The Queen v Maybe Rodriguez

• Jurisdiction: Caribbean States
• Court: Eastern Caribbean Supreme Court
• Judge: Floyd J
• Judgment Date: 04 April 2022
• Judgment citation (vLex): [2022] ECSC J0404-4
• Year: 2022
• Docket Number: CLAIM NO. Criminal Case No. 5 of 2019

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CRIMINAL)

CLAIM NO. Criminal Case No. 5 of 2019

Between:

The Queen

and

Maybe Rodriguez

Rafael Lorenzo Harrigan

Vernon Edell Bernard

Appearances:

Mrs. Kelli-Gai Smith, Principal Crown Counsel & Mr. Kristian Johnston, Crown Counsel for the Crown

Mrs. Valerie Gordon, Counsel for Maybe Rodriguez

Mr. Michael Lashley Q.C, Mr. Michael Maduro & Mrs. Isis Potter, Counsel for Rafael Lorenzo Harrigan

Mr. Richard Rowe & Ms. Allydah George, Counsel for Vernon Bernard

JUDGMENT ON NO CASE SUBMISSION OVERVIEW

Floyd J

1 This is a no case submission and I must therefore decide if a jury properly instructed could convict. The test is set out in R v Galbraith 1, wherein two limbs of reasoning are described. The first being where there is no evidence that the alleged crime has been committed by the defendant, the judge must stop the case. The second limb where there is some evidence, but the

evidence is of such a tenuous nature, that the judge must stop the case. This is based on inherent weakness or inconsistency in the evidence. This involves an assessment of the quality of the evidence

2 Is the prosecution evidence, taken at its highest, such that a reasonable jury properly directed could not convict? If so, the court has a duty to stop the case. However, if the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness' reliability or other matters which are, generally speaking, within the province of the jury, and where, on one possible view of the facts, there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be decided by the jury.

3 The court must not usurp the function of the jury. The reliability or the credibility of each witness is a matter for the jury to decide.

4 The Court of Appeal in the case of Malcolm Maduro v The Queen 2 referred to both the Galbraith case and the case of Taibo (Ellis) v R 3 in stating that in a no case submission “the criterion to be applied by the judge is whether there is material on which a jury could, without irrationality, be satisfied of guilt; if there is, the judge is required to allow the trial to proceed.” Where the case involves circumstantial evidence, the only concern of the judge is whether a reasonable jury could reach a conclusion of guilt on the evidence, by drawing reasonable inferences from the evidence that is given at the trial.

5 It has been determined by the Privy Council in the case of The Director of Public Prosecutions v Selena Varlack 4 that the assessment of the strength of the evidence should be left to the jury rather than being undertaken by the judge is equally applicable in cases concerned with the drawing of inferences. The basic rule that a judge should not withdraw the case if a reasonable jury properly directed could, on the evidence adduced by the prosecution, find the charge in question proved beyond a reasonable doubt, was reiterated and extended to circumstantial evidence and the drawing

of inferences. Reference was made to the decision of the Supreme Court of South Australia in Questions of Law Reserved on Acquittal 5 where the court held:

If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction in a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favorable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt.

THE POSITIONS OF THE PARTIES

6 Learned Counsel, Mrs. Gordon, for the defendant, Maybe Rodriguez, based her no case submission upon both limbs of the Galbraith case. The elements of the offence of murder were not made out by the evidence tendered by the Crown. There was no direct evidence and no inferences could reasonably be drawn from the evidence to support a finding of guilt. There was no proof of an unlawful act and no evidence of an intention to kill Trumayne Daway. There was no evidence that Ms. Rodriguez committed the murder and no evidence of any aiding and abetting by Ms. Rodriguez. There was no evidence of time of death. Although many items were recovered from the scene, nothing was linked to Ms. Rodriguez. The Crown's evidence identified the deceased as Trumayne Daway, also known as Passion and also known as Black Ice. He worked at a car wash. The Crown's evidence also revealed another person known as Black Boy. Although he also worked at a car wash, it was not the same place where Passion worked. Three vehicles were seized and examined by the police, two from the crime scene. They were processed forensically by the police but no DNA and no fingerprints relating to Ms. Rodriguez were discovered. Evidence from the Crown confirmed Ms. Rodriguez was not home overnight from 27 ^th – 28 ^th February 2018. She arrived home early on 28 ^th February. Passion and Ms. Rodriguez had known each other for years, having gone to school together. The text messages between the phone produced by Ms. Rodriguez and given to police, and a telephone number related to the defendant, Vernon Bernard, which included a video clip of what appeared to be a long gun firearm, were never shown to Ms. Rodriguez for verification. Those

messages do not refer to Passion but rather refer to Black Boy and the firearm pictured was never shown to an expert for identification. No firearm was ever recovered by police. The messages are dated several days before the murder. The evidence is not capable of supporting a conviction and the necessary inferences cannot be drawn. Her submissions emphasize that if there is some evidence, it is so tenuous and contains so many inherent weaknesses that it would be unsafe to leave it with the jury. It would be dangerous to leave this case with the jury and the case must therefore be withdrawn

7 Learned Queen's Counsel, Mr. Lashley, for the defendant, Rafael Harrigan, also relies upon both limbs of the Galbraith decision. There is insufficient evidence to satisfy the ingredients of both the offence of murder and the offence of possession of a firearm. The Crown has particularised the firearm as an AK47. However, there is no evidence that Mr. Harrigan possessed such a weapon. There is no evidence that Mr. Harrigan possessed the weapon with an intent to commit an indictable offence, specifically murder. No firearm was recovered from the search of the residence of Mr. Harrigan. No testing for gunshot residue was conducted on any possessions seized there. The video clip communicated between Mr. Bernard and Ms. Rodriguez cannot be related to his residence. The gun in the video is placed on something that cannot be determined or confirmed as coming from his residence, such as furniture. The video does not depict enough background. Similarly, the white or off-white floor tiles cannot be confirmed as being in his residence as there is nothing unique or distinguishable about them. Most importantly, there is no evidence from any expert that the item depicted is a firearm as defined in the legislation. The item must be confirmed as being a lethal barrelled weapon capable of discharging a shot, bullet or projectile. No gun was recovered and expertly identified as being an AK47 nor a lethal barrelled weapon. Similarly, the video relied upon by the Crown was never expertly examined and presented as such. The Crown has not established that what is depicted in the video is the murder weapon.

8 Even supposing the item depicted in the video was at the Harrigan residence, Learned Queen's Counsel relies upon Blackstone's Criminal Practice, 2020 edition at B12.107 wherein it states that “if all that can be shown is possession in the sense that it is in your house or in a shed or somewhere where you have ultimate control, that is not enough.” Reference was also made to the case of The Queen v Isabella Merton 6 wherein the court held that the Crown must first prove that the object is a lethal barrelled weapon capable of causing injury from which death may result. In order to prove that a weapon is a firearm, it is essential to call evidence that it is one from which any shot, bullet or other missile can be discharged or can be so adapted. Such evidence need not necessarily come from an expert; it could also come from someone who has seen the weapon being fired or who was familiar with the weapon, and who could indicate that it worked and what its observed effect was. No such evidence was called by the Crown in this case and therefore the charge cannot be made out.

9 With regard to the murder charge, Learned Queen's Counsel submitted that the only evidence regarding Mr. Harrigan is the fingerprint found on the door window of motor vehicle PB-151. Mr. Harrigan is not identified by anyone. It is not clear where exactly the fingerprint was found on the window. There is no evidence as to the age of the fingerprint or when the print was placed there. There is no evidence as to when PB-151 arrived at the crime scene. Three vehicles, including two from the scene, were forensically processed but other than the fingerprint, nothing links Mr. Harrigan to them. Nothing seized from the search of Mr. Harrigan's residence links him to the scene or to the vehicles. Mr. Harrigan is not mentioned in the text messages between Ms. Rodriguez and Mr. Bernard. There...