Quin J
IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE INDICTMENT NO: 0038/2013 THE QUEEN V SHERRELL DENNEILIA JACKSON Appearances: For the Crown: Mrs. Marilyn Brandt Crown Counsel, on behalf of the DPP Defence Counsel: Mr. John Furniss on behalf of the Defendant Before: Honourable Mr. Justice Charles Quin Heard: 8th – 10th October 2013 JUDGMENT
The Defendant is charged with one count of Robbery, contrary to s.242 of the Penal Code (2010 Revision). The particulars of the offence are that the Defendant, together with other persons, on the 27th day of December 2012 at Colliers Beach, East End, Grand Cayman, stole US$500.00 cash, one knapsack, one t-shirt, two items of underwear, a pair of reading glasses, a pair of contact lenses, two Sony camera batteries, one Smartphone adapter, one Sony Ericsson cell phone, one Sony digital camera with SD card, three PSP games, a PSP memory stick and one Sony Walkman with earphones, the property of Masaru Takai, and at the time of so doing, and in order to do so, used force on the said Masaru Taki.
The Crown must prove beyond reasonable doubt that the Defendant was one of the persons who robbed Mr. Taki on the 27th December 2012.
The Defendant has admitted that, at one point, for a short period, she was in possession of the Sony Ericsson cell phone which belongs to Mr. Taki, and which was stolen from Mr. Taki on the date in question. However, the Defendant has stated that she returned the Sony Ericsson cell phone to the person, not before this Court, who loaned the phone in question to her.
In order to prove that the Defendant robbed Mr. Taki, the Crown must prove robbery, and not mere possession.
The Crown must prove that the Defendant was one of those who robbed Mr. Taki on the 27th December 2012 so that I, as the Tribunal of Fact, can be sure that the Defendant is guilty of robbery.
If after considering all the evidence, I am not sure to the requisite standard of proof that the Defendant was one of those who robbed Mr. Taki on the 27th December 2012, I must find the Defendant not guilty.
In order to prove that the Defendant is guilty of robbery, the Crown must prove beyond all reasonable doubt that the Defendant was present at Colliers Beach when Mr. Taki was robbed on the 27th day of December 2012, and was one of the persons who stole and, immediately before or at the time of doing so, and in order to do so, used force on Mr. Taki or put or sought to put Mr. Taki in fear of being then and there subjected to force. THE LAW
The Defendant elected to be tried by a Judge Alone, rather than a Judge and Jury, pursuant to s.129 of the Criminal Procedure Code of the Cayman Islands.
Our Court of Appeal first dealt with the duties of a Judge in Judge Alone trials in its judgment in K. Richards v. R 2001 CILR 496 when Justice Rowe stated: "When a trial judge sitting alone has advised himself to the applicable principles of law, and given himself any necessary warning, he must indicate clearly in his judgment his reasons for acting as he did, in order to demonstrate that he has acted with the requisite degree of caution in mind and has therefore heeded his own warning. No specific form of words is necessary for this demonstration, what is necessary is that the Judge's mind upon the matter should be clearly revealed."
In R v. Dave Kennedy Whittaker Cr. App. R. No. 14 of 2006, the Court of Appeal gave some guidelines regarding the duties of a Judge in Judge Alone trials. In the Judgment of Mottley J.A. he adopted the Judgment of the former Lord Chief Justice of Northern Ireland Lord Lowry in R v. Thompson [1977] NI 74 in which he stated at page 83: "While on the subject I might say a word on the duty of the judge when giving judgment in a trial under the 1973 Act. He has no jury to charge and therefore will not err if he does not state every legal proposition and review every fact and argument on either side. His duty is not as in a jury trial to instruct laymen as to every relevant aspect of the law or to give a full and balanced picture of the facts for decision by others. His task is to reach conclusions and to give reasons to support his view and, preferably, to notice any difficult or unusual points of law in order that if there is an Appeal, it may be seen how his view of the law informed his approach to the facts."
More recently our Court of Appeal in Randy Martin v. R Crim. App. R. 2 of 2010 delivered their reasons for dismissing the Appeal on the 7th December 2010. Mottley J.A. again adopting R v. Thompson [1977] NI 24 also adopted R v. Thain [1985] NI 457 where Lowry LCJ said at page 478: "Where the trial is conducted and the factual conclusions are reached by the same person, one need not expect every step in the reasoning to be spelled out expressly, nor is the reasoning carried out in sealed compartments with no inter-communication or overlapping, even if the need to arrange a judgment in a logical order may give that impression. It can safely be inferred that, when deliberating on a question of fact with many aspects, even more certainly than when tackling a series of connected legal points, a judge who is himself the tribunal of fact will (a) recognize the issues and (b) view in its entirety a case where one issue is interwoven with another."
Following Lowry LCJ in R v. Thompson and R v. Thain, Mottley J.A. said in Randy Martin v. R at paragraph 31: "From these cases the following guidance may be discerned. A judge sitting in a criminal case without a jury, in rendering his decision and giving his reasons for so concluding, is not required to review every fact and to detail each argument on which the prosecution and defence rely as if he were summing up to a jury. The judge must set out the conclusion reached and make clear the reasons for arriving at that conclusion. He is required to have regard to any difficult or unusual points of law and to show how those points of law have in anyway impacted the conclusion that he has reached."
Section 242(1) of the Penal Code (2010 Revision) reads: "A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force." CROWN'S INTRODUCTORY SUMMARY
The Crown's case is that the Complainant, Mr. Masaru Taki, was on vacation in the Cayman Islands for the first time and drove to Colliers Beach in East End. Whilst there on the beach relaxing he was attacked by two persons unknown to him. The Complainant told the police that both his attackers were male. One of the two persons assaulted the Complainant and both persons robbed the Complainant of his personal possessions as set out in the particulars of the offence above. On Friday the 15th February 2013 the Complainant, who departed Cayman the day following in the robbery, managed to connect to his phone, using android applications, and download photos from his phone, which he sent to the RCIPS. The person in the photos was identified by the RCIPS as the Defendant. EVIDENCE ON BEHALF OF THE CROWN MR. MASARU TAKI IN CHIEF
Mr. Taki gave his evidence by video link from Japan and also with the assistance of an interpreter, Mr. Joel Olaguer, who was sworn as an interpreter in English to Japanese and Japanese to English.
Mr. Taki told the Court that he resides in Japan and, on the 27th December 2012 he was in the Cayman Islands. He said that at around 2:30 p.m. on that day he went to Colliers Beach in a car he had rented and was relaxing on the beach, about 10 metres from where he had parked the car, when at about 4:30 p.m. he was robbed by two men.
The Complainant said that when he was robbed he was putting his clothes in the car and someone approached him from behind.
One of the men had, what Mr. Taki described first, as a sword, and later, as a long knife, and they said, "Where's the money?"
Mr. Taki said that first, he was punched in the back of the head, and then he was punched on the nose and on his face. Mr. Taki said the man threatened him with the knife and, in fact, in the struggle, Mr. Taki received a cut to his finger from the knife.
Mr. Taki said his money was in a pouch on a belt around his waist and he also explained that it was whilst he was changing his clothes by the car that he was attacked. MR. MASARU TAKI – CROSS EXAMINATION
Under cross examination Mr. Taki said there were only two persons and they were two males. He described one as 5’ 9”, slim built, wearing a yellow shirt and ¾ jeans pants and the other was also slim built and about 5’ 7”. Mr. Taki said one of the men appeared to be between 20 and 30 years of age.
Asked by Mr. Furniss: “Did you see a third person?” Mr. Taki replied that he only saw two persons.
Asked by Mr Furniss: “You said you were reaching into the car when someone grabbed you, so, when did you first see the men?” Mr. Taki replied that he saw their faces when they were fighting.
Asked by Mr. Furniss whether the robbers wore masks, Mr. Taki said they did not wear masks.
Asked by Mr. Furniss: “Did you ever fall to the ground at all?” Mr. Taki said he fell down when he was fighting with the two men.
Asked when did he get cut, Mr. Taki said he cut his finger when he turned around to face the men and grabbed hold of the knife while fighting.
Asked by Mr Furniss: “Was it after they took the money that you got punched in the face?” Mr. Taki said, no, it was before the money was taken.
Asked by Furniss: “Did you run off after you got the passport back?” Mr. Taki said yes.
Asked: "Did you not fall down after you got back the passport?" Mr. Taki said he did not fall down after he got back the passport. He said he only fell down just after he grabbed the knife and got cut.
In response to questions from Mr. Furniss Mr. Taki confirmed that he received injuries to his face and both his hands and that the phone was in the car and not in the pouch (around his waist).
Mr. Taki said he did not want to give up his money but he was punched repeatedly and eventually yielded. He said the two guys punched him "a lot." Mr. Taki confirmed that the robbers took a number of items from him.
Mr. Taki said he received scratches on his forehead, a gash on his nose, a scratch on his chin and another under his eye. Mr. Taki described the photographs which were taken by the Scenes of Crime Officer (SOCO) in exhibit 1.
Mr. Taki confirmed to Mr. Furniss that when he asked the robbers to return his passport, they did so. Asked by Mr. Furniss to say what he did after his attackers had taken his money and other items, but returned his passport, Mr. Taki said he ran away.
Mr. Taki said that after running away he looked back and saw the two men go into his car, from where they took his phone.
Mr. Taki confirmed that he left Cayman the next day. WOMAN DETECTIVE CONSTABLE KHALESIAH DC BARBORAM - IN CHIEF
DC Barboram said she was on duty on the 27th December 2012 and at 1700 hours she received a radio transmission about a robbery at Colliers Beach in East End and she went there with DC 134 Manley Berry. At Colliers Beach she saw an Asian national with facial injuries who explained that he was robbed, and he gave his name as Masaru Taki.
DC Barboram said that on or about the 15th February 2013 she received an email from Mr. Taki from Japan. He provided DC Barboram with photos that he had downloaded from his phone, and the photos were of persons in the Cayman Islands. Two of these photos were of the Defendant. First Interview with the Defendant – 7th - 8th June 2013
On Friday the 7th June 2013, DC Barboram arrested the Defendant on suspicion of robbery and interviewed the Defendant on that date. On Friday the 7th June 2013 from around 10 p.m. until Saturday the 8th June 2013 shortly after 12:15 a.m., the Defendant admitted committing the robbery.
During the interview the Defendant admitted that she was the person in the photos downloaded from Mr. Taki’s phone. The Defendant said she received the phone from Roland Welcome – a person with whom she lived. Asked if she had asked Mr. Welcome how he got the phone, the Defendant replied to DC Barboram that she did not have to ask because she was there.
In her interview with DC Barboram the Defendant said that she, Roland Welcome and another person she would not name, ganged up on Mr. Taki and took everything from him.
In this, her first interview, the Defendant said that she punched and kicked Mr. Taki—she punched him three times in the face. The Defendant said Roland Welcome took the phone, but he did not take any part in the actual robbery. The Defendant also said in her interview that was the one who threw the passport back to the Complainant. Second Interview
In her second interview with the police the Defendant again admitted to the robbery. The Defendant said that Roland Welcome was at the robbery but she refused to name the third person who took part in the robbery.
The Defendant in this interview said she robbed Mr. Taki around 4 p.m. on the 27th December 2012. Third Interview – 8th June 2013
In this interview the Defendant, still admitting to the robbery, said she disposed of the items stolen from Mr. Taki at her grandmother’s house. The Defendant said the reason she attacked Mr. Taki was because she wanted to and she had no regrets about carrying out the attack.
Asked about the “weapon” the Defendant told the police in that interview that she did not have a “weapon”. Asked if Roland had a weapon and she said she did not know, but she said she hit Mr. Taki in the face and she kicked Mr. Taki when he was on the ground.
In that interview the Defendant said that she took the pouch and the phone out of Mr. Taki’s pocket.
In that interview the Defendant also said that when she and the others left Mr. Taki after the robbery he was sitting on the sand. Visit to the crime scene
DC Barboram told the Court that on the 9th June 2013 the Defendant was cautioned and she voluntarily accompanied DC Berry and herself to East End to point out the location where the robbery took place.
DC Barboram said the Defendant told her and DC Berry, after passing Tortuga Restaurant, to drive slowly when approaching Morritts and, upon reaching the beach, the Defendant told the officers to stop and DC Berry stopped adjacent to Colliers Beach.
The Defendant then pointed out a green and white cabana and said that that was where the Japanese male was robbed and beaten up.
Asked by Crown counsel: "What was the proximity of that cabana to the [Complainant's] vehicle when you saw it on the day of the incident?" DC Barboram replied, "the exact location."
DC Barboram said the Defendant was not threatened in any way and she was not forced to give a statement. Furthermore, the Defendant was offered no promises and she was treated fairly. DC Barboram said the Defendant was offered to have an attorney present with her and she chose not to have one, and she gave her statements voluntarily. DC Barboram said the Defendant signed the interviews taken on the 7th and 8th June 2013. WOMAN DETECTIVE CONSTABLE KHALESIAH DC BARBORAM - CROSS EXAMINATION
DC Barboram accepted that the Defendant made no reference to a sword or a knife.
DC Barboram accepted that she could not recall the Complainant saying he had been kicked.
DC Barboram accepted that the Complainant said there were only two males at the robbery and he gave descriptions of both.
DC Barboram accepted that, at first, the Defendant denied every being involved in the attack on Mr. Taki.
DC Barboram accepted that the Defendant, when asked, did not remember anyone shouting, "Where is the money?" In fact, in Mr. Furniss' reference to page 8 of the Defendant's second interview, when the Defendant was asked if "at any time did anyone ask him for his property?" the Defendant did not reply in the affirmative.
DC Barboram accepted that the Defendant, when questioned by the police, denied having any knowledge of the knapsack and some of the other items.
Asked whether any clothing was checked for blood, DC Barboram said, no.
Referring to page 10 of the Defendant's second interview, and the Defendant's response to where the Japanese man was when they, the robbers were leaving, DC Barboram confirmed that the Defendant said, "He was still there."
Furthermore, there was no DNA or fingerprints linking the Defendant to the victim. STATEMENT OF DC MANLEY BERRY
DC Berry also confirmed that the Complainant said he was attacked by two males, and one of the males had a long knife, like a small sword. DC Berry confirmed that the Complainant said that both males hit him on the face, and that both males took the items – the cash, the clothing, the electronic items and the cell phone. SOCO SARAH HOUGH
She attended the scene on the 27th December 2012 and she found two small swabs of sand, which were red and appeared to have blood on them, and she also made a swab of red-brown stain on the passenger rear window exterior. DEFENCE CASE
On the 8th August 2013 the Defendant asked DC Barboram to come to Fairbanks prison where she, the Defendant, was in custody. DC Barboram conducted an interview with the Defendant.
The Defendant told DC Barboram that the admissions she gave in her interviews on the 7th and 8th of June 2013 were lies. The Defendant said she had wanted to take up for Roland Welcome and that is why she told the lies. The Defendant told DC Barboram that Roland had given her the phone and when she asked where did he get the phone he said, "Don't ask me no questions."
In that interview DC Barboram asked her if she knew what happened at Colliers Beach and who robbed the Japanese man, the Defendant said no.
The Defendant told DC Barboram that she understood that, in her first account she misled the police by having the police believe that she was involved in the robbery. She said that she did not attack or rob the Japanese man. DEFENDANT SHERRELL JACKSON – IN CHIEF
In her evidence to the Court the Defendant said she did not hit strike the Japanese man in the face. She said all her statements on the 7th and 8th June 2013 were lies. She said she told the lies because: "I didn't want Roland to go to jail as he just came out of jail. He gave me the phone."
Asked by Mr. Furniss how was she able to tell the police details that were accurate about attacking the man in the face, and that the victim was Japanese, the Defendant replied, "Because the police told me the situation in the vehicle."
Mr. Furniss told the Defendant, "You said you hit, punched and kicked the man," and the Defendant replied, "That's a lie."
Mr. Furniss told the Defendant, "You said there was a third person present," and the Defendant replied, "That's a lie."
Mr. Furniss told the Defendant, "You said you made up the story to protect Roland Welcome. When did you decide to tell the truth?" and the Defendant explained that at the time she was in an abusive relationship with Roland Welcome and, additionally, she later realised that she would have to spend five years in prison for such an offence.
The Defendant said Roland Welcome gave her the phone and she took the photos with the phone.
Asked by Mr. Furniss: "Did Roland ever tell you where he got the phone? The Defendant replied, "No Sir."
Asked if she had been at the beach at the time of the incident, the Defendant replied, "No Sir."
The Defendant said she was sorry for lying. DEFENDANT SHERRELL JACKSON – CROSS EXAMINATION
The Defendant said she just happened to guess the time the Complainant arrived at the beach and the time the attack took place.
Asked how could she know that the Defendant fell to the ground, the Defendant said it was just another coincidence as that is what usually happens in a fight.
Asked how could she have known about the pouch and the fact that the man was attacked by two persons, the Defendant said, "The police told me."
The Defendant said she did not take part in any robbery of Mr. Taki.
The Defendant said she gave the phone back to Roland and Roland did not take the photos, "I did." SUMMARY OF THE CROWN CASE
The Crown relies on three voluntary statements of admission by the Defendant.
The Crown submits that the Defendant was clear as to what had happened and also took the officers investigating the case to the scene of the crime.
The Crown’s case is that the Defendant could not have correctly stated so many of the facts if she had not been at the scene such as: a. The Complainant arriving at the beach around 2 p.m.: The Defendant stated "like 2 to 3 p.m." in her interview. b. The attack taking place at 4:30 p.m.: The Defendant stated "like round 4" in her statement. c. The Complainant said there were 2 males and the Defendant, whilst saying there were three persons, said that only two did the attack. Additionally, the Crown submits that the fact that Defendant in her statement said, "punching and kicking like man and man" makes it reasonable for the Complainant to have believed that he was being attacked by two males. d. The Complainant said he was punched in the face and the Defendant described punching the Japanese tourist in the face. e. The Complainant said he fell and the Defendant describes the Complainant as falling as well. f. The Complainant said his pouch and money were taken and the Defendant said she took the pouch. The police never mentioned the pouch. g. The Complainant said the attackers did not cover their faces and the Defendant said she did not cover her face. h. The Defendant, after admitting to the offence, took the officers to Colliers Beach and pointed out the exact spot where DC Barboram had seen Mr. Taki’s rented vehicle parked. The Crown states that the police are expected to provide some details but the Defendant knew details that are independent of questions asked by the police.
The Crown submits that the inconsistencies between the Defendant’s account and the Complainant’s account are far outweighed by the consistencies.
The Crown addressed the important inconsistency that the Defendant said no weapon was used. The Crown states that the Defendant said this to minimize her participation in the robbery.
The Crown therefore states that the Defendant is lying to the Court by saying that she did not take part in the robbery. The Crown states that it was only when the Defendant spoke to an attorney and realised that she could get five years for the offence that she decided to recant her statements. SUMMARY OF THE DEFENCE CASE
The Defence states that it is quite believable that the Defendant, a young girl of 17 years of age admitted committing the robbery in order to keep her boyfriend Roland Welcome out of prison. Defence counsel asks the Court to consider the Defendant’s young age and the fact that she was in a very abusive relationship. She was clearly intimidated and therefore she eagerly admitted committing the offence so that the police would not go after Roland Welcome.
The Defence asks the court to view the stories told by the Defendant in her June statements as ones that she was "putting together as she goes along" and, totally unreliable.
The case for the Defence points firstly and primarily to the fact that the Complainant was clear that it was two persons. The Defendant’s account has three persons at the scene, even though one did not fight. Additionally, the Complainant maintained that two males robbed him – one he described as black and the other as dark brown.
Additionally, an important element of the Complainant’s account of the robbery is that the attacker with the yellow shirt had a long knife. The Defendant’s accounts never included the use of knife or any weapon in the course of the robbery.
The Defence also relies on the fact that the Complainant’s own evidence is that he ran away after the return of his passport and did not fall to the ground at that time or sit on the sand as described in the Defendant’s account. Additionally, the Complainant states that when he runs away he turns around and sees the men searching the car – from where his phone was taken.
The Defence also points out that there is no evidence from the Complainant that the phone was taken from his person or from his pocket – as the Defendant had claimed. The Complainant was clear that the phone was taken from his car.
The Defence also asks the Court to compare the Complainant’s description of how the robbery commenced with the Defendant. The Complainant clearly states that he was first attacked from behind, whilst the Defendant says she simply walks up to the man and starts hitting and kicking him.
The Defence points to the fact that the Complainant describes the robbery as taking place by the car – which coincides with where the blood was found, and not over by the green and white gazebo.
The Defence submits that the Defendant, in her eagerness to admit to the offence made some fundamental mistakes and, when one examines the early interviews, it is confirmed that the Defendant invented the story. Defence counsel underscores that the blood was by the car, which indicates that that was where the robbery took place and, the Defendant does not mention the short sword or the long knife – even after three hours of interviews.
The Defence submits that the Defendant only made a confession in order to remove the blame from Roland Welcome but, after further consideration the Defendant went back to the police – some two months after admitting to the offence – to tell the police she had told lies.
The Defence submits that differences between the Complainant’s account and the Defendant’s account make nonsense of the Defendant’s stories and demonstrate clearly that the Defendant was never at the scene of the attack on Mr. Taki. CONCLUSION
It is clear to the Court that the Defendant either lied when she admitted committing the robbery or, alternatively, she lied to the Court that she did not commit the robbery – as the Complainant’s and the Defendant’s stories differ in key areas.
I remind myself that the burden of proof is always on the prosecution. The Defendant does not have to prove her innocence. In a criminal trial the burden of proving the guilt of the Defendant is on the prosecution – this is a cardinal principle under our law. The prosecution must succeed in proving the case against the Defendant beyond all reasonable doubt, that is, the prosecution must prove the case to make me, as tribunal of fact, sure that the Defendant is guilty. Nothing less than that will do. If after considering all the evidence I am sure that the Defendant is guilty, I must return a verdict of guilty. If I am not sure, my verdict must be not guilty.
On the 8th August 2013 the Defendant first told the police that the admissions that she had given them regarding the robbery in June 2013 were lies.
The Defendant has also told the Court under oath that she only gave the admissions in June 2013 to try and keep her boyfriend, Roland Welcome, out of jail.
Clearly, the Defendant has either lied to the Court or to the police.
In her purported admissions in June 2013 the Court notes that the Defendant did not provide the exact location for the robbery. Her indication as to where the robbery occurred does not match with the Complainant’s account and it does not accord with the evidence provided by the Scenes of Crime Officer about the location from which the blood on the sand was recovered.
This Court finds it extraordinary that in her eager and full admission to the serious assault on Mr. Taki, the Defendant made no mention of the knife. This is in direct conflict with the Complainant’s evidence. In fact, the Complainant handed over his property because of the threat of the knife which also inflicted injury on him.
The Defendant’s failure to mention the knife in her interview with the police supports her statement that she did not commit the robbery.
The Defendant, in her admissions to the police, stated that the Complainant was left on the ground, whereas the Complainant told the Court and the police that he fled the scene.
The Defendant in her admissions told the police that she took the phone off the Complainant’s person, whereas the Complainant said that he looked back, after his passport was thrown to him, and he saw the two men go into the car at which point they took the phone from his hired car.
The Complainant was clear that the two persons who committed the robbery were two males, and he was also clear in his evidence that there was no third person.
There are a number of serious material differences between the Complainant’s evidence and the account given by the Defendant in her interviews.
In light of these differences I find that I cannot be sure that the Defendant is guilty of the charge of robbery. I take all the evidence into account and I still cannot be satisfied beyond all reasonable doubt that the Defendant is guilty as charged. Accordingly I find the Defendant not guilty of the charge of robbery.
I find that the Defendant has lied to the police and that she has wasted an incredible amount of valuable police time and effort. Rather than discharging her civic duty to assist the police, she has actually made their already difficult task, more difficult.
The Complainant endured a deeply unpleasant attack and had several items stolen from him. The Defendant knows of many of the details. Rather than protect the two men responsible for the robbery, she should have assisted the police in their investigations by providing them with the true details. The Defendant should be ashamed of her behaviour. The Defendant should take a long and hard look at her reprehensible behaviour and ensure that it never happens again. Dated this the 23rd October 2012 Honourable Mr. Justice Charles Quin Judge of the Grand Court