Two men accused of possessing an unlicensed firearm were found not guilty after electing to be tried by judge alone. Justice Carol Beswick found that there was no case for Charles Michael Ebanks to answer, but there was for Frederick Boothe.
Last week, she released her reasons for finding Boothe not guilty.
The men were charged with possessing a Ruger .44-calibre revolver on 26 March, 2011, in the vicinity of the L.I. Nightclub in Grand Cayman. Both men were arrested, but Boothe was not charged until police received the results of DNA testing some time later.
Evidence about DNA on the gun showed that Boothe could not be excluded as a contributor to some of the mixed DNA profiles found. Ebanks was excluded as a contributor. The DNA profile of another individual – who was not charged – was shown to match the gun DNA to the extent that the chance of another person chosen at random from the general population would match was one in 45 million.
Ebanks was brought to Summary Court days after the incident. The presiding magistrate was told the police received a call, which led them to the nightclub early that Saturday morning, between 2.30 and 3am. They stopped and searched two males at the rear of the club but found nothing. Toward the back of the carpark, Ebanks was observed looking nervous and coming away from a bushy area. He was searched and nothing was found. Officers then searched the bush and found the firearm.
Ebanks told the officers he got a ride to the club and discarded his cigarettes and ganja in the bush before going in. He said he was turned away because of his inappropriate clothing and he then went back to the bush to get his cigarettes and ganja.
In Grand Court, Crown Counsel Tricia Hutchinson called several police officers to give evidence of what happened that night, after which defence attorneys Lucy Organ and John Furniss submitted there was no case for the defendants to answer.
Justice Beswick said there was nothing to show Ebanks had custody, care or control of the gun. The Crown had relied on circumstantial evidence, she said, noting that the officers did not find the cigarettes or ganja Ebanks had said he discarded. He was in a public place, within feet of where the firearm was found, but not in the same place as the firearm.
The judge agreed with Ms Organ that this evidence was tenuous. The principle is: 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 the judge’s duty to stop the case when that submission is made. Sitting as judge and jury she found that a guilty verdict could not be properly returned and she did not call on Ebanks for his defence.
She did, however, call on Boothe for his defence. Boothe did not wish to give evidence and rested his case, leaving Ms Hutchinson and Mr. Furniss to summarise the evidence and legal arguments.
In her judgment, Justice Beswick pointed out that possession includes not only having something in one’s own personal possession, but also having it in a place for the use or benefit of oneself or any other person.
“It is clear to me that whoever put the firearm where it was eventually found by 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 is an item which would be of great importance to persons who use firearms in the pursuit of their own devices,” the judge said.
The question was whether Boothe was the person who had the gun in that place. Ms Hutchinson argued that by being in close proximity to where the gun was found, Boothe was exercising custody and control of it. There was no direct evidence of the distance between him and the gun, but an officer saw Boothe at the rear door of the night club. The firearm was under an almond tree about 20 feet from the rear door.
Mr. Furniss argued there was no evidence of Boothe having anything to do with the gun. Officers had agreed that Boothe did not act in anyway that aroused suspicion.
Forensic analyst Tiffany Roy, who gave evidence via video link from Florida, said a swab taken from the hammer, trigger and trigger guard of the gun showed a mixture of the DNA of at least four individuals and Boothe could not be excluded. The chance that a person chosen at random would match that profile was about one in every 1,550 individuals.
A swab taken from the metal part of the gun handle indicated a mixture of four individuals and Boothe could not be excluded. The chance that a random person would match the mixed profile was one in 230.
Mr. Furniss had asked Ms Roy whether the DNA could have been transferred onto the gun from Boothe’s clothing; she agreed it could happen. Ms Roy also testified that she could not say when the DNA was deposited on the firearm.
The unchallenged evidence was that there were about 40 people in the carpark, the judge pointed out. Generally, the presence of a defendant’s DNA on a firearm provides powerful evidence toward proof of the defendant possessing it, but additional factors had to be considered, she said.
“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 circumstances in which the defendant’s DNA was placed on the firearm,” the judge said.
Given that Boothe could not be excluded from the DNA evidence on e trigger and handle, the judge said it was a reasonable inference that he had at some time held the firearm. “However, that is not sufficient to prove that he had possession of the firearm at the time with which we are concerned,” she observed.
The charge was possession of an unlicensed firearm on the stated date of 26 March, 2011.
“The charge is not that he had possession 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,” the judge said. “There is in fact no evidence presented to make me sure that he was in possession on that evening.”
Justice Beswick commented, “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.” Decisions of the court must deter unlawful behaviour and send the message to offenders and to society in general that crime will not be tolerated and carries a punishment, she continued.
“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,” she added.
The judge pointed out that, before she was permitted to find Boothe guilty, the prosecution had to satisfy her beyond reasonable doubt that he was guilty. In the circumstances of this case, she could not be sure that Boothe was in possession of the gun on 26 March, 2011. There was no evidence he was in contact with it or had any control over the firearm at that time. She could not find that he was in possession and therefore entered a verdict of not guilty.