Quin J
IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE INDICTMENT NO: 42/11 THE QUEEN V JOSEPH LLOYD SUBERAN SANJAY ANDRE BURRELL MARTHA LEVY O'BRIAN EMMANUEL WRIGHT Appearances: Mr. Kenneth Ferguson for the Crown Mr. Clyde Allen for the Defendant Before: The Hon. Mr. Justice Charles Quin Heard: 11th – 12th June 2012 and 15th – 16th October 2012 RULING ON NO CASE TO ANSWER SUBMISSION Preamble Trial in R v. Martha Levy commenced on the 11th June 2012 and continued for two days, at the end of which an application by Defence counsel for an adjournment of the trial, in order to gather further telephone evidence, was made and granted. The trial in R v. Martha Levy re-commenced on the 15th October 2012.
At the close of the Crown’s case on Monday the 15th October, counsel on behalf of the Defendant made a no case to answer submission based on the classic test of *R v. Galbraith* 73 Cr. App R. 124.
In particular, Defence counsel relied on the second limb of Lord Lane’s classic dicta in *R v. Galbraith* where he states: “*The difficulty arises where there is some evidence but it is of tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence.*”
Counsel for the Defendant went on to rely upon 2(a) where Lord Lane stated: “*Where the judge concludes that the prosecution evidence taken at its highest is such that a jury, properly directed, could not properly convict on it, it is his duty, on a submission being made, to stop the case.*”
Mr. Allen submits that one of the two principal witnesses on behalf of the Crown, Jaime Morales (“Mr. Morales”), has been so discredited by the evidence presented by the Crown, that the Crown’s case is inherently weak because the evidence is so discredited.
In relation to the second principal witness on behalf of the Crown, Sanjay Burrell (“Mr. Burrell”), who is also a co-defendant in this case, Mr. Allen submits that his evidence is weak, and, more importantly, it is inconsistent with other aspects of the evidence led by the Crown, and, in particular, with this co-Defendant’s own evidence and his accounts to the police.
For the sake of completeness I confirm that the Defendant was charged, along with three other persons, on this seven-count Indictment – with charges relating to illegal activity at Money Express in George Town, Grand Cayman. Only three of the seven counts on the Indictment include this Defendant. The other Defendants on the Indictment entered guilty pleas and the Defendant maintained her innocence. Counts 1, 2 and 7 specifically relate to this Defendant. On Count 1, the Defendant is charged with Theft contrary to s.241 of the Penal Code Law (2010 Revision). The particulars of this offence are that on the 15th day of January 2011, at Money Express, Elizabethan Square, George Town, Grand Cayman, the Defendant stole CI$62,667.00 and US$24,252.00. On Count 2, the Defendant is charged with Conspiracy to Steal, contrary to s.321 and s.241 of the Penal Code Law (2010 Revision). The particulars of this offence are that on or before the 15th day of January 2011, in Grand Cayman, the Defendant conspired to steal from Money Express, Elizabethan Square, George Town, Grand Cayman. On Count 7, the Defendant is charged with Perverting the course of Justice, contrary to s.107(1)(d) of the Penal Code Law (2010 Revision). The particulars of this offence are that on or before the 25th day of January 2011, in George Town, Grand Cayman, the Defendant did an act in order to prevent, pervert or defeat the course of justice, namely, threatened Jaime Morales. On the 15th October 2012, at the close of the Crown’s case in this trial, the Crown placed on record that it would not proceed against the Defendant on Count 7. Evidence of the co-accused, Sanjay Burrell
The co-accused, Mr. Burrell, told the Court that the Defendant came into the office at Money Express on the day the robbery took place.
There was no other evidence presented by the Crown that the Defendant ever came into the office on the 15th January 2011. In fact, a Crown witness, Marixa Bush, who worked with Money Express, gave evidence to the Court and said she never saw the Defendant on the day in question.
There is no evidence that the Defendant participated in the robbery at all.
There is no evidence that the Defendant even knew the robber, Joseph Suberan ("Mr. Suberan"), or anything about him.
When Mr. Burrell was arrested by the police and was discussing his involvement in the robbery with Sgt. Francis, he never mentioned the Defendant.
When Mr. Burrell gave a full statement to the police on the 15th January 2011, he never mentioned the Defendant, either as a participant, or a co-conspirator.
On the 20th January 2011, on being further questioned by the police, Mr. Burrell said, "Martha had no part of it." Further, Mr. Burrell told the police, "She had no idea about the robbery." This evidence is consistent with other evidence led by the Crown.
However, when Mr. Burrell was asked in Court why had he not told the police about the Defendant’s involvement from the beginning, Mr. Burrell said, "I did not see the need to implicate her." When pressed further on this question he said, "I was caught, so there was no need for her to get caught."
The co-Defendant, Mr. Burrell, admitted lying to the police and the reason he gave for the lie was that he did it to try and exonerate himself and because he was thinking about having to care for his children.
It is Mr. Burrell’s evidence that when he, Mr. Burrell, was speaking with Mr. Suberan about their drug activities, Mr. Burrell said he would give the Defendant $10,000.00. This figure changed on at least two further occasions throughout his evidence to the Court. It is also Mr. Burrell’s evidence that during these discussions regarding money for the Defendant, Mr. Burrell spoke with Joseph Suberan about getting a gun and other activities. There is no evidence before this Court that the Defendant knew of these conversations. It was not until eleven (11) days before he was due to be sentenced that the co-Defendant, Mr. Burrell, implicated the Defendant, Martha Levy. Mr. Burrell again admitted lying to the police and lying to Joseph Suberan.
The evidence from the co-Defendant, Mr. Burrell, is intrinsically weak, and there are too many significant inconsistencies. Accordingly, I find Mr. Burrell’s evidence to be unreliable. Evidence of Jaime Morales
I find that, based on countervailing telephone evidence, Mr. Morales has lied to the Court. His insistence that the Defendant was harassing him, and that he did not want anything more to do with her, is directly at odds with the expert evidence provided by Ms. Joanne Woods – a Telecommunications Intelligence Analyst – which clearly shows that, far from the Defendant harassing Mr. Morales, it is Mr. Morales harassing the Defendant. This is particularly between the 13th January 2011 and the 24th January 2011.
To be precise, on the 22nd January 2011, Mr. Morales tried to contact the Defendant by telephone on 16 occasions.
On the 23rd January 2011 Mr. Morales tried to contact the Defendant on 14 occasions – including five calls after midnight and before 1 a.m.
On the 24th January 2011 Mr. Morales called the Defendant on 25 occasions, including eight calls between 1 a.m. and 2 a.m. and six calls between 2 a.m. and 3 a.m.
On these three days there is no evidence from Ms. Woods that the Defendant made any attempt to call Mr. Morales.
I agree with Defence counsel that Mr. Morales’ evidence has been discredited and I find him to be an unreliable witness. Indeed, it is to the Crown’s credit that it accepts that Mr. Morales’ evidence has now been discredited and, indeed, Crown counsel has stated that Mr. Morales’ position is indefensible.
Having reviewed the evidence of Mr. Burrell, I find that his evidence weak, but more importantly, inconsistent with other evidence led by the Crown, and also with his own evidence, and, in particular, inconsistent with his early full and comprehensive accounts to the police.
When I review the evidence on behalf of the Crown, and consider the inconsistent evidence of the co-Defendant, Mr. Burrell, and the discredited evidence of Mr. Morales, I conclude that the prosecution evidence, taken at its highest, is such that a jury, properly directed, could not properly convict on it.
For the sake of completeness, I rely, as this is a trial by Judge Alone, on the dicta of Lord Lowry in R v Hassan & Ors [1973] NIJB where he states: "My own impression is therefore important which would not be relevant in a trial held with a jury: if I am clear (as I am in this case) that in no circumstances could I entertain the possibility of my being convinced beyond reasonable doubt, or indeed to any accepted standard, by the evidence given for the prosecution there can be no justification for allowing the trial to continue."
To put it as the Lord Chief Justice of Northern Ireland, LCJ Kerr, said at paragraph 13 of Chief Constable v Lo (2006) NICA 3: "Where there is evidence against the accused, the only basis on which a judge could stop the trial at the direction stage is where he had concluded that the evidence was so discredited or so intrinsically weak that it could not properly support a conviction"
I find that the evidence adduced by the Crown in this case has been so discredited – in the case of Morales – and is so intrinsically weak and inconsistent in relation to the co-accused, Mr. Burrell, that there is no possibility of my being convinced to the required standard by the evidence before me, that the Defendant is guilty.
Accordingly, and following the classic dicta of Lord Lane in Galbraith, I find that it is my duty, on this no case submission, to stop the case.
I therefore accede to the no case to answer application on behalf of the Defendant and discharge the Defendant.
I conclude by stating that I was impressed by the manner in which the officer in charge, PC Francis, investigated this case and prepared the file. PC Francis’ notes were exemplary in their detail. It is through no fault of his that the evidence of the co-accused, Mr. Burrell, and of Mr. Morales, was so discredited in this case. In addition, the Telecommunications Expert, Ms. Joanne Woods, also impressed the Court with her careful expert evidence which ultimately exposed Mr. Morales as an unreliable witness. Dated this the 16th October 2012 Honourable Mr. Justice Charles Quin Judge of the Grand Court