Not guilty verdicts in firearms trial

DNA was part of Crown’s case

 Four men charged in connection with unlicensed firearms found in a West Bay
attic were found not guilty, with a Grand
Court jury returning unanimous verdicts Wednesday
afternoon.

On 7 April 2008, police found two
shotguns, a P-Beretta and a Remington, in the attic of an apartment rented by
Keith Brian Orrett, 41. He was charged with possession of both firearms
because, the Crown alleged, he had them knowingly on the premises over which he
had custody and control.

In a statement to police that was
read to the jury, Orrett admitted knowledge of one of the guns. He said he saw
one of his co-accused handling the gun, but he did not do anything about it
because he was afraid for his safety and that of his children.

Brian Emmanuel Borden, 24, and
Keith Rohan Montaque, 21, were charged with possession of the Remington
shotgun.  Bjorn Connery Ebanks, 25; and Montaque were charged with
possession of the Beretta.

All three men were present in the
apartment when the police found the guns and their DNA profiles linked them to
one or, in Montaque’s case, both of the firearms.

In his directions
to jurors, Justice Charles Quin said they had to consider the case for and
against each defendant separately on each count.

He made three points about Orrett’s
statement, instructing jurors that
it was evidence only against himself and not against any of the other men. This
was because he gave the statement in their absence and it was not tested under
cross-examination.

Officers at the scene when the guns
were found said Orrett denied knowledge of them: he said they were not his, he
did not know whose they were and he did not know who put them in the attic. The
next day, however, Orrett gave a statement detailing who was in his apartment
that weekend and who he saw sitting on his sofa cleaning a gun. He said he
started praying nobody would get hurt.

Justice Quin said jurors might
think Orrett was lying. If they thought he was lying, they were entitled to
think the lie supported the case against him. But they were also entitled to
ask why he lied. The lie itself was not proof of guilt.

Defence Attorney John Fox had
pointed out that it would have been easier for Orrett to say nothing. He
suggested that Orrett was paralysed with fear when he saw the one gun and was
not in any position to do anything about it.

Justice Quin said this raised the
question of duress – whether Orrett was driven to act as he did either because
of threat or because of the circumstances.  

Defence Attorney Nick Hoffman
questioned why police had not dusted the area around the hatch to the attic to
see if they could find any fingerprints.

He, along with Attorneys Nicholas
Dixey and Ben Tonner, criticised the quality of the DNA evidence presented.
They raised questions about the possibility of contamination of samples and the
possibility of someone’s DNA being transferred to a surface without that person
having touched the surface. Further, they argued, touching something does not
mean possessing it.

Justice Charles Quin defined
possession as knowledge, custody and control. Custody can be acquired briefly,
he pointed out. For example, hiding a gun in the attic was being in control of
it.

The judge also commented on the DNA
evidence. Jurors had heard that there was a factor of plus or minus 10 in the
confidence level of the DNA statistics that were cited.

For example, as Mr. Dixey pointed
out, the possibility of another person showing the same partial DNA profile as
Bjorn Ebanks was one in 1,400. The factor of minus 10 would put that number as
one person in 140. In a hypothetical population of 55,000 people, he suggested,
392 people could have given the same sample.

Mr. Hoffman and Mr. Tonner
presented similar arguments on behalf of Brian Borden and Keith Montaque respectively.

DNA expert Kevin Noppinger had tod
the court of his findings in examining swabs from the guns and comparing them
with DNA swabs from known individuals.

A swab from the Remington trigger
and trigger guard had yielded a portion of DNA indicating at least three
people. Borden could not be excluded, but statistically Mr. Noppinger would
expect to find a similar partial profile once in every 320 people randomly
tested. He agreed that the minus 10 factor would make this one in every 32
people.

A partial profile matching Montaque
was also found; chances of finding another person with the same partial profile
were one in 200. As Mr. Tonner pointed out, the minus 10 factor meant one
person in every 20 could be expected to also match.

In discussing the plus or minus 10
factor, Justice Quin told jurors that, in fairness to the defendants, they
should really only go down.

Going up, that is, using the plus
10 factor, would have meant that in Montaque’s case, the likelihood of finding
another person with a profile that matched would be one in 2,000.

Borden could not be excluded from a
match with two other partial profiles from the Remington, but the statistics
for other matches were one person in every 2300 and one person in every 12.

For Montaque, he could not be
excluded from the partial DNA profile found on the Beretta, but the statistics
for others individuals matching were one in every 29.

None of the men gave evidence or
called witnesses.

Crown Counsel Tricia Hutchinson and
Candia James presented the case for the Prosecution.

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