R v McField, Douglas and Ebanks - Ruling

¶ Ruling on No case to Answer submission. R v. Patrick McField, Osbourne Douglas, Brandon Leslie Ebanks. Ind. 51/09. Coram: Quin J. 9.9.2010 Page 1 of 8 1 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL SIDE 2 INDICTMENT NO: 51/09 3 4 THE QUEEN 5 6 V 7 8 PATRICK MCFIELD 9 OSBOURNE DOUGLAS 10 BRANDON LESLIE EBANKS 11 12 Appearances: For the Crown: 13 Solicitor General, Ms Cheryll Richards Q.C. 14 Crown Counsel, Ms Trisha Hutchinson 15 16 Defence Counsel: 17 Mr. Trevor Burke Q.C. and Mr. Ben Tonner of 18 Samson and McGrath for Patrick McField 19 20 Mr. Alistair Malcolm Q.C. and Mr Clyde Allen for 21 Osbourne Douglas 22 23 Mr. Nicholas Rhodes Q.C. and Mr. Nicholas Dixey of 24 Mourant for Brandon Leslie Ebanks 25 Before: Hon. Justice Charles Quin 26 Heard: 30th August to 9th September 2010 27 28 RULING ON DEFENCE’S NO CASE TO ANSWER SUBMISSION 29 30

¶ [1] All three Defendants through their leading counsel have made submissions of no 31 case to answer, relying on Lord Lane’s classic dicta in R v. Galbraith 73 Cr. 32 App. R. 124. 33 34

¶ [2] I now set out Lord Lane’s classic dicta in R v. Galbraith 73 Cr. App. R. 124 CA 35 in which he stated: 36 Ruling on No case to Answer submission. R v. Patrick McField, Osbourne Douglas, Brandon Leslie Ebanks. Ind. 51/09. Coram: Quin J. 9.9.2010 Page 2 of 8 2 “(1). If there is no evidence that the crime alleged has been committed by the 1 defendant there is no difficulty – the Judge will stop the case. (2). The 2 difficulty arises when there is some evidence but it is of a tenuous character, 3 for example, because of inherent weakness or vagueness or because it is 4 inconsistent with other evidence. (a) Where the Judge concludes that the 5 prosecution evidence, taken at its highest, is such that a jury properly 6 directed could not properly convict on it, it is his duty, on a submission being 7 made, to stop the case. (b) Where, however, the prosecution evidence is such 8 that its strength or weakness depends on the view to be taken of witness’s 9 reliability, or other matters which are generally speaking within the province 10 of the jury and where on one possible view of the facts there is evidence on 11 which the jury could properly come to the conclusion that the defendant is 12 guilty, then the Judge should allow the matter to be tried by the jury.” 13 14

¶ [3] As leading counsel for Mr. McField, Mr. Burke, stated when he started his 15 address, there would be a significant measure of overlap and repetition in the 16 submissions for the three defendants although it is important for the Court to 17 consider each submission separately in relation to each Defendant. 18 19

¶ [4] Mr. Burke on behalf of Patrick McField also prays in aid Mr. Justice Turner’s 20 observations in R v. Shippey [1988] Crim. L. R. 766 to remind the Court that the 21 requirement to take the prosecution case at its highest does not mean “picking out 22 all the plums and leaving the duff behind.” 23 24

¶ [5] Leading counsel for McField states that the judge should assess the evidence, and 25 if the evidence of the witnesses upon whom the prosecution depended was self 26 Ruling on No case to Answer submission. R v. Patrick McField, Osbourne Douglas, Brandon Leslie Ebanks. Ind. 51/09. Coram: Quin J. 9.9.2010 Page 3 of 8 3 contradictory and without reason and all common sense, then such evidence was 1 tenuous and suffered from inherent weakness. Counsel submits that this is the 2 case in relation to the evidence against Mr. McField. 3 4

¶ [6] Mr. Burke, like Mr. Malcolm on behalf of Osbourne Douglas, and Mr Rhodes on 5 behalf of Brandon Ebanks, sets out a number of inconsistencies and 6 contradictions in the Crown case from which I will try to select the more 7 significant examples. 8 9 a. Mr. Burke relies on the fact that there is evidence from Ms Wright and 10 Ms Logan that 13 shots were fired at the scene, whereas the other Crown 11 evidence, and in particular, the Crown’s witness, Leon Connolly, would 12 suggest that there were only 5. 13 b. Five bullet casings are found in a different area from where the two eye 14 witnesses say they saw two defendants produce the guns and start 15 shooting. 16 17 c. The eye witnesses refer to punching, kicking and fighting, and yet there 18 is no medical evidence in relation to the deceased to support such an 19 alleged assault. 20 21 d. Witness Wright describes the clothing of the deceased as including a 22 baseball-type cap with a dollar sign in sequins. Yet no baseball cap was 23 ever recovered from the scene, despite a most thorough examination. 24 25 Ruling on No case to Answer submission. R v. Patrick McField, Osbourne Douglas, Brandon Leslie Ebanks. Ind. 51/09. Coram: Quin J. 9.9.2010 Page 4 of 8 4 e. Crown witness Marcus Manderson attributes words to the deceased to 1 identify a third party not before the Court, which again contradicts the 2 Crown’s evidence and undermines the eye witness evidence. 3 4 f. There is a complete lack of forensic evidence linking McField to the 5 crime. 6 7

¶ [7] Mr. Malcolm, leading counsel on behalf of Osbourne Douglas relies on the fact 8 that the only evidence against his client comes from Ms. Wright, which he breaks 9 down into three parts. First her evidence as to what she saw on the porch; 10 Secondly, her evidence as to what she saw by the laundry; and, Thirdly, by 11 subsequent events. 12 13

¶ [8] Mr Malcolm highlights the fact that Ms Wright could only see what the man she 14 alleged to be Osbourne Douglas’ eyes, and therefore she could not visually 15 identify him. Although Ms. Wright said that she recognized the voice of the 16 Defendant, Osbourne Douglas, Mr. Malcolm submits that this is inherently weak 17 and less reliable than visual identification. Mr. Malcolm points out that the 18 Crown did not implement a voice identification procedure as set out in the R v. 19 Hersey [1998] Crim. L. R. 281 and highlights a number of features of Ms. 20 Wright’s identification to demonstrate its inherent weakness. 21 22

¶ [9] Mr. Malcolm, like Mr. Burke, points to several inconsistencies and submits that 23 if they are as a result of a faulty recollection, then the evidence could only be 24 described as poor. 25 26 Ruling on No case to Answer submission. R v. Patrick McField, Osbourne Douglas, Brandon Leslie Ebanks. Ind. 51/09. Coram: Quin J. 9.9.2010 Page 5 of 8 5

¶ [10] Mr. Malcolm submits that, accordingly, the evidence comes within the approach 1 adopted by the Lord Chief Justice in R v. Turnbull [1977] 2Q.B. 224 where he 2 stated: 3 4 “When, in the judgment of the trial judge, the quality of the identifying 5 evidence is poor, as for example when it depends solely on a fleeting glance 6 or on a longer observation made in difficult conditions, the situation is very 7 different. The judge should then withdraw the case from the jury and direct 8 an acquittal, unless there is other evidence which goes to support the 9 correctness of the identification.” 10 11

¶ [11] Mr. Malcolm suggests that either the witness, Ms. Wright, is unreliable, or if that 12 is not so, then she is inventing the evidence, which makes the matter significantly 13 worse. In any event, Mr. Malcolm submits that the case should not be allowed to 14 go to the jury in light of the poor identification evidence of Cindy Wright. Mr. 15 Malcolm submits that there are too many weaknesses in the voice identification. 16 In addition, Mr. Malcolm submits that Cindy Wright’s eye witness identification 17 is weak and her evidence from the gap beside the Laundromat was only a fleeting 18 glance, and a fleeting glance from a side view of the Defendant, Osbourne 19 Douglas. 20 21

¶ [12] In summary, Mr. Malcolm submits that the poor identification evidence, together 22 with the inconsistencies, and the lack of supporting evidence, makes it a case that 23 should be withdrawn from the jury. 24 25 Ruling on No case to Answer submission. R v. Patrick McField, Osbourne Douglas, Brandon Leslie Ebanks. Ind. 51/09. Coram: Quin J. 9.9.2010 Page 6 of 8 6

¶ [13] Mr. Rhodes, leading counsel on behalf of Brandon Leslie Ebanks, adopts many 1 of Mr. Burke and Mr. Malcolm’s submissions, but adds, in his argument: “…the 2 evidence of the two identification witnesses is wholly inconsistent with itself and 3 with the other evidence in this case. Specifically it is contradicted by the 4 evidence of scenes of crime examination and the scientific evidence arising there 5 from, and therefore, no jury properly directed upon the evidence in this case 6 could safely convict the Defendant Brandon Leslie Ebanks.” 7 8

¶ [14] Like his colleagues, Mr. Rhodes highlights in his skeleton argument a number of 9 inconsistencies between Ms. Wright and Ms. Logan and some inconsistencies 10 between their evidence and the Scenes of Crime and forensic evidence produced 11 by Zoan Marin, Dr. Hyma, Allan Greenspan, and Kevin Noppinger. 12 13

¶ [15] In addition, Mr. Rhodes submits that the purported identification of Brandon 14 Ebanks by Ms. Logan is contaminated by the fact that Ms. Wright had provided 15 his identity, and therefore there is a real danger that, although Ms. Logan may be 16 an honest witness, she is making an honest but very serious mistake. 17 18

¶ [16] Mr Rhodes, like his colleagues, submits that in the circumstances, no jury 19 properly directed upon the evidence adduced in this trial could safely convict Mr. 20 Ebanks of the murder of the deceased. 21 22

¶ [17] In her response the Solicitor General submits that the quality of the identification 23 evidence in the instant case is not poor and does not fall within the category of 24 evidence which is required to be removed from consideration by the jury. In fact 25 the Solicitor General submits that the identification is strong because it is a case 26 Ruling on No case to Answer submission. R v. Patrick McField, Osbourne Douglas, Brandon Leslie Ebanks. Ind. 51/09. Coram: Quin J. 9.9.2010 Page 7 of 8 7 of recognition by the witness, Ms. Wright, who knew all three men before the 1 material time. Furthermore, the Solicitor General argues that Ms. Wright’s 2 observation was unobscured and she had a significant period of time to observe 3 the three men in question. Accordingly, the Solicitor General submits that this ID 4 evidence could never be accurately described as a fleeting glance. 5 6

¶ [18] The Solicitor General does acknowledge that there are inconsistencies between 7 the evidence of Ms. Wright and Ms. Logan, but that, she submits, is a matter for 8 the jury. The Solicitor General frankly concedes that there are some areas of 9 discrepancy in relation to the number of shots, the lighting, and, the physical and 10 eye witness evidence, but, she submits that these are all matters for the jury. 11 12

¶ [19] Ms Richards, in fact, also points to the fact that much of the evidence of the two 13 eye witnesses tends to support each other. They both saw the three men confront 14 the deceased at the porch, and they both saw two of the men each draw a gun and 15 point them at the deceased. 16 17

¶ [20] Accordingly, the Solicitor General submits that there is significant and material 18 agreement on what happened at the material time. 19 20

¶ [21] Having examined and assessed the identifying evidence of Ms. Wright and Ms. 21 Logan, I cannot come to the view that “the quality of the identifying is so poor or 22 is so slender as to be unreliable and there is no other evidence in support of 23 identification” so that I should withdraw the case from the jury. 24 25 Ruling on No case to Answer submission. R v. Patrick McField, Osbourne Douglas, Brandon Leslie Ebanks. Ind. 51/09. Coram: Quin J. 9.9.2010 Page 8 of 8 8

¶ [22] The Crown’s evidence depends upon the reliability of the two eye witnesses, and 1 other matters, which, in my view, are within the province of the jury and where, 2 on one possible view of the facts there is evidence upon a which a jury could 3 properly convict, and therefore I should not prevent the case going to the jury. 4 5

¶ [23] It is my view that, although there are several inconsistencies and discrepancies 6 within the Crown evidence, these are matters which, with proper directions, can 7 be safely left for the jury. There will have to be careful directions on a number of 8 issues such as eye witness and voice identification evidence. At the appropriate 9 time I will invite all four counsel to give me their suggestions relating to these 10 directions. If all counsel think it appropriate, I can always consider providing the 11 jury with a written route or steps to verdict. 12 13

¶ [24] In my view, looking at all the evidence before me, there is a case for each of the 14 three Defendants to answer and looking at each of the three defendants and the 15 charge they face, there is, on one possible view of the facts, evidence upon which 16 a jury could properly come to the conclusion that they are each guilty. 17 18

¶ [25] Therefore, I order that this matter should be allowed to go to the jury. 19 20 21 Dated this the 9th day of September 2010 22 23 24 Quin J. 25 Judge of the Grand Court 26