings as necessary and state clearly my reasons for acting as I do, 5 so that my reasoning is clear. I also bear in mind the guidance given by Rowe, J in 6 K. Richards v R3, as follows: 7 “When a trial judge sitting alone has advised himself to the applicable 8 principles of law and given himself any necessary warnings, he must indicate 9 clearly in his judgement his reasons for acting as he did, in order to 10 demonstrate that he has acted with the requisite degree of caution in mind and 11 has therefore heeded his own warning.” 12 13

¶ [7] The judge’s duty and method of approach when sitting in a judge alone trial was 14 recently analysed by the Caribbean Court of Justice (CCJ), on appeal from the 15 Court of Belize, in the case of Dioncicio Salazar v The Queen4. I have found that 16 judgment useful and have followed its guidance. The CCJ quoted with approval 17 from the judgment of the Court of Appeal in Northern Ireland in R v Thompson5 in 18 which it was said of the duty of a judge sitting alone in a bench trial: 19 “He has no jury to charge and therefore will not err if he does not state every 20 relevant legal proposition and review every fact and argument on either side. 21 His duty is not as in a jury trial to instruct laymen as to every relevant legal 22 aspect of the law or to give (perhaps at the end of a long trial) a full and 23 balanced picture of the facts for decision by others. His task is to reach 24 conclusions and give reasons to support his view and, preferably, to notice any 25 difficult or unusual points of law in order that if there is an appeal it can be 26 seen how his view of the law informs his approach to the law.” 27 28

¶ [8] The CCJ continued: 29 2 Indictment No 18 of 2011 paragraphs 67 to 71 3 2001 CILR 496 4 [2019] CCJ 15 5 [1977] NI 74 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 4 of 55 “Equally, a judge sitting alone and without a jury is under no duty to 1 “instruct”, “direct” or “remind” him or herself concerning every legal 2 principle or the handling of evidence. This is in fact language that belongs to a 3 jury trial (with lay jurors) and not to a bench trial before a professional judge 4 where the procedural dynamics are quite different (although certainly not 5 similar to those of an inquisitorial or continental bench trial).” 6 7

¶ [9] This has been a lengthy trial. As already mentioned, there have been many 8 difficulties and frustrations along the way. A great deal of evidence has been 9 placed before me, some of it technically complex. The prosecution case relies 10 upon a number of strands of evidence. I have had to consider those strands 11 individually and also give consideration to the cumulative effect of such strands 12 about which I am sure. It then seems apposite to draw attention to what was said 13 by Lord Lowry, LCJ in R v Thain6, 14 “Where the trial is conducted and the factual conclusions are reached by the 15 same person, one need not expect every step in the reasoning to be spelled out 16 expressly, nor is the reasoning carried out in sealed compartments with no 17 intercommunication or overlapping, even as the need to arrange a judgment in 18 a logical order may give that impression. It can safely be inferred that, when 19 deliberating on a question of fact with many aspects, even more certainly than 20 when tackling a series of connected legal points, a judge who is himself the 21 tribunal of fact will (a) recognize the issues and (b) view in its entirety a case 22 where one issue is interwoven with another.” 23 24

¶ [10] Returning to the decision in Salazar, the CCJ observed, 25 “As a rule, the judge will consider the prosecution’s evidence first. If that 26 evidence seems strong enough to carry a conviction, the judge will consider 27 the evidence of the defence. The judge will then look at the totality of the 28 evidence to reach a final decision. It is there where the intercommunication 29 and overlapping take place. It is after this polymorphic process that the judge 30 needs to arrange his or her judgment in a logical order which will not always 31 be able to reflect the complicating thinking process as such.” 32 33 34 6 [1985] NI 457 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 5 of 55

¶ [11] As I have been preparing this judgment, appreciating as I do the need to explain 1 my reasoning, those observations have struck me as particularly apt. I could not 2 hope, neither is it necessary, for me to explain every part of my thinking process, 3 or deal with every piece of evidence and how I have approached or evaluated it. 4 SUMMARY 5

¶ [12] There is no dispute in this case that a robbery took place at #10 Amity Street, 6 Prospect, the home of Maria and Steven Butler, at about 4 a.m. on the 17th June 7

¶ [2017] Mr and Mrs Butler awoke to find 3 men at the foot of their bed. Two were 8 carrying guns, another was armed with a hammer. Each of the robbers had covered 9 his face, with either a mask or a garment. The ordeal of Mr. and Mrs. Butler has 10 aptly been described by defence counsel, Mr Myers, on behalf of Elmer Wright, as 11 horrific. They were subjected to a terrifying ordeal of threats, indignities and 12 violence; property to an estimated value of US$30,000 was stolen. 13

¶ [13] Earlier that morning, a property at #2 Camelot Palms, off West Bay Road, was 14 attacked; the activities of the 3 would-be burglars were caught on a private CCTV 15 system installed at the premises, until one of the burglars disabled the camera with 16 the expedient of a brick, rock or similar. Concerted, but ultimately unsuccessful, 17 attempts were made to gain entry to the premises; damage was caused to the tune 18 of $11,800. The premises were unoccupied, the owner Mr Cristiano Vincentini 19 being off-island at the material time. In the course of events, a Honda Civic motor 20 car was stolen from the staff car park of the Marriott Hotel, West Bay Road. 21 Again, CCTV footage is available. 22 23 24 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 6 of 55

¶ [14] Thanks to a “find my iPhone” application, officers who attended at Amity Street 1 were soon able to find Mrs Butler’s iPhone, at Slate Drive, off West Bay Road. 2 Police found two rucksacks hidden under a storage container in Slate Drive – those 3 rucksacks contained Mrs Butler’s iPhone and other items stolen from her home, 4 together with other items of interest. The stolen Honda Civic was found 5 abandoned nearby, in an empty lot off Courts Road (adjacent to Watlers Drive). 6

¶ [15] At 5 o’clock that morning, Nikel Thomas was found by police officers sitting 7 outside his home at Clarence Drive, George Town (this address, owned by his 8 father, Neil Thomas, is adjacent to Owen Roberts Airport). As a result of what he 9 said to the police, he was arrested; his mobile phone was seized. 10

¶ [16] Later that same morning, at about 10.25a.m., police officers on duty in the George 11 Town area stopped a Honda Inspire motor car, having noticed that it had a 12 defective indicator. As the officers were walking across to speak to the driver of 13 the vehicle, it sped off. A chase ensued, brought to an end when the Honda 14 collided with a light pole. The driver of the vehicle, Caine Thomas, was arrested. 15 From the front passenger foot-well, officers recovered a Halloween style mask; 16 from the rear of the car a plastic bag containing items of clothing that had 17 apparently been doused in petrol was recovered. 18

¶ [17] In her witness statement (read to the court by agreement), Mrs Butler described a 19 mask worn by one of the robbers in this way: 20 “a clown looking mask…. Having a broad white grin, it had orange or red 21 colour and it had what looked like black or dark eyebrows.” 22 23 24 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 7 of 55

¶ [18] From assembled photographs of a number of similar masks, she was able to 1 identify the mask recovered from the foot-well as similar to that worn by one of the 2 robbers. Analysis of the mask obtained a DNA match for Caine Thomas. There is 3 no dispute that Caine Thomas was wearing that mask, both at Camelot Palms and 4 at Amity Street. The items of clothing in the plastic bag were analysed – DNA 5 matches were obtained for Elmer Wright on two gloves and a black-hooded jacket. 6 DNA matches for Caine Thomas were obtained on a Fila jacket – and again it is 7 not disputed that he was wearing the jacket while committing the offences to which 8 he has pleaded guilty. 9

¶ [19] The prosecution case against Nikel Thomas is that his involvement in these 10 offences was limited to acting as a look-out; from his vantage point at Clarence 11 Drive, he could quickly see if the police helicopter was deployed. He sent a 12 number of messages to mobile phones attributable to Elmer Wright and to one 13 Shane Connor, warning that police were indeed being deployed: by way of 14 example, “2 police cars heading town area”, “they getting ready go in air.” There 15 is no suggestion that Nikel Thomas was present at Camelot Palms, the Marriott 16 Hotel or Amity Road. 17

¶ [20] The prosecution case is that, putting Nikel Thomas to one side, the same three men 18 committed all offences set out in the indictment. One of those men, it is not 19 disputed, was Caine Thomas. Another, the prosecution say, was Elmer Wright. The 20 third man, the prosecution now aver, was Shane Connor, who was not charged with 21 any offences, the view being taken that there was then not sufficient evidence 22 against him. As this trial has unfolded, that decision has been revisited in the light 23 of newly emerging evidence. I am given to understand that sometime after the 24 evidence and closing speeches in Elmer Wright’s case were concluded, Shane 25 Connor was charged with these offences. In any event, I am not of course trying 26 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 8 of 55 Shane Connor and do not for a moment seek to come to any conclusion in respect 1 of him – that is for another court at another time. My task is to decide whether or 2 not I am sure Elmer Wright is guilty of one or more of the offences alleged in the 3 indictment. 4

¶ [21] As mentioned above, the prosecution case relies upon a number of strands of 5 evidence to prove Elmer Wright’s involvement, including the evidence of Caine 6 Thomas. 7

¶ [22] The defence case is that Elmer Wright was not involved in any of these offences. 8 He has given sworn evidence to that effect. He is unable now, given the passage of 9 time, to say where he was at the time of these offences, but is adamant that he was 10 not at Camelot Palms, the Marriot Hotel or at Amity Street. The defence contend 11 that the three burglars/robbers were Caine Thomas, Shane Connor and one other, 12 an associate of Shane Connor. It was Elmer Wright’s practice to have a number of 13 mobile phones at any one time – essentially to keep his several girlfriends and 14 liaisons concealed from each other and from Dedra Christian, his baby mother. He 15 often left one or more of those mobile phones at Neil Thomas’ home. 16

¶ [23] The defence accept on the totality of the evidence the strong likelihood that at least 17 one – and more likely two - of the mobile phones attributable to Elmer Wright was 18 in the possession of one of the burglars on the night of 17th June. The logical 19 explanation, say the defence, given that Elmer Wright was not involved, is that 20 Shane Connor had helped himself to one or two of his phones and to the black 21 jacket and gloves that Elmer Wright kept, along with his dirt bike, at Neil Thomas’ 22 premises, which he (Shane Connor) was wearing when committing these offences. 23 Caine Thomas has a purpose of his own to serve in giving evidence, every motive 24 to lie and indeed did repeatedly lie to me in evidence. I should, it is urged by the 25 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 9 of 55 defence, reject Caine Thomas’ evidence that Elmer Wright was involved in these 1 offences. 2 THE HISTORY OF THE TRIAL 3

¶ [24] I have already drawn attention to the unhappy history of this case and the 4 difficulties faced by those involved in it. The case proceeded with reasonable 5 despatch from 9th until 21st May when Mr Moran for the Prosecution indicated, 6 with obvious personal embarrassment and some exasperation, that further 7 evidence, said by the prosecution to be significant, had recently come to light. The 8 prosecution served that evidence on 22nd May, seeking the Court’s leave to adduce 9 it. The application was strenuously opposed by Ms Fosuhene, then representing 10 Elmer Wright. 11

¶ [25] I heard full argument from prosecution and defence and considered firstly why it 12 was that this evidence had only recently come to light. The evidence consisted 13 largely of downloads from and data relating to a Samsung mobile phone (exhibit 14 BH1) seized from Elmer Wright’s home when he was first arrested. I was told that 15 whilst the phone had been noted in the relevant search log, it had been stored under 16 a separate exhibit number. Whilst I did not altogether understand how this had 17 happened, I was satisfied that this was due to inefficiency and/or mistake, rather 18 than any bad faith on the part of the prosecution generally. Mr Moran explained 19 that he had been asked to make an admission in respect of part of the telephone 20 evidence; in the course of making sure he could properly make the admission 21 sought, exhibit BH1 came to light. It was realised that it had not been interrogated 22 – and arrangements were then made for that to be done. It was only then that its 23 significance was appreciated. 24 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 10 of 55

¶ [26] I had to consider the potential importance of the new evidence in the case as a 1 whole, weighing that against any unfairness that may be occasioned to Elmer 2 Wright, were the evidence to be admitted. There was evidence that SIM cards 3 which had already been mentioned in evidence had been used in BH1, evidence 4 that Elmer Wright was known as “Poochie” – something which had earlier been in 5 dispute but which is now accepted - and photographs which may have a bearing on 6 this case. I gave a full ruling at the time, but in summary concluded that the 7 interests of justice required that the evidence be admitted, with the caveat that the 8 defence must have sufficient time properly to digest and consider the evidence and, 9 if thought helpful, instruct an instruct an expert to assist. 10

¶ [27] The trial had already occupied the court for some 8 days, I had heard from a 11 number of witnesses and particularly three expert witnesses, two of whom had 12 travelled from the USA to give evidence. This is a small jurisdiction with limited 13 judicial resources and intense pressure on court time. Given that this was a trial by 14 judge alone rather than a jury trial, aborting the trial and starting again at some 15 future date was not a viable or sensible option – and, crucially, not necessary in the 16 interests of justice. 17

¶ [28] That ruling spawned more applications, firstly an application that I should recuse 18 myself since, it was said, I had demonstrated bias by giving leave to the 19 prosecution to adduce the new evidence. 20

¶ [29] When that application failed, Elmer Wright indicated that he wanted to dispense 21 with Ms Fosuhene’s services, primarily, as I understood it, on the basis that she had 22 not pursued the application to recuse me with sufficient vigour. Later, having had 23 time to reflect, Elmer Wright decided that he did not want to pursue that 24 application further, content that Ms Fosuhene continued to act. 25 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 11 of 55

¶ [30] The case was then adjourned in order for the defence to have time to consider the 1 new evidence; that adjournment was for very much longer than was ideal, largely 2 because of the unavailability of attorneys during the summer months. The case was 3 due to resume at the end of September. 4

¶ [31] At the end of September Ms Fosuhene applied to come off the record, since she 5 was, it was said, unable to properly represent him. Elmer Wright addressed me at 6 some length himself in support of the application that she should no longer act for 7 him. I granted a transfer of the legal aid representation order since that, it seemed 8 to me, is what the interests of justice required. The court is grateful to Mr Myers 9 for stepping into the breach and representing Elmer Wright. 10

¶ [32] Albeit that I have given reasoned judgements when dealing with all applications 11 made as the trial has proceeded, I have made reference to at least some of them 12 here, primarily to give context to and to repeat the assurance I gave to Mr Myers in 13 the course of his closing submissions; Mr Myers relayed Elmer Wright’s concern 14 that I may hold one or more of the applications made against him. Elmer Wright 15 was also concerned that it may count against him that he had said things in the heat 16 of the moment and used intemperate language. I repeat the assurance I gave to Mr 17 Myers at the time, that I have broad shoulders, that I have not held anything about 18 those applications against Elmer Wright. I readily understand his frustration and 19 annoyance at many of the problems that have surfaced in this trial – and to an 20 extent, I shared them. I also understand that in a trial such as this, feelings can and 21 do run high; things are said and done in the heat of the moment. I have put all 22 extraneous matters aside, concentrating on the evidence placed before me in the 23 case, in accordance with my judicial oath and duty. 24 25 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 12 of 55 INITIAL LEGAL DIRECTIONS 1

¶ [33] Upon the same theme, it is convenient to add here that, as in any case, it is my 2 duty, when weighing and considering the evidence, to put any emotions or personal 3 feelings I may have from my mind. The ordeal of Mr and Mrs Butler was referred 4 to on several occasions during the trial. I have already referred to Mr Myers’ much- 5 used adjective to describe that ordeal. No right-thinking person could be other than 6 outraged by what happened to the Butlers. That said, my duty is to put emotions to 7 one side. What is required from me is cold clinical dissection of the evidence, un- 8 swayed by any emotion. The essential question at the heart of this case for me is 9 whether I am sure that Elmer Wright was one of the men who invaded the Butlers’ 10 home. 11

¶ [34] I must of course apply the rules of evidence and ignore anything placed before me 12 that, in the event, is not admissible. By way of example, although I was properly 13 told in the course of the prosecution opening of what Nikel Thomas said to the 14 police on arrest and in interview I must now ignore it. It was only ever evidence in 15 Nikel Thomas’ case – and not admissible evidence for or against Elmer Wright – 16 and now, since Nikel Thomas pleaded guilty, not admissible evidence in the case at 17 all. The fact that Nikel Thomas has pleaded guilty is of no relevance at all to Elmer 18 Wright’s case; it is entirely neutral. Both prosecution and defence ask me to 19 approach this case on the basis that Caine Thomas was one of the men involved in 20 these offences; to that extent his guilty pleas are relevant. But the fact that he and 21 Nikel Thomas have pleaded guilty does not for one moment mean that Elmer 22 Wright is somehow more likely to have committed these offences. 23 24 25 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 13 of 55 BURDEN AND STANDARD OF PROOF/SEPARATE TREATMENT 1

¶ [35] The prosecution brings these charges against Elmer Wright. The prosecution must 2 prove a charge so that I feel sure about it, if there is to be a conviction. It is not for 3 Elmer Wright to prove his innocence. Unless I am sure of his guilt upon a charge I 4 must find him not guilty of it. I remind myself that these charges do not necessarily 5 stand or fall together. It is my duty to consider the evidence against and for Elmer 6 Wright on each count separately. The evidence is different and my findings do not 7 have to be the same. That said, the majority of the evidence is relevant to all 8 counts. My duty to consider the evidence against and for the defendant on each 9 count separately does not mean I look at each count in an evidential vacuum. 10 THE BAD CHARACTER OF THE DEFENDANT 11

¶ [36] At the start of his evidence, in answer to questions from Mr Myers, Elmer Wright 12 told me that he was released from HMP Northward in August 2016 after serving a 13 lengthy sentence of imprisonment. He told me that he had, whilst serving that 14 sentence, been making relatively speaking, substantial sums of money (perhaps 15 $10,000 - $15,000) by selling mobile phones to other inmates. He was duly 16 cautioned before giving these details that he was not obliged to answer questions 17 that may tend to suggest that he had committed other offences, but he nevertheless 18 chose to answer, admitting that he was involved in a lucrative criminal enterprise 19 whilst serving that sentence of imprisonment – with, he told me, the assistance of 20 his baby mother and sisters. He was able to sell phones to inmates for $300 or 21 thereabouts. It goes further than this. In the course of his evidence to me, Elmer 22 Wright confided that: 23 a. At the time of these offences, he was looking after goods stolen by Shane 24 Connor; 25 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 14 of 55 b. That on occasions, he and Shane Connor went stealing together; 1 c. That the police were looking for him in connection with a shooting at the Roof 2 Top Bar. 3

¶ [37] It became known to me at an earlier stage of this case that Elmer Wright was held 4 in custody whilst the trial was proceeding. As the trial developed, increased 5 security measures were put in place both to transport Elmer Wright to and from 6 HMP Northward and whilst he was in court. I do not know why those measures 7 were thought necessary or appropriate and I declined Mr Myers’ invitation to find 8 out. Whatever the considerations may have been, they could not have assisted me 9 in the task I have to perform or the decisions I have to make. 10

¶ [38] In the particular circumstances of this case, I have put all those matters to one side; 11 the defendant’s bad character has been given no weight in this case and has played 12 no part in my decisions in this case. The only relevance of ElmerWright’s evidence 13 that he was making a substantial profit from the unlawful supply of mobile phones 14 is that it may provide an explanation for the large amounts of cash which Elmer 15 Wright displays in photographs downloaded from a handset. For the avoidance of 16 doubt, I have not taken into account bad character evidence for any other purpose – 17 particularly not in respect of propensity. 18 CIRCUMSTANTIAL EVIDENCE 19

¶ [39] Whilst the question at the heart of this case is whether I am sure that Elmer Wright 20 was one of those present and involved in the offences set out in the indictment, this 21 is not, I am sure, a Turnbull case, as Mr Myers submits. This is not a case which 22 relies upon the correctness of one or more identifications of the defendant which 23 are said to be mistaken. Caine Thomas has given evidence that Elmer Wright was 24 one of the burglars/robbers – it is not suggested that he is mistaken about the 25 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 15 of 55 identity of Elmer Wright – rather, that he is lying. The Turnbull warnings about the 1 dangers of identification evidence are neither relevant nor appropriate. 2

¶ [40] In addition to the direct evidence of Caine Thomas, the prosecution relies upon 3 circumstantial evidence – including telephone and DNA evidence. A circumstantial 4 case is one which depends for its cogency on the unlikelihood of coincidence: 5 circumstantial evidence “works by cumulatively, in geometrical progression, 6 eliminating other possibilities”7. As is said in the UK Crown Court Compendium 7 (revised 2019): 8 “The prosecution seeks to prove separate events and circumstances which can 9 be explained rationally only by the guilt of the defendant. Those circumstances 10 can include opportunity, proximity to the critical events, communications 11 between participants, scientific evidence and motive. The subsequent conduct 12 of the defendant may also furnish evidence of guilt, for example evidence of 13 flight, fabrication or suppression of evidence, telling lies or unexplained 14 possession of recently stolen property”. 15 16

¶ [41] I remind myself of the observations of Pitchford, LJ in R v Masih8. The question 17 for me is whether I can exclude all realistic possibilities consistent with the 18 defendant's innocence? Circumstantial evidence must always be: 19 “… narrowly examined, if only because evidence of this kind may be fabricated 20 to cast suspicion on another. …It is also necessary before drawing the 21 inference of the accused’s guilt from circumstantial evidence to be sure that 22 there are no other co-existing circumstances which would weaken or destroy 23 the inference”9. 24 I will be examining the strands of evidence upon which the prosecution relies in 25 the course of the judgement. 26 27 28 7 DPP v Kilbourne [1973] AC 729 at p.758 per Lord Simon 8 [2015] EWCA Crim 477 9 R –v- Teper [1952] UKPC 15 at p.3 per Lord Normand ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 16 of 55 THE EVIDENCE 1

¶ [42] The evidence placed before me in this case has come in a number of different 2 forms. Formal admissions have been made, pursuant to s.34 of the Evidence Law 3 (2011 revision) - I am grateful to Mr Moran and Mr Myers for their industry and 4 co-operation in this regard. I remind myself that these are given facts in the case – 5 it is not for me to doubt or question that which has been admitted to be the fact by 6 both prosecution and defence. The statements of some witnesses have been read 7 by agreement between the parties, particularly the witness statements of Mr and 8 Mrs Butler and Inspector Lauriston Burton. 9

¶ [43] I heard oral evidence from a number of prosecution witnesses, including: 10 a. Mr Christiano Vincentini, the owner/occupier of 2 Camelot Palms and his 11 brother in law, Enrico Carmassi, who discovered the attempted burglary; 12 b. Barrington Latham, who retrieved the CCTV footage; 13 c. Odell Smith a computer technician who installed the video surveillance system 14 at 2 Camelot Palms; 15 d. Alphonso Wright, a loss prevention officer at the Marriot Hotel; 16 e. Sarah Hough, a scenes of crime officer (SOCO); 17 f. Acting Chief Inspector Wright (as he now is), the officer in the case; 18 g. Caine Thomas; 19 h. Elmer Wright; 20

¶ [44] I also heard oral evidence from a number of expert witnesses as follows: 21 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 17 of 55 i. Joanne Delaney; 1 ii. Samantha Wandzek, a DNA analyst (USA); 2 iii. Ms Tanzillo-Swartz, DNA analyst; 3 iv. Grant Fredericks, Forensic Video Analysis (USA). 4

¶ [45] In the course of the trial, the expert witnesses were extensively cross-examined in 5 considerable detail. However, as it now turns out, there is very little dispute about 6 the expert evidence placed before me. I should nevertheless remind myself that it 7 is by no means unusual for expert evidence to be called in a criminal trial to assist 8 the fact-finding body with matters that are not common knowledge and/or are 9 beyond the expertise of that fact-finding body. It is my task to weigh up each of 10 the expert witnesses and decide whether and if so to what extent I accept the 11 evidence. That is so even when, as here, most of it is not in dispute. The expert 12 evidence, I remind myself, is simply part of the evidence; I must reach my findings 13 by considering all of the evidence. 14

¶ [46] Several schedules were prepared both before and during the course of the evidence, 15 all of which are now agreed. A separate bundle of telephone evidence was 16 prepared by Ms Delaney to assist the court. 17

¶ [47] Exhibit JD/1A/7a (to be found at tab 1 of the bundle of telephone evidence), sets 18 out calls made and received by a number of telephones said to be significant, 19 correlating those calls with events where timings are known. This schedule 20 loomed large in the course of the trial. 21

¶ [48] At tab 2 of the bundle, there is a useful chart detailing the frequent swapping of 2 22 SIM cards associated with Elmer Wright between 3 handsets and details of when 23 and where credit was added to these cards. 24 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 18 of 55

¶ [49] The remainder of the telephone bundle contains material relating to cell sites, all of 1 which were referred to and explained by Ms Delaney in the course of her evidence. 2 Substantial additional telephone evidence was, as I have already mentioned, served 3 during the course of the trial. That is largely to be found in the main exhibits 4 bundle rather than the separate telephone evidence bundle. I have also been 5 assisted by a schedule of DNA results prepared by the prosecution. I have 6 additionally considered photographs, CCTV footage and documentary exhibits. 7

¶ [50] In the course of the trial, I have been assisted further by a note of opening prepared 8 by the prosecution (subsequently revised to take account of evidence served after 9 the trial was under way), skeleton arguments in support of submissions made along 10 the way and written closing submissions from both Mr Moran and Mr Myers, 11 served in advance of oral closing submissions. 12 SUMMARY OF RELEVANT EVIDENCE 13 THE EXPERT EVIDENCE: 14 GRANT FREDERICKS: 15

¶ [51] Mr Fredericks, a forensic video analyst, examined the available CCTV footage 16 from Camelot Palms and from the Marriott Hotel and items of clothing, bags and 17 other items seized in the course of the investigation – particularly, clothing seized 18 from the Honda Inspire when Caine Thomas was arrested. Mr Fredericks was an 19 impressive expert witness, with long experience, giving his evidence clearly and 20 thoughtfully, identifying areas where he could not arrive at firm conclusions. 21 Despite cross-examination to the contrary, Mr Fredericks’ evidence is not, at the 22 end of the day, in dispute. Whilst Mr Fredericks was cross examined to the effect 23 that the black jacket seen in the Camelot Palms footage was not the black jacket 24 seized from the Honda, Elmer Wright, in the course of his evidence, did not dispute 25 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 19 of 55 that it was the same jacket (although of course asserting that he was not wearing 1 the jacket at the material time). 2

¶ [52] I have been provided with an electronic copy of his report (the report is dated on its 3 first page 20/2/17, but that is plainly a mistake - from the body of the report, it is 4 clear that Mr Fredericks was first instructed on 26/6/17). That electronic copy is a 5 helpful document – it contains links to other documents referred to and to the 6 relevant CCTV footage embedded within the report. 7

¶ [53] Mr Fredericks noted a time during the Camelot Palms CCTV footage when male 2 8 (wearing the black jacket) removed a glove from his left hand, revealing a ring on 9 the middle finger. He was asked to compared that footage with a distinctive ($ 10 sign) ring recovered from Elmer Wright on arrest. His conclusion, which I accept, 11 was that “there is not enough image resolution to offer any reliable opinion 12 regarding the ring. Although the known ring cannot be eliminated as being the 13 questioned ring, caution should be applied to any statement implying a match.” 14 Whilst on the subject of the $-sign ring, I note that Elmer Wright is shown wearing 15 the ring in several photographs downloaded from a handset Elmer Wright accepts 16 is his. In each photograph, he is wearing the ring on the middle finger of the left 17 hand. Elmer Wright confirmed in his evidence that he habitually wore this ring on 18 his left middle finger. 19

¶ [54] Mr Fredericks explained that the CCTV footage he examined was recorded during 20 the hours of darkness. The cameras use infra-red light to “see” in the darkness; he 21 explained that this makes things brighter than they really are and can change the 22 appearance and colour of clothing (“there is no colour in the infra-red spectrum”). 23 Organic material absorbs infra-red light and thus fabrics appear darker, synthetic 24 material appears lighter. He also explained the problem of “over-saturation” – an 25 apparent change of footwear of one of those seen at the Marriott was, he was sure, 26 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 20 of 55 due to over-saturation. In cross-examination, he was asked why he had not carried 1 out a comparison of the heights of the three people seen in the footage. His answer 2 was that he had not been asked to carry out that exercise and in any event, he 3 added, he would not have been able to give any useful assistance, explaining that 4 apparent differences of 4” – 5” were explainable by perspective, proximity to the 5 camera, angle to the camera and so on, concluding that “my conclusion in this 6 regard would likely be so broad as to not be helpful.” For similar reasons, and 7 because of different playback resolution, he advised caution about assessing build 8 and body mass from the footage. 9 DNA: 10

¶ [55] Sarah Hough, SOCO, took swabs from various items, which were examined by two 11 DNA analysts, Ms Cheri Langston and Ms Sandra Wandzek. Ms Langston is no 12 longer available but I heard evidence from Ms Tanzillo Swartz, who peer-reviewed 13 Ms Langston’s work. Whilst there are some differences between their approach 14 and findings (largely explainable on the basis of different tests applied in different 15 jurisdictions, different databases used and different equipment utilized) these are 16 no longer of any significance, since, as Mr. Myers confirmed in the course of his 17 closing submissions, there is no dispute about the DNA evidence. Mr Myers 18 further confirmed that in this case, there was no need for me to dwell upon random 19 match probabilities, likelihood ratios and so on; sensibly and pragmatically, it is 20 accepted in this case that such were the probability ratios that where a DNA match 21 was found in this case, it was indeed the DNA of the person in respect of whom a 22 probability match had been expressed. 23

¶ [56] It is then accepted that, unsurprisingly, Caine Thomas’ DNA was found on the 24 Halloween mask, the Fila jacket, a pair of gloves and on the inside front passenger 25 door handle of the Honda Civic. 26 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 21 of 55

¶ [57] The findings in respect of Elmer Wright which are said to be significant are 1 summarized in the DNA schedule, as follows: 2 i. Black hooded jacket (exhibit 2). A multiple source DNA profile from 3 at least 3 individuals was found. The major profile matches Elmer 4 Wright with a random probability match of 1 in 44 sextillions (I was 5 reminded that there are 12 zeros in a trillion and 21 zeros in a 6 sextillion); 7 ii. Grey leather gloves (exhibit 2): A multiple source DNA profile from at 8 least 3 individuals was found. The major profile is 310 quadrillion 9 times more likely to have come from the DNA of Elmer Wright than 10 another; 11 iii. Swab from inside rear passenger handle of Honda Civic. A multiple 12 source DNA profile from at least 3 individuals was found. The major 13 profile matches Elmer Wright with a random probability match of 1 in 14 4 trillion. 15

¶ [58] As I have said, it is accepted that Elmer Wright’s DNA was found on the jacket, 16 the gloves and the car door handle. I deal only with that part of Ms Wandzek’s 17 cross-examination (which was wide-ranging) that is now relevant. She said that she 18 would expect the last person who wore a garment to be the major contributor, but 19 that does not necessarily follow. They are a number of variables, including the 20 degree to which an individual sheds DNA. Ms Wandzek was asked about the 21 possibility of transfer of DNA, but only in respect of garments – this possibility 22 was not canvassed with her in respect of the DNA sample obtained from the inside 23 rear passenger door of the Honda Civic. 24 25 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 22 of 55 TELEPHONE EVIDENCE 1

¶ [59] Ms Joanne Delaney is an intelligence analyst, with the RCIPS for the last 9 years. 2 Before that, she worked with Northumbria Police. She is an expert witness well 3 known to these courts. Her evidence is not in dispute as to calls made – the 4 schedules she prepared are accepted to be correct, although the conclusions I 5 should draw from the material she has provided are disputed. 5 handsets were 6 recovered from Elmer Wright in the course of his arrests (1 from his person, 4 from 7 his home). Cell phones were also seized from Nikel Thomas, Caine Thomas and 8 Shane Connor. 9

¶ [60] She obtained and collated material from: 10 a. Data downloaded from handsets; 11 b. Data provided by service providers (Digicell and Flow) – including billing and 12 toll data, call data, SMS data and where possible cell site data, time and 13 location of pay-as-you-go top-ups; 14 c. Information obtained from other sources in the course of the investigation, 15 including CCTV footage, 911 calls etc. 16

¶ [61] Ms Delaney gave no more than a brief explanation of telephone evidence generally 17 since all agreed this was unnecessary in a judge alone trial where the trial judge 18 and the attorneys were very familiar with such evidence, its potential value and its 19 limitations. I should record here what is now well known, that cell site evidence 20 cannot identify the precise location of a handset at the time a call was made or 21 received, or data was sent or received. What can be said with certainty in this 22 regard is that when activity on a handset is handled by a cell site mast and sector, 23 the handset is within the “footprint” (area of coverage) of that sector of that mast. I 24 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 23 of 55 should also add that data is at times incomplete. Ms Delaney is reliant upon the 1 material provided by the service providers – by way of example, cell site data is 2 often not available. No purpose would be served by summarizing her evidence - it 3 is to be found within the schedules and other documents she has produced. My 4 discussion of the telephone evidence later in this judgment is of course based on 5 Ms Delaney’s evidence and exhibits. 6 CAINE THOMAS 7

¶ [62] It was indicated to me at a relatively early stage of this trial that Caine Thomas was 8 likely to be giving evidence. Those early indications were that Caine Thomas 9 would be giving evidence for the defence. The case was adjourned on several 10 occasions for that prospect to be further explored and for Caine Thomas to be 11 advised by his own instructed attorney, Mr John Furniss. In two significant 12 documents signed by Caine Thomas, he confirms that Elmer Wright was not 13 involved in any of the offences and that he was willing to give evidence for the 14 defence, exonerating Elmer Wright. 15

¶ [63] Subsequently, Caine Thomas made it known that he wanted to see Acting Chief 16 Inspector Wright. When he did so, he explained that what he had said earlier about 17 Elmer Wright’s lack of involvement was untrue - that the truth of the matter was 18 that Elmer Wright was an active and enthusiastic participant in all of these 19 offences. Caine Thomas confirmed that he was willing to give evidence for the 20 prosecution to that effect. On 10th October 2019, Caine Thomas was interviewed 21 by ACI Wright; the interview was audio recorded; a transcript of that interview is 22 available (exhibit 13). Subsequently, on 13th October, Caine Thomas signed a full 23 and detailed witness statement; he gave evidence before me over the course of two 24 days, in the course of which he adopted the contents of the October interview and 25 statement. 26 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 24 of 55

¶ [64] As has rightly been urged upon me, Caine Thomas may very well have a purpose 1 of his own to serve by giving evidence against Elmer Wright. Elmer Wright 2 suggested in the course of his evidence that he thought CaineThomas was 3 motivated by a hope of gaining some advantage with Dedra, his baby mother. Mr 4 Myers’ firm suggestion was that Caine Thomas’ purpose and intention when giving 5 evidence was to ingratiate himself to the court in the hope of achieving a reduction 6 in his eventual sentence. 7

¶ [65] I have considered the guidance given in the leading authority in this area, R v 8 Makanjuola10. This is clearly a case where I should approach Caine Thomas’ 9 evidence with caution. He has an obvious incentive to give evidence which he 10 hopes will put him in a good light with the court, in the hope of securing a 11 reduction in his sentence. I must consider Caine Thomas’ position and motivation 12 carefully and ask myself whether he has, or may have, tailored his evidence to 13 implicate this defendant falsely. If that is or may be the position, his evidence is, 14 of course, worthless. If, however I am sure that, despite any ulterior motive he may 15 have, despite any hope of advantage he may have, he has told the truth, then I can 16 and should act upon his evidence. 17

¶ [66] What follows is a summary of the salient parts of Caine Thomas’ evidence. It 18 would not be helpful – and it is not necessary - for me to recite here every note I 19 have made of his evidence. I have not always used Caine Thomas’ exact words. On 20 many occasions, I have paraphrased, in order to keep this ruling to manageable 21 proportions. 22 23 10 [1995] 1 WLR 1348 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 25 of 55

¶ [67] In the course of his evidence, Caine Thomas told me that he had committed each of 1 the six offences to which he pleaded guilty with two others, that is to say, this 2 defendant and Shane Connor. He said that he had known Elmer Wright for 3 perhaps a couple of months prior to June 2017 and knew him as Poochie. He had 4 known Shane Connor for about three or four years. In June 2017, Caine Thomas 5 was 16 years of age, almost 17. He explained that his father lived at 29 Clarence 6 Drive. At the material time, he was living with his mother but visited his father 7 from time to time. Caine Thomas said: 8 “I would see Elmer and Shane at my father’s house. Elmer was living there at 9 the time of these offences…. on 15 June 2017, I was at my Dad’s at about 10 10.30 to 11 pm, Elmer and Shane came out onto the porch discussing 11 something – I don’t know what - a burglary or something like that. I remember 12 Elmer asking me if I wanted to come. I said not really, but it was discussed 13 further. Elmer said I should listen to him, that this stuff was serious and that it 14 would be happening the next day. I saw them the next evening, in the yard at 15 Clarence Drive. Later in the night, they discussed it more. Shane was saying 16 they were nearly ready. Elmer told me to get ready. I asked what I should 17 wear. He told me to put on shoes and a jacket and stuff, advising me to cover 18 my tattoos. I borrowed a jacket from my brother – a white Fila jacket. Elmer 19 gave me some gloves and a pumpkin mask. They were chilling for a bit. One of 20 them spoke to my brother Nikel, asking him to watch out for any police 21 heading Prospect way. Shane gave my brother a number for Elmer, telling him 22 to call that number if the police were heading that way. Before we left, Shane 23 asked if I had a bag; I had a school Jansport bag which I gave him. I didn’t 24 take anything with me. Elmer left Clarence Drive and later returned with a 25 firearm. It was a chrome 38 with a spin barrel. Shane was checking the bag he 26 had brought with him, to make sure he had what he needed: WD40, a crowbar, 27 duct tape. 28 We went to my Mum’s car – a gold Honda Inspire – and drove off; I was 29 driving. We turned down the dead-end road opposite the Captain’s Bakery. 30 Elmer told me to park up, so I did. The bags were taken out of the trunk. 31 Shane gave me the Jansport backpack which I put on. We walked through some 32 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 26 of 55 bushes, got over a wall, went through a couple of yards, looking for a place to 1 burgle. Shane said, “this one” and we tried to get in. We tried to break the 2 glass doors with bricks and with the crowbar Shane had brought with him. 3 Elmer and I found a piece of 2 x 4 plywood - we managed to slip that through a 4 gap in a window. Elmer saw a security camera but told me not to worry as we 5 were all masked up. I remember him dancing in front of the camera; he had the 6 gun in his hand and was singing, “we’re going to break into your house.” I 7 joined in – it was stupid. He told me to jump up and break the camera – I 8 managed to hit it with a rock. As we tried the 2 x 4 again, the alarm went off, 9 so we grabbed our stuff and ran back towards West Bay Road.” 10 11

¶ [68] Caine Thomas related how they had then stolen a car from the Marriott Hotel staff 12 car park and later drove to Prospect. Once out of the car, Elmer and Shane were 13 discussing a particular house and whether there was money in the house. Caine 14 Thomas continued: 15 “Shane managed to slide up a small window with his crowbar and told me to 16 climb through the gap, because I was the smallest. I got into the house through 17 the window; Shane directed me towards the door and told me to open it for 18 them, which I did. We started ransacking the house; Elmer had the gun in his 19 hand, he and Shane were searching for things. They found a PlayStation 4, an 20 Apple computer, an IPhone, an IPad – Shane was putting these things in the 21 Jansport bag. There was a room to the right side of the house. Shane said 22 there was someone inside. He took a hammer out of his bag, Elmer cocked 23 back the hammer of the gun, reached in his pocket for a flashlight and turned it 24 on. Shane kicked the door and they rushed in. I saw two old people in the bed, 25 sleeping. Elmer said, and “freeze, this is the police. Do not move.” The woman 26 held her hands to her face because of the flashlight, Shane turned the room 27 lights on. I still had on the pumpkin mask. Elmer’s face was covered with a T- 28 shirt. Shane’s face was not visible, he was wearing a black shirt over his face. 29 The husband woke up. They realised we weren’t the police. Elmer and Shane 30 started demanding money. The Butlers said they didn’t have any money. Shane 31 said they were lying, they kept on they didn’t have any money. At one point, 32 Shane started a sexual conversation with Mrs Butler asking her if she gave 33 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 27 of 55 blowjobs and if he fucks her in the arse. I thought that was nasty stuff and I 1 told Shane not to do that as it made no sense. Elmer just had the gun pointed at 2 them. I think he was just asking where the money was. He said she was lying 3 and threatened: “if you don’t tell us where the money is, I’ll kill you – and 4 you’ll be the sixth or seventh person I’ve killed.” After that, I remember the 5 woman said okay we have some money over there and over there. Every 6 location she said, I ran over and got the money. I remember retrieving money 7 from a briefcase – I think US $ and Euros, British and Canadian. I put the 8 money I got in my pockets.” 9

¶ [69] In cross-examination, Caine Thomas added that he had later handed the cash to 10 Elmer Wright and that Elmer took the Butlers’ watches from their wrists, asking if 11 they were Rolex. Caine Thomas continued: 12 “When Elmer threatened to kill the Butlers, I think they were by then sitting on 13 chairs – Shane had told them to get up and sit on chairs. Shane duct-taped 14 them to their chairs. Mr Butler was in his boxers, his wife I think in bra and 15 pants; she may have had a scarf like thing. Elmer was pointing the gun at 16 them. The Butlers were begging for their lives, saying, “Are you really going to 17 kill two old people?” They was saying they didn’t have any more cash. We 18 were wondering whether to believe them or not. Shane got vexed, got out of his 19 hammer and hit Mr Butler on the knee with it. Mr Butler cried out. Then we left 20 them. Shane took her phone so she couldn’t make any calls. We went through 21 the upstairs rooms but didn’t find anything. 22 I remember Elmer received a phone call whilst at the house. He went into the 23 living room to take the call. 24 Then we drove back to where my car was. Shane went and put the bag with the 25 Butlers’ property under a nearby container. I think Shane kept his bag. One of 26 them told me to drive my car. Tthey remained in the stolen car and told me to 27 follow them. They stopped across the road from Burger King; Shane sprayed 28 the stolen car with WD40 and I drove them to my father’s place, but there were 29 police there. We waited until they’d gone and then went to the room Shane 30 uses at my Dad’s place, where we discussed about the money and the 31 jewellery. We agreed that it would all be split three ways.” 32 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 28 of 55

¶ [70] In cross examination, Caine Thomas added that he never had received any money 1 or any part of the proceeds of the robbery. Caine Thomas continued: 2 3 “Once I went outside again, my grandparents told me that my brother Nikel 4 had been arrested – something about catching something on his phone. 5 I went to my room and slept for a while. Elmer and Shane woke me. Shane 6 had a big black bag. Elmer was taking his clothes off and putting them in the 7 bag, Shane told me to do likewise. Then Shane filled up the bag with gas from 8 a big bottle. Shane said something about DNA. He told me to take the bag 9 and put it in the garbage. I put it in the back of my car. I went first to the gas 10 station to put some gas in the car; I remembered I had to get my chain fixed so 11 went to jewellery store, but it was closed. Soon after I drove off the police 12 started to follow me.” 13

¶ [71] Caine Thomas then explained how he tried to escape from the police but had to 14 swerve to avoid a pedestrian and ended up crashing into a lighting pole. He agreed 15 with the police evidence about what was recovered from his car; the plastic bag 16 containing the gas-soaked clothes was white rather than black. A bundle of US and 17 Caymanian dollars was found in the car and Caine Thomas said that this was part 18 of the proceeds of the sale of a dirt-bike. He was taken to the police station but 19 then bailed. He went back to Clarence Drive. Caine Thomas added: 20 “Elmer asked if I’d thrown the clothes away and got pissed when I told him I 21 hadn’t, saying that I had better hope and pray his DNA wasn’t on them.” 22 CROSS EXAMINATION OF CAINE THOMAS 23

¶ [72] In answer to Mr Myers, Caine Thomas agreed that he had lied in various accounts 24 he had given to the police and to others. My Myers took him through those 25 accounts, which, have properly loomed large in this case. Caine Thomas agreed he 26 had lied to the police when first arrested, saying that the car belonged to him, rather 27 than his mother; this, he said was because he didn’t want the police to seize the car. 28 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 29 of 55 Caine Thomas was interviewed on four occasions under caution before charge. He 1 agreed that he had not told the truth in the course of those interviews, then denying 2 that he had any involvement in any of the offences about which he was being 3 questioned. 4

¶ [73] Shortly before Caine Thomas pleaded guilty to these offences (and that was on 20th 5 July 2018), a lengthy handwritten document was produced. Caine Thomas 6 confirmed that he had written and signed each page of this document (exhibits page 7 371 et seq.). In that document, Caine Thomas said: “I feel the need to take 8 responsibility for my role in these crimes committed on 17th June 2017.” He said 9 that he had committed the offences with a man called Shane and his Jamaican 10 friend. At Shane’s request, Mr Thomas had provided the Jamaican with a jacket 11 and gloves – these were Elmer Wright’s clothes which had been left in a shed at his 12 Dad’s home. In the course of that statement he emphasised that 13 “I feel I need to state Elmer Wright not involved in these crimes and at no time 14 was with us on the night we left my dad’s house to commit these crimes. I 15 believe is my fault he is falsely accused in these crimes because I took his 16 jacket and gloves off his bike without his permission. I do not want to testify 17 against Shane and his friend because I am in fear for my life and my family’s 18 safety. But I have to make it clear once more, Elmer Wright has no involvement 19 with these crimes and I am willing to testify on his behalf if necessary.” 20 21

¶ [74] In a handwritten document signed by both Caine Thomas and his attorney, Mr 22 Furniss, dated 30th September 2019, the following appears: 23 “I Caine Thomas have been given advice by my attorney regarding the giving 24 of evidence in the trial of Elmer Wright. 25 I Caine Thomas however intend to give evidence despite the potential 26 consequences to myself. 27 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 30 of 55 I have not been threatened or forced to give this evidence. My evidence is true, 1 I maintain that Elmer was not there at the scene of the robbery and I will give 2 evidence to that effect.” 3

¶ [75] As for the handwritten statement submitted in July 2018, Caine Thomas explained 4 in his October 2019 interview and statement and in his evidence to me that the 5 statement came about in this way: he had various discussions with Elmer Wright 6 when both were on remand at HMP Northward. Elmer told Caine Thomas that he 7 (Caine Thomas) needed to free Elmer up. Elmer Wright gave him a handwritten 8 letter and told Caine Thomas to copy it out in his own handwriting. He said that 9 was what I should say when I give evidence at court on his behalf. When we was 10 about to send this down to the court, Elmer made me flush the originals. As for the 11 30th September document, Caine Thomas explained that Elmer Wright had told 12 him that Mr Furniss would be asking him to sign something that he should indeed 13 sign it “or else I knew what would happen – he would kill my family and me.” 14 Whilst making it clear that any suggestion that Elmer Wright had threatened Caine 15 Thomas was denied, Mr Myers explored with Caine Thomas as to why it was that 16 some 10 days later, he expressed a willingness to give evidence for the prosecution. 17 Mr Myers explored particularly what Caine Thomas had said during his interview 18 on 10th October. Caine Thomas adopted and endorsed what he had said (page 378) 19 in interview, that is to say: 20 “DI Wright: Please tell me why you contacted me yesterday afternoon. 21 Caine Thomas: Because at approximately, I would say 11–10 30 Elmer 22 Wright came into my block, came into my cell and threatened 23 me that if I don’t tell the judge and the lawyers and the 24 prosecution that he wasn’t involved, he is going to chop my 25 daughter head off, shoot my baby mother in her face, shot my 26 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 31 of 55 mother, shot my sisters and my brother and shoot my father 1 and my father’s daughter in their face and I will die too. He 2 will kill me too, because I nah his family and he don’t want 3 nothing to do with me. ……. He’s got fire power, he has guns 4 and stuff….. I was telling a lie on his behalf and I feel like now 5 it’s time to like cough out the truth. So while he was 6 threatening me, I just said to him, “I had enough wha going 7 on.” So that is why I contacted you to give you the full truth of 8 wha really going on.” In re-examination, Mr Thomas put it in 9 this way: “I got enough threats and just decided I had to man 10 up and deal with it.” 11

¶ [76] Caine Thomas added that those threats were effectively the final straw and that he 12 had “got sick of everything and decided it was time to do the right thing.” Caine 13 Thomas denied that he was giving evidence in the hope of getting a lesser sentence. 14

¶ [77] Caine Thomas’ attention was drawn to Mrs Butler’s witness statement, read to the 15 court by agreement. She described the robber wearing what she described as the 16 clown mask (and there is no dispute that must be Caine Thomas, since he was the 17 only one of the three wearing a mask, rather than a garment over the face) as the 18 loudest and most vicious of the three, that he was armed with a gun and that he was 19 the one asking where the cash was. Caine Thomas denied that this was the role he 20 played, venturing the view that Mrs Butler was understandably confused, given the 21 traumatic nature of the events. At the conclusion of his cross examination, Mr 22 Myers suggested Caine Thomas was a compulsive liar. Caine Thomas, conceding 23 that he had given contrary accounts, said that the only evidence that counted was 24 that which he had given in his oral evidence to the court, which was the truth. 25 26 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 32 of 55 ELMER WRIGHT 1

¶ [78] The defendant, Elmer Wright, now 26 years of age, explained that having been 2 released from prison in 8/16, he lived first in Bodden Town with Dedra Christian 3 (the mother of his baby daughter, born in 8/17). Later, he lived at addresses in 4 Savannah and then Prospect. He and Dedra then split up for a while and as at 6/17 5 he was living at Water Street, or Water Lane, Newlands. He estimated that by the 6 time he was released from HMP Northward, he had made about $10,000 - $15,000 7 from the sale of cell phones, explaining that one cell phone could sell for $300 or 8 thereabouts. Dedra was holding the money for him. 9

¶ [79] Asked by defence counsel Mr Myers what he spent his time doing, Elmer Wright 10 said that he did not work, but his hobby was “trying to get other girls.” Asked 11 about his co-defendants, Elmer Wright said that he had known Nikel Thomas since 12 he (Nikel) was 6 or 7 years old; he had only known Caine Thomas since about 8/16 13 – “I don’t really know him”. He said their father, Neil Thomas, is his father’s first 14 cousin. Until these proceedings, the defendant, Caine Thomas and Nikel Thomas 15 got along fine, like family. Asked what he thought had prompted Caine Thomas to 16 give evidence against him, Elmer Wright said he thought Caine Thomas was trying 17 to cause trouble between him and Dedra. 18

¶ [80] In 6/17, Elmer Wright would visit Neil Thomas’ house at Clarence Drive every day 19 or every other day. There was one main house there together with 2 studios and a 20 spare room round the back. Elmer Wright said that he had never lived at Clarence 21 Drive – and had stayed there only for perhaps one or two nights. He may well have 22 been there on 16th June. With Neil Thomas’ permission, he kept his dirt bike in a 23 shed at Clarence Drive, together with a crash helmet, bike gloves and bike jacket – 24 which looked similar to exhibit 2 (the jacket recovered from the Honda Inspire CT 25 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 33 of 55 was driving at the time of his arrest). Likewise, the gloves contained within exhibit 1 2 looked similar to his gloves. 2

¶ [81] Elmer Wright explained that he had answered no comment to the questions asked 3 of him during the 3 interviews conducted at the detention centre on the advice of 4 his attorney. 5

¶ [82] He agreed that in June 2017 he had a number of mobile phones – I normally keep 3 6 phones I use although I have more than that – one to keep on me for use at all 7 times, one to keep hidden from my baby mother, one to keep hidden from the other 8 girls. He said that he normally kept those phones at Neil Thomas’s place when he 9 went out with a girl, the idea being to conceal the existence of one girl from 10 another. 11

¶ [83] Asked about the telephone calls listed in tab one of the telephone evidence bundle, 12 Elmer Wright explained that he had never spoken to Nikel Thomas on the phone 13 and was adamant that he had been nowhere near Camelot Palms. He accepted that 14 328-7861 was one of his phones - adding that, from what he had read in Caine 15 Thomas’ interviews, he could only assume that Shane Connor had taken his phone. 16 He was clear in his recollection that he had never received a text from Nikel 17 Thomas. He was adamant that he was not involved in the theft of a Honda Civic. 18 He said “I did not get into that car. I think my DNA was transferred from my 19 gloves or jacket” to the interior surface of the stolen car. He added that he was not 20 at Amity Street, Prospect. He said “I was not robbing people. If I left a phone at 21 Neil Thomas’ I will go back to get it after I had finished with the girl from whom I 22 was concealing the phone. I would normally leave a phone in the drawer of a chest 23 of drawers.” 24 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 34 of 55

¶ [84] Elmer Wright denied that he had ever swapped any SIM cards between the 1 handsets that he owned. He said “I would have no reason to do that” - although he 2 retracted that answer in cross-examination. 3

¶ [85] I have not at this stage summarised Elmer Wright’s evidence in answer to 4 questions put to him in cross-examination. Rather, I have incorporated relevant 5 answers in cross-examination in my general discussions about the evidence that 6 now follows. 7 DISCUSSION 8

¶ [86] Firstly, I look at the expert evidence: 9 DNA: 10

¶ [87] It should be remembered that DNA evidence is not the answer to everything. I 11 have reminded myself of all that was said by the UK Court of Appeal in R v 12 Tsekiri 11and the cases that follow on from that. It does not inevitably follow that 13 because, for example, a suspect’s DNA was found on a garment, that he was 14 wearing it at the material time and/or place. That was conceded by Ms Wandzek in 15 cross examination. Whilst she was not asked about Elmer Wright’s DNA on the 16 interior door handle, I bear in mind the possibility of transference. Of the various 17 questions which it was suggested in Tsekiri should be considered, the most obvious 18 ones here are: 19 a. Is there any evidence of some other explanation for the presence of the 20 defendant's DNA on the item other than involvement in the crime, including an 21 apparently plausible account from the defendant in interview or is the evidence 22 unexplained? 23 11 [2017] EWCA Crim 40 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 35 of 55 b. Is it more or less likely that the DNA profile attributable to the defendant was 1 deposited by primary or secondary transfer? 2

¶ [88] Elmer Wright has given an explanation for the presence of his DNA on jacket and 3 gloves – that these were his garments, but borrowed that night by one of the 4 burglars – the strong likelihood is that it was Shane Connor, it is said. However, I 5 bear in mind Ms Wandzek’s evidence that whilst it is not an invariable rule, she 6 would expect the last person who wore a garment to be the major contributor. On 7 the Crown’s case, Elmer Wright was the last person to have worn the jacket. On 8 the defence case, the last person to have worn the jacket was Shane Connor, yet his 9 DNA was not found on the jacket. In his evidence, Elmer Wright said that he had 10 never been inside the Honda Civic and ventured this view: “I think my DNA was 11 transferred from my gloves or jacket to the interior surface of the car.” That then is 12 a possibility I must consider, although it is hard to see how this could happen in 13 this case. The most obvious way for DNA to be left on a car door handle is by 14 contact with the handle – when one is opening the door. 15

¶ [89] This case is not to be decided by DNA evidence alone. It is one of the strands of 16 evidence to be considered. 17 FORENSIC VIDEO ANALYSIS: 18

¶ [90] Again, there is now no dispute about this evidence. Caine Thomas can be seen 19 wearing his Fila jacket and the Halloween mask. Elmer Wright agrees that male 2 20 is wearing his black jacket. 21 THE TELEPHONE EVIDENCE 22

¶ [91] I found the telephone evidence in this case, looked at as a whole, to be both 23 convincing and illuminating. As I have already noted, there is no challenge to the 24 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 36 of 55 accuracy of the data obtained by Ms Delaney or the schedules she has complied. 1 She is clearly expert in her field; she carried out her duties and responsibilities in 2 this case with dedication and professionalism. I readily accept her evidence. The 3 defence recognise the strength of the telephone evidence, not in any positive way 4 resisting the inference – which I find to be altogether overwhelming – that one of 5 the burglars had with him the Samsung handset BH1, in which was the SIM card 6 328-7861. Both the handset and the SIM card, it is accepted, are properly 7 attributed to Elmer Wright. He confirmed to me in his evidence that he was the 8 owner/user of phones: 9 a. 328-7861 10 b. 328-8242 11 c. 329-0485 and 12 d. 322-1489 13

¶ [92] I refer hereafter to any relevant phone by its last 4 digits. As with DNA evidence, 14 there are of course limitations to what telephone evidence can and cannot establish. 15 To state the obvious, telephone evidence can say generally where a handset was 16 when there is activity involving that handset, it can establish what calls and 17 messages were sent from and received by that phone. It cannot of course, say who 18 was in possession of the phone at any particular time. Generally, as a matter of 19 common sense and general experience the inference is a strong one that an owner 20 and his or her mobile phone are never far away from each other. Nowadays, one’s 21 mobile phone is an essential tool for living. That is not an infallible rule: an owner 22 may lend his phone to another, it may be taken from him, either by mistake or on 23 purpose. If someone owns, for whatever reason, more than one mobile phone, the 24 inference may be diluted. I also appreciate that since a mobile phone carries a great 25 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 37 of 55 deal of information, there may be times when an individual would rather not have a 1 particular handset with him. Thus, while there is a strong presumption that an 2 owner is rarely far from his phone and that it is he who is making or receiving 3 calls, sending or receiving messages, using social media and so on, it is not an 4 infallible rule. Elmer Wright of course says that the likelihood is that Shane 5 Connor took his (Elmer Wright’s) phone BH1 with him when he carried out the 6 offences set out in the indictment. If this is or may be true, then the presumption 7 does not apply and the evidence must be approached accordingly. 8

¶ [93] I cannot hope to summarise all the telephone evidence in this case. It would be 9 impossible and is not necessary – and I would not do so were I summing this case 10 up to a jury. My duty in a jury trial would be to ensure that the jury understands 11 how the telephone evidence and the schedules worked, drawing attention to 12 particular features of the evidence that were of significance to one side or another. 13 It would then be for the jury to work their way through the detail of the evidence 14 and draw their own conclusions. In this judge alone trial, I now discuss some 15 features of the telephone evidence which seem to me to be of significance and have 16 assisted me at arriving at the decisions I have to make: 17 i. At 23:35 on 16/6/17, 7861 was stored in Nikel Thomas’s phone under 18 the name Poochie (now accepted to be a name by which Elmer Wright 19 is known). This can only have been done, Elmer Wright contends, by 20 Nikel Thomas under Shane Connor’s instructions. Just before 1a.m., 21 Nikel Thomas sends 2 texts to 7861 warning: “yooo 2 police cars 22 heading town, they just cross the road.” 2 minutes later, Nikel Thomas 23 sends a similar message to Shane Connor’s phone. During the early 24 hours of the morning of 17/6/17, Nikel Thomas makes a number of 25 calls to both Shane Connor’s phone and to 7861. Whilst I should not 26 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 38 of 55 speculate, it is reasonable to ask oneself, when examining Elmer 1 Wright’s suggestion, why Shane Connor should take Elmer Wright’s 2 mobile phone when he had one of his own, that was, as the evidence 3 demonstrates, at all material times switched on and connected to the 4 service provider. It may perhaps have been to ensure that he was not 5 implicated by any telephone evidence, were he later to be arrested and 6 his telephone seized. However, had that been the reason, he would 7 surely then have either turned his own phone off, or at the very least 8 taken effective steps to ensure that Nikel Thomas did not contact him 9 whilst he was committing burglaries. 10 ii. Two calls, listed at 206 & 208 of exhibit JD/1A/7a are revealing. At 11 4.24 a.m. a call lasting 28 seconds is received by 8242. At 4.28am 12 7861 calls Nikel Thomas – the call lasts 21 seconds. Both calls are 13 handled by the cell site mast which, a radio frequency propagation 14 survey established, provided coverage to the home of Mr and Mrs 15 Butler. The strong likelihood is that both handsets were together and 16 both were at the Butlers’ home– and whilst the robbery was in progress 17 (the 911 call reporting e.g. the robbery was made at 4.39am) It then 18 follows, if Elmer Wright was not there, that either Shane Connor took 19 not one but two of Elmer Wright’s phones with him that night or that 20 burglar #3 also took one of Elmer Wright’s phones. 21 iii. When the handset BH1 was examined, amongst other things, 22 WhatsApp exchanges were recovered between Poochie and Shanice 23 (those exchanges, between 28th May and 16th July 2017 are to be found 24 in court exhibit 16). Elmer Wright explained in the course of his 25 evidence that he was having what he described as a casual relationship 26 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 39 of 55 with Shanice. Elmer Wright agreed in his evidence that he sent a 1 WhatsApp message to Shanice at 11.28pm on 16th June (page 10 of ex 2 16). It follows that BH1 was then in his possession. Seven minutes 3 later, the 7861 number (the SIM then in BH1) was stored in Nikel 4 Thomas’ phone under the name Pooch – during that seven minutes, if 5 Elmer Wright’s evidence be right, he had left BH1 at Neil Thomas’ 6 premises, left those premises, Shane Connor had taken the phone and 7 was arranging with Nikel Thomas for the BH1 number to be stored in 8 Nikel Thomas’ phone. 9 iv. At 4.47am Shanice sends Elmer Wright a message, “where r u” 10 followed by a WhatsApp voice call at 4.48am that was not answered. 11 However, at 4.53am (entry 211 on exhibit JD/1A/7a), she made a call 12 to Elmer Wright’s 8242 phone, which was answered; the call lasted 49 13 seconds. Given the duration of the call, the inference is strong that this 14 was a call between Shanice and Elmer Wright, although in his 15 evidence he denied that this was so. Cell site evidence shows that the 16 8242 handset was within the area covered by the Strathvale House 17 mast, as is Slate Drive, where various items, including Mrs Butler’s 18 mobile phone were hidden beneath a container. It bears repeating that 19 the Butlers’ 911 call was made at 4.39am. The movement of 8242 20 from the Prospect mast at 4.24am to Strathvale House at 4.53am is 21 entirely consistent with whomever was in possession of it being one of 22 the burglars, at 10 Amity Street at 4.24am and then concealing the 23 items at Slate Drive at 4.53am. Elmer Wright sent a WhatsApp 24 message to Shanice at 10.12am that morning, so he was clearly in 25 possession of BH1 at that time. Again, this demonstrates that both 26 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 40 of 55 BH1 and 8242 were in places associated with the criminal enterprise 1 unfolding in the early hours of 17th June. 2 v. Examination of another of the handsets recovered from Elmer Wright 3 revealed WhatsApp exchanges between Pooch and Butta. As Elmer 4 Wright explained and accepted in his evidence, Butta and Shane 5 Connor are one and the same. Exchanges between 3rd June and 15th 6 July were recovered, but it is those from 20th June onwards that the 7 prosecution say are revealing. I agree. They appear to be exchanges 8 between two people involved in these offences; there is discussion 9 about arrests, the police investigation and the sale of stolen goods. 10 Elmer Wright accepted that he was to some extent interested in these 11 alleged offences. He explained that the first he knew about the 12 offences was when he went to Neil Thomas’ yard on 17th June and was 13 told that Nikel Thomas had been arrested. He started checking the 14 news broadcasts and then called Shane Connor to find out what was 15 going on. It soon became apparent, said Elmer Wright, that his name 16 had been mentioned in connection with these offences. At pages 345 & 17 346, Elmer Wright and Shane Connor, with apparent annoyance, 18 discuss the circumstances of Caine Thomas’ arrest – with Shane 19 Connor saying that “tha thing when its sold, only me and you getting a 20 cut.” From the same handset, WhatsApp exchanges between Elmer 21 Wright and Oscar Solomon were downloaded. Again, it is hard to 22 understand some of these exchanges on any basis other than that Elmer 23 Wright was one of those involved in the criminal events of 17th June. 24 In cross examination, Elmer Wright was asked about a voice note left 25 with Oscar on 19th June. Elmer Wright agreed that he had said that he 26 had sold some gold chains and a Rolex for $10,000, and that this had 27 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 41 of 55 to be split 3 ways. Elmer Wright said that this was a mistake – he had 1 meant to say that Shane Connor had sold these items. Also on 19th 2 June, Elmer Wright sends the following message, clearly about what 3 Caine Thomas had said to the police following his arrest: 4 “The youth tell the feds he don’t know a they talking about all 5 he know he steal mommy car n crash it the all he kno. Like 6 they na find ntn in the car man why me n butter get link to it 7 because one of the youth them text me and him on the night” 8 In his evidence Elmer Wright accepted that he had sent that message. 9 Asked in cross examination why he had said “the youth (and it seems 10 clear his must be a reference to Caine Thomas) text me and him”, he 11 said that this was a mistake. The message should have been “the youth 12 text my phone” – not “text me.” 13 vi. Elmer Wright’s phones contained a large number of photographs. 14 One, bearing the date 23rd June 2017 (6 days after these alleged 15 offences) shows him pointing at a quantity of cash in largely high 16 denomination US and Caymanian currency, together with a 17 PlayStation controller - significant, say the prosecution, because a 18 substantial quantity of cash in various currencies and a PlayStation 19 controller were stolen from Amity Street. Elmer Wright in evidence 20 said that this money was part of the proceeds of his business selling 21 phones to fellow inmates in prison. It is right in this context that I 22 should draw attention to another photograph downloaded from one of 23 his phones, showing a display of a large quantity of cash. This 24 photograph bears the date 19/5/17 and therefore cannot have been part 25 of the proceeds of the offences the subject matter of this indictment. 26 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 42 of 55 vii. Also downloaded (exhibits p 332 & 333) were 2 photographs of a 1 silver coloured revolver, dated 10th June 2017. Elmer Wright admitted 2 during his evidence that he briefly had possession of this item on that 3 date, 7 days before these offences took place. He sent one of the 4 photographs of the gun to his brother with the message “the wa I have 5 right now on me bro.” He referred to it in a voice note message at 6 about the same time as a bad-boy 9. He explained in evidence that he 7 had lots of friends who have guns. Someone came to him with the 8 gun, saying they wanted a picture of it. I just took the picture and gave 9 the gun back to him. He did not know whether the gun was fake or 10 real. He agreed that it was similar to the gun the Butlers described 11 seeing in the course of the robbery. 12 CONCLUSIONS 13

¶ [94] In a case where the prosecution relies upon a number of strands of evidence, 14 reference is often made of the strands that go to make up a rope – that the strands, 15 albeit individually varying in strength, become stronger when they are interwoven. 16 Not all strands will be of the same strength. I regard the telephone evidence, taken 17 as a whole to be compelling, a substantial strand of evidence. Having considered 18 all the telephone evidence, in the light of and with the support of the other evidence 19 in the case, I am driven to the conclusion that Elmer Wright was involved in these 20 offences and was in possession of exhibit BH1 (7861) and the handset using the 21 8242 number throughout the early hours of 17th June 2017 and particularly, whilst 22 these offences were being committed. Here are some of the features of the 23 telephone evidence that have driven me to that conclusion. I should stress that no 24 one feature of the evidence is decisive, but the cumulative effect of these features 25 taken together is compelling: 26 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 43 of 55 a. At 11.26pm, BH1 was, Elmer Wright accepts, in his possession; he was 1 sending a WhatsApp message to Shanice. 9 minutes later the BH1 number is 2 stored in Nikel Thomas' phone contacts. The purpose of giving Nikel Thomas 3 the 7861 number is obvious from the messages he subsequently sent to 7861. If 4 Elmer Wright is correct, in 10 minutes, he had left BH1 in a room he used at 5 Neil Thomas’ yard, exited the room, Shane Connor had entered, taken BH1 6 and given the number to NT. This seems unlikely. 7 b. It is plain, particularly from #206 & 208, that 7861 and 8242 were both in the 8 same location (and within the cell site mast area that provided coverage to 10 9 Amity Street), at the time Mr and Mrs Butler were being robbed. Mr Wright 10 accepts that 7861 was at Amity Street; the only explanations for this, consistent 11 with his absence from Amity Street, is that either Shane Connor took not one, 12 but two phones or that another robber also had one of Elmer Wright’s phones. 13 As mentioned above, it is difficult to see why Shane Connor should take one 14 phone (when his own was in good working order), let alone two. 15 c. Further, 8242 was in the Slate Drive area soon after that robbery, at a time 16 entirely consistent with the time at which the two bags were being stashed 17 under the containers. 8242 had a 49 second call with Shanice. Whilst possible, 18 the likelihood of anyone other than Mr Wright holding a 49-second 19 conversation with Shanice at 4.47am from one of his phones must be remote. 20 d. The WhatsApp exchanges strongly suggest the involvement of both Elmer 21 Wright and Shane Connor in the Amity Street robbery. They cannot be 22 explained on any other sensible basis. Elmer Wright’s evidence that he had 23 typed “me” when he meant “my phone” was not credible 24 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 44 of 55 e. The photograph in BH1 of Elmer Wright pointing to a large amount of cash in 1 various currencies, together with a PlayStation controller, dated 6 days after 2 the Amity Street robbery strongly suggests that he was one of the robbers. True 3 it is that there is another photograph of Elmer Wright pointing to a large 4 quantity of cash that cannot be the proceeds of the Amity Street robbery, but 5 this does not in my view diminish the strong inference properly to be made 6 from the photograph. The fact that a PlayStation controller can be seen in the 7 photograph (and such a controller was taken in the course of the robbery) is 8 compelling. 9 f. The two photographs of Elmer Wright displaying a revolver seven days before 10 the robbery are in my view significant, as is the fact that he sent one of the 11 photographs to his brother with a caption demonstrating a degree of pride in 12 his possession of the firearm. The revolver is similar in appearance (although I 13 cannot and do not come to a definitive view) to that seen in black jacket man’s 14 hand in the CCTV footage from Camelot Palms. 15 DNA/VIDEO ANALYSIS 16

¶ [95] The defence accept that one of the offenders that night was wearing the black 17 jacket and the gloves on which Elmer Wright’s DNA was found. The DNA 18 evidence adds weight to the conclusion to which the telephone evidence drives me. 19 As I have already noted above, the expert view, which I accept, is that the last 20 wearer of a garment is likely to be the major DNA contributor, although that is not 21 an invariable rule. It seems to me highly unlikely, had Shane Connor worn the 22 gloves on 17th June that he would not deposit his DNA on the inner surfaces. 23 Additionally, no reason has been advanced as to why Shane Connor should wear 24 Elmer Wright’s jacket and gloves that evening – any more than there is any reason 25 that bears close examination as to why he should take two of Elmer Wright’s 26 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 45 of 55 phones with him. The presence of his DNA on one of the interior door handles of 1 the stolen Honda Inspire is very strong evidence of his presence in the car. Whilst 2 DNA can on occasion be transferred, this is, to my way of thinking, so unlikely in 3 this case that it can safely be rejected as a possible explanation. Whilst it is a point 4 of much less weight, I also bear in mind that part of the Camelot Palms CCTV 5 footage which shows the man wearing the black jacket remove the glove from his 6 left hand. He is wearing a ring on the middle finger of his left hand. Whilst Mr 7 Fredericks could not make any useful comparison with Elmer Wright’s $-sign ring, 8 the fact remains that black jacket man was wearing a ring on the middle finger of 9 his left hand – an unusual finger on which to wear a ring. Taking a step back, it is 10 coincidence too far for me to accept, in the light of all the evidence, that the man 11 who had taken ElmerWright’s black jacket, gloves and phones should also wear a 12 ring on the middle finger of his left hand and should also be carrying a revolver 13 similar to that shown in the possession of Elmer Wright some 7 days before the 14 robbery. 15 CAINE THOMAS 16

¶ [96] I have not thus far discussed the evidence of Caine Thomas. I have already directed 17 myself as to the need for caution in respect of his evidence. That said, in very large 18 measure, I found him to be a witness of truth, a witness on whose evidence I could 19 properly rely. Had his evidence stood alone, then the position may well have been 20 otherwise, but as I have emphasised elsewhere in this judgment, it is a mistake to 21 compartmentalise the evidence, or look at part of the evidence in a vacuum. It is 22 the cumulative effect of the evidence as a whole that matters. 23

¶ [97] When looking at the evidence of a witness in Caine Thomas position – an 24 accomplice who has pleaded guilty but not yet been sentenced - giving evidence 25 for the prosecution against a co-defendant, it makes obvious sense to look at other 26 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 46 of 55 evidence in the case, to see whether that supports or detracts from his evidence. 1 Caine Thomas’ evidence is generally consistent with other evidence in the case. 2 He is now 19 years of age. He is obviously capable, as the events of 17th June 3 2017 prove all too well, of participation in dishonest, violent and shocking 4 behaviour. However, I do not believe he has the experience, ability or guile to 5 tailor his evidence to fit the detail of other evidence as comprehensively as it does. 6

¶ [98] I have considered with care the points made by Mr Myers about Mrs Butler’s 7 description of the behaviour of the three robbers. She recalls only one of them 8 wearing a mask, saying that the other two had “covering” to their faces. She 9 describes the man wearing a mask as the loudest and most vicious of the three 10 robbers, “the one who kept on asking us where is the cash, and demanded our 11 jewellery. He also told us that he has already killed five people and said my 12 husband and I would be the next two.” On the evidence as a whole, it seems safe to 13 conclude that only one robber was wearing a mask – and that was Caine Thomas. 14 Yet Caine Thomas denies the behaviour Mrs Butler ascribes to him– the threats to 15 kill, the boast about killing six or seven people – saying that that was the behaviour 16 of Elmer Wright. This, the defence argue, proves that Caine Thomas is lying, that 17 he is trying to minimise his role in order to achieve a reduction in his sentence. 18

¶ [99] I have considered at length the statements of Mr and Mrs Butler and compared 19 them with other evidence. What is contained in her witness statement is Mrs 20 Butler’s best recollection and impression of what took place. There are a number of 21 inconsistencies between the statements of Mr and Mrs Butler and with other 22 evidence in the case. Whilst both agree as to the main points of what happened, Mr 23 Butler’s impression seems to be that all three men were wearing masks. Mrs Butler 24 describes robber #1 (the most vicious one) as shorter than the other two. If the 25 prosecution case be right, that the robbers were Caine Thomas, Elmer Wright and 26 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 47 of 55 Shane Connor, Caine Thomas is the tallest of the three. Mrs Butler recalled that 1 one of the taller ones hit her husband with a hammer. Mr Butler said that it was the 2 shorter one who did this. For my part, it is not remotely surprisingly that the 3 Butlers’ recollection of these events is less than perfect. The ordeal they endured 4 was traumatic in the extreme. I return to Mrs Butler’s recollection that one of the 5 robbers was particularly vicious. The appearance of the robber wearing the 6 Halloween mask would without doubt have been the most terrifying of the three 7 robbers. It may be that Mrs Butler has subconsciously transposed the most 8 frightening behaviour to the robber whose appearance was the most horrific. I note 9 that Mrs Butler describes one of the robbers as “the gentle one in the group. He just 10 took orders from the other two but did not say much. I would not describe him as 11 vicious……. From his behaviour, I think he was a younger person.” As already 12 mentioned, Caine Thomas was just 16 years of age at the time of these offences. 13 However, I should note that Mrs Butler recalls that gentler one hitting her husband 14 with a hammer – whereas Caine Thomas’ evidence was that this was Shane 15 Connor. The discrepancies drawn to my attention do not cause me to reject Caine 16 Thomas’ evidence. I remain of the view that he is, in large measure, a witness of 17 truth. 18

¶ [100] He was under no obligation to give evidence in this case. He is not a compellable 19 witness, for either prosecution or defence. It is clearly important to consider why, 20 in the event, he chose to give evidence. Caine Thomas’ lengthy and detailed letter, 21 in which he expresses a willingness to give evidence for the defence, offers an 22 explanation for some of the evidence adduced in Elmer Wright’s trial, and stresses 23 that Elmer Wright was not involved, is obviously an important document. 24 Assuming for a moment that the contents of the letter are true, insofar as they 25 concern Elmer Wright’s lack of involvement, and that it was prompted by a desire 26 not to see justice miscarry, then what is the explanation for Caine Thomas then 27 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 48 of 55 giving evidence to precisely the opposite effect? A desire to achieve a reduction in 1 sentence cannot, in my view explain such a dramatic turnabout. Caine Thomas of 2 course says that Elmer Wright subjected him to a number of ever more graphic 3 threats of death or injury and produced a handwritten letter. Elmer Wright 4 instructed him to copy that letter in his own hand; Elmer Wright’s original was 5 then destroyed. It is certainly true that I was made aware by the defence at various 6 stages of Caine Thomas’ willingness to give evidence for the defence. Both were 7 on remand at HMP Northward, and albeit that Caine Thomas was accommodated 8 in the young persons’ wing, there was contact between them. It would be naïve to 9 think otherwise. Elmer Wright is considerably older and more criminally 10 experienced. I have considered what is said in the letter in detail. Its contents and 11 phraseology are in my view very much more likely to have originated from Elmer 12 Wright than to represent original thought from Caine Thomas. Parts of the letter 13 give an explanation of evidence that, the likelihood is, Elmer Wright felt were 14 troublesome to his defence and are unlikely to have come spontaneously from 15 Caine Thomas. For example: 16 “When I saw Shane, he asked me for an extra jacket and gloves for his 17 Jamaican friend, wanted to come with him I remember my cousin Elmer have a 18 jacket and a pair of gloves on his bike in my dad’s shed.” 19 “during the night, at the same time my brother was calling and texting me on 20 one of the phones I had, the number is 328 7861. I would often use different 21 phones when going out.” 22

¶ [101] I have no reasonable doubt that this letter was the work of Elmer Wright rather 23 than Caine Thomas, and that Caine Thomas complied with the demands made of 24 him because of fears for his own safety, and, that of his family, as a result of 25 threats made by Elmer Wright. Caine Thomas’ signature on the statement drafted 26 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 49 of 55 by Mr Furniss is also consistent with threats being made to him. Likewise, his 1 decision to “man up” and do the right thing – that is to say, to give the court a 2 truthful account of the events of 17th June 2017 is consistent with the regime of 3 increasing threats to which he says he was subjected. This was, in my judgment, 4 his main motivation for giving evidence – and in my view, essentially truthful 5 evidence, particularly as it concerns the involvement of Elmer Wright. 6

¶ [102] It would be unrealistic to suppose that Caine Thomas does not hope to gain some 7 personal advantage by giving evidence for the prosecution. Doubtless he hopes 8 that this will bring about a reduction in his sentence. However, I do not think that 9 was the reason he gave evidence. Acting Chief Inspector Wright acted 10 appropriately when dealing with him on 10th October 2019, telling him in terms: 11 “before we begin to hear what you have to say, I must also inform you that neither 12 I nor the prosecuting authority for this case can give you any assurances 13 whatsoever to the level of sentencing discount that you would receive for providing 14 a witness statement in this matter.” In conclusion, I am sure that Caine Thomas’ 15 evidence was essentially truthful and thus I can and should act upon it. 16

¶ [103] In the course of my deliberations, I have examined the evidence in this case in 17 many different ways, approaching the case from different angles in order to test my 18 evaluation of it. The way in which I have set out matters in this judgment does not 19 represent the order in which I approached the evidence in the course of my 20 deliberations. Rather, it is my best attempt to summarise the evidence and my 21 conclusions in a logical and understandable way. My approach is perhaps best 22 described as holistic. I have not acted upon a piece of evidence or an inference 23 which is contrary to the interests of Elmer Wright unless I am sure of it, but very 24 often one piece of evidence or inference supports and adds weight to another. I 25 have stepped back from the detail and looked at the picture presented by the 26 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 50 of 55 evidence as a whole. With that in mind, I come lastly to look again at the evidence 1 of Elmer Wright, reminding myself that despite what I regard as the strength of the 2 prosecution case, if Elmer Wright’s evidence from the witness box is or may be 3 true, he is not guilty of these offences. I remind myself of Pitchford, L.J.’s 4 guidance in Masih12: can I exclude all realistic possibilities consistent with Mr 5 Wright’s innocence? I bear in mind that over two years had passed since the date 6 of these offences by the time he came to give evidence. I make all allowances for 7 the problems of recollection that delay will have caused. It is understandable that 8 he could not, over two years later, explain, for example, why a particularly 9 WhatsApp message was sent or what was meant by it, what was said in the course 10 of a telephone call and so on. Very much less understandable is Elmer Wright’s 11 evidence that he could not remember where he was or what he was doing at the 12 time of these offences. He was unable or unwilling to provide the police, in the 13 course of his interviews or this court in his evidence with any information as to 14 where he was whilst these offences were in progress. In that regard, he was not 15 having to think back two years. The evidence is clear that he was well aware within 16 two days of these offences that others had been arrested and that the police 17 suspected he was involved. He was then well aware shortly after these offences 18 that it may become important for him to provide details of his whereabouts at the 19 material time and details of any witnesses who may be able to support an alibi. 20

¶ [104] Elmer Wright was interviewed under caution on three occasions, on 18th July, 1st 21 September and 20th October 2017. For the most part, he did not answer the 22 questions asked of him, although when the DNA evidence was put to him, he did 23 comment that DNA is transferable. Before each interview, he was told that it was 24 his right to remain silent, but that it might harm his defence if he failed to mention 25 12 supra ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 51 of 55 when questioned, something he later relied on in court. One of the essential facts 1 upon which he now relies by way of defence is that at least one of his phones, 2 which he was made aware implicated him in the offences, were not in his 3 possession at the time of the alleged offences. In the words of the caution, his 4 failure to mention that he did not have that phone with him at the time, having left 5 it at Neil Thomas’ home, may harm his defence, since the inference could be 6 drawn that he has only subsequently thought up that explanation. However, I can 7 only draw that conclusion if I think it is a fair and proper conclusion, and I am 8 satisfied about three things. First, that he could reasonably have been expected to 9 mention the facts on which he now relies. Second, that the only sensible 10 explanation for his failure to mention the facts is that he had no answer at the time 11 or none that would stand up to scrutiny. Third, that apart from his failure to 12 mention those facts, the prosecution case as put to him in interview was so strong 13 that it clearly called for an answer by him. Elmer Wright told me in evidence that 14 he mistrusted the police generally and that he did not answer questions in interview 15 because he was relying on legal advice and exercising his rights. In my view, his 16 explanation was implausible. I am satisfied as to each of these three matters set out 17 above and satisfied that did not mention the defence on which he now relies – that 18 someone else had taken and was using his phones – because he had not by then 19 thought of it. 20

¶ [105] There were several occasions upon which I am sure Elmer Wright was lying to me 21 from the witness box, most obviously when seeking to explain the photographs 22 downloaded from his phone, showing him displaying a silver revolver. His 23 explanation that someone brought the gun to him as he wanted Elmer Wright to 24 take a photograph of it was plainly untrue. I am sure it was a lie. In the modern 25 world, it is rare indeed for anyone not to have the wherewithal – that is to say a 26 mobile phone – to take a photograph. Even if that were the way of things, why 27 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 52 of 55 would Elmer Wright then send a photograph of the gun to his brother with the 1 boastful message, “The wa I have right now on me bro.” It is significant that Mr 2 Wright has his finger on the trigger and his thumb is about to cock the weapon. I 3 remind myself, in accordance with the well-known authority of R v Lucas13 that a 4 defendant may lie for a variety of reasons. There may be an innocent explanation 5 for a lie. Here, I am sure that it was a deliberate lie and sure that the reason for the 6 lie was an attempt to distance himself from the fact that he had a firearm in his 7 possession (and not simply to take photographs of it) shortly before these offences. 8 I do then take these lies as evidence going to support the prosecution case. There 9 were, I am sure other lies: by way of example, in answer to questions from Mr 10 Myers, Elmer Wright denied that he had ever swopped any SIM cards between 11 phones; in cross-examination, once he was taken through clear evidence that he 12 must have done, he accepted that it was his habit, on occasions, to swap SIMS. 13 That lie I simply place in the balance when looking at his credibility as a witness. 14

¶ [106] I conclude that I can exclude all realistic possibilities consistent with the notion 15 that Elmer Wright was not present and actively involved in the criminal events 16 unfolding at Camelot Palms, at the Marriott hotel and lastly at the home of Mr and 17 Mrs Butler. The evidence taken as a whole drives me to the sure conclusion that he 18 was present and criminally involved at all three locations. Mr Myers was not 19 prepared to concede that, on the totality of the evidence, the same three men were 20 involved in all three offences. I am sure that they were. Caine Thomas has 21 pleaded guilty to all offences and all agree he was involved at all three locations. 22 The notion that his accomplices changed during the course of the night is bizarre, 23 when looked at against the evidence as a whole. There are many common features 24 shared between the three offences. For example, the use of WD40 at both scenes 25 and on the car, which demonstrates a level of criminal experience beyond Caine 26 13 [1981] QB 720 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 53 of 55 Thomas’ years. I am sure that Caine Thomas is right that the three participants 1 were the same throughout and were as he names them. Nevertheless, it bears 2 repeating that I have considered the evidence against and for Elmer Wright 3 separately on each count. 4

¶ [107] I have not yet dealt with the ingredients of each of the offences alleged in the 5 indictment. The question at the heart of this case was whether Elmer Wright was 6 one of the three men involved in the criminality of 17th June. If I am sure of that 7 (as I am), the defence does not seek to suggest other than that he is guilty of all the 8 offences he faces, accepting that all the ingredients are made out. That being so, I 9 can, largely speaking, take the ingredients of the offence shortly. The prosecution 10 alleges, and I accept, that each of these offences were committed jointly by all 11 three men. For liability to follow upon the basis of joint enterprise, for the 12 purposes of this case, Elmer Wright must intend that the offence which I am 13 considering be carried out and that he played some part in the commission of the 14 offence. I am satisfied that concerted attempts were made by all three men to gain 15 entry to #2 Camelot Palms; the shared dishonest intention of all was to gain entry 16 to the premises in order to steal therefrom. Had entry been gained, it would have 17 been as a trespasser. I am satisfied also that one of the men (and I am satisfied that 18 it was Elmer Wright) had with him a gun. Since that item has never been 19 recovered, it is not possible to say whether it was a firearm within the meaning of 20 the relevant legislation – accordingly, it is properly charged as an imitation firearm. 21 I am satisfied, had entry been gained to Camelot Palms, Elmer Wright would have 22 entered with that imitation firearm. Accordingly, I am satisfied that he was in 23 possession of that item at Camelot Palms, intending to commit an offence of 24 aggravated burglary. As noted earlier, damage was caused in the attempt to gain 25 entry, to the value of $11,000 odd. Again, I am sure all three men shared an 26 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 54 of 55 intention and participated in causing that damage. It follows that Elmer Wright is 1 guilty of counts 2, 3 and 4. 2

¶ [108] At the start of this criminal enterprise, the three men, I am satisfied, travelled to 3 Slate Drive in Caine Thomas’ mother’s car, as Caine Thomas explained in his 4 evidence. The car was left there, the intention being to, I am satisfied, return to it 5 later – as was the case. The three men drove back to Clarence Drive in Caine 6 Thomas’ mother’s car. It seems to me clear that the Honda Inspire car taken from 7 the Marriott Hotel staff car park was intended for use only to travel to and from 8 Prospect. The car was later abandoned. In those circumstances, I am cannot be 9 satisfied that there was any intention to deprive the owner of his vehicle 10 permanently. Accordingly, I find Elmer Wright not guilty of count 1. I am 11 satisfied, as against Elmer Wright and Caine Thomas that all the ingredients of the 12 offence of taking a conveyance without authority (s.246(1) of the Penal Code) are 13 made out. However, in this jurisdiction such an offence is triable only in the 14 Summary Court and accordingly, as I understand s.59 of the Criminal Procedure 15 Code, it is not an alternative verdict available to me. 16

¶ [109] As to count 5, there is no dispute that two of the three men who invaded the 17 Butlers’ home had guns with them (the evidence of that is to be found in the 18 statements of Mr and Mrs Butler) – again these weapons were not recovered and 19 thus it is not possible to say whether they were firearms within the meaning of the 20 legislation. The three men, it goes without saying, were trespassers in the Butlers’ 21 home. Their joint dishonest intention was plainly to steal. Elmer Wright played an 22 active and enthusiastic part in what went on there, including participation in both 23 threats of violence and the use of force. The joint intention of the robbers when 24 treating the Butlers as they did was put them in fear of being subjected to 25 immediate force, in order for them to reveal where valuable property could be 26 ____________________________________________________________________________________ Verdict Judgment. R v. Wright (Elmer Watler). Ind. 11/2018. Chapple J. (Actg.). Date: 29.01.2020 Page 55 of 55 found so that it could be stolen. I am satisfied the men stole each of the items set 1 out in count 6. I am sure that Elmer Wright is guilty of counts 5 and 6. 2

¶ [110] My verdicts then are that Elmer Wright is not guilty of count 1, but guilty of counts 3 2, 3, 4 5 and 6. 4 5 6 7 Dated this the 29th day of January 2020 8 9 10 11 Justice Roger Chapple 12 Acting Judge of the Grand Court 13