Quin J
IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE INDICTMENT NO: 33/08 THE QUEEN V KEITH BRIAN ORRETT BRIAN EMMANUEL BORDEN BJORN CONNERY EBANKS KEITH ROHAN MONTAQUE Appearances: Crown Counsel – Ms Trisha Hutchinson and Ms Candia James Defence Counsel – Mr. John Fox and Mr. James Stenning of Stenning & Associates for Keith Brian Orrett; Mr. Nick Hoffman instructed by Priestleys for Brian Emmanuel Borden; Mr. Nicholas Dixey of Mourant for Bjorn Connery Ebanks; Mr. Ben Tonner of Samson & McGrath for Keith Rohan Montaque Before: The Hon. Mr. Justice Charles Quin Heard: 21st - 23rd April 2010 RULING ON DEFENCE’S NO CASE TO ANSWER SUBMISSION
The First Defendant, Keith Orrett, through his counsel, Mr. John Fox, has made a no case to answer submission, submitting that the prosecution, throughout the course of this trial which began on the 15th February 2010, has not established possession of the two firearms by Keith Orrett under the Firearms Law.
The Second, Third and Fourth Defendants, namely Brian Borden, Bjorn Ebanks and Keith Montaque have all made submissions through their respective counsel that there is no case to answer on the evidence presented by the Crown.
Section 137(1) of the Criminal Procedure Code states: "When the evidence of the prosecution witnesses has been concluded the court may, before or after considering any statement or hearing any evidence of the accused, invite first the prosecution and thereafter (at its discretion) the defence to address it upon the question of whether there is sufficient evidence before the court to warrant conviction of the accused, or any one or more of several accused of the offence charged or any relevant offence and if, either before or after the address by the defence, it considers there is no such evidence it shall discharge the accused concerned and enter a verdict of not guilty with respect to such accused."
Counsel for the Second, Third and Fourth Defendants rely upon Lord Lane’s classic dicta in R v. Galbraith 73 Cr. App. R. 124 CA in which he stated: "(1). If there is no evidence that the crime alleged has been committed by the defendant there is no difficulty – the Judge will stop the case. (2). The difficulty arises when there is some evidence but it is of a tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) 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. (b) Where, however, the prosecution evidence is such that its strength or weakness depends on the view to be taken of witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which the jury could properly come to the conclusion that the defendant is guilty, then the Judge should allow the matter to be tried by the jury."
Mr. Fox, defence counsel for the First Defendant, Keith Orrett, submitted that the Crown has not led sufficient evidence that the First Defendant had effective custody and control of the firearms as charged in the indictment. Mr. Fox relies on the Northern Ireland Court of Appeal case of *R v. McKenzie* [2005] NICA 7 and the judgment of Lord Justice Nicholson at page 7 in which he states: "...the Prosecution has to prove that the Appellant had in his actual or potential physical control the prohibited weapon, voluntarily assented to such control and had knowledge of its nature."
Mr. Fox further submits on the facts that although Keith Orrett accepts that he saw a co-accused with a shotgun on the sofa, Keith Orrett was not aware of the second shotgun until the police arrived and discovered it. Furthermore, Keith Orrett did not know that firearms were brought on to the premises and did not consent to the same.
Mr. Fox also submits that there was no DNA linking the First Defendant, Keith Orrett, to the either of the firearms and, as Keith Orrett did not have custody or control of the weapons, he could not have had possession of them.
Mr. Hoffman, defence counsel for the Second Defendant, Brian Borden, relies on the second limb of the *Galbraith* decision. Mr. Hoffman reminds the Court that the confession of the First Defendant, Keith Orrett, cannot be used against his client or the other two Defendants. Mr. Hoffman submits, that unlike the First Defendant, Keith Orrett, Brian Borden has not admitted any knowledge of the firearm. Mr. Hoffman also submits that there is no evidence that Brian Borden had custody or control or knowledge of the firearm – the subject of Count II. The only evidence is the DNA evidence which, Mr. Hoffman submits, at its height, can only mean that Brian Borden may have touched the gun.
Mr. Hoffman submits that Mr. Noppinger’s evidence has been severely undermined by the fact that Exhibit 5 is his third report. Mr. Hoffman points to the fact that Mr. Noppinger did not recognize his mistakes until they were brought to his attention by Defence counsel in a voire dire. In addition, Mr. Hoffman submits that the match probabilities are too low and that together with the fact that Mr. Noppinger’s credibility has been undermined means that this position cannot be cured no matter how careful the direction to a jury may be.
Mr. Hoffman further submits that there is a high likelihood of contamination, by virtue of the fact that the vital exhibits were handled by a number of police officers, including police officers who had searched the Second Defendant, Brian Borden and the Third and Fourth Defendants. Accordingly, Mr. Hoffman submits that the DNA evidence is minimal, Mr. Noppinger’s credibility has been undermined, and, there is in fact a real risk of contamination, and therefore when one looks at the Crown’s case at its highest, it is such that a jury, properly directed, could not properly convict upon it.
Mr. Dixey, counsel for the Third Defendant, Bjorn Ebanks, adopts all of Mr. Hoffman’s submissions. Mr. Dixey also submits that the DNA evidence is poor. It is a mixture. It is low template, and it is difficult to interpret. Furthermore Mr. Dixey also highlights the fact that Mr. Noppinger has made mistakes.
Mr. Dixey submits that, that the police evidence is externally and internally inconsistent in the recovery of the firearms and handling of the suspects.
Additionally, Mr. Dixey submits that the house was an “open house” and therefore many other persons had opportunities to place the two firearms in the attic. Further, Mr. Dixey submits that the Crown is unable to say when the two firearms were placed in the attic.
Mr. Tonner, counsel for the Fourth Defendant, Keith Montaque, also adopts Mr. Hoffman’s submissions, and states that while Keith Montaque’s simple presence at #4 Town Hall Court may be relevant, it is not enough. Mr. Tonner highlights that, unlike Keith Orrett, there is an absence of admission on Keith Montaque’s part and one is left with only poor DNA. Mr. Tonner highlights the fact that the DNA is in miniscule amounts and that the ratio random tests are not accurate and cannot be relied upon.
Mr. Tonner also raises the question of contamination. He submits that if Mr. Noppinger is provided with contaminated evidence then all the scientific results are fundamentally flawed, regardless of what steps Mr. Noppinger may take to prevent contamination in his own laboratory.
In conclusion Mr. Tonner submits that Mr. Noppinger’s findings have little probative value. Mr. Tonner also submits that Mr. Noppinger has not done sufficient testing to include the possibility of relations, and further, there is a manifest risk of contamination on the evidence.
In relation to Keith Orrett’s application the Crown submits that the First Defendant, Keith Orrett, rented and occupied the premises in which the two firearms were discovered. The Crown submits that he exercised dominion and control over these premises.
The Crown highlights the fact that initially Keith Orrett, when confronted, said that he knew nothing about the guns. In fact he said that he had never been up in the attic and he does not know who put the guns there. After twenty-four (24) hours reflection Keith Orrett accepts that he saw one gun in the premises. The Crown submits that the First Defendant had knowledge, custody and control.
The Crown relies upon the fact that after Keith Orrett had knowledge of the gun in his premises he proceeds to cook food, watch movies and drink with the other Defendants and he did nothing to alter the position of the gun remaining in his presence and in his apartment.
The Crown relies upon the case that Mr. Fox cited – *Attorney General v. Scoog* [2003] CILR 316. Although this was a misuse of drugs case, the principle can be drawn in that, in the *Scoog* case, as the Court of Appeal held, it was unnecessary to prove that the Defendant had control over the drugs, provided she exercised control over the apartment, in which she knew her boyfriend was storing drugs for supply. Justice Rowe at page 328 paragraph 28 stated in conclusion that the Magistrate was correct, in that, she was entitled to find that the Defendant had actual knowledge of possession by another of a very large quantity of ganja on the premises and took no proper steps to try to prevent the criminal acts from occurring on her premises.
Similarly, the Crown submits that, in this case, Keith Orrett took no proper steps to try and prevent criminal acts from occurring on his premises. He did not ask the Defendants to leave nor did he leave or alert the authorities to the presence of the gun in his apartment.
This Court finds that on the evidence there is sufficient evidence to prove knowledge, custody and control as Keith Orrett allowed one gun to remain in his premises for a period of almost twenty-four (24) hours.
As counsel for Bjorn Ebanks and Keith Montaque adopted Mr. Hoffman’s submissions I will now deal with Mr. Hoffman’s submission on behalf of the Second Defendant.
In relation to the Second Defendant, Brian Borden, DNA matching the Second Defendant had been found on the trigger and trigger guard of the Remington shotgun, on the gun butt of the Remington shotgun, and, on a Remington round of ammunition. DNA matching the Third Defendant, Bjorn Ebanks, has been found on the wooden area along the barrel of the Berretta. In relation to the Fourth Defendant, Keith Montaque, DNA has been found matching his on the swab from the wooden area along the barrel of the Berretta and from the swab from the trigger and trigger guard of the Remington.
Mr. Borden can be excluded from any of the swabs in relation to the Beretta; Bjorn Ebanks can be excluded from any of the swabs relating the Remington; and, Keith Orrett can be excluded from any of the swabs in relation to either gun. In addition it is clear that both the Beretta and the Remington were found in the premises whilst all four Defendants were present. Furthermore, the evidence is that the attic was in an extremely dirty and dusty state and yet the firearms and the towel in which the Remington firearm were discovered were clean and without dust or dirt. The Crown submits that it could be reasonable for the jury to infer that the two firearms had been placed there recently.
Mr. Dixey, counsel for the Third Defendant, Bjorn Ebanks, relied on the case of \( R v.\ Sciamonte \) Indictment 94 of 2008. This case involved, so far as I am aware, the discovery of a firearm in the back of a motor vehicle. As I read it, the only evidence against Mr. Sciamonte was DNA evidence matching that of Mr. Sciamonte. There was no evidence that he was in the motor vehicle when the firearm was discovered. There was no evidence that he had ever been in the motor vehicle or had any connection with the said motor vehicle. In the case before me we have DNA matching the Third Defendant, Bjorn Ebanks, on the Beretta but, unlike \( R v.\ Sciamonte \), we also have the Third Defendant in the premises when and where the Beretta was found. This same evidence also exists against the Second and Fourth Defendants and, in my view, the facts in \( R v.\ Sciamonte \) are different and therefore it can be distinguished.
The Crown has led evidence that Officer Leslie drove in a marked police car to the front of #4 Town Hall Courts. Sgt Groves and Officer Stewart were at the back of the apartment. Officers Borden and Leslie were at the front of the apartment for approximately one and a half hours and were joined by other police officers including Sgt. Prendergast. The evidence is that Officer Borden and Officer Leslie knocked on the door with a lot of force and Officer Borden shouted in a very loud voice “Armed police with a search warrant!” This was done repeatedly as the police remained outside the premises. Eventually Keith Orrett, Bjorn Ebanks and Keith Montaque and another man appeared and were taken out and secured. A short time later Sgt. Groves and Officer Stewart went around to the front door and shouted out “Occupants of the apartment come out, armed police” They shouted this repeatedly and loudly. In addition, there is evidence that they shouted “armed police come out show your hands.” Again, although this was repeated numerous times, nobody else appeared.
The Crown’s evidence is that Sgt. Groves and Officer Stewart searched downstairs and then the back bedroom upstairs, the bathroom, the landing, and then outside the front bedroom, where, yet again, they shouted for any occupants to come out. They then came upon the Second Defendant, Brian Borden, lying in the bed, pretending to be asleep with another man. The evidence is that Brian Borden was fully clothed.
I have carefully considered the evidence and the submissions of counsel for the Second, Third and Fourth Defendants. There is DNA evidence matching these three Defendants. Although it is argued by the Defence that it is weak DNA evidence, in my view it is relevant and it is a matter for the jury to consider with careful directions, as to expert evidence and the inherent weaknesses of DNA.
It may well be that there are other persons in the Cayman Islands with the same DNA, but the evidence before this Court was that there were only nine (9) people in Keith Orrett’s apartment over the weekend in question. Furthermore, although there is no evidence that the other persons or the police officers were tested for DNA, these three Defendants were present in the house with two shotguns and DNA on the firearm matches their DNA. In my view, this is evidence that can be clearly understood and, at the end of the day, it is for the jury to consider its relevance and what weight to attach to it.
Furthermore, all Defendants showed a strong disinclination to show themselves and appear at the front door. In the case of the Second Defendant, Brian Borden, it appears that he is lying in the bed in the middle of the day, fully dressed in street clothes, whilst officers are outside the apartment for an hour and a half. Officers Borden and Leslie knocked loudly and called the occupants out, and shouted they were armed police officers with a search warrant. It seems quite incredible to me that the Second Defendant and his companion, despite the numerous "callouts" from different police officers, at different stages remained in the house for this length of time and did not appear. This is a factor for the jury to consider.
In my view, looking at all the evidence, there is a case for each of the Defendants to answer, and looking at each of the four Defendants and the charges they face, there is, on one possible view of the facts, evidence upon which a jury could properly come to the conclusion that they are guilty. Therefore it is my view that this matter should be allowed to go to the jury. Dated this 23rd day of April 2010 The Hon. Mr. Justice Charles Quin Judge of the Grand Court