Court orders two retrials

One case involves judge’s error, the other an irregularity regarding jury

The Cayman Islands Court of Appeal has ordered retrials in two cases after hearing arguments over the past two weeks.

On Friday, the three-member court ruled that Justice Seymour Panton committed an error in law last year when he ruled that there was no case to answer for Walter Jordan McLaughlin and Keith Rohan Montaque, who had been charged with firearms offenses.

The case was remitted to Grand Court and the two men were directed not to leave the court building until they appeared before Justice Michael Mettyear the same day. Their attorneys were expected to apply for bail until a new trial date could be arranged. After the matter began in closed court Friday afternoon, the men were remanded in custody until the bail applications could resume on Tuesday, Aug. 30.

McLaughlin and Montaque had been charged with joint possession of a .38 revolver, a 9mm pistol and ammunition recovered on Feb. 8, 2015 from a residence owned by McLaughlin’s father. The guns, one of which was loaded, were found in a middle bedroom used by Montaque for several days before the police search. The ammunition was in an opaque bag in another part of the house.

McLaughlin was 26 at the time of his arrest; Montaque was 25.

The matter went to trial in October, 2015. The Crown’s case included DNA evidence, but defense attorneys successfully argued that there was no case to answer because there was no evidence as to how or when the DNA came to be on the guns. It could have been there because of indirect or secondary transfer, (such as shaking hands with someone who then touches the gun), they pointed out.

The Court of Appeal said the trial judge’s approach to the evidence was erroneous in law because it failed to give weight to other, circumstantial evidence.

The test for a submission of “no case to answer” was set out in 1981 by U.K. Lord Chief Justice Lord Lane:

“If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. 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 his duty, upon a submission being made, to stop the case.

“Where, however, the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability or other matters which are generally speaking within the province of the jury, and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury …. ”

The Crown’s appeal against Justice Panton’s decision was argued by lead counsel Andrew Radcliffe, assisted by Crown counsel Candia James. Attorney Alice Carver appeared for McLaughlin and attorney Amelia Fosuhene represented Montaque.

Hearing the matter with Justice Field were Justice Sir George Newman and Justice Cecil Dennis Morrison.

Irregularity regarding jury

In an earlier ruling, the court ruled that a conviction for causing grievous bodily harm with intent was unsafe because of a procedural irregularity involving a juror. Defense attorney Laurance Aiolfi brought the appeal on behalf of Dan Kelly after learning that one of the jurors for the trial worked at the nightclub where the incident took place.

The juror subsequently acknowledged that he might have been present the night of the incident that led to the charge against Kelly. He said he had not seen anything and the first he knew about the case was when he attended court for jury selection.

In delivering the court’s decision, Justice Field noted that all potential jurors had been asked if they knew any of the people involved in the case; they were not asked if they were at the club when the incident occurred.

If it had been known that the juror worked at the club, an objection would have been made to his serving, Justice Field pointed out. “We are concerned with the appearance of justice as well as justice being done,” he said.

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