Attorney Simon Courtney, serving a three-year prison sentence for causing grievous bodily harm to two elderly tourists when his car hit them on a sidewalk, was found guilty Monday of three traffic charges dating from 2011.
The incident involving the tourists occurred on Jan. 25, 2015. When passing sentence after a jury found Courtney guilty in June 2016, Justice Malcolm Swift pointed out that he was unable to take the 2011 charges into consideration because they were unresolved. Courtney was therefore sentenced as a man with no previous convictions.
Courtney subsequently gave notice that he would be taking the Grand Court conviction and sentence to the Cayman Islands Court of Appeal.
On Monday, he indicated that he would also appeal the results of this Summary Court trial.
Magistrate Valdis Foldats found Courtney guilty of speeding, dangerous driving, and driving under the influence of alcohol in the early hours of Sept. 10, 2011. He imposed fines totaling $1,250 and 15 months disqualification from driving consecutive to the Grand Court disqualification for five years.
The prosecution’s case, conducted by Crown Counsel Aaliyah McCarthy, was that Courtney was driving his Porsche Carerra 4 at 85 mph along West Bay Road, where the speed limit was 40 mph. He crossed the center line, so that police coming from the opposite direction were forced to take evasive action and ended up on the soft shoulder of the road, the court heard. At the police station, Courtney was given a breathalyzer test which produced a reading of .195 – almost double Cayman’s legal limit of .100.
The defense case was that Courtney was not speeding, he was not driving dangerously and the breathalyzer test was faulty, in part because of radio frequency interference from his cellphone.
The matter came to court in 2012 and trial continued over numerous dates, with many of the adjournments due to the scheduling of expert witnesses. But, as Magistrate Foldats said in his 26-page judgment, despite the time spent on expert evidence, the case was essentially about the credibility and reliability of the evidence of two police officers and the defendant about what happened the night of the incident.
“To be blunt, it is a matter of who is telling the truth and who is telling outright lies,” the magistrate said.
A man of good character is more likely to be truthful and less likely to commit a crime than someone not of good character, the magistrate noted. At the time of the 2011 incident and at the start of the trial, Courtney, an attorney, was a man of good character, he said.
The magistrate said he found the policemen to be calm and dispassionate in giving their evidence. They were endeavoring to tell the truth, although there were some inconsistencies in their evidence, the magistrate noted. Inconsistencies are not unusual when witnesses are trying to recall an incident of short duration that happened years ago, he pointed out.
The defense, conducted by attorney John Furniss, focused on where the officers first saw the Porsche – near which condominium complex. The officers were unable to say the exact location because their vehicle was moving. The officer driving had to perform an emergency maneuver to avoid a head-on collision, while the officer in the passenger seat had to brace himself, expecting a collision.
The magistrate said it was not surprising that they could not identify an exact location; he was satisfied that it was “near the bend in the road.”
He found that the officers were attempting to recall details in response to questions; they were not trying to secure a conviction.
The magistrate said he was not impressed by the defendant’s demeanor or his evidence. He said he found Courtney to be arrogant, condescending and disingenuous.
For example, when he was asked if he was on the wrong side of the road, it was a simple yes or no answer. Courtney said there was no reason he would have been on the wrong side because the Porsche was equipped with traction control and four-wheel drive which would prevent sliding into the other lane.
He gave a precise description as to how he was standing in relation to the breathalyzer machine at the police station with his cellphone in his left front pocket right next to the mouthpiece tube and the machine at waist height.
The magistrate said that, given the amount of detail Courtney provided on various points, he did not believe that the defendant was unable to put a firm figure on the amount of alcohol he had to drink – finally settling on two beers.
The magistrate concluded that Courtney had lied to the court, but he did not rely on those lies as evidence of guilt.
Expert evidence about the Intoxilyzer he referred to as “much ado about nothing,” since there was no objective evidence to support defense submissions.
He accepted the officers’ evidence that they had turned around and given chase to the Porsche, which did stop. At the scene, they said Courtney told them he had just picked up a girl and was trying to impress her. He admitted having had a few drinks. He was a little unsteady on his feet and when cautioned for suspicion of dangerous driving, he said he was sorry.
Courtney had denied this occurred; he would not accuse the officers of lying, but described their recollections as a confabulation.
After finding Courtney guilty, the magistrate turned to sentencing. He said the speeding would attract a fine of $400; DUI, $600; and dangerous driving, $600. But considering the principle of totality, he made each fine $400. Another $50 fine was imposed because Courtney’s driver’s license was expired.
The harder question for him was the period of disqualification he should impose. Separately the offenses could attract a total of 44 months disqualification, but he chose to run them concurrently. A total of 20 months would not be unjust, but given that Courtney is already disqualified for five years, the magistrate reduced the period of disqualification for these offenses to 15 months consecutive.