Devon Jermaine Anglin, 22, was found not guilty of attempted murder and other charges after Justice Charles Quin ruled on Friday the evidence against him was weak and inconsistent.
As a matter of law, he concluded that the prosecution’s evidence, taken at its highest, was such that a jury properly directed could not properly convict on it.
Justice Quin directed the jury to return not guilty verdicts and then told the young man he was free to go.
Devon had been charged with attempting to cause the death of Gary Oliver, 26, outside Pepper’s Night Club on 23 February 2008.
The other charges arising from the same incident were wounding with intent and possession of an unlicensed firearm.
When trial began two weeks ago, Crown Counsel Nicola Moore set out the case for the prosecution. She said Gary went into the night club. He saw a crowd he wanted to avoid, including Devon.
Ms Moore explained that Gary had previously given a statement against a friend of Devon.
Having decided to leave, Gary approached a woman who worked at the club and asked her for a ride. He got into her car and closed and locked the door. He then became aware of a person approaching as the car was manoeuvring out of the parking lot. There was a loud noise and Gary was shot in the head. This happened between 2.30 and 2.45am.
Medical examination showed that a hollow-pointed bullet jacket was lodged in the bone of his nose.
The Crown’s case included evidence from Gary and the driver. The jury also viewed footage from a camera attached to a closed circuit television system outside the premises.
At the close of the Crown’s case on Thursday, Defence Attorney Thomas Buxton argued, in the absence of the jury, there was no case for Devon to answer. Ms Moore responded.
Justice Quin gave his decision on Friday morning before calling the jury back into court.
In his reasons for concluding there was no case to answer, he said the issue in the case was identification of the shooter.
Gary had told the court he felt or saw a shadow and then saw his assailant for a split second. The woman saw the assailant in her side mirror as she was making a difficult manoeuvre onto West Bay Road.
The judge noted inconsistencies in their evidence as to the colour of clothing the person was wearing. Gary described the assailant as wearing dark clothes. The woman first described him as wearing a white marina and white peaked baseball cap. After viewing footage from the CCTV, she said he was wearing a dark tam and three-quarter cut-off jeans.
The shooter was described as small, five feet three or four inches tall. Devon was measured and shown to be five feet 10 ½ inches.
Gary recalled saying ‘Devon shot me, Devon shot me.’ The woman did not recall this.
Another witness said when Gary arrived at the hospital he was asked who shot him; Gary named another person, not Devon.
Mr. Buxton, who was instructed by Attorney Ben Tonner, had submitted the identification evidence was weak and tenuous. The incident occurred at night; it lasted seconds; the victim was seated in a vehicle with tinted glass.
Accordingly, Justice Quin said, in his view it would be accurate to describe the identification evidence as a fleeting glance and in difficult conditions.
A guideline for judges is that, when the quality of identification evidence is poor, the case should be withdrawn from the jury unless there is other evidence to support the identification. In this case, there was no gun, no gunshot residue, no fingerprints or DNA and no clothing found at Devon’s premises to link him.
Having reviewed the evidence, Justice Quin found it to be of tenuous character, containing inherent weaknesses and inconsistencies. He therefore acceded to the defence submission and took the case from the jury.
The video footage viewed in court did not show anyone pulling a trigger, but it did show the door of the night club, with people going in and out to the parking lot.
The jury first heard about the video from the woman who was giving Gary a ride. She said the senior investigating officer, Inspector Malcolm Kay, took her to view the video. It had been recorded by equipment at Mitzi’s Jewelry, which is downstairs from Pepper’s.
Questioned first in the absence of the jury and then in its presence, Mr. Kay said he had forgotten about the video. He agreed he had told the Crown Counsel before the trial that there was no video.
He explained that when he and the woman looked at it, it was about twice normal speed. He asked a sergeant from a technical support team to look at the equipment and speak to the software provider.
Mr. Kay said the sergeant reported back that he had viewed the footage from the camera between 2 am and 3am and he had not seen anything of evidential value. ‘So I didn’t put the weight on it I should have done… In hindsight, I should have viewed it,’ he acknowledged.
The sergeant had saved the one hour onto a disc.
When it was decided to try to go back in time on the video to see traffic in and out of the club, the sergeant was unable to recapture the footage, although it had not been deleted.
The software provider suggested that police out-source the job. He said his fee was $250 per hour. The sergeant recommended that the provider be contacted and arrangements made for him to recover the data. This did not happen.
Mr. Kay said he opened a separate file and put the memo in it because he was considering a separate investigation into possible obstruction by the provider. He decided not to prosecute him.
Asked about other cameras outside the building that might have provided a different angle, Mr. Kay said he knew they were there, but did not know if they were working.
The inspector noted there were other lines of inquiry going on in this case and at the same time he was dealing with four attempted murders in two weeks. Even though Ms Moore sent him e-mails requesting CCTV footage, it slipped him that the sergeant had it on disc. ‘I forgot it existed,’ he said.