1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE Appearances: INDICTMENT NO: 0017/2014 THE QUEEN v EVON GEORGE ROBINSON Ms. Toyin Salako for the Crown Mr. James Stenning of Stenning & Associates on behalf of the Defendant 19 Before: The Hon. Mr. Jnstice Malcolm Swift (Actg.) 20 Heard: 21 22 23 24 25 26 27 28
29 30 31 32 33 34 35 36 29'h & 30'h October; 3'd & 4'h November 2014 RULING ON ADMISSmILITY The Defence challenges the admissibility of: i. An interview (conducted by Mr. Chad McGhee an employee of the complainant CashWiz at their premises on the 16'h May 2012 with the Defendant and recorded in part on Mr. McGhee's iPhone - transcript at Exhibit PI80); and ii. An interview (conducted Mr. Victor Colon a Senior Security Specialist at FedEx on the Il'h June 2012 with the Defendant who was a FedEx employee) and certain handwritten statements made by the Defendant (SPII and SP/2 dated 11'h June 2012 and SP/3 dated 13'h June 2012). The challenged interview was the second interview conducted on the 11th June 2012. Ruling. lnd. No, 001712014. R v. Evon George Robinson. Coram: SlI'ift'J. (Actg.) Date: 04.11.14 Page 1 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22
THE MCGHEE INTERVIEW This interview was conducted by Mr. McGhee after he asked the Defendant to attend the Cash Wiz premises when gold shortages had been discovered in the amounts of jewellery shipped via FedEx and handed in sealed packages to the Defendant for onward transmission. I heard evidence from Mr. Chad McGhee and Mr. Chad Davis. Mr. McGhee said, after he suspected the Defendant of stealing gold from Cash Wiz, he telephoned the Defendant and asked him if he was the thief - phrasing his question as if he knew as a fact that the Defendant was guilty. The Defendant said he was so sorry and apologized for taking the gold. The Defendant attended Cash Wiz and was asked if he still had the gold and he said he had some of it and agreed to go and get it. He retumed with some 9 or 10 pieces of gold, some of which Mr, McGhee recognized as coming from Cash Wiz. Mr. McGhee then recorded the last part of the conversation which is our transcript of the iPhone recording played in court (Exhibit PI80). The recording amounts to an admission of theft. Mr. McGhee says he was then unaware of the true extent of the overall deficiency and told the Defendant that he would prefer to work something out with the Defendant and not contact his employer or the law. However he reported the matter to both FedEx and to the Police when the true extent ofthe deficiency became known. Ruling. Ind. No. 0017/2014. R v. Evon George Rohinson. Coram: S'wift J. (Actg) Date: 04.11.14 Page 2 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 19 20 21 22 23 24 25
In cross examination, Mr. McGhee denied threatening to report the Defendant if he did not admit to the thefts. He agreed that he had asked the Defendant to return the gold belonging to Cash Wiz, and any other gold to make up the deficiency, but denied that this was couched in threatening terms. He said that the Defendant had admitted the thefts before he left to retrieve and return gold. He denied that the recorded conversation had been edited by him or, as far as he knew, by anyone. Mr. Davis was a trainee manager. He agreed with the basic sequence of events given by Mr. McGhee. He thought he had packed all the gold shipments but. when shown the waybills. agreed that others may have done so as well. He thought that the Defendant was admitting taking about US$4000 wOlth of gold (Mr. McGhee said that the Defendant had said that the gold was sold for between US$8000 and US$9000). Mr. Davis said that Mr. McGhee had told the Defendant that, if he returned the gold, or if Cash Wiz got its money back, the Defendant would not be faced with further process. He was asked in cross examination if Mr. McGhee had told the Defendant that he would be reported to his FedEx boss if he did not admit stealing from the packages and, at first, he said that something like that was said but he explained that what was said was in fact that the matter would be reported to the Police and to FedEx if Cash Wiz did not get its property back. He conceded that he could not recall the precise words used. He said the Defendant was blaming hardship and a grudge over an earlier transaction as reasons for stealing. The Defendant was stuttering, moving and pleading. He too recognized items returned by the Defendant as items sent by Cash Wiz for recycling. He said the conversation following the return of gold items lasted 5-10 minutes and he thought it was recorded, but he agreed that he did not know at what point the recording had been started. Ruling. Ind. No. 0017/2014. R v. Evon George Robinson. Coram: Swift J. (Ae/g.) Date: 04.11.14 Page 3 0[16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 21 22 23 24 25
The Defendant gave evidence. He said that on the 16th May 2012, Mr. McGhee telephoned him and told him there was stuff missing from the FedEx parcels when they arrived at their destination and that it had to be the Defendant who took the items from the packages. The Defendant said he agreed to attend the office of Cash Wiz but first tried to contact his manager, who was unavailable, but spoke to a senior Courier who advised him to "do whatever he had to do to fix the problem". He then spoke to Mr. McGhee who told him that he knew the Defendant had stolen gold from their packages and was going to call FedEx and the Police. The Defendant told him to call the Police but not to call FedEx. He said that Mr. McGhee was at the time holding his phone up in the air. The Defendant told him to do what he had to do and Mr. McGhee said he would give him one chance - to go and get some gold (he didn't care where it came from) he would give him 15 to 20 minutes to do that. The Defendant agreed to do that as he did not want to lose his job. He then obtained gold items from his girlfriend, his brother and a friend and took those items to Mr. McGhee who was there at all times with Mr. Davis. He handed the items over and asked if "we are good now". He was then accused of stealing for some time and asked how often he had stolen items, and asked if he had also stolen from Cash for Gold. He said he then realised something was wrong, thought Mr. McGhee was coming down on him hard and realized that this was a planned set-up against him. He said "I intend(ed) to accept certain of the allegations - I didn't want Chad to think I wasn't helping him". He was then told that he had been recorded on video. He was then threatened that if he did not make up the losses by payments, the recording would be given to FedEx. It is to be noted that, although it is claimed that threats were made in relation to repaying Cash Wiz for the gold alleged to have been stolen, there were no claims by the Defendant of Ruling.ind. No. 001712014. R v_ Evon George Rohinson. Coram: Swift.J. (Actg.) Date: 04.11.14 Page 4 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21
any threats to refi-ain from infonning FedEx or the Police if the Defendant admitted the crimes. In cross-examination, the Defendant agreed that he had a previously very good working relationship with Cash Wiz and with Mr. McGhee. He said he was being blackmailed as he was being told to obtain gold which had not been stolen from anywhere in exchange for Mr. McGhee promising not to allege to FedEx, or to the Police, that he had stolen gold from Cash Wiz. He said he told Mr. McGhee that the gold he brought in was not stolen. He was unable to give any real explanation for the admissions at Page 180, save that he made admissions to make Mr. McGhee feel more comfortable and to save his job. He did not explain how admitting something of which he was innocent was likely to achieve that end. The submissions of the defence are that the Defendant was ambushed with the recording made without his knowledge. It is however conceded that Mr. McGhee was entitled to make the recording without infonning the Defendant of that fact. It is argued that the recording is not complete and should be ruled inadmissible on the basis that it would be unfair to admit a partial recording. The Defendant is in any event a simple man more open to suggestions than most. Ruling. Ind. No. 0017/2014. R v. Evon George Robinson. Coram: Swift J. (Actg.) Date: 04.11.14 Page 5 0/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20
The Crown points out that the recording shows the Defendant relaxed and that there is no persuasion, merely surprise on the part of Mr. McGhee that a trusted courier had stolen from him. The admissions are not coerced and there is no trickery. He knew how seriously FedEx would regard theft by an employee. It was reasonable to ask the Defendant to return the stolen gold and it was U1llikely that he could recover it as he alleges unless it was all in his possession already. The allegation of blackmail makes no sense against the background of a good relationship. The Crown invited me to view the recording (which could not be done in court due to technical difficulties) and I have done so. I am asked to take into account the demeanour of the Defendant. Ruling. Ind. No. 001712014. R v. Evon George Robinson. Coram: Swift J. (Actg.) Date: 04.11,14 Page 6 of 16 1 2 3 4 5 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
THE COLON INTERVIEWS There is no challenge to the admissibility of the first interview conducted on the 11th June 2012 between 13:44-15:14 hrs., and Mr. Stenning has conceded that its contents are properly to be considered by a jury. One possible exception is the passage at P 151 - Exhibits which, it is suggested by the defence, refer to a previous unrelated theft by the Defendant from a different victim and which may have to be considered for exclusion by agreement if the Crown accepts the defence contention. In any event, that passage is not the subject of any argument that the first interview or any part of it is inadmissible on the same basis upon which the second interview and the handwritten statements are challenged. The second interview conducted on the 11th June 2012 between 17:13 and 17:47 hrs., and the handwritten statements SP/2 and SP/3, contain confessions of theft from Cash Wiz by the Defendant. It is (correctly) pointed out by Mr. Stenning for the Defendant that the interviews and statements appear to develop from denials to partial admissions, through to full admissions, as the investigation by FedEx proceeded. I heard evidence from Mr. Victor Colon of FedEx and from DC Grant. Mr. Colon has only a general recollection of events after all this time but is adamant that he (i) did not cajole the Defendant into confessing, (ii) did not screw up and throwaway any early handwritten statements whilst telling the Defendant that their contents were unsatisfactory, (iii) did not hold out any promises that the Defendant might keep his job if he co-operated with FedEx and admitted the thefts, (iv) did not tell the Defendant to change anything or to say anything in particular in his statements and (v) did nothing else to persuade the Defendant to make any Ruling.lnd. No. 001712014. R v. Evon George Robinson. Coram: Swift J. (Aetg.) Date: 04.11.14 Page 7 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
admissions against his best interests. He agrees that he told the Defendant at the start of the second interview that it would be best for him to be 'forthcoming' in his dealings with the interview process but did not tell him what he should say in answer to questions. He denied suggesting that the Defendant should say he had opened 4 packages (it was suggested that the Defendant had become muddled and had instead admitted taking 3 or 4 items out of one package). After hearing Mr. Colon questioned by the Crown, I am satisfied that the handwritten statement SP!l was made in the gap of 2 hours after the end of the first interview and mirrored the answers given in that first interview, and that the handwritten statement SP!2 was made at the conclusion of the second interview and mirrored the answers given in that interview. I am left in a state of uncertainty about the precise sequence of events leading to the writing of the third handwritten statement SP!3, but it is clearly written by the Defendant and appears to result from a fmther meeting with Mr. Colon on the 13th June 2012 - although Mr. Colon has no recollection of a further meeting with the Defendant. Although Mr. Colon was not willing to accept that he was in a position of authority over the Defendant within the FedEx hierarchy, I accept that the Defendant's perception would undoubtedly have been that he was. Mr. Colon had the duty of investigating offences committed by FedEx employees. I take the same view of Mr. McGhee, namely, that the Defendant would undoubtedly have perceived him as a figure of authority. Ruling. Ind. No. 001712014. R v. Evon George Robinson. Coram: Swift J (Actg.) Date: 04.11.14 Page 8 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 18 19 20 21 22 23 24 25
I heard evidence from the Defendant. It was unfortunate that not all of the matters alleged by the Defendant against Mr. Colon had been put in cross-examination of Mr. Colon in order to give him the opportunity to comment upon them. I do not however take that into account against the Defendaut. The Defendant said that, on the 11th June 2012, he was summoned to the FedEx office and confronted by an angry Mr. Colon who told him to take off his FedEx identification and hand it over and then searched him before the first interview began. In fact those events are demonstrably shown to have taken place during the early prut of the recorded interview transcript and I have no difficulty in finding that, on this part of the case, the Defendant's evidence is untrue. Next the Defendant says that, after the first interview finished, Mr. Colon told him that (i) he could not help the Defendant if the Defendant did not cooperate, (ii) he had proof of guilt, (iii) the Defendant had to admit guilt if he wanted to keep his job, and, (iv) that only Mr. Colon could save the Defendant. The Defendant says that he then wrote out a statement which Mr. Colon read and, after reading it, screwed it up and threw it in a bin. The Defendant says Mr. Colon told him that he wanted an admission that the Defendant had gone into the FedEx packages and then the Defendant could go home. Mr. Colon added that the matter was merely disciplinary and would be dealt with internally if the Defendant admitted his guilt. The Defendant says he then wrote the statement (SP/I) which contains no admissions of guilt but which Mr. Colon read through, nodded, said" OK OK' and took away, saying he would 'get back to' the Defendant. Mr. Colon left and spoke to Mr. Hall outside. He returned. There followed a period of around 20 minutes during which Mr. Colon repeated his attempts to persuade the Defendant to confess, saying that he had proof of theft recorded on a cellphone (a reference to the Ruling.ind. No. 0017/2014. R v. Evon George Robinson. Coram: SWift J. rAetg.) Date: 04.11.14 Page 9 0/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
recording made by Mr. McGhee), that the Defendant would make things easier if he admitted guilt, that he was trying to make sure the Defendant kept his job, and, that Mr. Colon never liked to go away empty-handed when he interviewed a person in the Defendant's position. The second interview then took place in the course of which the Defendant made a partial admission of guilt (PI68) which he says was made because of what Mr. Colon had told him before the interview began. The Defendant says that after the second interview was concluded he made a second handwritten statement (SP/2) which was again the product of being told by Mr. Colon what he should say. On the 13th June 2012, a further handwritten statement was made by the Defendant in which are contained more serious admissions of guilt (SP/3). The Defendant's account of this is that he saw Mr. Colon that day aud was told that Mr. Colon was 'tired of this mess', used indecent language to him, repeated his insistence that the Defendant should admit guilt, and, repeated his attempts to cajole a confession with similar threats and promises to those made on the 11th June. In effect the Defendant says he was bullied into his confession. Mr. Colon told him he would involve the Police, that the Defendant had been wasting his time and that this was the Defendant's last chance to make a deal, but that he had to admit going into the packages not once, not twice, not three times but 4 times. The Defendant also said that where he had initialed an alteration from the word 'several' to the word 'seven', this was at the insistence of Mr. Colon, as was the final alteration of the sum of$ll,OOO to $9,000. Ruling. Ind. No. 001712014. R v. Evon George Robinson. Coram: /)wijt J. (Actg.) Date: 04.11.14 Page 10 of 16 1 2 3 4 5 6 7 8 9 10 11 16 17 18 19 20 21 22 23 24 25
In cross-examination, the Defendant agreed that he was recorded agreeing that no promises had been made to him but maintained that everything said was what Mr. Colon had told him to say. He agreed that SPII and SP/2 appeared to reflect the contents of the recorded interviews preceding their making. He said repeatedly that the interviews were 'planned' with Mr. Colon before they took place and that his story about a pawned gold chain was true but was suggested by Mr. Colon as a story that could be used to explain the motive for the thefts of gold. All the details of the thefts were details he was told by Mr. Colon to put into his story although, oddly, the story about opening the packages 'inside his van' was his own invention. When he spoke of re-packaging the items afterwards, the Defendant was trying to trip up Mr. Colon by giving information which could be shown to be incorrect. Even when it is recorded that the Defendant said 'this is the truth, sir, honestly' (PI73), that also was a planned response. The Defendant said, finally, that on the 13th June, after he had completed his statement SP/3 and had refused to sign an employment termination letter at the request of Mr. Hall, he went immediately to see a police officer friend (Mr. Grant) at Georgetown Police Station and told him that he had been made promises and told to make his admissions. DC Grant told me that he had little recollection of events but he did remember that the Defendant - an acquaintance or friend - called one day and said he had either been interviewed or was to be interviewed by someone from overseas who FedEx had brought in for the purpose. He said that the Defendant made no complaint to him and went into no details about the matter under investigation. His advice to the Defendant was to seek legal representation. He could not recall the Defendant saying that he had been coerced into making admissions or that he had admitted stealing gold. Ruling.lnd. No. 0017/2014. R v. Evon George Robinson. Coram: Swift J. (Actg.) Date: 04.11.14 Page 11 0/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 20 21 22 23 24 25
The submissions of the defence (partly contained in the skeleton argument which I have read) are supplemented in oral argument and are that Mr. Colon kept no notes of his dealings with the Defendant and conld not explain the events of the 13th and how the third handwritten statement came to be made. Although Mr. Colon denies that he made any inducements, he has a poor recollection of events. If inducements were made, as the defence suggests, then it is suhmitted that the admissions are tainted and should be excluded. It is further submitted that it would be unfair to admit the confession evidence under s.40 of the Evidence Law (2011 Revision) on the grounds that it might operate unfairly against the Defendant. The Crown argues that Mr. Colon made clear that he was in no position to influence future events and the outcome of the investigation. The first interview demonstrates that nothing was said off tape and that the Defendant was, at that stage, making no admissions. There was no evidence of coercion. On the contrary, the questioning throughout both interviews is open and restrained and does not lead or suggest answers. There is no indication that there has been any coaching or cajoling and the Defendant specifically confirms that such improper behaviour has not taken place. The Crown took me to numerous examples in the transcripts where these points are demonstrated. The Crown says that there are examples of information only the thief could have known and that his admissions tumed out to be supported by evidence ull1'evealed at the time. Also the handwritten statements are merely confirmation of what has already been discussed in interview in which he writes out the confessions he has already made. The Crown says that the whole picture is one of voluntary admissions freely made recorded with the knowledge of the Defendant. He brought in gold voluntarily and explained how he had stolen it on several occasions. Words were not being put into his mouth and not dictated. Ruling. Ind. No. 0017/2014. R v. Evon George Robinson. Coram: SWiftJ. (Actg.) Date: 04.11.14 Page 12 0[16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 21 22 23 24
The Defendant was given the oppOItunity to retract the admissions made to Mr. McGhee but instead made no suggestion that they were in any way challenged. He did not mention the alleged destmction of his first statement when interviewed soon afterwards and he had the chance to do so. It was entirely the Defendant's free choice to make admissions and it appears that he did so in the hope that he could retain his job by accepting guilt and in the hope that Cash Wiz would not pursue a complaint. I remind myself that the burden is on the Crown to prove that the admissions alleged to have been made were made voluntarily that is free from any threat, promise or other inducement and were the product of the Defendant's own free will. The standard of proof required is beyond reasonable doubt. The test is objective - namely am I satisfied that nothing was said or done likely in the circumstances to render the confessions unreliable. Although I find that the Defendant would have thought that Mr. McGhee and Mr. Colon were in positions of authority, I do not find that the Defendant was in any way influenced by that fact alone. In particular I do not find that his reactions, words and conduct were affected by his perception of their status. I must then go on the consider whether anything they said or did may have been capable of affecting the exercise of the Defendant's free will and may have caused him to admit doing something of which he may have been innocent. I was not impressed with the Defendant's evidence. I found him garrulous and evasive, frequently seeking to cover up his inability to answer straight questions with straight answers by going off at a tangent and trying to divert attention from the point in issue. Ruling.lnd. No. 0017/2014. R v. Evon George Robinson. Coram: Swift J. (Aetg.) Date: 04.11.14 Page 13 0[16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 20 21 22 23 24 25
In relation to the McGhee recording, the Defendant's account does not come anywhere near raising any rational suggestion that there was any inducement to confess to theft. On the contrary, there is no suggestion that anything was said to that effect. At best there was an offer to the Defendant to return the stolen gold or its value if he was to avoid his employers being informed. There was no private conversation with Mr. McGhee before the recording (as he himself now accepts) and the Defendant is not now suggesting that either Mr. McGhee or Mr. Davis held out any inducements to him to confess - despite such matters being suggested in cross-examination. In relation to the Colon interviews, the Defendant did not tell me the truth about the events before and between the interviews. I am satisfied that the events alleged as occurring before the first interview did not take place at all as I am satisfied that the beginning of the recording demonstrates that the Defendant and Mr. Colon were clearly meeting for the first time as the recording began. There is no acceptable evidence that anything material to this case was said and not recorded. I find that the mental gymnastics required of anyone seeking to provide answers to questions in interview in accordance with pre-planning are of Olympic proportions and too great for a man of the Defendant's obvious limitations. I was impressed with Mr. Colon as a witness - he conceded when he could not recall events and did not strike me as the bullying person described by the Defendant. He seemed to me to be truthful. He denied the serious allegations against him and seemed to be surprised by them. The same goes for Mr. McGhee. Although Mr. Colon could not recall the events of the 13 th June, I see no reason to accept the Defendant's version of events of that day because I find that the handwritten statements SP/l and SP/2 merely followed the contents of the previously recorded interviews which preceded them Ruling.ind. No. 001712014. R v. Evon George Robinson. Coram: Swift J. (Aetg.) Date: 04.11.14 Page 14 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 20 21 22 23
on the II th June and I see no reason to think that SP/3 did not, in the same way, follow the contents of the discussion between Mr. Colon and the Defendant which, it seems to me, must have taken place on the 13'h June, on which day, I accept, there was no fonnal recorded interview. I do not accept that Mr. Colon screwed up the first handwritten statement when, according to the Defendant, he accepted SPiI with approval despite its innocuous contents. I am satisfied that SPI1 was the first statement the Defendant wrote. In short the evidence as a whole satisfies me that the admissions of guilt contained within the recorded interviews and in the handwritten statements were made by the Defendant voluntarily albeit reluctantly and uninfluenced by any threats or promises held out to him. Nor was he merely repeating what he had been told to say. It follows that:
I am satisfied so that I am sure that Mr. McGhee, Mr. Davis and Mr. Colon did not act as alleged by the Defendant; ii. Nothing was said or done likely in the circumstances to render unreliable the confessions, the test being objective; and iii. The Prosecution has proved beyond reasonable doubt that the particular confessions were not obtained in consequence of anything said or done by Mr. McGhee, Mr. Davis and Mr, Colon. I also find that there are no aspects of the confession evidence which could possibly be suggested to raise any issue of unfairness for the purposes of sAO. It was not unfair to record the Defendant after he started to confess to theft at Cash Wiz's premises. It was not unfair of Mr. Colon to interview the Defendant to give him a Ruling.lnd. No. 0017/2014. R v. Evon George Robinson. Coram: Swift J. (Ae/g.) Date: 04.11,14 Page 15 0/16 1 very full opportunity to explain his conduct and it was not unfair to allow the 2 Defendant to write out his confessions in his own hand. 3
The evidence of admissions made by the Defendant IS therefore admissible m 4 evidence. 5 6 Dated this the 4th day of November 2014 7 8 9 10 11 Honourable Mr. Justice Malcolm Swift (Actg.) Acting Judge of the Grand Court Ruling. Ind. No. 0017/2014. R v. Evon George Robinson. Coram: Swift J. (AClg.) Date: 04.11.14 Page 160/16