Whendell Stewart
Appellant
and
Regina
Respondent
Before:
Justice Marlene I. Carter (Actg.)
SCA No: 347/2020
IN THE GRAND COURT OF THE CAYMAN ISLANDS
CRIMINAL SIDE
HEADNOTE
Criminal Law — s.32 of the Court of Appeal Law — Appeal against conviction — DNA evidence — Magistrate's conclusions from the evidence .
Appearances:
Mrs. Lee Halliday-Davis of Bradys, Attorneys for the Appellant
Mr. Scott Wainwright for the Crown/Respondent
1
On 4 February 2021, after trial, the Appellant was convicted by Magistrate McFarlane of possession of a controlled drug with intent to supply, contrary to section 31 of the Misuse of Drugs Act (2017 Revision). The Appellant was found to have been in possession of 17 rocks of crack cocaine with intent to supply. The Appellant was sentenced to a term of seven years imprisonment.
The Facts
2
On 19 February 2020, the Appellant, who is a Guyanese national, attended the CBC Enforcement Unit and was arrested on suspicion of overstaying. While at the Enforcement Unit the Appellant was searched and found to be in possession of a key to 189 Lemuel Circle in Northward, Bodden Town.
3
The Appellant was taken to that location and during a search of a bedroom, (in which the Appellant ultimately accepted during interview that (i) his belongings, including a red and black suitcase, had been kept since he arrived in the Cayman Islands, and (ii) he slept in occasionally), a plastic bag containing a white residue was discovered on a dresser together with a quantity of other similar bags. A black scale with a trace of white powder on it was also found on that same dresser in that bedroom. At the foot of the dresser, a red and black suitcase which the Appellant also accepted during his interview belonged to him, was searched. In that suitcase, a number of identity and travel documents in the Appellant's name were also discovered. At trial, the Appellant did not dispute that the white residue was cocaine.
4
A black sock containing a clear plastic bag which had within it 17 rocks individually wrapped in foil was found in the lining of the Appellant's suitcase. A field test of one of the rocks conducted by Assistant Director Campbell at the scene, confirmed that it was cocaine.
5
Prior to the search of 189 Lemuel Circle, customs officers also searched a Mitsubishi SUV vehicle that the Appellant drove to the CBC Enforcement Unit prior to his arrest. A green pouch seen inside a pair of blue and white sneakers which were in the passenger foot well of the Mitsubishi SUV was found to contain 18 rocks, individually wrapped in foil. It was not disputed by the Defence at trial that all 18 individually wrapped rocks were cocaine.
6
The Appellant was arrested and denied knowledge and possession of the cocaine.
7
This appeal does not relate to the sentence imposed by the Magistrate. The appeal is concerned with the Learned Magistrate's decision upon conviction. It is submitted by the Appellant that the Magistrate erred in law in the way in which she approached the DNA evidence in the case and in particular the issue of the possibility of secondary transfer as it relates to that DNA evidence.
8
The Grounds of appeal were as follows:
(i) The Magistrate failed to take the evidence of transfer of DNA into account
9
In written submissions counsel for the Appellant expanded on this ground as follows:
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(a) “In this case, there was a very high likelihood of secondary transfer because the search of the property was conducted without the officers not changing their gloves between the handling of the items seized.”
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(b) “All of the items seized by officers were at significant risk of contamination because of the methods employed by the CBCO officers, particularly their failure to inspect exhibits in a sterile environment.”
10
The Appellant contends that the DNA evidence as presented by the prosecution was tainted, that there were no protocols followed with regard to the handling of materials upon which the DNA evidence was found.
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(a) “The DNA forensic examiner concluded that secondary transfer is a real risk in the way that the exhibits were seized.”
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(b) “The DNA samples were not sufficient to be separated. There was no indication of whether the DNA attributed was a major contributor to the sample obtained”.
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(c) “The absolute risk of the DNA in this case being transmitted by secondary disclosure makes this conviction unsafe.”
(ii) The conviction was against the weight of evidence.
11
In written submissions counsel for the appellant expanded on this ground as follows:
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(a) “There is no supporting evidence relating to supply. The phones seized from Whendel Stewart were not downloaded to retrieve messages.
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(b) There was no evidence that Whendel Stewart had supplied anyone with cocaine on the island. In addition, the usual paraphernalia associated with the supply of drugs is not present.
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(c) Whendel Stewart provided a complete account explaining why he visited the island during the interview. No evidence has been submitted that undermines his account.
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(d) No evidence was disclosed relating to the download of the phones seized from Whendel Stewart. Phone downloads usually provides abundant evidence of drug dealing.
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(e) Steven Ebanks was arrested on the 23 rd February 2020 in the exact vehicle; during the search of the vehicle, a cigarette box containing a quantity of crack cocaine wrapped in foil wraps and a pipe. He subsequently pleaded guilty to possession and consumption of cocaine. It is clear that Mr Ebanks had the means to obtain foil-wrapped cocaine from a source not relating to Mr Stewart. Whendel Stewart was in custody when the wraps found in the vehicle were seized.
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(f) The failure of Border Control to investigate Ms Solomon should cause great concern.
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(g) The Learned Judge, in this case, sought to rely on the evidence relating to the key that was found in his possession to support her decision. She concluded that he lied. It is unclear if she had directed herself in line with the direction relating to lies in Regina v Lucas.
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(h) Photograph 8 of bedroom 2 shows that room before CBCO officers searched it. The scale and plastic bags were not present”
12
In conclusion Counsel for the Appellant submits: “the learned judge was wrong to conclude that the evidence presented by the prosecution was sufficient to prove this case to the required standard.”
13
In reply the Respondent submitted that there is no proper basis in law or fact for the Court to disturb the conviction.
14
Counsel for the Respondent submitted that the Magistrate's approach the court to the DNA evidence could not be criticized and that the issue of secondary transfer was properly considered and discounted. For the Respondent it argued that this court must consider that this was not a case where the sole evidence against the Appellant was DNA on a moveable object. Further and in any event, there was clear supporting evidence before the Magistrate on the prosecution's case at trial.
15
The following were advanced by the Respondent as being properly considered by the Learned Magistrate in her assessment of the other evidence in the case, evidence which was properly found to be supportive of the DNA evidence:
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“(i) At the time of his arrest, the appellant was in possession of the key for the premises in which the drugs were located;
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(ii) The appellant attempted to mislead the authorities as to the reason for his being in possession of that key;
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(iii) The appellant, even on his own account, had access to the premises in question;
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(iv) The defendant's DNA was not only present on the drugs themselves but on a black scale (TC1-WS) found in close proximity to the drugs themselves;
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(v) The Court was entitled to, and did, by virtue of section 149 of the Police Law (2017 Revision), draw an adverse inference against the appellant, based upon his failure to give evidence.”
16
In any event the Respondent contends that “there is no rule of law that a case cannot properly be left to a jury solely on the basis of the defendant's DNA on an article left at the scene of a crime, but whether it will be appropriate to do so will depend upon the particular facts of the case.”
.
17
The DNA evidence 1 considered by the Learned Magistrate in this case came from several items, described as the key exhibits [“ the key exhibits”]. These were items seized and submitted to the Cayman Islands Forensic Science Laboratory (“ CIFSL”) for analysis. This analysis was conducted by Ms. Tanzillo-Swarts. The key exhibits were marked as: TC1-WS, TC2-WS, TC4-WS, LH1B-WS and LH1D-WS. Also submitted for examination to the CIFSL were buccal swabs from the Appellant as well as from Andre Woodman and Steven Ebanks.
18
I have not set out the results of the analysis verbatim here. Instead, I have adopted the Learned Magistrate's very helpful table which summarised the findings relating to each of the key exhibits in a clear format as it related to the Appellant. The table details the 8 DNA profiles obtained from various parts of the key exhibits. The results conclude that the Appellant was not excluded as a possible contributor to any of these DNA profiles. 6 of the 8 DNA profiles obtained demonstrated a high likelihood ratio, the basis of such being that a greater likelihood ratio corresponds with the probability that a person or persons other than an accused, randomly selected from the Cayman Islands population, has this same profile. The smaller that probability, the greater the likelihood that the DNA profiles in question came from the same person.
| Exhibit | Item | Provenance | Likelihood Ratio |
| TC1-WS | 1 clear plastic bag with traces of white substance | Bedroom in 189 Lemuel Circle | 320 assuming 4 contributors Andre Woodman could not be excluded as a contributor 2 |
| TC2-WS | 1 black scale |
