Two men charged with possession of an unlicensed firearm last year were found not guilty on Wednesday after Justice Charles Quin determined that there was no case for them to answer.
The judge listed four police-related issues which he described as “regrettable” in his decision to discharge the defendants and enter not guilty verdicts.
Otis Brown, 25, and Marlon St. Aubyn Miller, 36, were jointly charged with possession of a nine-millimeter Browning semi-automatic pistol and a clip loaded with seven rounds of ammunition on June 7, 2015 outside a Bodden Town residence.
When the men appeared in Summary Court last year, Crown counsel Scott Wainwright explained that police had received a complaint regarding an incident between a woman and Brown on June 3. As a result, officers obtained a search warrant. When they went to the Bodden Town address early on the Sunday morning, they found Brown and Miller apparently asleep in a vehicle in the yard.
Brown was in the front passenger seat and Miller was in the driver’s seat. Mr. Wainwright said the men were ordered out of the vehicle and officers saw a gun in the footwell on the passenger side. The gun was partially wrapped in a green T-shirt, but readily visible, he said. Photographs were taken and produced to the court.
Those photographs were produced in evidence when the men’s trial began in Grand Court on Monday. They showed the gun and T-shirt on top of a red bag.
Defense attorney Laura Larner said it was Miller’s case that he had given a ride to Brown and Brown had brought the red bag into the vehicle.
Defense attorney Amelia Fosuhene said it was Brown’s case that the red bag was already in the vehicle when he got in.
Both attorneys raised points as to why there was no case to answer and Justice Quin commented on them in his decision.
There was a partial multiple-source DNA profile on the gun, but forensic analysis showed that neither man was a contributor to that profile.
A partial DNA profile was obtained from the T-shirt, but neither man was a contributor to that profile.
No fingerprints were found on the gun.
Photographs also showed the presence of a pair of shoes in the footwell of the vehicle.
Justice Quin was told that the photographs were taken two hours after the men were arrested. He pointed out that there was no live evidence or even a statement from a police constable to say what could and could not be seen and the position of items at the time the men were arrested.
There was some evidence that some items had been returned, but it was not clear which defendant had received them from the police. In discussion during the no-case submissions, Justice Quin had remarked, “We don’t know if there was a receipt. If there was, we haven’t got it.”
The prosecution’s case was based on the photographs and agreed facts and the judge said the Crown failed to show either man having any actual involvement in the possession of the firearm.
He described it as “regrettable” that the police had failed to retain the red bag and the shoes.
He said it was also regrettable that the bag and shoes had not been forensically examined.
Further, it was regrettable that the potentially vital statement of the officer in charge of the case, made at the time of the incident, had gone missing and despite the Crown’s best efforts could not be found.
It was particularly regrettable, Justice Quin stated, that the officer in charge of the case was not present during the trial to answer crucial inquiries from the prosecutor and the court.
“I’ve said it before and I’ll say it again – that unless there are very compelling reasons for the officer in charge of the case non-attendance, the court expects, and indeed the Director of Public Prosecutions requires, that the officer in charge of the investigation should be in court to answer any questions and, regrettably, this hasn’t happened in this case.”
Mr. Wainwright had argued that it defied logic for anyone to say that a front seat passenger would not be aware of the gun, if it was positioned on top of the red bag as seen in the photos. If it was not there, where did it come from? he asked rhetorically. The suggestion seemed to be that both men fell asleep and when they woke up, “Lo and behold, there is a firearm.”
Justice Quin said he harbored deep suspicions but, regrettably, due to lack of crucial testimony, he found it was his duty to stop the case without calling on the defendants for their defense. His only satisfaction, he indicated, was that he could order the destruction of the firearm and ammunition.
After the not guilty verdicts, a statement was issued by the Royal Cayman Islands Police Service, as follows:
“We are aware of the observations of Mr. Justice Charles Quin today after the prosecution of a 2015 case involving firearms charges was discontinued. The concerns Mr. Justice Quin raised about the police investigation in the case will be part of an internal review of the matter, and any investigative deficiencies will be addressed. The confiscation of illegal firearms, as well as the successful prosecution of those who possess them, has always been and continues to be a major priority for police as a matter of public safety.”