R v David Reuben Ebanks - Ruling

¶ IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE INDICTMENT NO: 41/12 THE QUEEN V DAVID REUBEN EBANKS Appearances: Mr. Michael Snape on behalf of the DPP for the Crown Ms. Lucy Organ of Samson and McGrath for the Defendant Before: Justice Carol Beswick (Actg.) Heard: 13th and 14th August 2012 RULING ON NO CASE TO ANSWER SUBMISSION

¶ [1] The Defendant, Mr. David Reuben Ebanks, is charged with possession of an unlicensed firearm (ammunition) contrary to s.15(1) and s.15(5) of the Firearms Law (2008 Revision). The particulars of the offence are that the Defendant, on the 23rd day of February 2012 at #54A Cinder Lane, West Bay, Grand Cayman, Cayman Islands, had in his possession a firearm (ammunition), namely, three (3) 12-gauge shot shell rounds, except under and in accordance with the terms of a Firearms Users Licence.

¶ [2] Defence Counsel, on the second day of this trial, made a submission that there is no case to answer, and argues that the evidence is so tenuous that no jury properly directed could properly convict. The Defence therefore submits that the Defendant should not be called on to answer this charge.

¶ [3] The Crown’s case is that the Defendant, Mr. Ebanks, was in possession of unlicensed ammunition, and relies on circumstantial evidence.

¶ [4] It is agreed that ammunition falling within the definition in the Firearms Law, was found at #54A Cinder Lane, West Bay, when the Defendant had been at the house. It is also agreed that in order to prove that Mr. Ebanks had possession of that unlicensed ammunition the Crown must prove that he had custody and control of it and also knew that it was ammunition.

¶ [5] I therefore consider the submissions and the evidence which has been presented, in order to determine if there is a case to answer. CROWN’S CASE A. Location of Ammunition

¶ [6] Three (3) rounds of ammunition were in a foot of socks which in turn was in the pocket of jeans pants.

¶ [7] DNA analysis showed that the Defendant’s DNA was on the interior and exterior of the foot of socks and also on the waistband and zipper of the jeans pants.

¶ [8] The DNA on the ammunition was too weak to allow for the expert witness to give a statement as to whether or not the DNA belonged to the Defendant. B. Circumstances Surrounding the Location of the Ammunition

¶ [9] The jeans pants, within which the ammunition was found, was in a bedroom in the house, which it is presumed is the Defendant’s bedroom and it is also presumed that he was living in that bedroom on the morning when the ammunition was found.

¶ [10] In the bedroom was also other clothing, among which the jeans pants had been found. No clothing identifiable as belonging to a female was in that bedroom. The Crown relies on a photograph which is an exhibit to show the absence of such clothing. The submission is that this supports the presumption that this is the Defendant’s room. C. Location of the Defendant at the Start of the Search

¶ [11] The Defendant emerged from the passageway of the house at about 6:05 in the morning, wearing underwear and no shirt. The room in which the ammunition was found is off that passageway. The Crown argues that logic dictates that he was emerging from his bedroom where the ammunition was later to be found. CROWN’S SUBMISSION

¶ [12] The Crown relies on circumstantial evidence and invites the Court to apply logic to the evidence in this case and to find that the Defendant, having been found in underwear and shirtless at about 6:05 in the morning at #54A Cinder Lane, lives there and spent the previous night there.

¶ [13] Further, the Crown invites the Court to find, logically, that because the Defendant’s DNA was on the foot of socks and the jeans pants in which the ammunition was found in the bedroom, he should be taken to have been in possession of the ammunition, and also, to have known what it was.

¶ [14] I juxtapose this submission against that of the Defence. DEFENCE’S SUBMISSION

¶ [15] The submission is that there is no evidence that the Defendant had physical custody and control or knowledge of the ammunition. A. Location of Ammunition

¶ [16] The evidence is that the Defendant’s DNA on the foot of socks could have arrived on the sock as a result of his simply having worn the sock. Further, the DNA analysis expert cannot state when that DNA could have been placed there. Indeed DNA can survive washings of an item in the laundry, if the item were frequently worn.

¶ [17] The Defendant’s DNA was on the waistband and zipper of the jeans. The expert’s evidence is that so too may have been DNA of someone else, though in small trace. No sample was taken of DNA in the pocket of the jeans pants in which the sock containing the ammunition was said to have been found. The evidence is that someone else could touch the sock and not leave his or her DNA on it.

¶ [18] The expert’s evidence is that the DNA on the swab from the shotgun was of such very poor quality, that she could only testify that there was at least one male contributor and that it could have been more than one. B. Circumstances Surrounding the Location of the Ammunition

¶ [19] There is no evidence that the Defendant lives in the room in which the ammunition was found nor that the room was secured against others having access to it. Indeed, there is no evidence as to whose bedroom it was, in which the ammunition was found.

¶ [20] The photographs should be viewed as showing that this is a room in which the family’s laundry is collected. C. Location of the Defendant at the Start of the Search

¶ [21] The Defence submits further that other persons had access to the house and bedroom. Indeed another named man was the last occupant to exit the house when the police were searching. This was after the accused had left the house, and would mean that at least that person would have had access to the house in the absence of the accused. Court’s Conclusions A. Location of Ammunition

¶ [22] The Defendant’s DNA is on the foot of socks in which the ammunition was found, and it could have been put there at any time, and indeed could have survived washing in the laundry.

¶ [23] The DNA on the jeans pants was not exclusive to the Defendant, and no DNA of the Defendant was identified on the particular pocket in which the ammunition was said to have been found.

¶ [24] There is no evidence that the Defendant ever had contact with the ammunition found in the sock, or that his DNA was on it. B. Circumstances Surrounding the Location of Ammunition within the House

¶ [25] The presumption that the Defendant lived in the room is readily rebuttable by the absence of evidence that he had exclusive control of the bedroom. The unchallenged evidence is that the house is an open house and that many people have access to it. There is no evidence as to the ownership of the clothing among which the jeans pants were located in the bedroom.

¶ [26] The absence of high heeled shoes or clothing which may be regarded as being obviously female may in fact logically lead to the conclusion that a female did not live in that room. That in itself does not strengthen the Crown’s submission that the Defendant lived in that room because it is undisputed that several men were also taken from the house on that early morning and, therefore, it may not be excluded that another man or men lived in that room. C. Location of the Defendant at the Start of the Search

¶ [27] There is an absence of evidence of the Defendant being in exclusive control of the bedroom and of the jeans pants in which the ammunition was found. Whether the Defendant slept at that location on the night before the search, or whether he was emerging from his bedroom, are therefore immaterial in this case. SUMMARY OF THE EVIDENCE

¶ [28] The Defendant was one of several persons, including males, who were at #54A Cinder Lane in the early morning of February 23, 2012, when the police arrived to search the premises.

¶ [29] At that time, ammunition was found in a foot of socks which had the DNA of the Defendant and the DNA could have been placed on the sock on any earlier date.

¶ [30] The ammunition does not bear the Defendant’s DNA.

¶ [31] Further, it is agreed that no items found during the search were processed for fingerprint development or analysis.

¶ [32] There is no evidence, direct or inferential, of the Defendant having knowledge of the ammunition. THE LAW

¶ [33] The law concerning the determination as to whether there is a case for an accused person to answer is summarised by the English Court of Appeal in R v. Galbraith¹ per Lord Lane CJ, where it is stated inter alia: “2 (a) Where the Judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case.” ¹ R v. Galbraith [1981]1WLR 1039 at p.1062 Defence counsel relies on this in support of her submission.

¶ [34] I am further guided in the approach to this submission by the Northern Ireland Court of Appeal decision in Chief Constable v. Lo². There the Court was concerned with a submission that there was no case to answer in a matter being heard by a Judge sitting without a Jury. The then Lord Chief Justice, Lord Kerr, opined: "The proper approach of a judge or magistrate sitting without a jury does not, therefore, involve the application of a different test from that of the second limb in Galbraith³." He continued to describe the proper approach a Judge sitting alone should take and said: "The question that he should ask is whether he is convinced that there are no circumstances in which he could properly convict. Where evidence of the offence charged has been given, the judge could only reach that conclusion where the evidence was so weak or so discredited that it could not conceivably support a guilty verdict."

¶ [35] The offence in this case concerns possession. Section 3 of the Penal Code (2010 Revision) defines possession as: "...not only having in one's own personal possession, but knowingly having anything in the actual possession or custody of any other person, or having anything in any place (whether belonging to or occupied by oneself or not) for the use or benefit of oneself....."

¶ [36] The prosecution evidence falls short of proof that this Defendant had the ammunition in his personal possession or knowingly had custody ² Chief Constable v. Lo [2006] NICA 3 ³ At par. 14 of ammunition. The prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it.

¶ [37] It is my view that the evidence for the Crown is so weak that there are no circumstances in which I, sitting alone, could properly convict. The evidence could not conceivably support a guilty verdict.

¶ [38] I therefore must discharge my duty, according to the law as I understand it, to stop the case.

¶ [39] I will not call upon the Defendant to answer the charge and consequently I enter a verdict of Not Guilty on this Indictment which contains one count of possession of an unlicensed firearm. Dated this the 15th August 2012 Madam Justice Carol Beswick (Actg.) Judge of the Grand Court