Quin J
IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE INDICTMENT NO: 85/12 THE QUEEN V JUSTIN D’ANGELO RAMOON Appearances: Deputy DPP, Mr. Trevor Ward, for the Crown Mr. Ben Tonner with Ms. Fiona Robertson of Samson and McGrath for the Defendant Before: The Hon. Mr. Justice Charles Quin Heard: 21st January 2013 RULING ON NO CASE TO ANSWER SUBMISSION
The Defendant is charged with one Count of Attempted Murder and one Count of Wounding with Intent. Both these counts are in the alternative. On Count 1, the charge of attempted murder is contrary to s.194 of the Penal Code (2010 Revision) and the particulars of this offence are that the Defendant, on Saturday the 25th August 2012, in George Town, Grand Cayman, attempted, unlawfully, to cause the death of another, namely, Andrew Santangelo Lopez. On Count 2, the charge of wounding with intent is contrary to s.203 of the Penal Code (2010 Revision) and the particulars of Count 2 are that the Defendant, on Saturday the 25th August 2012, in George Town, Grand Cayman, unlawfully and maliciously wounded Andrew Santangelo Lopez, with intent to cause him grievous bodily harm.
The trial in this case began on the afternoon of the 16th January 2013 and, at the close of the Crown’s case on the 21st January 2013, counsel on behalf of the Defendant made a no case to answer submission. SUBMISSIONS FROM THE DEFENCE
Defence counsel made this no case to answer submission pursuant to s.137 of the Criminal Procedure Code (2010 Revision) and the classic principles of Lord Lane in R v. Galbraith 73 Cr. App R. 124.
For the record, s.137 of the Criminal Procedure Code 2010 reads: “When the evidence of the prosecution witnesses has been concluded the Court may before or after considering any statement or hearing any evidence of the accused, invite first the prosecution and thereafter (at its discretion) the Defence to address it upon the question of whether there is sufficient evidence before the Court to warrant conviction of the accused or any or more of several accused of the offence charged or any relevant offence and if either before or after hearing the address by the Defendants, it considers there is no such evidence, it shall discharge the accused concerned and enter a verdict of not guilty with respect to such accused.”
Lord Lane in R v. Galbraith 73 Cr. App. R. 124 stated: 1. If there is no evidence that the crime alleged has been committed by the Defendant there is no difficulty – the Judge will stop the case. 2. 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. a. Where the Judge concludes that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, on a submission being made, to stop the case. b. Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’ 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 on which the 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."
Defence counsel relied on the second limb of Lord Lane’s classic dicta in R v. Galbraith where he states: "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." Counsel for the Defendant therefore submits that the evidence in this case is of a tenuous character because of its inherent weakness and vagueness.
Counsel for the Defendant went on to rely upon paragraph 2(a) where Lord Lane stated: "Where the judge concludes that the prosecution evidence taken at its highest is such that a jury, properly directed, could not properly convict on it, it is his duty, on a submission being made, to stop the case."
Defence counsel submits: i. The entire Prosecution case depends on the identification of the Defendant by its chief witness, Andrew Lopez, who is also the victim of the attack, and submits that this witness’ evidence cannot be relied upon because the lighting was poor and the Complainant was stabbed from behind – making him unable to turn around and properly observe his attacker. ii. Defence counsel highlights the fact that there is no other evidence to support Mr. Lopez’s evidence of identification. iii. There is no evidence of the Defendant being at the scene – either from other persons who were nearby or from CCTV footage. iv. There are no clothes or any other evidence to corroborate Mr. Lopez’s identification of the Defendant.
Defence counsel concedes that this identification is by way of recognition of the Defendant by the Complainant, in that, the Complainant identifies the Defendant, and his alleged attacker, as someone he knew as “Pott” for over ten years and someone who had confronted him and threatened him only one week earlier.
Defence counsel submits that mistakes can occur based on recognition.
Defence counsel submits that the identification of the Defendant relies solely on the evidence of Mr. Lopez and is not supported by any other evidence. In particular, Mr. Tonner submits that RCIPS Investigating Officer, Stacy Ann Stewart, could not produce her notes to prove that the Complainant, Andrew Lopez, had given her a physical description of the Defendant whilst he was in hospital on the 25th August 2012.
Defence counsel submits that there is no physical description of the Defendant because the victim did not get a good look at his attacker, as the lighting in the area was poor, and the Complainant was attacked from behind.
In addition, Defence counsel submits that although there were a number of people at the scene, nobody has come forward to give evidence of identification of the Defendant. No clothing has been seized to link the Defendant to the attack. There is no forensic evidence to support Mr. Lopez’s identification of the Defendant and, there is no CCTV footage of the attack on Mr. Lopez.
Defence counsel concludes that there is no evidence that the Defendant was even at the location on the night in question.
Defence counsel submits that the fact that Mr. Lopez picks out the Defendant’s photo as number 7 on the photo spread does not corroborate Mr. Lopez’s initial identification of the Defendant as the attacker.
Defence counsel also relies upon the dicta of the former Lord Chief Justice, Lord Widgery in Regina v. Turnbull [1977] Q.B. 224, and in particular, his statement at paragraph H on page 229 where he states: "When, in the judgment of the trial judge, the quality of identifying evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The judge should then withdraw the case from the jury and direct an acquittal, unless there is other evidence which goes to support the correctness of the identification."
In support of his submission, Defence counsel submits that the quality of Mr. Lopez’s identification evidence is poor. He describes Mr. Lopez’s identification of the Defendant to be a fleeting glance and made in difficult conditions. To support his argument Defence counsel states that the attack on the Defendant was unexpected. The Complainant alleges that he was standing talking to a friend in the wee hours of the morning when he was stabbed from behind. Consequently, Defence counsel submits that the Defendant is afraid and in pain when he is stabbed, and he is also trying to get away. Defence counsel highlights the fact that the injuries, as identified by Dr Williams, are all injuries to the Complainant’s back and to his side, with no injuries to the front of his body.
For all these reasons, it is the submission of Defence counsel that the case should be taken away from the jury and the Court should accede to his no case to answer submission on behalf of the Defendant. SUBMISSIONS BY THE CROWN
The Deputy DPP, Mr. Ward, submits that the Court should reject Mr. Tonner’s application. Mr. Ward submits that this is a case of recognition, which is more reliable than identification, although Mr. Ward readily concedes that it does not dispense with the need for caution.
The Prosecution submits that the victim has known the Defendant as “Pott” or Justin for approximately 10 years. Mr. Ward highlights the fact that the victim has detailed the circumstances in which he knows the Defendant, and there has been no challenge to the fact that he knows the Defendant as “Pott” or Justin. Accordingly, Mr. Ward says it cannot be said that the victim is not familiar with the Defendant or does not know his identity.
Turning to the circumstances of the identification evidence, Mr. Ward states that Mr. Lopez had a good opportunity to see the face of the Defendant. According to Mr. Lopez the Defendant was only one foot away when he turned around and recognised him. Mr. Ward highlights the fact that Mr. Lopez looked upon the face of the Defendant and there was nothing to obstruct his view. In addition, Mr. Ward stresses the fact that the Defendant was so close to Mr. Lopez that, not only did he hear him say, “Where is your mouth now?” – a reference to an incident just over a week earlier when the Complainant took away purportedly stolen scooters from the Defendant’s relatives – but he saw the Defendant’s mouth as he was saying the words. The Crown relies upon the fact that the Complainant could see the mouth of the Defendant as he spoke to the witness.
Accordingly, the Crown does not accept that the identifying evidence by the Complainant of the Defendant is poor, nor does the Crown accept that the identification was made in difficult conditions. ANALYSIS AND CONCLUSION
In order to decide upon this application it is necessary for me to examine the quality of Mr. Lopez’s identifying evidence.
Defence submits that because of the low light, the speed of the attack and the fact that Mr. Lopez turned his back, he could not have got a good look at the Defendant. Mr. Ward disagreed with this submission.
Mr. Lopez said that he felt a stab in his back and he turned around and he saw “Pott.” He saw him from his waist up to his head. Mr. Lopez also said that “Pott” was “right there and right in front of me.”
Mr. Lopez described the light poles and said that they were lit up and “the guys were playing dominoes” in an area close to where he was standing. Mr. Lopez said he had known Pott for about 10 years – from their time in school when they would end up in the suspension unit together. Mr. Lopez said he also remembered Pott riding his dirt bike down at the marl pit behind CUC.
Mr. Lopez told the Court that he sees the Defendant around and he knows the Defendant lives behind where he works in Central Plaza and, he is sure that it is the Defendant who attacked him.
Mr. Lopez said the Defendant’s attack on him related to the issue between them from the week prior – an argument about scooters.
Mr. Lopez said that in trying to get away from the Defendant’s repeated stabs he tripped over a piece of cement, but the Defendant kept pulling his shirt and kept stabbing him. Mr. Lopez said he never got a chance to get away and the Defendant stayed on him, attacking him.
After the Complainant received the stab wounds, he then saw the Defendant run back towards the Sea Inn.
Mr. Lopez described the incident as lasting some 25-30 seconds and the Defendant was wearing a black shirt and a white cap. He said nothing was obstructing his view. When asked by Defence counsel why he did not give any description of the Defendant in his statement he said, “Because I know who it was.”
It was suggested to Mr. Lopez that there is no description in his statement because he did not get a good look at his attacker. Mr. Lopez replied that he did in fact get a good look. He knew him as Pott, but at the time he had forgotten his name.
I note that the only other evidence describing the lighting at the scene was from Zoan Marin, the Scenes of Crime employee, who described the lighting at the scene of the crime to be “fairly bright” from her examination on the 29th August 2012.
Having reviewed this evidence I accept that there is an absence of supporting evidence of Mr. Lopez’s identification of the Defendant on the night in question.
However, having reviewed the evidence given by Mr. Lopez I cannot describe the quality of the identifying evidence as poor, nor could it ever be described as a fleeting glance. 20 to 25 seconds is a long period of observation.
The evidence adduced by the Crown is that the attacker stabbed Mr. Lopez and Mr. Lopez saw him face to face with nothing obscuring his view.
It is clear that this incident happened at night, but there was street lighting, and Ms. Marin described the street as “fairly bright.”
I do not find that the identification evidence is poor, nor made in conditions so difficult that the Complainant could not have seen and identified his assailant.
Accordingly, I cannot conclude that the prosecution evidence taken at its highest is such that a jury, properly directed could not properly convict on it. Furthermore, I find that the prosecution evidence depends on the view to be taken of Mr. Lopez’s reliability, and 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.
Accordingly I dismiss the application and order that the trial is to continue. Dated this the 22nd January 2013 Honourable Mr. Justice Charles Quin Judge of the Grand Court