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IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE INDICTMENT NO: 30/11 THE QUEEN V ANDY JAMES MYLES Appearances: Mr. Kenneth Ferguson for the Crown Mr. John Furniss for the Defendant Before: The Hon. Mr. Justice Charles Quin Heard: 17th - 22nd November 2011 RULING Introduction
The Defendant has pleaded not guilty to One Count of Burglary contrary to s.243(1)(b) of the Penal Code (2010 Revision).
The particulars of the offence are that the Defendant, on the 2nd December 2010, at 88 Magellan Quay, George Town, Grand Cayman, entered as a trespasser the dwelling house of Mrs. Delores Rollar ("Mrs. Rollar"), and stole therein a gold necklace with a gold coin pendant, a black leather handbag and wallet with an undetermined sum of cash, two credit cards, two drivers' licences and a jewellery box, the property of Mrs. Rollar. Case for the Prosecution
The Crown relied on the evidence of eight (8) witnesses and eight (8) exhibits. 1st Witness – Mrs. Delores Rollar ("Mrs. Rollar")
Mrs. Rollar has lived at 88 Magellan Quay, Governor’s Harbour, with her husband for approximately 18 years. She described her home as a long home with most of the rooms facing the water. The front entrance to the house faces Magellan Quay. Upon entering the house by the front door, there is an office and a dining area to the left. Mrs. Rollar and her husband largely occupy the right side of the house.
On the evening of the 1st December 2010 Mrs. Rollar was alone, as her husband was overseas. Her house had experienced two robberies, so Mrs. Rollar had installed an electronic security system some months before the subject break-in. However, Mrs. Rollar admitted that the windows were not activated.
Mrs. Rollar recalls going to bed at approximately 10 p.m. on the 1st December. Very early on the morning of the 2nd December she was awakened by two men on either side of her bed. She said the men had their faces completed covered with masks. She recalled that one of the masks was red.
Mrs. Rollar said she was very startled and she said the men were fully clothed, wearing long sleeves and she thinks their heads were covered. She recalled the men telling her "Get out of bed and open the safe."
Mrs. Rollar told the Court that the men did not harm her.
Mrs. Rollar said the men took the gold pendant, which she described as a pirate’s coin attached to a gold necklace/chain. She said the pendant was expensive – with an approximate value of US$2,294.00. She said the pendant was either in the drawer of the night table beside the bed, or on top of the night table.
Mrs. Rollar said that the two men led her to her husband’s office, which is at the other end of the house. They took her to the safe in the office and told her to open it. As soon as she tried to open the safe the security alarm was activated and the alarm sounded. Mrs. Rollar said the men then pulled the alarm control unit from the wall and ran.
Mrs. Rollar said she then called 911. She said she was petrified.
Mrs. Rollar said that afterwards she discovered that her handbag – containing credit cards, two cell phones, car keys, drivers’ licences and some cash amounting to between $100 and $150 – was missing from the closet in the bedroom.
Mrs. Rollar also noticed that her silver jewellery box, which she kept next to her bed on the night table, had disappeared.
Mrs. Rollar said the police arrived very quickly and she told the police about the jewellery box and the gold pendant.
The police found a red bandana on top of the table desk in the office. Mrs. Rollar said it was definitely not hers, and, when asked about it by the police, she said had she ever seen it before. She said she had no idea how the red bandana got to be in her husband’s office. Asked again about the red bandana Mrs. Rollar said she was sure she had not seen it before, and did not see it until after the incident.
Mrs. Rollar identified the silver jewellery box from the photographs which were Exhibit 1.
Mrs. Rollar was shown photographs of the window which is at the north end of the house. She said she had left that window open and it was the likely point of entry for the intruders into the house. Cross Examination of Mrs. Rollar
Mrs. Rollar told Defence counsel that she could not recall how long before the subject incident the security alarm system had been installed. However, in response to the Court she said it was some months before the incident.
Asked how long the process of installing the alarm had taken, Mrs. Rollar said it had taken some days. Mrs. Rollar accepted that the persons installing the system had to visit the house on different occasions for the installation of the alarm system.
Asked by Defence counsel whether she had pointed out the red bandana to the police or whether it was the police who had pointed it out to her, Mrs. Rollar said the police had pointed it out to her.
Asked whether the red bandana could have been left in the house by the persons who installed the alarm system, Mrs. Rollar said she had not seen the red bandana before the time immediately after the incident.
Asked if when she had described “something red” in relation to the intruders, whether it was a mask, or was it the bandana she saw, Mrs. Rollar said she was not certain. 2nd Witness – Detective Constable Cardiff Robinson
DC Robinson is an officer with the RCIPS and with the Burglary squad. He said he recalled that, at 12:45 a.m. on the 2nd December 2010 he received a 911 call. He said he was in a patrol car with DC Roje Williams and SC Altamont Rowe. They were in a mobile unmarked patrol vehicle wearing blue denim clothing.
The 911 call stated that there had been a burglary at 88 Magellan Quay. At the time they received the call they drove directly to Magellan Quay.
DC Robinson said that on the way to Magellan Quay he saw two men walking along Drake Quay, towards Peninsula Avenue. The two men were on foot and were approximately 25 metres away from the intersection of Drake Quay and Peninsula Avenue. DC Robinson recalled the men looking in the direction of the police car and stopping. DC Robinson said he could see the two men from the street lights on Drake Quay and from the lights on Admiral Retreat. DC Robinson said both men were wearing dark coloured clothing with hoods over their heads and their faces were covered. DC Robinson said the patrol vehicle stopped and he immediately alighted and shouted at the two men, "Stop. Police." DC Robinson said the men turned in the opposite direction and began running. He said the men ran through an alley behind the Admiral Retreat complex and they jumped off into the canal. DC Robinson said that at no time did he lose sight of the men. DC Robinson said he stopped at the bank of the canal and, with DC Rowe shouted, "Stop. Police. Get out of the water. Police." DC Robinson said the two men disobeyed his order and swam away from him. He said DC Rowe went to the other side of the canal and, although one man swam away, the other one came back to the bank where DC Robinson was standing. DC Robinson said that DC Mitchell was also standing on the bank and he helped the man out of the water, at which time they discovered that the man was the Defendant, Andy Myles
DC Robinson said he had known Andy Myles for two years. He said Andy Myles was dressed in a yellow shirt.
DC Robinson said it was between 10 and 15 minutes from the time he spotted the Defendant and the other man walking along the road to the point where the chase ended and the Defendant came out of the water.
DC Robinson said he knew that the Defendant lived in Scranton on Myles Road, beside the "Funky Tangs" store.
DC Robinson said he asked the Defendant where the other guy who was with him was and the Defendant simply pointed to the area of bushes along the canal and said he was in the bush. Cross examination of DC Robinson
DC Robinson accepted that the lights of the car did not really help him to see the two men. He said it was the lamp post lights at the entrance of Admiral Retreat and on the other side of Drake Quay, together with the main light on the Esterly Tibbetts “dual carriageway”, which helped him to see the two men.
DC Robinson said he never lost sight of the two men all the way down the alley and he confirmed that he saw the men jump into the water.
DC Robinson said he did not see any of the men discard any clothing, nor could he say if the men had anything in their hands. DC Robinson said that the police car did not sound the siren and the blue roof lights were not turned on.
DC Robinson said as soon as he opened the door upon reaching close to the canal he shouted, “Police” loudly. He said that when the Defendant and the other person were running away and jumping into the water, he could not say whether Andy Myles was on the right or on the left.
DC Robinson said he, along with the other officers, spent about an hour searching for Andy Myles’ companion.
DC Robinson said Andy Myles did not struggle when he was fished out of the water. 3rd Witness – Police Constable Roje Williams
PC Williams recalled that on the morning of the 2nd December 2010 he was with DC Robinson and Special Constable Rowe and he was driving an unmarked, left-hand drive American police motor vehicle. He said they were all dressed in blue denim uniforms.
PC Williams recalled the 911 call, at 12:47 a.m., reporting that there was a burglary at #88 Magellan Quay and they immediately headed towards that address. He said that as they were on Peninsula Avenue driving with Drake Quay on the right he saw two males walking towards the junction of the road – that is, the junction of Drake Quay and Peninsula Avenue.
PC Williams said one male was wearing a grey hooded jacket and had his face covered with a handkerchief or a bandana, and the other male was dressed in full black and his face was also covered.
PC Williams said there were lamp posts at the Drake Quay intersection, and he said there was also lighting from the Esterley Tibbetts Highway which, PC Williams said, provided sufficient lighting for the entrance into Drake Quay. He said he stopped the vehicle and both his colleagues gave pursuit to the two men. He saw the men run to the rear of, what he thought was, Admiral’s Retreat – being followed by the two police officers DC Robinson and SC Rowe. PC Williams said he drove the car to the opposite side of the apartment to create a cordon around the two men. PC Williams said he heard his colleagues shouting, "Stop. Police. Stop," and also giving other commands. PC Williams said he and the officers surrounded the area and other officers came on the scene to assist. PC Williams said he saw two objects at the rear of the apartments – one looked like a jewellery box and the other looked like a red tam or hoodie-type cloth object. He said Officers Ennis and Mitchell arrived, after which he saw PC Mitchell pull the Defendant out of the water.
PC Williams identified the jewellery box and the red cloth item from the photographs.
PC Williams said that the estimated distance from 88 Magellan Quay to where he first saw the two men was approximately ¾ mile. Cross Examination of PC Williams
PC Williams confirmed that the Defendant was wearing a yellow shirt when he was pulled out of the water. PC Williams could not recall what sort of pants the Defendant was wearing.
PC Williams denied the suggestion that the headlights of the motor vehicle were off. PC Williams said they were on. 4th Witness – Mr. Neil Harris ("Mr. Harris")
Mr. Harris is a Scenes of Crime Expert attached to the RCIPS. Mr. Harris served as a police officer with the Gwent Police Force in the UK and spent 10 years as a Scenes of Crime Officer. Mr. Harris produced three (3) photo albums – NH1, NH5 and NH7, which are now Exhibits 2A, 2B and 2C. Mr. Harris produced a black and red head covering which became Exhibit 3. Mr. Harris produced a water bottle – Exhibit 4; a pair of white socks – Exhibit 5; a black T-shirt – Exhibit 6A; a black head covering – Exhibit 6B; a red hat cover with two holes in it – Exhibit 7; and, a red bandana with logos – Exhibit 8. He said these were all packaged and sent off for DNA analysis. He recalls the report dated the 11th March 2011 being returned to him. Cross Examination of Mr. Harris
Mr. Harris confirmed that that the red bandana, Exhibit 8, was found on the table. He said Mrs. Rollar showed it to him, Officer Mitchell and others. She said it was the first time she had seen it and she confirmed that it was not hers. Mr. Harris said he had been looking for items of evidential value and he did accept that Mrs. Rollar may well have drawn his attention to the bandana. He said he would be hard pressed to remember exactly how he came upon it.
Mr. Harris said there was a security guard outside the house. He went in his vehicle and PC Mitchell went in another vehicle.
Mr. Harris said the window was not secured, and that’s how he found it, and that did not cause the alarm to go off.
Mr. Harris said he looked for fingerprint evidence on the window but there was nothing of any value. He said there were no blood stains or sweat marks at the window and there was no indication that bare hands had been at the scene. Mr. Harris said he noted that the alarm security system had been pulled out of the wall. He said the safe was part of an unusual filing cabinet.
Mr. Harris inspected the area where the window was found to be open as shown in the photographs and told the Court that he was under the impression that the burglars had used gloves. 5th Witness – Mr. Thomas A. Walhl
Mr. Walhl is a forensic scientist with many years experience as a forensic expert, and as an expert in DNA examination and analysis. He has testified in Courts in the United States, Canada and in the Caribbean.
Mr. Walhl recalls receiving Exhibits 3 – 8, together with a standard analysis of the Defendant, and another male and female.
Mr. Walhl said that there is no evidence of any DNA matching the Defendant on Exhibits: i. 3 – the black and red head covering; ii. 4 – the water bottle iii. 5 – the pair of white socks iv. 6A – the black T-shirt. He said that the Defendant could be excluded as a contributor to any DNA found on those items.
The Defendant could also be excluded from Exhibit 7 – the red hat with the two eyeholes.
However, in relation to Exhibit 6B – the black head covering – a partial DNA profile was obtained from this item which matched the DNA profile of the Defendant. Mr. Walhl said the chance that a person, chosen at random from the general population matching this DNA profile was approximately 1 in every 2 billion individuals.
In relation to the red printed bandana: On the side with the print he found a DNA profile with a mixture of 3 individuals, with at least one male contributor. This DNA matched the Defendant and he could not be excluded as a contributor. Mr. Walhl said that the chance that a person chosen at random from the general population is a contributor to this mixed profile would be 1 in every 2.2 million individuals. On the side without the print of this item, Mr. Walhl found a mixture of at least two individuals and one male contributor, and DNA matching that of the Defendant. Mr. Walhl said the chance that a person chosen at random from the general population would be contributor is 1 in every 34,000 individuals.
In this case I have heard the evidence of Mr. Thomas Walhl, who has been called as forensic DNA expert on behalf of the prosecution.
Expert evidence is permitted in a criminal trial to provide the Court with scientific information and opinion, which is within the witness’s expertise, but which is likely to be outside the experience and knowledge of the tribunal. It is by no means unusual for evidence of this nature to be called; and it is important that the Court should see it in its proper perspective, which is that it is before the Court as part of the evidence as a whole, to assist the Court with regard to one particular aspect of the evidence namely, the DNA found on the black head covering, which is Exhibit 6B, and on the red printed bandana, which is Exhibit 8.
A witness called as an expert is entitled to express an opinion in respect of his findings and the Court is entitled and should have regard to this evidence and to the opinions expressed by the expert in coming to its conclusions about this aspect of the case.
I have to remind myself to bear in mind that if, having given the matter careful consideration, I do not accept the evidence of the expert, I do not have to act upon it. Indeed, I do not even have to act upon unchallenged evidence of an expert. I also must remind myself that if I do accept the evidence of Mr. Walhl, it is only in relation to those two Exhibits – namely, the black head covering and the red bandana. And, whilst his evidence may be of assistance to me in reaching a verdict, I must reach a verdict, having considered all the evidence put forward by the Crown. 6th Witness – PC Kingsley Mitchell
PC Mitchell was on duty at Central Police Station and then went out on his rounds in an unmarked police vehicle. He said that sometime between 12:30 a.m. and 12:45 a.m. he received a call to attend a location. He arrived at the location, an apartment complex, with his vehicle and he saw PC Robinson and other police officers there and a search in progress.
At the rear of the apartment complex PC Mitchell said he saw a jewellery box and a red ski mask lying on the grass.
PC Mitchell got involved in the search. He said he had heard the water splashing and he went to the dockside where he came upon the Defendant who was in the water between a boat and a boarded ramp. He said he knew the Defendant because he had met him before.
PC Mitchell said he had seen the Defendant swimming towards the boat from under the ramp. PC Mitchell said he noted that the boat was tied up.
PC Mitchell said he had a clear view of the Defendant, and he issued some commands to the Defendant to come towards him. After several commands the Defendant moved towards PC Mitchell and PC Mitchell pulled him out of the water. PC Mitchell said there were at least two or three other officers beside and behind him.
PC Mitchell recalled that the Defendant was wearing a yellow shirt with jeans, but PC Mitchell said he could not recall if the jeans were short or long jeans.
PC Mitchell arrested the Defendant for aggravated burglary. PC Mitchell said that the jewellery box and the ski mask were about 10 feet away from where he pulled the Defendant out of the water.
PC Mitchell went to 88 Magellan Quay and he met an elderly female who told him what had taken place in her bedroom and in the office of her house. PC Mitchell said the bedroom was to the right end of the house and the office was more to the left. PC Mitchell guessed that it was about 50 feet from the bedroom to the office. PC Mitchell described the house as a pretty big, single storey house with several bedrooms and a large living room. PC Mitchell was told that a jewellery box and necklace were missing.
PC Mitchell said the Exhibits – the white socks, the black T-shirt, the black head covering and the red ski mask with the two eyeholes were found not far away – approximately 100 yards away – from Mrs. Rollar’s home. PC Mitchell said he stayed there and guarded the Exhibits until the Scenes of Crime expert, Mr. Neil Harris, arrived. Cross examination of PC Mitchell
PC Mitchell said he could not recall whether the Defendant was wearing long pants or short pants. He only recalled that they were jeans pants.
PC Mitchell said the Defendant gave no problems and another police officer took the Defendant to the police station.
PC Mitchell said the house electronic security alarm was never recovered, and he did not know when the system was installed. Defence Case Witness – Andy Myles, the Defendant
The Defendant admitted that he was fished out of the canal by Drake Quay by PC Mitchell.
The Defendant denied entering 88 Magellan Quay or stealing any gold necklace with a pendant or any of the other items.
Asked about the bandana that was found inside 88 Magellan Quay and how the DNA got on the bandana the Defendant said he has no bandana and he never went into those premises at all and he had nothing to do with the jewellery box. The Defendant said that he only knew about the jewellery box when the police brought it to his attention.
The Defendant said he was coming down from West Bay, having gone there to see a girl, and a group of persons had attacked him.
He said he was heading towards the 4-way stop in West Bay and he had crossed the street from the nearby restaurant when he stopped a lady in a car who gave him a ride to the Courtyard Marriott – just in front of Public Beach.
The Defendant said he did not want to walk on the main road after what happened (with the men attacking him) and he “ditched” (hid) away when he saw some cars coming.
He said he then saw a car approach with its lights off, and it came over towards him. He said that he did not know who was in the vehicle. The Defendant said he then began to run and ran down to a boat. He said he saw other men in front of him. He said people were running behind him. He said he went on to the boat and fell into the water. He said he was not meaning to go into the water.
It was put to the Defendant that when the vehicle without the lights had approached him the police had also seen two people on the road. He said it was not two people. He was by himself.
The Defendant confirmed that he was picked up out of the water and that he gave a statement to the police, but he is not sure of the date on which he gave the statement. The Defendant said he told the police that he could not tell them about “any burglary” because he had no clue about any burglary. The Defendant told his counsel and the Court that he did not commit the burglary and he would not do it to a lady like that. Cross Examination of the Defendant
The Defendant said he lives on Myles Road, which is about 3 to 4 miles away from where the police picked him out of the water.
The Defendant said he had headed out for Silver Sands Restaurant around 9 p.m. He said he got a ride on a bus from town sometime after 9 p.m.
The Defendant said he had met a girl who told him her name was Suzette earlier that day and they arranged to meet at 10 p.m. The girl did not tell him where she lived, but it was somewhere near Northwest Point. He said the girl did not give him her surname.
The Defendant said he was wearing a yellow shirt and short jeans pants. He said he arrived at Silver Sands sometime after 9 p.m. and he waited but did not see Suzette. He said Suzette did not give him a telephone number because she had given her phone to her mother and he, the Defendant, did not have a cell phone. So there were no phones and no surname of the person he was to meet. He said he waited for Suzette until after 11 p.m. going up to midnight and then he decided to hitch a ride. The Defendant said he was waiting for the girl called Suzette for almost 2 ½ to 3 hours.
He said he got attacked by a car full of men close to the restaurant. He said he was concerned because he had a curfew imposed by the Drug Court of 10 p.m. The Defendant said that after the attack, he fled down the road near the old abandoned graveyard.
The Defendant said he got back on to the main road and admitted he does not know the names of the roads.
The Defendant said he did not know the exact time the female came along and gave him a ride to the Courtyard Marriott. He said he walked from there, alone.
He said at the back of the apartment complex he heard people yelling. He said he heard them cursing. He said that was when he jumped on to the boat and ended up in the water. He said when he heard them call police he came up “nice and smooth”. The Defendant said he had not intended to go into the water.
The Defendant denied being on Drake Quay with another man. The Defendant said that he was on the main road headed to George Town, and that he was alone.
The Defendant said he saw other people, more than two, who were ahead of him. He said he thought they were males and that he did not know where they went, but they fled into the bush area.
The Defendant was asked about the black T-shirt and the black head covering. It was put to the Defendant that there was DNA found on the head covering which matched him and that he was dressed in that head covering to cover his face. The Defendant said that he guessed that Crown counsel must have been there at the scene. The Defendant acknowledged this was a little strange, but he said he knows it was not him and that his DNA could not get on the bandana.
The Defendant denied that the police shouted "Police."
The Defendant denied entering Mrs. Rollar’s residence as a trespasser with another man and stealing the gold necklace with the coin pendant, the black handbag, the wallet and the jewellery box.
It was put to the Defendant that when the alarm went off he, and the other gentleman, ran from the scene, to which the Defendant said, "Not Andy Myles, Sir."
It was put to the Defendant that it was at that stage that he left his bandana on the desk across from the safe. The Defendant said he "knows nothing about that."
It was put to the Defendant that he was still in the vicinity of Magellan Quay when the police arrived, and that’s when they found him on Drake Quay. The Defendant said he was by himself.
It was put to the Defendant that while he was in the water he took off the dark clothing, to which the Defendant responded by asking how would he have time to take off the dark clothing.
It was put to the Defendant that he had fabricated the evidence and that he was lying to hoodwink the Court. The Defendant denied that he was fabricating the evidence.
Asked about the DNA profile found on the bandana. He said he did not know anything about that or about that house. He said that sometimes his mother gives away clothes and it may have been that she sold the bandana to the Red Cross. He said he has a lot of head scarves/handkerchiefs. Summary of the Crown Case
In summary, Crown counsel says that the Crown witnesses are witnesses of truth and their evidence is credible and reliable.
Mr. Ferguson submits that the Complainant was awakened sometime after midnight at 88 Magellan Quay by two men in dark clothing and one with a red mask or bandana.
The Complainant said that she had gone to bed sometime after 10 p.m. and had been awakened by the men sometime after midnight, but she had no idea how long the men had been in her home.
The police investigation reveals that the window near to the study had been opened, although there were no marks of any sort, which gave the Scenes of Crime expert the impression that the intruders entered with gloves.
The Complainant recalls the two men standing on either side of her bed when they awakened her, after which they took her to the safe in the study. Whilst opening the safe the electronic alarm system was activated and the alarm went off. The two men pulled the alarm out of the wall and then fled the scene. The Complainant said she could not recall which way the intruders left the house. The Complainant said the men were in the house for approximately 15 to 20 minutes after she was awakened. The Complainant made a 911 call.
Officers Robinson, Williams and Rowe received a call at approximately 12:45 a.m. and drove from Smith Road directly to Magellan Quay. They did not use the sirens or the blue lights and they arrived in the area at sometime after 12:45 a.m. They saw two men dressed in dark clothing walking along Drake Quay, which is between 75 and 100 yards from 88 Magellan Quay. The officers drove up beside the two men. The two men ran off when they saw the police officers. Officers Robinson and Rowe alighted from the vehicle, and gave chase. Officer Robinson recalls telling the men to stop and shouting “Police.” Officer Robinson chased them behind the Admiral Retreat apartments and saw both men jump into the water during which time he never lost sight of the men.
Officer Robinson said one of the men got away and the other man came back to the bank and was eventually fished out of the water by Officer Kingsley Mitchell.
The man fished out of the water is Andy Myles, who Officer Robinson has known for two years.
The police discovered a wet black T-shirt and a wet black head covering in the vicinity of Drake Quay where the men jumped into the water. The Crown relies on the fact that DNA identified on the black head covering matched the DNA of the Defendant. The police officers also found a red ski mask with two eyeholes cut into it, and they also found the jewellery box which was identified by the Complainant as her jewellery box which she kept in her bedroom. The jewellery box, as well as the ski mask with the two holes were found by the police near to where the men were seen by the officers and near to where the Defendant was apprehended by the police.
The police also found a red printed bandana in the study at 88 Magellan Quay where the safe was kept and where the alarm was pulled off the wall by the two intruders. The Crown points to the fact that the owner had never seen this bandana before and only saw if after the intruders ran away because the alarm had gone off.
The DNA forensic specialist found DNA on the inside and on the outside of the red bandana which matched the DNA of the Defendant.
The Crown also relies on the evidence of the Defendant which is described by the Crown as “ludicrous and pure fabrication.”
The Crown submits that the Defendant is lying about meeting a girl called Suzette who had no phone, no address, and no surname.
The Crown submits that the Defendant is lying when he said he arranged to meet this girl called Suzette at 10 p.m., which was his curfew time.
The Crown submits that the Defendant lied about being in the area at that late hour after a date with a girl at a meeting spot in West Bay did not happen as planned.
The Crown submits that the Defendant also lied about being picked up, after midnight, by a woman who drove him to the Courtyard Marriott.
The Crown submits that the Defendant is lying when he says he was on his own when the police responded to Mrs. Rollar’s 911 call and the police arrived at Drake Quay.
The Crown submits that the Defendant also lied about not having committed the burglary at 88 Magellan Quay and about not having taken the items out of the house. Summary of the Case for the Defence
The Defendant says that he did not commit the burglary at 88 Magellan Quay.
The case for the Defence is that the Defendant met a girl earlier that day. The Defendant could not recall exactly when during the day he met the girl. The Defendant said that the girl never told him her surname and he only knew her as Suzette, but he arranged to meet her at Silver Sands at about 10 p.m.
The Defendant said that whilst he was in West Bay waiting for the girl he was attacked by some men in a car and he had to avoid them.
The Defendant said he waited for the girl to arrive but she never showed up so he left the location. Sometime after midnight he hitched a ride from a lady and she took him to the Courtyard Marriott.
The Defendant said he walked from there to the Governor’s Harbour area, and that is when he came upon the car with no lights. Because it had no lights he thought it was the men coming to attack him again so he ran off. He said he saw other men running but he could not identify them. He said he ran over behind some apartments and jumped on a boat and slipped and fell in the water. He then recalls “the men coming” and shouting expletives at him. The Defendant said he does not recall any shouts of “Police.” The Defendant does accept that he was eventually fished out of the water by Officer Mitchell.
The Defendant said he knows nothing about the jewellery box.
The Defendant has no idea how his DNA could be on the black covering. He said the black covering is not his.
The Defendant says the red bandana found in the study at 88 Magellan Quay is not his and he does not know anything about it. The Defendant does not know how DNA matching his DNA could have been found on the red bandana.
The Defendant says he does have headscarves and bandanas but his mother often sells them to the Red Cross – the implication being that the Defendant’s mother may have sold the red bandana to the Red Cross and, somehow, the burglar bought the red bandana and was wearing it when entering 88 Magellan Quay as a trespasser.
Defence counsel submits that the Defendant is not a contributor to any of the DNA found on the red ski mask.
The Defendant denies entering 88 Magellan Quay and denies stealing a gold necklace with a pendant or the jewellery box or the handbag with the credit cards, phones, keys and money.
The Defendant says that although it looks very suspicious this is all just a question of "being in the wrong place at the wrong time." Defence counsel contends that the Crown has not made out the case properly against the Defendant. Conclusion
The Indictment charges the Defendant with burglary contrary to s.243(1)(b) of the Penal Code. Section 243(1)(b) reads: "Whoever having entered any building or part of a building as a trespasser steals anything in the building ... is guilty of the offence of burglary."
As the Tribunal of Fact I have endeavoured to remind myself of the prominent features of the evidence, both on behalf of the Crown and on behalf of the Defence, because it is my responsibility as the Tribunal of Fact to judge the evidence and decide on the relevant facts of this case. Accordingly, I have reviewed the evidence and I have taken into account the arguments in the speeches of Crown Counsel, Mr. Kenneth Ferguson, and counsel for the Defence, Mr. John Furniss.
I remind myself that the burden of proof is always on the prosecution. It is for the prosecution to prove that the Defendant is guilty and further it is never for the Defendant to have to prove his innocence. I also have to remind myself that the prosecution must prove the Defendant’s guilt to a high standard of proof, namely, that I must be satisfied that the Defendant is guilty of the charge of burglary beyond all reasonable doubt or, alternatively, I must be sure that he is guilty. If I find that the prosecution has not made out the case so that I am sure, I must find the Defendant not guilty. Accordingly, I must review all the evidence and decide whether the Defendant is guilty of burglary or not.
The Crown relies heavily on the evidence of the Complainant and the evidence of Detective Constables Robinson and Williams, together with the evidence of the forensic expert, Mr. Harris.
It has often been cited that circumstantial evidence can be powerful evidence. It is important that I examine it with care and consider whether the evidence upon which the prosecution relies in the proof of its case is reliable, and whether it does prove guilt. Furthermore, before convicting the Defendant on circumstantial evidence, I must consider whether it reveals any other circumstances which are, or may be, of sufficient reliability and strength to weaken or destroy the prosecution’s case. Finally, I have to warn myself to be careful to distinguish between arriving at conclusions, based on reliable circumstantial evidence, and mere speculation.
In respect of circumstantial evidence I gain considerable assistance from the decision of the Northern Ireland Court of Appeal in *R v. Courtney* [2007] NICA 6, [2007] NI 178 and the judgment of the then Lord Chief Justice, Lord Kerr where he states at paragraph 20: “*Where, as in this case, the prosecution relies on circumstantial evidence to establish the Defendant’s guilt, it is well established that a particular approach to the evaluation of the evidence is required. This is perhaps still best encapsulated in the well known passage from the judgment of Pollock CB in R v. Exall [1866] 4 F&F 922 at 928; 176 ER 850 at 853 and endorsed by the Court of Appeal in Northern Ireland in R v. Meehan No. 2 [1991] 6 NIJB 1:- “What the jury (the Tribunal of fact) has to consider in each case is, what is the fair inference to be drawn from all the circumstances before them, and whether they believe the account given by the prisoner is, under the circumstances, reasonable and probable or otherwise. ….Thus it is that all the circumstances must be considered together. It has been said that circumstantial evidence is to be considered as a chain, and each piece of evidence as a link in the chain, but that is not so, for then, if any one link broke, the chain would fall. It is more likely the case of a rope composed of several cords. One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength. Thus it may be in circumstantial evidence – there may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicion; but the whole, taken together, may create a strong conclusion of guilt, that is, with as much certainty as human affairs can require or admit of.””
The case against the Defendant depends, to some extent, on the correctness of DC Robinson’s identification of the Defendant running behind the Admiral Retreat apartments into the water and then out of the water. The Defendant says there were other men in the vicinity also present. DC Robinson says that he followed the two men and that the Defendant, who eventually was fished out of the canal by DC Mitchell, never went out of his sight. None of the police officers at the scene saw any other persons there or in the vicinity.
I must warn myself of the need for caution before I could ever convict the Defendant by reliance on the evidence of identification. I must remind myself that witnesses who are convinced in their own minds may, as a result, be convincing witnesses but, nevertheless, be mistaken.
I must examine the circumstances in which DC Robinson first saw the two men; how long did he have the two men under observation; from what distance did he see the two men; in what light did he see the two men; did anything interfere with his observation of the two men; has DC Robinson ever seen the Defendant before that occasion, and, if so, how often. These are questions I must consider when analyzing the evidence of the identification of the Defendant and in particular the visual identification of DC Robinson.
I accept the evidence of Mrs. Rollar, in that, the gold necklace with gold coin pendant, the black leather handbag with its contents, and, the jewellery box, were all in her bedroom on the evening of the 1st December 2010, but were stolen from her house between midnight and 12:45 a.m. on the 2nd December 2010.
Mrs. Rollar describes the two men as fully clothed with masks over their faces, and one of them was wearing a red mask or something red. She woke to find the men on either side of her, and they took her into the study to where the safe was. They were, she said, very interested in the safe. Whilst she was opening the safe the alarm went off. The men clearly panicked and pulled the alarm off the wall and then fled.
I accept Mrs. Rollar’s evidence that the red bandana had never been seen before, and the compelling inference is that the bandana was dropped whilst the men were in the house.
I accept the evidence of Mr. Walhl that DNA matching the Defendant’s DNA was found on the inside and on the outside of the red bandana.
Mrs. Rollar made her 911 call at around 12:45 a.m. on the morning of the 2nd December 2010.
Officers Robinson, Williams and Rowe were at Smith Road when they received word of the 911 call and drove directly to the scene as fast as they could without using the siren or the blue lights. Some minutes later they arrived to see two men with their heads and faces covered, similar to that described by Mrs. Rollar, walking down Drake Quay, some 75 to 100 yards from the house that was burgled. Officer Robinson quickly got out of the car and shouted for the two men to stop. The two men did not stop and instead the men ran off and Officer Robinson ran all the way behind them until he saw them jump into the river. One of the men managed to swim away but the other man was fished out of the water by Officer Mitchell and turned out to be the Defendant, Andy Myles.
At the location where the police apprehended the Defendant, the police found the black T-shirt and the black head covering which had DNA which matched that of the Defendant. Also found at the scene was the jewellery box, identified by Mrs. Rollar as the one taken from her residence some 10 or 15 minutes earlier. Also found at the scene was a red mask with two holes, and the strong inference is that this mask was used by one of the intruders to conceal identification.
The Defendant says he was by himself just before, and at the time when, the police apprehended him. I do not accept the Defendant’s evidence. I accept the evidence of DC Robinson, that he saw the two men fully clothed and masked, and that he chased the Defendant and the other man down the back of Admiral’s Retreat, where he saw them jump into the water. I accept the evidence of DC Robinson that he had the two men he was chasing in his sight at all times and that when one of the two men was fished out of the water he immediately recognised him as Andy Myles.
I must commend the quick actions of DC Robinson and his colleagues in arriving at the scene so quickly after the 911 call from Mrs. Rollar informing the police that the burglary had taken place. I also note that DC Robinson acted quickly in beginning and continuing his pursuit of the men on foot and I accept that he never lost sight of the Defendant.
I do not believe that the Defendant met a girl whose name, address and telephone number he did not know and arranged to meet her at the time he was supposed to be observing his Drug Court curfew. I do not believe that the Defendant waited almost 3 hours for the girl to arrive.
I find it highly unlikely that a woman driving alone would offer a lift to a man after midnight.
There is a sharp conflict as to whether the Defendant was alone or whether he was with another man.
There is also sharp conflict as to whether the Defendant saw two or more other persons ahead of them, with the inference being that DC Robinson and the officers would have seen other persons on the road at that time.
I have observed the Defendant in the witness box and I found him to be evasive in the manner in which he gave his evidence. I also find his account of his movements on the evening of the 1st December 2010 into the early morning of the 2nd December, to be highly improbable.
It is submitted by the Crown that the Defendant has lied to the police and lied to the Court. Accordingly, I must decide whether the Defendant did in fact deliberately lie. If I am not sure I can ignore the matter. But if I am sure he lied I have to ask myself the question why did the Defendant lie.
I must remind myself that the mere fact that the Defendant tells a lie is not in itself evidence of guilt. The Defendant may have lied for many reasons and they may possibly be “innocent” ones, in the sense that they do not denote guilty, for example, lies to protect somebody else or lies to conceal some disgraceful conduct other than the offences for which he is charged, or lies merely out of panic, distress or confusion. If I think there is, or maybe an innocent explanation for a lie, then I should take no notice of it. If I am sure that the Defendant did not lie for an innocent reason, then his lies can be regarded as evidence supporting the prosecution case.
I do not believe the Defendant’s story. I find it highly improbable and I reject it.
I do not believe that the Defendant lied for an “innocent” reason. I believe he lied to try and make the Court believe he was elsewhere when the burglary was committed.
I accept the evidence of DC Robinson as both reliable and accurate. DC Robinson clearly saw the Defendant with another person and he made sure that the Defendant did not escape. I also accept the evidence of DC Williams in that he saw the two men run away from the police.
The Defendant was apprehended some minutes after the burglary took place. In addition, there is the black wet head covering with DNA matching that of the Defendant on it.
I find that the Defendant either owned or wore the bandana which was found in the study at 88 Magellan Quay. I find that the fact that DNA matching that of the Defendant was on the inside and on the outside of the bandana, the compelling inference is that the bandana belonged to the Defendant and that the Defendant was wearing the bandana at the time the burglary was committed.
I agree with Crown counsel that the Defendant has fabricated his story. I believe the police officers and I accept the evidence of the witness Mr. Walhl.
When I consider all the evidence as well as this combination of circumstances, I am satisfied beyond all reasonable doubt that the Defendant is guilty of burglary with another person who has still not been apprehended and is not before this Court.
Accordingly, the Defendant is found guilty of burglary as charged. Dated this the 29th day of November 2011 Honourable Mr. Justice Charles Quin Judge of the Grand Court