The Queen v Dean Ryan Derby

JurisdictionCayman Islands
JudgeCheryll Richards
Judgment Date26 August 2020
CourtGrand Court (Cayman Islands)
Docket NumberINDICTMENT NO: 15 of 2020
The Queen
and
Dean Ryan Derby
Before:

Justice Cheryll Richards Q.C.

INDICTMENT NO: 15 of 2020

IN THE GRAND COURT OF THE CAYMAN ISLANDS

CRIMINAL SIDE

HEADNOTE

Criminal Law — Section 15 (1) and (5) of the Firearms Law, (2008 Revision) Possession of Unlicensed Firearm and Ammunition — Nature of offence, whether strict liability, momentary possession.

Appearances:

Mr. Neil Kumar for the Crown

Mr. Keith Myers Q.C. for the Defendant

VERDICT JUDGMENT
1

The Defendant, Dean Ryan Derby is charged on indictment 15 of 20 with two offences, Possession of an Unlicensed Firearm and Possession of an Unlicensed Firearm (Ammunition) both contrary to S.15(1) and s.15(5) of the Firearms Law (2008 Revision).

2

The particulars of the first count are that he on the 13 th day of February 2020 at Ms. Francis Lane in the vicinity of #3 Myles Lane, George Town, Cayman Islands, had in his possession an unlicensed firearm, namely a Smith and Wesson M & P 9 mm semiautomatic pistol, serial number DVF5443 which was not under and in accordance with the terms of a Firearm User's License.

3

The second count charges that he, on the said date and at the same time had in his possession 9 rounds of ammunition, namely 9mm cartridges, which was not under and in accordance with the terms of a Firearm User's License.

Firearms Law
4

Section 15(1) of the Firearms Law provides that no person shall be in possession of any firearm except under and in accordance with the terms of a Firearm User's (Restricted) Licence. By ss.5 a person who contravenes this section is guilty of an offence.

5

By ss.(2), ss.(1) shall not apply to:-

  • (a) the holder of any Gunsmith's Licence in respect of any firearm delivered to him for the purpose of effecting any repair or lawful alterations thereto;

  • (b) any person who comes into possession of any firearm in the capacity of executor or administrator of the estate of any deceased person or Trustee in Bankruptcy or liquidator of any insolvent person or of any company in liquidation, during the period of thirty days after the day upon which he came into possession of such firearm;

  • (c) any servant or agent of any of the persons referred to in paragraphs (a) and (b) in respect of any firearm entrusted to him for delivery to the owner thereof in accordance with this Law;

  • (d) any constable or customs officer in respect of his possession of any firearm which came into his possession pursuant to this Law during such period as such firearm is so retained by him;

  • (e) any person in respect of the possession by him of any firearm entrusted to him by any constable for transportation pursuant to section 9 from any place to any other place during such period, not being longer than is reasonably necessary for the transportation of such firearm, as such firearm is contained in a sealed packet; or

  • (f) any person in respect of the possession by him of any firearm delivered to him in accordance with paragraph (c) of section 36(2), during the period of the absence from the Islands of the owner of such firearm and two weeks thereafter, or the departure of such owner from the Islands whichever shall be the shorter.

6

The Defendant first appeared before the Grand Court on the 6 th March 2020. He was arraigned on the 1 st May 2020. He entered pleas of not guilty to both counts of the indictment. On the 28 th May 2020, he elected trial by judge alone in accordance with s.129 of the Criminal Procedure Code. The trial took place over four days from the 29 th June to the 2 nd July 2020. Further submissions were heard on the 21 st August 2020.

Applicable Principles — Judge alone Trials
7

In approaching this case this Court is guided by the Cayman Islands Court of Appeal (CICA) in its judgement in the case of K. Richards v. R 1 in which the Court stated:

“When a trial judge sitting alone has advised himself of the applicable principles of law and given himself any necessary warning, he must indicate clearly in his judgment his reasons for acting as he did, in order to demonstrate that he has acted with the requisite degree of caution in mind and has therefore heeded his own warning. No specific form of words is necessary for this demonstration. “What is

necessary is that the judge's mind upon the matter be clearly revealed”: see ( R. v. Simpson (15) [1993] 3 LRC at 641, per Downer, J.A.).”
8

The Appellate Court indicated its adoption of the principles of law as stated in the cited cases and considered that a judge sitting alone is required to provide a reasoned judgment in the case and to demonstrate in so doing an understanding of the following:-

  • i) The importance of fully articulating the legal principles which apply to the particular case before the Court.

  • ii) The importance of warning himself in relation to any special category evidence.

  • iii) The necessity to set out the evidence on which he intended to rely for his decisions;

  • iv) Specifically and specially determining ultimate facts from that evidence and drawing inferences therefrom; and

  • v) coming to a conclusion and judgment based on his ultimate findings of fact and the applicable rules of law.

9

Additionally in the case of R. v. Dave Kennedy Whittaker 2, the Appellate Court referred with approval to the decision of the Court of Appeal in Northern Ireland from a decision of a judge sitting alone, and stated:-

“50 In R v. Thompson 3 (11), Lowry, L.C.J., giving the judgment

“While on the subject I might say a word on the duty of the judge when giving judgment in a trial under the 1973 Act. He has no jury to charge and therefore will not err if he does not state every relevant legal proposition and review every fact and argument on either side. His duty is not as in a jury trial to instruct laymen as to every relevant aspect of the law or to give (perhaps at the end of a long trial) a full and balanced picture of the facts for decision by others. His task is to reach conclusions and give reasons to support his view and, preferably, to notice any difficult or unusual points of law in order that if there is an appeal, it may be seen how his view of the law informed his approach to the facts.”

10

This case is approached and considered with these principles in mind. My task is to make findings, to give reasons in support of those findings and to address any areas of law which apply. It is not necessary to detail every fact in the case or all the arguments as would be the case in a jury trial.

Presumption of Innocence and Burden of Proof
11

The presumption of innocence is enshrined in s.7 of the Cayman Islands Constitution 2009.

12

This provides:

  • “7.(1) Everyone has the right to a fair and public hearing in the determination of his or her legal rights and obligations by an independent and impartial court within a reasonable time.

  • (2) Everyone charged with a criminal offence has the following minimum rights —

    (a) to be presumed innocent until proved guilty according to law.

13

In criminal trials the applicable rule is that the burden of proof is on the Prosecution to prove its case to the required standard, which is so that the judge or jury feels sure of guilt of a defendant's guilt before there can be a conviction. That burden remains on the prosecution from the beginning and throughout a case and does not shift. There is no burden on the Defendant to prove his innocence.

14

I bore these considerations firmly in mind throughout this case, as I listened to the evidence for the Prosecution and the Defence and as I considered the verdict.

Case Summary
15

In summary, the case for the Prosecution is that on the said date, the described firearm and ammunition were found by the Police in the glove compartment of a silver Mitsubishi Colt motor car registration number 173015 which was driven by and in the possession of the Defendant. The car was found parked in the vicinity of the house of Matteo Ramoon at 3 Myles Lane. This runs off Shedden Road in George Town.

16

The case for the Defence is that the Defendant found the gun in the glove compartment of the car just about three minutes before the arrival of the Police. The Defendant thus alleges that he was “set up”. This, on the basis that the car had, in the course of that day, been in the possession of other persons, that the firearm and ammunition did not belong to the Defendant, had not been placed in the car by him and must therefore have been planted by a person or persons unknown.

The Evidence — The Prosecution's Case
17

The Prosecution called three live witnesses and with the agreement of the Defence read the statements of seven witnesses. In addition, there were a significant number of agreed facts between the parties, pursuant to s.34 of the Evidence Law. These included the following background details. It is agreed that the Defendant is a 26-year-old Jamaican national with no previous convictions. At the time of his arrest, he held a valid Work Permit and was employed as a construction worker. On the 20 th December 2019 the Mitsubishi Colt motor car was leased to Niko Giovanni McField from ‘3D Rent a Car’ for an initial period of seven days. Mr. McField leased the car on behalf of the Defendant. Dinah Clarke is the owner/operator of 3D Rent a Car' (exhibit DJC/A) and she produces an agreed copy of the motor vehicle lease. Between December 2019 and the 13 th February 2020 when the vehicle was seized by the Police, the Defendant facilitated the necessary arrangements to extend the lease for the vehicle and retained possession of it.

DC Shane Ennis
18

DC Shane Ennis was the first live witness for the Prosecution. His evidence detailed the finding of the firearm in the vehicle, the circumstances under which it came to be found and the initial interaction with the Defendant.

19

DC Ennis gave evidence that he is currently attached to the Crime Task Force of the Royal Cayman Islands Police Service...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT