Men acquitted over attic guns

| 28/04/2010

Cayman Islands News, Grand Cayman Island Headline News(CNS): Full story update: The jury took just over two hours to find Keith Orrett, Brian Borden, Bjorn Ebanks and Keith Montaque not guilty of possession of unlicensed firearms on Wednesday afternoon. Following Justice Charles Quin’s summing up of the evidence and the law, the four women and two men returned to the court with a not guilty verdict at around 2:40pm, after which the judge told the men in the dock they were free to go. Police brought the charges as all four were present when the guns were found in an attic in Town Hall Court and because three of the men could not be excluded from small quantities of mixed DNA found on the firearms.

The case against Orrett was based on the proposition that the two loaded pump action shotguns were found in the attic and, as the tenant of the property, he had control over those guns. His defence team from Stenning & Associates, John Fox assisted by James Stenning, defended their client on the basis that he did not bring the guns into the house, was unaware they had been hidden in his attic and claimed to have only seen one of the guns some time before the police arrived as a result of one of the other men cleaning it. Fox said Orrett had never touched the gun andno DNA that could have been a match to Orrett was found on the weapons.  
Fox argued that Orrett could not possibly have had control of the firearms or done anything about removing the weapons given that he was not in control of those guns and feared for both his own life and the lives of his children.
Ben Tonner of Samson McGrath, Nicholas Dixie of Mourant and Nick Hoffman from 7 Bedford Row in London, UK, defended their clients by arguing a very similar defence in that the small traces of mixed DNA found on the weapons could very easily have made their way on to the guns as a result of transference and contamination during the police operation which took place at the house in Town Hall Court in West Bay.
Despite Orrett’s statement about Borden, Hoffman had argued that this could not be relied upon and therefore not used against his client and there was no real evidence that his client had been near the guns or put them in the attic. He said the minute quantities of DNA that could have matched his client could have also matched hundreds of others, and even if it was his client’s DNA it could very easily have been transferred to the guns by the police.
Hoffman, Tonner and Dixie also argued that there was no real evidence that any of the three men had ever possessed the unlicensed weapons or had control of the guns. The defence councils had each pointed out that there were numerous other people at the house during this three to four day period, many of whom the police did not swab, who could have brought and then hidden the weapons.
During the trial the court heard how all four men were present over an extended weekend period at Orrett’s house in West Bay in April of 2007 for a social gathering when a number of other people were also in attendance.
Orrett testified that he had seen Borden handle a weapon, which he believed he had then hidden in one of the sofas on the Sunday morning of the weekend gathering. An armed group of police turned up at the house on Monday morning as part of another investigation, suspecting that there could be weapons at the property.
They surrounded the house and made the six men inside at the time come out. When all of the men were brought out they were all searched by police officers wearing gloves, but the defence noted that there was no certainty that the police officers changed their gloves after searching the men and then handling the loaded weapons that were eventually discovered in the attic.
The three defence lawyers focused on what the prosecution could not say, such as when the guns came to the house or who put them in the attic and how long they had been in the attic. They pinpointed the mistakes made by the police during the investigation and the details missed by the officers at the scene, such as a hand print in the attic near where the guns were found and their failure to take any prints from inside the attic or at the entrance hatch.
During the trial it was also revealed that other DNA was on the weapons, some of which matched a fifth man, who police swabbed at the time of the raid but have not been able to find since and who has not yet been charged.      
The trial had originally commenced in February, when the court struggled to find a seven man jury. After exhausting the jury pool through challenges and the problems of potential jurors knowing the defendants or the witnesses, the court was forced to take to the streets to secure more men and women to serve. Having eventually secured seven members, one was then excused as a result of illness before the trial started in earnest and the decision to have only six people sit was made.
The trial then immediately went behind closed doors for legal arguments before it was adjourned for more than six weeks at the mid-point due to time tabling problems.

Category: Headline News

Comments (30)

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  1. Dean says:

    I am not caught up on all of this, but, let this idiot take a stab at it.

    The job of the prosecutor is to convince the jury that what he is saying is true. that the case before them is solid, fool  proof.

    Now the police Departments job is to gather the evidence send it to the lab for testing  and the prosecutor presents it’s case.

    Now what went wrong? the jurors were not convinced so it is either:

    1. The jury pool was made up of retards

    2. The defendants were not guilty

    3. The prosecution never presented it’s case properly.

    4. The police screwed up

    5. The defendants were guilty but lucky

    6. Santa is real

    Whatever the reason, the courts system did it’s job,  and for all our sakes let’s hope the system was right this time.

    Cheers to the system.

  2. Reaper says:

    I normally do not comment in forums but I had to speak here on this issue, I have noticed that almost everyone has jumped on the RCIPS, calling them incompetent based on this story. I would just like to make one point, you have not had the benefit of hearing the case, you were not present you did not hear any of the evidence, how then can you come to a conclusion as to incompetence. You have merely heard the arguments as put forward by the Defense Attorneys, it is their job to say these things to sway a jury. That is only side of this story that has been reported, come on people do not form an opinion based on one side of a story. Please stop bashing the RCIPS, they are not perfect but they do a good job and they need our support.

  3. Voice of Reason says:

    Unlike the Police and the Prosecution, the defence attorneys in question are simply doing their jobs competently. 

    If the Police were properly trained and properly funded, the conviction rate would increase dramatically.

    No one wants criminals on the street, but neither do we want innocent people in prison.

    If the defence attorneys were to join the Police and Prosecution in doing a sub-standard job, innocent people (4 caymanians in this particular example) would be sent to HMP Northward.

     

     

    • Anonymous says:

      No one can complain about the funding of the police. Millions of dollars have been voted by successive govts. to meet the demands of the police force from helicopters to recruiting large numbers of police from the UK. If these police officers are not properly trained, as you say, then why are we importing them?

  4. O'Really says:

    Section 9 of the Misuse of Drugs law, "Presumption of possession and knowledge of controlled drug" in essence reverses the usual presumption of innocent until proven guilty, meaning that if a controlled substance is found, for example, in your attic, the burden of proof falls upon the accused to show why they are innocent. 

    While I am not in favour of abandoning the innocent until proven guilty concept, if we are going to set it aside in specific situations, my suggestion is that this should be extended to cover weapons, particularly firearms.

    I’m on shaky ground when I push my legal knowledge like this, so if for some reason this is not possible, I’m sure one if the friendly lawyers out there will be happy to point this out!

    • Dennie Warren Jr. says:

      The following is one example of why I believe your suggestion should not be implemented and why that section of the Misuse of Drugs law should be repealed.  For the purposes of this discussion, we will assume that you and your spouse truly live a completely lawful lifestyle.  Your four kids are the sweetest the world has ever seen.  For the record, contrary to your suggestion, I absolutely support you having a right to be considered innocent until proven guilty in a court of law and that should never change.

      According to you: “Section 9 of the Misuse of Drugs law, "Presumption of possession and knowledge of controlled drug" in essence reverses the usual presumption of innocent until proven guilty, meaning that if a controlled substance is found, for example, in your attic, the burden of proof falls upon the accused to show why they are innocent. “  You also suggest the law: “…should be extended to cover weapons, particularly firearms.”

      So, on a lovely breezy Sunday afternoon, while preparing what promises to be the best home cooked organic dinner ever, your house catches on fire and burns to the ground before the fire department can extinguish the flames.  During the fire investigation into the cause of the fire, a firearm is discovered in the ashes by a fire officer who then promptly calls the police.  Of course you’re totally shocked, because according to you, you had absolutely no knowledge of the firearm being in your home.

      You’re now facing a police investigation.  Not only are the RCIPS saying the law requires you to prove your innocence, but you had previously supported amending the law to shift the burden of proof to yourself.

      So, when the RCIPS officer asks: “What are you doing with an unlicensed firearm?”  You claim “I don’t know anything about that firearm”.  Your spouse lowers his or her head and is heard sighing by the police officer, who is staring into your eyes while thinking, “Yeah, right!”  Unfortunately for you, the burden is now on you instead of the State.

      Would you please share with us what types of evidence you would give the RCIPS to prove you’re not guilty of possession of an unlicensed firearm?  Please keep in mind that your claim of innocence is not proof.

      • O'Really says:

        Clearly you cannot actually be bothered to read the section of the Misuse of Drugs Law I refer to in my post, or you would understand that it is not according to me, but according to the wording of this law that the concept of innocent until proven guilty has been reversed for drug offenses in Cayman. 

        If Cayman can live with this exception, my suggestion is that it can live with one that extends to guns. You don’t agree, that’s fine, but then again aren’t you Cayman’s gun king? 

        I don’t support the concept of guilty until proven innocent at all ( something I made clear in my original post but which you seem to have missed), but if we have it for drugs, why not illegal firearms? Alternatively get rid of the existing exception for drugs and have no exceptions at all, although with the level of crime in Cayman at themoment this is unlikely.

        Given the contrived nature of your example, the answer to proving myself innocent is to demonstrate that the gun is an 18th century flintlock in non-functioning condition and which was found under a concrete slab poured 15 years before i arrived in Cayman. That should do nicely!

         

        • Dennie Warren Jr. says:

          When I said, “according you” I didn’t intend to suggest that you were incorrect about the content of Section 9 of the Misuse of Drugs Law, but I just wanted to include it along with your point that you feel the same: “…should be extended to cover weapons, particularly firearms.”

          You said: “I don’t support the concept of guilty until proven innocent at all…”, but in your original post you did propose extending the presumption of intent to possess as provided within the Misuse of Drugs Law to cover other weapons and firearms.  In other words, you’re saying you don’t care how the firearms got into the dwelling house, because you feel that the person(s) who owns or rents the dwelling house or their innocent kids is responsible for putting it there.  In my example, who is responsible?  A parent, one or both?  Adult friends who were invited to the dinner?  One or more of the kids, which ones?  Friends of your kids, which friend(s)?

          Instead of seriously considering my example, you appear to be making fun of it.  So, FYI, a firearm underneath or within a concrete slab most likely will not be discovered by a fire officer during his investigation into the cause of a fire.  It is also mistaken to believe that a “non-functioning” flintlock firearm will not be treated as a firearm, because a “firearm” is any lethal barrelled weapon and any component part thereof.  Additionally, the “non-functioning” part(s) can be replaced.
             
          As you have proposed, in my example it would be impossible for owner(s) or renter(s) of a dwelling house to prove they didn’t know the firearm was there; their innocent kids won’t be able to prove they didn’t know the firearm were there either.

          I again voice my opposition to such dangerous proposals!

          • O'Really says:

            My last comment on this.

            Cayman already has legislation which reverses the usual presumption of innocence for drug related offences. Does Cayman consider drug offences more serious than gun offences? It would appear so, but I don’t and I suspect many without a vested interest would agree with me.

            You seem to be forgetting that we are discussing illegal, unlicenced firearms, not lawfully owned firearms. In your penultimate paragraph, substitute the word drugs for firearms. Innocent people would face the same difficulties in proving themselves not guilty. This can already happen under Cayman law and if it can happen for drugs, let it happen for guns too.

  5. Anonymous says:

    This case was lost as a result of improper searching techniques and handling of police evidence by the RCIPS. You don’t search multiple person’s wearing the same gloves in one apartment and then continue to search the remainder of their house/apartment with the same gloves. When evidence is then recovered, the defence will then assert that the DNA evidence on the exhibit, was transferred by the police. 

    RCIPS you must remember, the defence does not need to prove anything, it’s the crown prosecution who needs to do this.

    All the defence needs to do is plant reasonable doubt to the judge/jury because of a procedural screw-up, and if accepted, the benefit must go to the defendants.

    Plain and simple !!!

  6. Anonymous says:

    Police recruit their staff locally with all the limitations of a small island, then the accused persons find the best lawyer in the world?

    There must be regulations for the lawyer to be locally as well, to compete with the same limitations and similar skills and knowledge than the police officers.

    Sometimes we have to understand the necessity to bring police officers from abroad with the minimum skill to avoid losing the trials

    • Anonymous says:

      Clearly you don’t have your facts here. Put in an FOI request and see how many officers are from "abroad". It constitutes the majority and it does not mean that they are any more qualified or have any better skills or even common sense for that matter!!

  7. Change the penal code says:

    ThePenal Code needs to include a strict liability crime in respect of guns on premises save where the Defendant can prove a third party intentionally hid them.  Otherwise those that store guns for criminals will always be acquitted.

  8. Anonymous says:

    I do not know the specifics of this case but it should have become obvious to everyone by now that crimes involving guns, physical violence and drug trafficking should be tried without the use of juries – by judge alone. Ideally the judges should be brought in from jurisidictions where the possibilities of corruption and intimidation are remote.

  9. whodatis says:

    (Ignoring the possible presence of inadequate and sub-par police investigations for the moment. Furthermore, not all comments are directed to the case in question.)

    In a small community like ours it can actually be a great hindrance and injury onto society when we have criminal defense attorneys carrying out their jobs at such ridiculously high rates of success.

    Their "success" only results in the further degradation of our community.

    Surely this is not a welcome realityfor Caymanians.

    In every facet of Caymanian life upholding the hypersensitive tenets of "democracy" and "human rights / right to a fair trial" carry a potentially negative outcome.

    Furthermore, due to the population size, locale, and resulting common local criminal activity –  it is almost asinine to expect absolute adherence to this concept in relation to now extremely complex burdens of truths placed upon the average (global) court proceeding of today.

    A few months ago I posted a comment outlining my disheartening experience with our criminal justice system – I was humbled by the sympathetic response by fellow readers and posters.

    The system is failing our young people tremendously – not to mention the broader community. (For example, in January I saw a particular individual whom I know was recently released from Northward – most likely after serving an absurdly inadequate sentence for yet another serious crime – walking along Shedden Road. I said to myself: "Why is he out again? It will only be a matter of time before he is up to no good." Lo and behold – just last week I read of this very individual being charged with the committal of a serious crime against a female member of the public.)

    We know who the no-good XXXXX are in our community – they have been showing their true colors from age 11, 12, 13, 15 etc – graduating onto adult offenses of murder, attempted murder, GBH, rape and more! I know for I was right there many a time to witness their character!

    This simply cannot go on.

    I am sure many will object to my sentiments, but I am foremost concerned about the moral fibre and welfare of young and older Caymanians alike – XXXX a "human right" for these reprehensible punks!

    (Please excuse the profanity – I’m frustrated this morning.)

    Mornin’ all.

     

    • Dennie Warren Jr. says:

       

      Re: “f*** a “human right” for these reprehensible punks!”.

      So you have a problem with people having a “right to a fair trial”?

      • whodatis says:

        No.

        I am saying that there comes a point a time where we are faced with a such a ridiculous set of circumstances so severe that the positive majority of the group in question is suffering for the sake of the negative minority. In my opinion, we are at this point in Cayman.

        I appreciate the tentative issues at hand here, however, I am beyond the point of caring for a theoretical debate on the matter.

        At the end of the day I would just like to know how "just" or "fair" onto the wider community for me to have just recently seen walking the streets an individual who:

        – bullied me in middle school (well, tried to at least)

        – at the age of 17 shot and killed a friend of mine

        – attacked and injured another acquaintance of mine with a machete outside a nightclub a few years ago

        – just recently made the news again for another very serious crime

        "So you have a problem with people having a “right to a fair trial”?"

        None of the above strikes me as "fair" at all.

        • Dennie Warren Jr. says:

          Sorry to hear about the lost of your friend.

          I understand your frustration, but in my view police officers need a more and better training, especially regarding the rules of evidence in a court of law.  Unless the articles are properly collected at the initial stage of the investigation, the prosecution may be disadvantaged during the trial.

          Regarding the issues you listed.  In some cases, residents need to report those crimes to the police and warn the person or press charges.  In other cases, residents need to take a more active role in defending themselves against such violence.

          If you don’t think my question is fair, they implementing an unfair system… Those who have forgotten why we support a system of fair trial will all be reminded of the importance fairness when crimes increase even more.

          • whodatis says:

            Any thugged out, ignorant, and criminally minded individual can hand over a few hundred dollars for a gun and go out and "take care of business".

            This can easily result in the murder of a perceived foe or even an innocent bystander(s).

            However, we are to the point of the introduction of highly complex burdens of proof wherein we are now applying ludicrous proportions of minute chances of probability (1 in 430) when it comes to DNA evidence lifted from weapons etc.

            The easiest thing to do in Cayman today is to find a gun and use it as one desires. Any ignoramus can do this. Yet when it comes time to persecute these clowns we are forced to apply rocket scientist levels of analysis and discovery?!

            Come on now … this is absolute madness – no?

            • Dennie Warren Jr. says:

              I don’t really know how easy it is to purchase unlicensed firearms, but it’s clearly happening.

              I believe that the RCIPS by their actions create these difficulties for the Crown to successfully prosecute, because I believe the way to avoid having to engage in “rocket scientist levels of analysis and discovery” is good old fashion covert operations to get the hard evidence needed to obtain a conviction in the courts.
               

      • Anonymous says:

        Your question hardly addresses the gist of the matter, surely. People are upset with this outcome.

         
    • aurevoir says:

      Yes, I agree – a good old witchhunt is in order – forget about dem human rights and fair trials.  First we’ll start with the murderers and rapists, then we’ll move to the robbers and thieves, then we extend it to political opponents, then we move on to people who we don’t like, and lastly, we do it those who look funny at us.  Sorta like the ideology that McChavez proposes…

  10. jahdread says:

     What’s going on here, who do the guns belong to, the Police?

  11. Anonymous says:

    how do rcip conviction rates stack up against other juristictions?

  12. Anonymous says:

    nice work rcip… maybe their abysmall conviction rates are the reason for not naming people they charge….

  13. Anonymous says:

    I sure hope no one comes into my house and goes into my attic to store their firearms…I normally go out and leave my house wide open and my attic is big.

    • Frequent Flyer says:

      LOL! My friends keep calling and asking if this post was from me! SO mysense of humour…

      Good one

      j

  14. Durrrr says:

    Excellent work as usual by the RCIPS.

     

    Perhaps the solution to the budget issues is to simply do away with the Police… I would love to see the figures for the amounts wasted each year on investigations and prosecutions which result in acquittals because of Police incompetance.

    • Pending says:

      Indeed.

      Perhaps our Government should look into more stringent qualification measures for the RCIPS, instead of just qualifying to be cadet because you have a clean police record.

      Perhaps we should all take heed that the people training these cops are not qualified to do so in the first place, which is why just about every major crime nowadays that ends up in court in thrown out because of poor police work. There is obviously something missing as it is not a rarity but rather the norm now.

      Maybe they should look into the cadets doing their training in the UK for the 6 mths or however long it takes and then a) you would not see as many morons in uniform and b) those that did actually qualify might know what they are meant to do!

      XXXXXXX

    • Beachboi says:

      I do not have all the facts, but I sincerely do not believe that all of the RCIP officers are incompetent.  I recall that the new commissioner said that he felt that arming the police was not the answer to our problems and that he felt that "community policing" would go farther to instill a sense of security in the citizens of Cayman.  Personally I feel that the perception of the RCIP would be boosted greatly by providing them with a means to defend themselves and therefore the community.  I believe that the esteem of the officers suffer due to the fact that they are not properly equiped to perform their duties.  To provide them with weapons is a necessity now more than ever.  I believe that this lack of confidence in the police "force" is also the reason that the public does not want to come forward with information on crimes and criminals. The public just does not feel as though they can be protected.  Not even with the Crime Stoppers hotline can we feel truly anonymous.  I dont know how anyone else feels about Crime Stoppers, but the one time that I did use it I got a person at the Miami Dade police station and I was put on hold and transferred so many times that I lost my nerve and hung up.  

      I suppose that the police commissioner would rather haveour many tourists see  policemen and women patroling through George Town without side arms but I am also sure that most of these toursists come from jurisdictions where the police have to be armed for their protection as well as the citizens.  I have to believe that if I were an armed police officer and was confronted by a gun weilding criminal that I would not hesitate to use a gun if I had to.  After all the police protect citizens in all aspects of society and sometimes it also becomes crucial that they even protect members of other emergency services in the execution of their duties.   Just recallthe siutation last year when the young man bled to death in the McField  Lane area as the "unarmed" officers and emergency personnel could not enter the area of the shooting until "armed" officers arrived to contain the scene.  This led to the victim bleeding to death from the wound in his leg.  

      It is also a generaly known fact that the police do play a major role in solving a crime, but they ordinarilly have the full support of a qualified professional forensic team equiped with state of the art tools and facilities.  Correct me if I am wrong but I dont believe that we have qualified forensic experts and they, in turn, do not have proper facilities and tools with which to carry out their investigations and testing.  Whenever a criminal is acquited in court it is always apparently due to a lack of physical and scientific evidence.  I recall a few years ago having been burgled I was shocked at watching one of the crime scene investigators trying to recover finger prints from a banana with the black powder and brush as so often seen on tv.  (Do you ever watch CSI?  If you do you would  know that it takes heated super glue to raise a print from a surface such as a piece of fruit!!)  I laughed at the time XXXXXX.  In short the job of investigation and prosecution of criminals is one consisting of contributions by a "team" of experts and until we can create a Royal Cayman Islands Police "TEAM" that can perform these duties with proper training as well as the proper tools we will continue to blame the wrong peace keepers in our community and that is the police officers themselves.