Baines: ‘Burden of proof’ should be on gun suspects

Cayman’s top cop is advocating a major change in the way the ‘burden of proof’ is applied in court with regard to firearms possession cases. 

Expanding and clarifying comments made on the subject by Governor Duncan Taylor last month, Police Commissioner David Baines said Friday that what’s being reviewed with the attorney general’s office now is essentially a “reversal” in the burden of proof for people found in possession of unlicensed guns in their homes or vehicles.  

“The burden of proof is now for us to demonstrate possession of that individual of that gun,” Mr. Baines said. “That will be changed. If you are found to have a gun in your car or a gun under your bed without any reasonable excuse … it is deemed to be in your possession and under your control. 

“That’s the change in the burden of proof issue that we’ve been discussing.”  

The change proposed would obviously apply only to unlicensed firearms. It is legal in Cayman for private citizens to possess a firearm if the proper licence and safety procedures are maintained.  

A clear example of the current legal proof requirements came in a 2010 not guilty verdict against four men charged in connection with unlicensed firearms that were found in the attic of a West Bay home.  

On 7 April, 2008, police found two shotguns in the apartment rented by a 41-year-old West Bay man. Keith Brian Orrett was charged with possessing both firearms because Crown prosecutors alleged he had them knowingly in his home. 

Orrett had admitted knowledge of one of the guns. He said he saw one of his co-accused handling the weapon, but he did not do anything about it because he was afraid for his safety and that of his children. 

Brian Emmanuel Borden and Keith Rohan Montaque were charged with possession of the Remington shotgun that was found in the attic. Bjorn Connery Ebanks and Montaque were charged with possession of the Beretta shotgun. 

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, according to prosecutors. 

In his directions to jurors, Justice Charles Quin said they had to consider the case for and against each defendant separately on each count. All were eventually found not guilty.  

“The commentary [from the court case] was ‘could [we] demonstrate that the guns that were in the room were directly in possession or control of the people downstairs?’” Mr. Baines said. “[What is being proposed now] is a change in presumption. [Suspects] have to account for why it’s not in their possession. It would be automatically assumed it was, unless they could prove otherwise.”  

Mr. Baines said he believed there is an “appetite” for this legislative change after meeting with local lawmakers several times on crime-related issues over the past few weeks.  

“The attorney general is now drafting recommendations … and I hope very much that will go before the Legislative Assembly,” he said.  

Another issue that has arisen in discussions over how police should deal with Cayman’s gun crime is whether officers would be allowed to conduct ‘warrant-less’ searches for firearms inside private homes.  

Cayman’s Misuse of Drugs Law already permits local police to search homes for illegal drugs based on ‘reasonable suspicion’ – without applying to a court or a justice of the peace for a search warrant. However, that same ability is not granted to officers under the Firearms Law.  

Previous police commissioners, including Stuart Kernohan, often pushed lawmakers to make the change, but Mr. Baines said Friday he wasn’t quite ready to go down that road yet.  

“If an officer is aware that a person is in possession of a firearm and there’s direct evidence of it, they’re in pursuit … there’s nothing that stops them,” the commissioner said. “Different issue this [referring to warrant-less searches] … This is about ‘is it credible information or intelligence that would allow officers to go up and tell you we’re going in your house to search’. It would really help policing, but where does that fit in the balance of rights?  

“So, I expect that to be a subject of considerably more debate.” 

David Baines

Mr. Baines
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14 COMMENTS

  1. Consistently, knee jerk reactions to serious problems have only compounded the problem. The burden of proof must remain with the prosecuting arm to ensure innocent until proven guilty remains a fundamental part of justice. We all want solutions to crime, however, I believe those solutions lay in the modernization of policing technicques and ability of the prosicuting officer of the court, not shifting the burden of proof. To change this would be a mistake.

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  2. Re: The burden of proof is now for us to demonstrate possession of that individual of that gun, Mr. Baines said. That will be changed.

    Really? It will be changed? Is that policing by consent or imperial rule? How will law-abiding persons be protected against a setup?

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  3. Here we go with the first proposed infringement.. A small sentence (Burden of proof should be gun suspect) but a huge shift in civil liberties. I agree with the earlier post. The police need to work within the current framework of the law and improve their policing and prosecuting posture. If the UK has such a law then we would have already been following their guidelines. Do they?..

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  4. Seems to me that if I’m driving along with a gun in my glove box then it is fair to assume that it is in my possession and I know about it.

    It would be open to me to make the argument that I had just lent my car to a friend, who I could name, and that he must have put it there and forgot to remove it.

    Or that I had just bought the car and the previous owner must have left it there.

    It would be up to the jury whether or not to believe me. If my finger prints are not on the gun, but my friends or the previous car owners were, it would probably prove my case.

    Otherwise, if it looks like a duck and quacks like a duck… it’s a duck.
    Go directly to jail.

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  5. Seems reasonable to me that if an illegal weapon is found in your car, house, bag, office etc, the onus is on you to explain why it is there or how you think it might have got there.
    Time for some change in the balance of proof. The old needs for balance of proof were (reasonably, for the time) based on often illiterate defendants, no legal aid, magistrates who leaned towards the police prosecutors and so on.
    That has all changed: the laws have been greatly changed, the accused has legal aid, plus the human rights industry and all the usual do-gooders on his side.
    This needs extremely prudential care, obviously; but shouting from either side of the fence does not help anyone.
    Caymanians on guard: why should we follow anyone else’s lead? can we not work these things out for ourselves? The same applies to Dennie Warren’s comment: what is imperial rule to do with it? Are not Caymanians able to sort this out by themselves?

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  6. Old Hand, you are viewing this from the perspective of the guilty and I’m viewing from the perspective of someone who has been set up. My question remains, how will law-abiding persons be protected against a setup?

    Shouting from the sidelines is all some of us natives can do, because in the Cayman Islands there are a select few elites doing as they please. Commissioner Baines said It will be changed. Does that sound like he is seeking our consent?

    I have absolutely no intention of simply sitting back and letting my human rights to be destroyed.

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  7. The burden of proof needs not only to be on the gun suspect but also on the HIT AND RUN SUSPECTS!

    Lets hope the UK cops can deliver on:-

    WHO killed poor Mr. Jervis, ran over him with a car and got away with it! WHO killed MRL. JERVIS? Comm. Baines We NEED TO KNOW!

    Who Kidnapped and took Ana Evans who is the prime suspect?

    Who took and kidnaped Keran Baker, the prime suspect police have evidence on? Why is forensics taking so long, there’s something wrong here. Its taking too long.

    Someone Must be charged for these crimes.
    Please find a serious prison in Jamaica, Cuba, or the UK or to put them in if not the death penalty.
    No more some ole same ole justice system.

    Lastly:

    All the so called missing persons that have been seen in other countries ‘ALIVE AND WELL When is RCIP going to act responsible and respond to leads and information they have already received but is too lazy o scared to follow through on?

    If these people are declared missing and are proven to be alive, it means they staged their death, or they and their family members are involved in insurance fraud and should be charged because investigations and hunting for missing persons is very costly to the public purse.
    The Cayman Islands Government is guilty of taking very lightly missing persons cases where the person or persons have been confirmed to be living and identified authentically to be alive and well away from the Cayman Islands. This has to stop and government need to bring closure to some very old cases that go back some 25 to 30 something years.

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  8. Dennie Warren:
    I am greatly concerned by your allegations about the perspective of someone who has been set up and your reference to a few select elites who are doing as they please.
    If you have evidence however slender of such appalling criminal activities, have you made a formal complaint to (for example) the British Government, the Governor, the Chief Justice, the Premier or anyone at all?
    If not, one can only regard your comments as a spurious defence on behalf of criminals, or simply, badly thought out post.

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  9. Mr. Warren:

    I’ve followed your commentaries and respected your well thought out arguments, critiques and insights on many of your articles.
    What you’re currently engaged in, in my opinion, has become a personal issue and a tit for tat rebuttal.
    I, in no manner, intend any insult to you, but I would very much rather be reading the views of the man who has, in the past, been able to stand objectively from the outside on any subject and been able to dissect it with calculated foresight.
    This is meant as compliment and not as an admonishment.

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  10. Old Hand,

    I didn’t allege that anyone was setup. I asked about a possible scenario which could occur, if the burden of proof were to be shifted to firearm suspects, namely: ‘How will law-abiding persons be protected against a setup?’ My question remains unanswered.

    Below is the actual language of one clause in the Firearms Amendment Bill, 2011 which concerns me, and it reads: ‘Clause 18B. (1) Without prejudice to any other provision of this Law

    (g). where it is proved beyond reasonable doubt that a person is the owner, tenant, lessee or occupier of any dwelling house or other private premises in or on which is found any firearm or bullet-proof vest, until the contrary is proved, he shall be deemed to have had in his possession such firearm or bullet-proof vest.’

    Please Old Hand, comfort me. How will a person prove to the contrary when the Bill is saying that the law would consider ‘he shall be deemed to have had in his possession such firearm or bullet-proof vest.’ You have heard of corrupt cops before right?

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  11. Banana Republic,

    One of the main reasons for human rights in the first place is to protect the residents from the abuses of the State’s employees and politicians, and that is why our Human Rights are described as ‘vertical rights’. They protect you and me from the government, instead of you and me from each other.

    There can only be one set of Human Rights, so the challenge is how can law-abiding people be protected from the State? The Commissioner of Police and the Government’s thinks is best to consider a person guilty until that person can prove they are innocent. I totally disagree with both of them.

    Here is an excerpt from the Firearms (Amendment) Bill, 2011 (Ex97,S1): ‘Clause 18B. (1) Without prejudice to any other provision of this Law

    (g). where it is proved beyond reasonable doubt that a person is the owner, tenant, lessee or occupier of any dwelling house or other private premises in or on which is found any firearm or bullet-proof vest, until the contrary is proved, he shall be deemed to have had in his possession such firearm or bullet-proof vest.’

    Source: http://www.gazettes.gov.ky/extraordinary-gazette-supplements/2011/17/11/firearms-amendment-bill-2011-ex97-s1

    The above proposed amendment to the Firearms Law makes it clear that the government will no longer have to prove a person is guilty of the crime of unlawful possession of a firearm, because by amending the law as described in the proposal above, the law would be saying that all the government needs to prove, for example, is that you are the owner of a private premises on which an unlicensed firearm is found and you SHALL be considered guilty until you can present evidence showing that you are innocent. Remember just claiming that you are innocent it is not evidence. All criminals claim to be innocent, so how will the State be able to tell the difference? Such a position puts us at the mercy of the State.

    We must not fool ourselves into thinking that we will be safer by legislating away our rights. If the above proposed amendment is passed into law, another problem will be created, and that is, all our worst enemies will have to do is make sure that a firearm, ammo is placed on our property and then do what the police has been asking the public to do, tell the police. How will we be able to prove our innocent? Oh, but you say that no jury would convict an innocent person! Well, the Commissioner of Police is trying to do away with the jury where person are changed with firearms offences. Have you considered that even if the Commissioner of Police is unsuccessful in getting judge alone trials for firearm charges, you will always be treated as the criminal who got away? The fact that you know you are innocent will be considered irrelevant, because you will not be able to prove it in a court of law!

    Regarding your concern that this is a ‘personal issue and a tit for tat rebuttal’, it is not. Since most Caymanians are unwilling to defend our rights, the few of us who actually care enough are alone in defending those rights (my rights and yours rights). Since many are too afraid to defend their rights, should I keep silence? Never!

    Everyone should consider the history of the Hong Kong Independent Commission Against Corruption (ICAC) (1960-70s), where Mr. Peter Godber, a Chief Police Superintendent, was sentenced to a four years in prison for corruption. Source: http://www.icac.org.hk/new_icac/eng/abou/history/main_1.html

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  12. OK Dennie,

    Have you spoken to the Legislators? You all almost worship Alden McLaughlin, is Alden fighting for you? as a lawyer ad law maker is he even challenging this scary, unscrupulous Police law in a court of law and tagging it unconstitutional, if not, then its time loyal party people need to reconsider who they end their support to. Its not good enough for Alden and Ezzard to make promises of what they will and will not do if elected in 2013! THEY ARE ELECTED MEMBERS NOW! Alden is the Leader of the Opposition carrying a lot of weight that could be used to defend the rights of people as he is an attorney.

    Tell us what Mr. McLaughlin is going to do for you on this one.

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  13. Banana Republic,

    I’m proud to oppose imperialism in and police statehood for the Cayman Islands. Mindless conformity scares me. In the end, it is possible for the imperialist to win, but it will not be because I surrendered.

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