Beswick J
IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE INDICTMENT NOs: 50/11 & 3/12 REGINA v. CHARLES MICHAEL EBANKS & FREDERICK AUGUSTUS BOOTHE Appearances: Ms. Tricia Hutchinson on behalf of the DPP for the Crown Ms. Lucy Organ of Samson and McGrath for the Defendant Charles Ebanks Mr. John Furniss for Defendant Frederick Boothe Before: Justice Carol Beswick (Actg.) Heard: 3rd September 2012: Joinder Application and Ruling; 4th – 7th September 2012: Trial; 7th September 2012: No case to answer submissions from both Defence counsel. Opposing submissions from Prosecution counsel; 10th September 2012: No-case to answer Ruling delivered in favour of Charles Ebanks and closing submissions in relation to Frederick Boothe
The Defendant, Mr. Frederick Boothe, was charged with Mr. Charles Ebanks on an Indictment containing one count for unlawful possession of an unlicenced firearm, contrary to s.15(1) and 15(5) of the Firearms Law (2008 Revision). The Indictment states that the particulars of the offence are that Charles Michael Ebanks and Frederick Augustus Boothe, on the 26th day of March 2011 in the vicinity of the L.I. Night Club, Lawrence Avenue, Grand Cayman, had in [their] possession a firearm, namely a Ruger .44 caliber revolver, except under and in accordance with the terms and conditions of a Firearms Users Licence.
Both pleaded not guilty to the offence and after submissions at the end of the prosecution’s case the Court ruled that Mr. Ebanks had no case to answer, and a formal verdict of Not Guilty has been entered against him. The case continued against Mr. Boothe alone.
Mr. Boothe chose not to give evidence or call witnesses and, I remind myself at the outset that he has no burden to prove his innocence. Rather, it is the prosecution who has the burden to satisfy me of his guilt, beyond a reasonable doubt, before I can find him guilty. I must be sure of his guilt before coming to such a verdict.
Whilst reminding myself of the burden of proof being that of the prosecution, I also note that, because the Defendant Boothe has elected not to give evidence or call any witnesses, in this way, he has not availed himself of the opportunity to present optional reasons for his DNA found on the firearm, for his presence in the vicinity of the location in which the firearm was found, other matters related to this case, or, to have his statements tested under cross examination for the benefit of the Court. He has the right to make that election and I draw no adverse conclusion because of his election.
The Prosecution relied on several witnesses to prove its case. Some spoke to the allegations and others spoke to the retrieval of items and scientific analysis of them. THE EVIDENCE PC Jonathan Horner PC Horner, an officer of the Royal Cayman Islands Police Service (RCIPS), testified that at about 2:35 a.m. on Saturday the 26th March 2011 he was on patrol when he received a transmission on the police radio. He went to the LI Night Club with PC Smith who was with him, and drove to the front entrance of the Club. PC Horner walked from the main entrance along the back towards a dumpster, in the general direction of the rear exit door. He saw two men, including Defendant Frederick Boothe, and covertly drew his firearm and shouted to them to put their hands on the vehicle near them. The men complied, the police searched the men and nothing was recovered. The men were released. Then PC Horner noticed that PC Smith was with another man who was later identified as Charles Ebanks, whom, according to PC Horner, PC Campbell had said he had seen secrete something in the bush. 1. 8. The police searched the area surrounding Mr. Ebanks and found a firearm. 2. 9. Charles Ebanks said that he had been with Defendant Boothe throughout the night. PC Campbell, who had joined these officers, then went to get Defendant Boothe, who was in the parking lot, and both Defendant Boothe and Charles Ebanks were arrested. 7 8 9 PC Jeremy Smith 10 11 10. PC Smith testified that when he arrived on the location he searched Defendant Boothe and another man. Having searched them and found nothing, he released the men and joined PC Campbell who had by then detained Charles Ebanks. PC Smith joined in the search of the bushes. 15 16 11. Within about 25 seconds, he found a firearm. There was a branch of an almond tree extending over the pavement of the parking lot. PC Smith said he lifted the branch with one hand and when he put the beam of his flashlight under the branch he saw the firearm among dry leaves. 20 21 12. According to PC Smith he gave his colleagues instructions and it was then that PC Campbell went for Defendant Boothe and brought him back to the scene. PC Smith says that he asked Defendant Boothe and Charles Ebanks what it was that he had found and who it belonged to. Defendant Boothe replied that he knew what it was but did not know to whom it belonged or how it got there. PC Smith identified the firearm, which is now in evidence as Exhibit 1. PC Derron Campbell
PC Campbell testified that he also responded to the transmission and went to the rear of the parking lot at LI Night Club. PC Campbell said he could hear PC Horner giving instructions to two males in the parking lot. At the same time, according to PC Campbell, he saw a male, later identified as Charles Ebanks, slightly crouched in bushes, appearing as if he were placing something in the bushes.
Under cross examination PC Campbell agreed that he did not see Charles Ebanks place anything in the bushes and agreed further that Mr. Ebanks's movement was such that he could not only be putting down something, but he could also be picking up something or searching.
The police searched the area and found what appeared to be a firearm under some trash. The barrel was not hidden. Immediately, testified PC Campbell, he went to the entrance of the LI Night Club where the Defendant Boothe was standing, and asked him to return to where Mr. Ebanks and the other RCIPS officers were.
Under cross examination PC Campbell testified that where the officer first stopped Defendant Boothe was about 30 to 35 feet from the rear exit. PC Norman Banfield
PC Banfield’s statement was read into evidence. He described that he had arrived on the scene at the LI Night Club and had seen the police search Defendant Boothe, as well as other persons and nothing relevant was found. 7 Officer Orlando Williams
Officer Orlando Williams, who is attached to the Scientific Support Group (SSG) of the RCIPS, testified that he is trained and is experienced in crime scene investigation.
On the 26th March 2011, at about 4:10 a.m., he went to the LI Night Club in response to a call. Sgt. Christopher Richards of the Uniform Support Group (USG) gave him some information as a result of which Officer Williams made some preliminary checks of a particular area.
In that area Officer Williams saw what appeared to be a firearm in some bushes in the vicinity of the parking lot to the rear of the night club.
According to Officer Williams, without removing the firearm, he took pictures of it and the area and therefore the firearm was photographed in the original state in which he had seen it.
Officer Williams describes that he and Sgt. Christopher Richards were dressed in protective covering, including latex gloves. Sgt. Richards then made the weapon safe and Officer Williams next put the weapon in a more 1. visible place where he took more photographs of it, as well as the two (2) live rounds of ammunition which were in it. 2. live rounds of ammunition which were in it. 3. live rounds of ammunition which were in it. 4. 22. Officer Williams packaged and sealed and labeled the firearm and ammunition. 5. ammunition.
23. His evidence continues that later, Detective Sean Bryan arrived and joined him, Sgt. Richards, and PC Campbell in conducting a detailed search of the area – looking for ganja, cigarettes or anything of that sort. Nothing was found.
24. Officer Williams returned to his office and downloaded the images of the photographs he had just taken and created an album of photos – some of which are exhibited. They are images of the firearm and the ammunition, as well as the surroundings in which they were found.
25. Officer Williams identified photograph 5 as showing how the firearm was positioned when he went to the LI Night Club location – that is, the handle, the trigger guard and trigger were visible under a leaf.
26. Officer Williams took the firearm and the bottles he had found nearby, to the examination room. There were no fingerprints, but he processed the items for DNA. He wore personal protective clothing, with gloves. He used sterile cotton tips from his kit to swab named areas of the firearm, areas which would have been touched by a person using the firearm. 1. 27. Officer Williams’ evidence is that he handed over the firearm and rounds for storage. On being further instructed by his supervising officer, Officer Williams was present when, on the 31st March 2012, a board section of the handle was dismantled. Officer Williams then took swabs from these other areas for DNA testing. The expectation was that a person holding the firearm would most likely sweat and the DNA would seep under that area. 2. 28. In cross examination Officer Williams told the Court that the firearm was in the bushes under the almond tree, about six to ten feet from the Club. Officer Williams said he was in the bush when he saw the firearm and did not have to lift a branch to see the firearm. He said he could not see the firearm from the curb, but would have had to go into the bush to see it. 3. 15 Det. Sgt. Sean Bryan 4. 29. Det Bryan testified that on the 26th March 2011, at about 3:45 a.m., he went to the George Town Police station and spoke briefly with Mr. Boothe and Mr. Ebanks. Thereafter he joined Officer Williams at the scene of the incident and gave Officer Williams instructions. 5. 30. Det. Bryan’s evidence is that he thereafter sought to obtain statements, diagrams and records from the officers involved, and also from the 911 emergency centre. 6. 31. Det Bryan further testifies that he and another officer, Ginn, returned to the location at about 6:45 a.m. that morning. The search revealed nothing relevant, as did the search of Mr. Boothe’s house. 1 32. At approximately 5 p.m. that day Det. Sgt. Bryan, according to his evidence, 2 recorded an interview he had with Mr. Charles Ebanks, and thereafter, he 3 interviewed Defendant Boothe. Mr. Boothe had no attorney-at-law to assist 4 him at the interview and had no comment for the majority of questions he 5 was asked. 6 33. On the 15th April Det. Bryan obtained a buccal swab from the Defendant 7 Boothe for DNA purposes. 8 34. Det. Bryan’s evidence is that later in the investigations he arrested Cleve 9 Borden – the person whose DNA was also found to have been on the firearm, 10 but there was insufficient evidence to charge him for an offence. 11 35. Det. Ginn’s statement was read. His evidence was that at about 7:15 a.m. on 12 Saturday the 26th March 2011, he, with Det. Constable Bryan, searched a 13 wooded area of the car park at LI Night Club and later, with PC Bryan, 14 recorded an interview with Defendant Boothe. 15 Det Constable Trevor Ginn 16 36. Mr. Greenspan is a firearms and tool mark examiner and I accept him as an 17 expert in the field of firearms and bullets. 18 37. In his statement which was read, Mr. Greenspan stated that on the 11th April 19 2011 he received a sealed, labelled box from the RCIPS with a Ruger 1 revolver and cartridges. He examined the items and found that the firearm 2 was in an operable condition and is a lethally barreled weapon, capable of 3 causing either death or serious injury. The rounds, he thought, were viable. 4 5 Ms. Tiffany Roy 6 7 38. Ms. Roy was accepted by the Crown and Defence as being an expert witness, 8 she being a Forensic Scientist from DNA Labs International, Florida. 9 10 39. I remind myself that her evidence is to assist me with one particular area of 11 the matter, that is, DNA. I remind myself that I am not obliged to accept her 12 evidence as being true. Ms. Roy is a trained and qualified Forensic DNA 13 Analyst but is, in fact, simply a witness and I can accept what she says or 14 reject what she says. That also applies to all expert witnesses who have given 15 evidence based on their expertise, but whose evidence is subject to the same 16 examiner any other witness. 17 18 40. Ms. Roy explained that deoxyribonucleic acid (DNA) is found in the cells of 19 the body and comes 50:50 from each parent. It is found in body fluids, for 20 example, sweat. Nevertheless, it is possible to handle an item and not leave 21 DNA behind. 22 23 41. Ms. Roy testified that social factors affect the deposit of DNA on a surface. 24 These include the frequency with which an item is handled, and the quality 25 of one’s skin. 26 27 42. Ms. Roy described the process in the laboratory in which any sample 28 received in the lab is given a unique number so that its passage through tests in the laboratory can be easily followed. The specimen is first subjected to chemicals which extract any DNA present. The next step is to measure the amount of DNA present and then to copy it so that its presence can be detected and displayed by a monitor. The scientist then analyses the information and makes comparisons to determine, inter alia, if there is DNA present from more than one person. Thereafter, the DNA of a known sample is compared with DNA from the evidence. Ms. Roy testified that on the 28th April 2011 she received specific items at her laboratory and the items included the swabs which had been collected by Officer Williams along with a specimen from Defendant Boothe. Ms. Roy’s evidence was that the results of the examination of the swabs taken from the outer handle of the firearm, on both the right and left side of it, showed a mixture of two individuals contributing to a major and a minor DNA profile. Further research using the Laboratory’s database showed that the major profile matched the DNA of Mr. Cleve Borden. Ms. Roy stated that the chance that a person, chosen at random from the general population, matches this major DNA profile is approximately 1 in every 45 million individuals. Mr. Boothe was excluded as a contributor to that profile. As it concerns a swab taken from the hammer, the trigger guard and the trigger of the revolver the results showed a mixture of the DNA of at least four individuals. Mr. Boothe could not be excluded as a 1 contributor to this mixed profile. The chance that a person, chosen at random from the general population, matches that mixed DNA profile is approximately 1 in every 1,550 individuals. 2 3 4 5 46. As it concerns a swab taken from the rusty section of the cylinder of the firearm the DNA profile indicated a mixture of at least two individuals and Mr. Boothe could not be excluded as a contributor. 6 7 8 The chance that a person chosen at random from the general population, matches that mixed DNA profile is approximately 1 in every 110 individuals. 9 10 11 12 47. As it concerns a swab taken from the inner area of board portion of the handle of the firearm the DNA indicated a mixture of at least two individuals and Mr. Boothe could be excluded as a contributor. 13 14 15 16 48. As it concerns the metal section of the handle of the firearm the DNA profile indicated a mixture of at least four individuals. Mr. Boothe could not be excluded as a contributor to this profile. The chance that a person chosen at random from the general population, matches that mixed DNA profile is approximately 1 in 230 individuals. 17 18 19 20 21 22 23 24 ANALYSIS
Section 15(1) of the Firearms Law (2008 Revision) provides that, subject to certain named exceptions, no person shall be in possession of any firearm except under and in accordance with the terms of a Firearm User’s (Restricted) Licence.
It is agreed that the Defendant Boothe has no licence for a firearm and I accept as accurate the unchallenged evidence of Mr. Greenspan that the firearm is an operable, lethal barreled weapon, capable of causing either death or serious injury. It therefore falls within the meaning of a firearm within the law.
The issue therefore is that of possession. Was Defendant Boothe in possession of the firearm?
According to s.3 of the Penal Code (2010 Revision): “possession “includes not only having in one’s own personal possession, but……..having anything in any place...for the use or benefit of oneself or any other person.”
In this matter Defendant Boothe did not have the firearm in his own personal possession, so the question becomes whether he had it in the place and also if it was there for the benefit of himself or any other person.
It is clear to me that whoever put the firearm where it was eventually found by the police, did so in order for it to be for the use or benefit either of himself or another person. The firearm was operable. It was capable of being used to cause either death or serious injury. It is an item which would be of great importance to persons who use firearms in the pursuit of their own devices. The question then is whether it was the Defendant Boothe who “had it in that place” that is, that in being in that place the firearm was in his possession. In order to establish possession in Defendant Boothe, the prosecution must prove that he had some actual control of the firearm. The Court of Appeal in R v. Jacobs [2002] EWCA Crim. 610 at par 10 stated that: “The reality, of course, is that there must be some actual control in order to render a person guilty of being in possession of an object. It need not be exclusive control. ...” In Jacobs, the firearm had been under a cushion in the home in which the Appellant was lodging. The owner of the house was sitting on the cushion at the time that the firearm was found. At the trial the Appellant had been found to be in possession of the firearm. The Court of Appeal, in allowing the appeal, quashed the Appellant’s conviction for possession of a prohibited weapon, and emphasised that there was no evidence that the appellant was in any way exercising any degree of control over the weapon in question and he could not be properly convicted of being in possession of it. In the instant matter the prosecution submitted that by being in close proximity to the firearm when it was found, Mr. Boothe was exercising custody and control over it. There was however no direct evidence of the distance that separated the Defendant from the firearm when it was found. The evidence on which the Crown relies to say that he was in close proximity to the firearm is inferential. They rely on the fact that PC Horner had testified that he came upon the Defendant in the general vicinity of the rear exit door of the nightclub, that the firearm was found under an almond tree, and, that the almond tree was about 20 feet from the exit. Based on that evidence, the Crown submits that the Defendant was about 20 feet from the firearm when it was found by the police and that that must be taken to mean he had custody and control of it. Counsel for the defence argues however that the Defendant was physically away from the firearm in an area of the parking lot of the nightclub and was not walking to the bush or from the bush. His argument is that there was no evidence that the Defendant was having anything to do with the firearm when it was found. Defendant Boothe had himself acted in no manner to arouse the suspicion of the police that early morning and indeed it was not until Mr. Ebanks made certain statements that the police went and brought Mr. Boothe to the place where the firearm had been found. DNA
I consider now the presence of the Defendant’s DNA on the firearm.
The evidence of the Forensic Analyst has satisfied me so that I am sure that the Defendant cannot be excluded from persons who came in contact with the firearm in question.
Counsel for the Defendant has argued that the presence of his DNA is not sufficient to find that he is in possession of the firearm and relies in support of that on the Judgment of the Honourable Chief Justice R v. Sciamonte and Whittaker [Indictment 94 of 2008].
There Mr. Sciamonte was found not guilty of possession of the firearm where the only evidence connecting him with the firearm was the presence of his DNA on it. Counsel for the prosecution did however indicate that in that matter, the Defendant had not been in the location where the firearm had been found.
I accept the truth of that argument by Defence but in my view this case is clearly distinguishable from Sciamonte. The unchallenged evidence here is that the Defendant Boothe was in the vicinity of where the firearm was found. The question is whether his presence was such that he can be found to be in possession. Mere presence is not enough.
When The DNA was extracted by the Laboratory from the firearm, the examination showed that several persons had come in contact with the firearm.
I accept the expert evidence of the Forensic DNA Analyst and I am satisfied so that I am sure that the Defendant Boothe’s DNA cannot be excluded from the DNA which was present on the hammer, the trigger guard and the trigger of the firearm as also on the rusty section of the cylinder of the firearm, and the metal section of its handle.
I accept that Defendant Boothe cannot be excluded from persons who have had contact with the firearm and and, in view of the evidence that the places where his DNA were found included the hammer, the trigger guard, the trigger and the handle, I draw the inference, which I regard as reasonable, that he has at sometime held the firearm.
The prosecution submits that the presence of the DNA also satisfies the requirement that Defendant Boothe knew the item was a firearm because, in holding it, he must be taken to have known what he was holding. I accept that submission as accurate.
However, that is not sufficient to prove that he had possession of the firearm at the time with which we are concerned.
He is charged with possession of the firearm on the stated date of the 26th March 2011.
The charge is not that he had possession of the firearm at some time in the past or some time unknown. I must be sure that he possessed it at the time for which he is charged.
No doubt the prosecution was sensitive to this requirement when it made the submission that it was likely that Defendant Boothe had held the firearm on that evening. There is, in fact, no evidence presented to make me sure that he was in possession on that evening.
The DNA expert was not able to say when the DNA was put on the firearm, and her results make it clear that more than one person had had contact with the firearm.
It was Mr. Cleve Borden’s DNA that had the majority profile on the firearm. Mr. Boothe’s DNA was minor. The expert testified that the person with the majority profile would have handled the firearm more than the person with the minority profile.
The prosecution has not been able to provide evidence as to whether Mr. Cleve Borden had been there that night and, the Defence submitted that, with the state of that evidence, the prosecution could not know if the firearm had been placed there by the person who had the majority profile.
The unchallenged evidence is that there were about 40 persons in the car park. Generally speaking the presence of a defendant’s DNA on a firearm provides powerful evidence towards proof of its possession by the defendant. However, in the peculiar circumstances of this case, additional factors must be considered. In this case where there is the DNA of several persons on the one firearm and the defendant’s DNA has not been a definitive match, but rather, could not be excluded from mixed profiles in certain samples, it becomes important to identify the particular circumstances in which the defendant’s DNA was placed on the firearm. A firearm can be in the joint possession of persons but only if each person can be shown to have active involvement in its possession. It is not enough that the person can have access to it. The Court of Appeal in R v. Jacobs (supra) had noted that: “It is, of course, possible for items to be able to be used by a number of different people. If that is so, and if there is evidence that they have some active involvement in the use of the items, then they will all be guilty of possession. But it is not sufficient that someone is capable of taking control of the item in question.” The firearm was found in a public place but was hidden from view. I readily find as a fact that the firearm was placed in that position. It did not fall from an unknown place. It was under some leaves under the branch of a tree. The intent in my view was to hide it from discovery. There is evidence that persons were in the car park but the only evidence of civilians near to the firearm was that Defendant Boothe and Charles Ebanks were nearby. Mr. Ebanks, however, was never seen touching the firearm and his DNA was not on it.
These circumstances may cause the opinion to be formed that there is a very strong suspicion that Mr. Boothe was in possession of the firearm as charged. It becomes important to identify the occasion on which the prosecution is alleging he had possession of the firearm, so that the circumstances can be examined and it can be shown that he, not the others whose DNA also appeared on it, was in possession. I have already accepted that the defendant does not have a firearm’s licence but that is but one element of the offence charged. It is the possession of the firearm without the licence that is the charge.
I am acutely aware that the society has suffered from the unwelcome presence of firearms in the hands of a relatively small group of persons who brazenly engage in antisocial behaviour. The Court must be sensitive to the occurrences in the society and the decisions of the Court must serve to deter unlawful behaviour and where necessary must send the message to the individual offender and to the society in general that crime will not be tolerated and carries a punishment.
At the same time I remind myself that in the quest to maintain order in society and to uphold the law, the Court must not find itself failing to follow the very laws which are at the foundation of the society, by succumbing to the temptation of making decisions based on suspicion, no matter how strong the suspicion may be.
In our system of law, before I am permitted to find the Defendant guilty, the prosecution must satisfy me beyond all reasonable doubt that Defendant Boothe is guilty. There must be evidence to make me sure of his guilt.
In the circumstances of this case I cannot be sure that this defendant on the 26th March 2011 was in possession of the firearm and had custody and control of it. There is no evidence that the Defendant was in contact with the firearm or had any control over the firearm at that time. I cannot properly find that he was in possession of the firearm and I therefore enter a verdict of not guilty on this charge. Dated this the 13th September 2012 Madam Justice Carol Beswick (Actg.) Judge of the Grand Court