Accused gunman acquitted

| 19/01/2012

Jul 6 Man accused of shooting -pic.jpg(CNS): Full story – A West Bay man has been found not guilty of trying to kill Andy Barnes outside a local bar in June 2010 in what was reported as a gang related shooting. Justin Manderson walked free from the courts after Justice Richard Williams delivered his acquittal, stating that he found too many inconsistencies in the evidence given by Barnes to be sure that he had correctly identified the man who shot at him outside the bar. In his first criminal ruling in a judge alone trial, Justice Williams said he did not find sufficient corroborating evidence to support the claims by Barnes. "Having formed that view and looked at the counts, I find Mr Manderson not guilty on all three counts," the judge told the court as Manderson threw his hands up in delight.

In his ruling the judge pointed out that Barnes' identification of the gunman was made in difficult circumstances. He said that it was dark and although more than a fleeting glance the judge said his credibility was in question. The judge said his credibility was not in question because of his criminal record, which he had discarded, but because of the doubt raised about the veracity of his evidence, because of the CCTV evidence brought by the defense and the contradictions between Barnes' testimony and that given by other witnesses for the crown.

He also pointed to the fact that there clearly was animosity between the men despite Barnes' denial. Barnes believed that Manderson's cousin, Devon Anglin, was responsible for his son's death and there was gang rivalry. It had also been demonstrated that Barnes believed Manderson had threatened to do him harm and therefore his identification was biased by that.

Barnes had also denied threatening to shoot Manderson's younger brother, Jordon, when the men were both present in the cells at the court house, despite witnesses to the contrary.

The judge rejected the crown's gunshot residue evidence because of the dangers of contamination. He pointed out that Manderson had been arrested by firearms-handling officers and had been transported in the Uniform Support Group van. He further stated that one particle was not sufficient to convict, especially when the identification evidence was in question.

Other issues that could have bolstered the crown's case, such as the telephone evidence, was weak because the crown had not proved that the phone they attributed to Manderson was in fact in his possession at the time of the crime and the unit had never been produced during the trial, the judge said.

He noted that comments attributed to Manderson at the time of his arrest to the police had been denied. The crown claimed that two police officers had stated that when Manderson was arrested on suspicion of attempted murder he had asked, “Attempted? So he's not dead then?”

Justice Williams dismissed the one other eye witness that said he had seen Manderson riding his bike towards Kelly's Bar on the night in question. He said that, again, the identification of Manderson was made in the dark and was not much more than fleeting. He also said that the account did not corroborate with any other evidence and was not enough to bolster the account given by Barnes.

The judge said that because of the weaknesses in the key witness account there was no need for him to review in detail the alibi evidence that had been put forward by the defendant, before he told Manderson he had found him not guilty.

Category: Crime

Comments (17)

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  1. Citizen says:

    An acquittal at a trial under English and Cayman law does not establish that an accused did not commit the crime in question. It merely establishes that at that trial the prosecution failed to establish that allegation on the evidence tendered at trial to satisfy the enhanced criminal burden of proof of beyond reasonable doubt. (SOCA v. Hymans).

  2. Bob Soper - Ex RCIP Officer says:
    As usual the RCIP and Legal Department bashing starts in earnest, did anyone here actually READ the article?
     
    ‘Identification of the gunman was made in difficult circumstances. He said that it was dark and although more than a fleeting glance the judge said his credibility was in question. The judge said his credibility was not in question because of his criminal record, which he had discarded, but because of the doubt raised about the veracity of his evidence, because of the CCTV evidence brought by the defense and the contradictions between Barnes' testimony and that given by other witnesses for the crown.’
     
    From these comments it would appear the identification evidence was the main issue, because Cayman is based on the legal common law system the identification of the defendant has to be proved beyond all reasonable doubt as per case law provided by the case of Woolmington v DPP [1935] AC 462. When considering the identification evidence of the crown witness, because of this common law system the judge would be ‘bound’ to take into account the considerations provided by the case of R v Turnbull (1977) 1 Q.B. 244 (Eng. C.A), in simplistic terms this case provides the following should be considered 
    1. How long did the witness have the accused under observation?
    2. At what distance?
    3. In what light?
    4. Was the observation impeded in any way, as for example by passing traffic or a press of people?
    5. Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused?
    6. How long elapsed between the original observation and the subsequent identification to police?
    7. Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them, and his actual appearance?
    8. Recognition may be more reliable than identification of a stranger.
    Clearly under the circumstances the Judge was of the opinion that the manner in which the identification took place, namely that it took place in a dark nightclub was detrimental to this identification evidence, and also ‘it had also been demonstrated that Barnes believed Manderson had threatened to do him harm and therefore his identification was biased by that,’ therefore he also had to give less weight to this evidence because of this. Discounting this key identification evidence would be a serious blow to the crown case, but there would never have been anything the RCIP or Prosecution could have done about this, its not their fault the lighting was poor in the nightclub, or that the witness had a motive to identify the defendant as a result of a grudge, nothing done by the prosecution or RCIP could have been done to change this.
     
    The other issues appear to relate to the credibility of the witness, namely that there were contradictions in the witness testimony of the victim and the other witnesses, one would expect differences in witness testimony, this is only natural as everyone perceives things differently, however there must have been some fairly glaring contradictions which would call into question the credibility of the victim, and therefore the reliability of his evidence. Therefore the Judge would have been uninclined to give much weight to the victim’s testimony because of this. The Judge also indicated the victims credibility was undermined because he had motive to identify the defendant stating ‘there clearly was animosity between the men despite Barnes' denial,’ this was just one more reason for the judge to give little weight to the victims testimony, and once again this is clearly not the fault of the RCIP or Prosecution.
     
    Other issues relate to the fact the prosecution could not prove the defendant had possession of a mobile phone when presumably some incriminating messages were sent, once again, if the evidence is not there because it doesn't exist, there is not much anybody can do about it.
     
    Another issue relates to the contamination of gunshot residue samples because the defendant was handled by firearms officers. This may have been an error on the part of the RCIP, but another consideration is given the incident was a firearms related call, USG would have been on scene before unarmed officers, so given this they would have had little alternative but to handle the defendant and cause the potential contamination, unless they just let the defendant run away. However even if there was error on the part of the RCIP, the Judge stated ‘one particle was not sufficient to convict, especially when the identification evidence was in question’ so even if there was no issue with contamination this evidence would not have been sufficient to prove beyond reasonable doubt the identification of the defendant.
     
    The defendant appears to have made a partial admission to officers, in that ‘the crown claimed that two police officers had stated that when Manderson was arrested on suspicion of attempted murder he had asked, “Attempted? So he's not dead then?’ It would appear that not much weight was given to this evidence because the defendant denied making this statement, i would concede that this is an issue that can be addressed by the RCIP, by way of the introduction of electronic voice recorders. In many other jurisdictions when making arrests, if reasonably practical the arrest including warnings and safeguards, and therefore any subsequent admissions made by the defendant has to be electronically recorded. If similar rules were introduced in the RCIP this would alleviate this problem. However given all the other issues cited by the Judge, even if this evidence was given more weight as identification evidence it does not sound like it would have been sufficient to prove the identification to the requisite standard.
     
    The final piece of evidence cited is the testimony of the witness who observed the defendant riding towards Kellys Bar, but once again, as per the case of R v Turnbull the Judge stated ‘the identification of Manderson was made in the dark and was not much more than fleeting,’ so once again its not the prosecution or RCIP’s fault that there was not much light or the witness only had a fleeting glance of the defendant.
     
    Did Manderson commit the crime? Probably the only people who really know are God, Manderson, and perhaps the victim depending on how much weight you give to his testimony as a witness, however ultimately for all the reasons i have cited, while this case may well have been proved to a civil standard, or ‘the balance of probabilities,’ however it was not proved to the criminal standard provided by Woolmington v DPP [1935]. The judge would have had to once again consider R v Turnbull (1977) "‘When……the quality of the identifying evidence is poor,….The judge should… direct an acquittal unless there is other evidence which goes to support the correctness of the identification.’ In the context of this case for the reasons cited by the Judge the quality of the identification evidence was poor, and for the reasons he provided he was unable to give much weight to the ‘other evidence’ such as the gunshot residue and phone evidence because it was unreliable, and therefore he was obliged to direct an acquittal, and as such it could not be proven ‘beyond all reasonable doubt’ that the defendant committed the crime.
     
    This is only a cursory legal analysis of the case based on information provided by the Cayman News Service, however perhaps those people ‘bashing’ the RCIP and Legal Department should actually understand the intricacies of the investigation of crime and judicial process before passing judgment, and by the way watching ‘CSI Miami’ and ‘Cops’ does not qualify you as an expert in this field.
     
    There is a saying in the prosecutions department, ‘you can polish a turd as much as you want but its still a turd,’ basically you can only work with what you've got when prosecuting an offence, if the evidence is lacking because it was never there in the first place, and your star witness is not credible, and there are issues with the identification evidence, whilst you can try and 'plug the holes' as best you can you can only do so much, and what you can do may not be enaugh to get you over the line.
    • Truthseeker says:

      Outstanding, thanks for taking the time!

    • CaymanFisting says:

      Thanks for your input Bobby but your precedence of 1935 means very little in this case when one takes into consideration the amount of illegal firearms on our rock today compared to 1935.

  3. Anonymous says:

    Honestly between the police and legal department our entire system of supposed checks and balances appear to be non existent.

    I remember how shocked I was when I read the statute barred cases article in the Compass.http://www.compasscayman.com/caycompass/2011/01/26/RCIPS-reveals-statute-barred-cases/

    Mr. Polack said of even greater concern is that one offence did not proceed as a result of an incorrect ruling by the Legal Department. “The further question must then be asked as to how many other incorrect rulings of a similar nature exist and what steps have been taken to track and remedy these all to frequently occurring comedy of errors,” he said. In an FOI reply dated 2 August, 2010, it was confirmed that the Legal Department has no record keeping systems to provide details of case rulings. “This is preventing any historical enquiry or audit,” said Mr. Polack

    No accountability for either the Police or the Legal Department. Several people should have lost their jobs after that article. Where are the checks and balances what recourse do we as ordinary citizens have in these situations?

    I feel that as a populace we are too timid and complacement and that's why we have the crappy elected officials that we have and all this crap that we keep taking and taking!!! When is enough enough???

     

  4. Anita Justice says:

    Another acquitted in a serious crime involving either attempted murder or murder! Readers once again play close attention to the grounds for acquittal; poor evidence! I could elaborate but why bother when all the recent verdicts of similar outcomes are almost verbatim from various Justices.  

     

    This latest acquittal is clear and sound evidence that the Commissioner of Police (CoP)and the Public Prosecutor are either over-reaching, out of their league or maybe a combination of both shortcomings. At this rate, it is not unreasonable to anticipate that the Cayman Islands could expect the frequency of such heinous crimes to increase henceforth. Due to such consistent rulings by Judge alone trials that in an odd way bolsters the rather skewed reasoning and abnormal comfort level of the thugs whom commit these types of serious crimes; not just against the victim but an entire society.   

     

    Can these islands’ safe reputation sustain much more of these types of crimes? If your answer is probably not, well then I pose a further question; why on earth are we as a society are not demanding answers from the CoP and Public Prosecutor about these acquittals based primarily on their collection and submission of poor evidence to the Court?!  Moreover demand that their contracts be terminated posthaste in an effort to mitigate this type of future ruling, better yet thwart the acts of such serious crimes being committed with such frequency because criminals will think twice because competent persons are in charge of such vital arms of security in any civil society.

  5. Anonymous says:

    I guess the young man who was shot must have just shot himself, right? Maybe he was despondent over the current sad state of affairs here in Cayman. It really is a shame that it has come to this, but whose fault is that?

  6. Anonymous says:

    Wow, do I feel safer after this verdict?  Someone should examine the criminal justice system. Convictions seem as rare as hen's teeth.

  7. Anonymous says:

    WOW! Have the police and the prosecution won any cases?

  8. Anonymous says:

    Bang! Bang! Shoot 'em up the party never ends!  You can't think of dying when drugs and violence are your best friends!

    I hang my head in sorrow and shame. My Cayman……. Paradise lost.

  9. Caymanian Boat Captain says:

    Various persons were 'beating their gums and grinding their teeth" that convictions were so lacking prior to 2005. But since that time, and with so much more resources placed at the fingertips of the police and such "Great Leadership" at the helm and throughout the various training and investigative departments, it's absolutely "shocking and amazing" (Shock and Awe !!!) the amount of aquittals that are taking place in our courts involving gun crimes. What the hell is going on Mr. Baines ?? 

    Frankly speaking, I've lost all confidence in the RCIPS and I'm truly expecting to see much more of this "catch and release" or "catch and walk" being the norm in the Cayman Islands.        

  10. Anonymous says:

    Don't stop the Carnival.

  11. Brap Brap says:

    I stayin south of the fire station for a while.

  12. Chicken Wings says:

    When these cases are put before the courts by police officers, and are kicked out for lack of evidence, it is no one to blame but the police and the Legal Department..  Can someone tell me how long is this going to continue? .  I know when this case happened, the investigating police officers could not make a case stick if you had put glue on it, however I hope they are doing better since 2010.

    The public is watching, and I would suggest that the Commissioner make sure his officers get trained in how to compile evidence to make a case.   What I have observed that there are many officers in the Police Force who cannot read well much less write, so in four words "Go get some training"

    XXXX but the police and Legal Department  need to put forward better evidence.

    When they compile a case file, it is either they are too lazy to read it over or they could'nt care less.  Read the darn file until it becomes a story in your head, so when it is put to the Legal Department, they then will have something to work with.  Them too, Legal Department,  is another laughing stock, because if the police put foolishness before them and they send foolishness to the Judge, because they are too lazy to go over the file with a fine tooth comb, it is time that some changes are made in that department.  Shame on you all for putting cases before the judge that is a pile of crap.

  13. Anonymous says:

    Why do we have trials?