Judge accepts ID evidence

DNA testing was just one aspect of evidence the court accepted this week in a case of aggravated burglary, indecent assault, abduction and robbery.

Dave Kennedy Whittaker was found guilty of all charges as they related to an incident that occurred in October 2004. It occurred in a part of Grand Cayman where electricity had not yet been restored after the destruction caused by Hurricane Ivan the previous month.

There was no doubt that a woman was sexually assaulted by someone who entered the house she was staying in. The intruder had a knife and tied her up. He demanded she perform oral sex, later taking her to another house and a beach, repeating his demands.

After taking her back to the house she had been staying in, he took money. He made another demand and indicated he would kill her if she did not comply.

The woman ran to a neighbour’s house as the man left. Police were called and Whittaker was arrested several hours later.

He maintained his innocence and chose to be tried by judge alone. Mrs. Justice Margaret Ramsay-Hale conducted the trial.

She delivered her judgment on Wednesday, noting that the primary issue of fact was whether the woman had correctly identified her assailant.

Evidence included the victim’s her identification of him at an ID parade and the testing of DNA from sperm found on the shirt the woman was wearing at the time of the assaults.

Whittaker, who initially chose to represent himself, had challenged the evidence. He alleged it was manufactured by police to make a case against him, ostensibly because of his previous conviction for a similar offence.

Mrs. Justice Ramsay-Hale summarised the defence objections to identification evidence, as put forward by Attorney Keith Collins.

The woman’s identification of Whittaker was made in very difficult circumstances, at night, in darkness unrelieved by street lights or any other electric light. She did not know him and shortly after the incident started he had put a towel over her head.

Mr. Collins suggested that the woman had only the briefest of opportunities to view her assailant and only the light of the moon by which to see him.

It was agreed that the woman’s identification required special caution. The woman had listed instances in which the towel slipped or was moved. The judge said the woman had shown presence of mind to use such opportunities to observe the man.

The woman kept her wits about her, the judge commented. When the towel fell off the woman’s head she retrieved it and replaced it, telling her assailant, ‘I don’t want to see your face. I don’t want you to kill me.’ She had shown both an awareness of the need to see his face and the need to hide that fact from him.

The circumstances were difficult, but not so difficult as to rob the woman of the capacity to think and see clearly, the judge summarised. She was satisfied there was sufficient light and sufficient time to view the assailant.

As to the identification parade, the judge accepted the Crown’s evidence of how the parade was conducted. The Defence suggested that an officer had told the woman the number of the man he wanted her to identify.

But according to the inspector who conducted the parade, he gave the numbers to one of the parade participants. That man in turn distributed the numbers to others, so there was no way the officer knew which number Whittaker had.

As to the DNA testing, the Defence established that police did take an oral swab from Whittaker after other swabs had already been taken from him by a doctor. The Defence suggested that this second swab was used to plant Whittaker’s DNA on the shirt the woman wore that night.

The judge found no merit in this suggestion because the DNA expert made it clear that what he tested was DNA from sperm, not from the type of cells as would be found in the mouth.

The DNA from the shirt was compared to a known DNA sample from Whittaker. The expert gave evidence that the probability of the shirt DNA belonging to someone other than Whittaker was a number in probability so large as to defy comprehension.

The judge accepted the expert’s evidence about studies done on inbreeding. He had said that the impact of inbreeding on the statistical frequency of DNA in any given population would not be significant.

The final point made was on the subject of fingerprints. The Defence had said that no fingerprints of the accused were found in the premises where the woman was attacked nor in the vehicle used to take her to another site.

But, the judge pointed out, none of the woman’s fingerprints were found in the bedroom she had occupied. So the absence of fingerprints could not prove that someone was not there. Only the presence of fingerprints can be used to show that someone was there.

Sentencing was adjourned until 11 August at the request of Senior Crown Counsel Adam Roberts, who had conducted the case for the Prosecution.

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