The Queen v Marcus Isadore
| Jurisdiction | Antigua and Barbuda |
| Judge | SMITH, J. |
| Judgment Date | 16 December 2022 |
| Neutral Citation | AG 2022 HC 020 |
| Docket Number | CASE NO: ANUHCR2018/0128 |
| Court | High Court (Antigua) |
CASE NO: ANUHCR2018/0128
IN THE HIGH COURT OF JUSTICE
Mrs. Shannon Gittens, Counsel for the Crown
Mr. Lawrence Daniel, Counsel for the 1 st Defendant
Mr. Andrew O'Kola, Counsel for the 2 nd Defendant
This trial was conducted as a Judge Alone Trial by virtue of the Criminal Proceedings (Trial by Judge Alone) Act, No.8 of 2021, the charges on the indictment in this matter are mandated to be tried by a single Judge. The Criminal Proceedings (Trial by Judge Alone) Act, was signed by the Governor-General on the 28 th May, 2021.
I have arranged this ruling under the following headings:-
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i. Judge Alone Considerations
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ii. Counts on the Indictment - what the Crown has to prove in relation to Marcus Isadore
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iii. Counts on the Indictment - what the Crown has to prove in relation to Peter Lugay
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iv. Summary of the Crown's case
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v. Summary of the case for Marcus Isadore
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vi. Summary of the case for Peter Lugay
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vii. Joint Enterprise
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viii. Non-disclosure of unused material
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ix. Is Ralph an accomplice?
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x. Isadore's evidence
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xi. Lugay's unsworn statement
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xii. Delay in making the report
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xiii. Police interviews-Lugay and Isadore
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xiv. Identification
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xv. Task Force
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xvi. Credibility of the witnesses
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xvii. Lies direction
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xviii. Good character direction
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xix. Circumstantial evidence
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xx. Hostile witness
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xxi. Did the defendants receive a benefit?
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xxii. The telephone evidence
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xxiii. Admission into evidence of the pink paper
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xxiv. Third Count-assault
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xxv. Discrepancies
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xxvi. Alibi
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xxvii. Verdicts-Isadore, Lugay
In sitting as a Judge Alone the Judge is responsible for legal matters as well as distilling the facts of the case and applying those facts to the law. In addition to applying the facts to the law, I am also responsible for weighing up the evidence, deciding what has or has not been proved, and returning a verdict based on my view of the facts and the law. Where there are different accounts in the evidence about a particular matter it is my duty to weigh up the reliability of the witnesses who have given evidence about the matter, taking into account how far in my view their evidence is honest and accurate. It is entirely for me to decide what evidence to accept as reliable and what I reject as unreliable.
When a defendant has given and/or called evidence, the Judge as the sole arbiter of the facts and the law must apply the same fair and impartial standards when weighing up the evidence of the witnesses for the prosecution and the defence. The Judge as the sole arbiter of the facts, does not have to resolve every issue that has arisen, but only those that are necessary for me to reach my verdict(s).
I am permitted to draw sensible conclusions and inferences from the evidence but I have warned myself not to engage in speculation or guesswork about matters which have not been covered by the evidence.
It is important that my verdict(s) are based only on my own independent view of the evidence and the facts of the case and more importantly, I must not allow myself to be influenced by any emotional reaction to the case and/or any sympathy for anyone involved in the case and/or by any fixed ideas/ preconceptions/ prejudices that I may have had.
This defendant was charged solely on Count One of the Indictment. That Count stated that Marcus Isadore between 1 st January, 2017 and 31 st March, 2017 at Fort Road, in the Parish of St. John in Antigua and Barbuda, omitted to perform his duty as a police officer and obtained 8lbs of cannabis for the benefit of himself and another.
On the Second Count Marcus Isadore and Peter Lugay were jointly charged. The particulars of that offence were that both defendants on 25 th April, 2017 at Brown's Bay in the Parish of St. Phillip in Antigua and Barbuda in the performance of their duties as police officers obtained 29lbs of cannabis for the benefit of themselves or others.
Peter Lugay was charged alone on the Third Count. The particulars of that Count were that on 25 th April, 2017 at Brown's Bay in the Parish of St. Philip in Antigua and Barbuda used a firearm in the furtherance of committing the offence of corruption.
The Crown therefore had to prove the following:-
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a) That the two defendants were public officers/public officials;
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b) They performed or omitted to perform their duties for the purpose of obtaining any property or benefit for themselves or another;
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c) They obtained property;
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d) The firearm was used in the furtherance of an offence, the offence being corruption.
I will now summarize the Crown's case briefly. The Crown's case was that Mr. Noel Johnson also known as “Tiba” and hereinafter referred to as such, was a farmer living in Villa. He indicated in his testimony that he sold vegetables as well as marijuana. On 9 th February, 2017 he received a phone call from a Jamaican man who indicated that his brother would be interested in purchasing some marijuana from him. He met the said man later that evening and gave him a sample of his marijuana. On the 10 th February he went to meet the Jamaican man in order to sell him the marijuana. He and his friend Jeff Lewis went to Fort Road by Kentucky Fried Chicken (herein referred to as KFC) in Jeff's vehicle, where they were to meet the man. It was alleged that while Jeff was parked in the vicinity of KFC, Tiba left the vehicle to look for the man. It was Jeff Lewis' testimony that Marcus Isadore came up to the jeep, asked for Tiba, reached inside the vehicle and took the bag containing said marijuana. He (Isadore) left a telephone number written on a pink paper with Jeff Lewis with instructions to call him when he next saw Tiba and for Tiba to call him. He was also told to say nothing about the taking of the bag of marijuana.
The Crown's case further was that on 25 th April, 2017 the two defendants dressed in police tactical garb accompanied by Constable Paul Ralph dressed in plain clothes (he was on vacation) attended at Brown's Bay and took more marijuana from Tiba and that Peter Lugay hit Tiba in his back numerous times injuring him. While the officers were at Brown's Bay another witness Mosi indicated that the three officers had attended at Brown's Bay, took away buckets of marijuana and man-handled his friend Tiba. He gave general descriptions of two of the men but he said he knew Constable Paul Ralph. However, prior to them arriving at Brown's Bay, they had stopped at the Freetown Police Station. The stop was to facilitate them using a police vehicle for their operation. Upon arrival at the station they searched for the key to the police vehicle unsuccessfully. Constable Jeffrey placed the three men at the station searching for the key. The Crown's case was that they proceeded to Brown's Bay in a blue Tilda vehicle belonging to Marcus Isadore.
The Crown contended that the corruption offence encapsulated everything the defendants did on 25 th April, 2017 and on the dates alleged in Count One on the Indictment pertaining to Marcus Isadore. Further, it was the Crown's case that the corruption charge was made up of all the actions carried out by Lugay and Isadore on the 25 th April and they both went to Brown's Bay with the clear intention of taking the marijuana from Tiba and not turning it in nor arresting him. In brief that was the Crown's case.
The defence case for Peter Lugay was launched on three fronts (1) that he was not present on 25 th April, 2017 at Brown's Bay (2) that he was not identified by any of the Crown's witnesses and (3) that the evidence of Constable Paul Ralph could not be relied upon because in their view, he had to be treated as an accomplice and as such his evidence was to be disregarded. At the close of the Crown's a No Case Submission was made and rejected. Peter Lugay was given his three options and he opted to give an unsworn statement from the dock. Counsel O'Kola contended that the only witnesses who put his client Peter Lugay at Freetown Police Station and thereafter Brown's Bay were Constable Leroy Jeffery and Constable Paul Ralph.
Counsel submitted that the evidence, in particular the identification evidence was weak and had been discredited as the witnesses Tiba and Mosi only gave general descriptions such as “one was tall and strapping, the younger one was shorter with some body.” Counsel also posited that if Constable Ralph was indeed at Brown's Bay on the 25 th April, he was there with two other unknown persons but not his client.
Finally, Counsel indicated that his client was not present on 25 th April, 2017 and that if he was there (my emphasis) the use of his firearm was lawful and that by virtue of his profession as a police officer the charge in Count 3 was fundamentally wrong in law. In his submission Counsel stated that “though the Corruption Act speaks to ‘benefits’ quite a few times, there seems to be no definition of said benefit. Therefore, one is to consider ‘benefit’ to be synonymous to ‘advantage’ which is defined in the Act. It is defined in many subsections however, applicable to the facts of this case, as ‘a gift, loan, fee, reward or commission consisting of money or of any valuable security or other property or interest in property of any description. If this is said to be the benefit that Mr. Lugay gained, the Prosecution must provide the Court with proof of same. The Crown has simply failed to do so at the end of their case”. This was the case for Peter Lugay. The Court will examine the unsworn statement of Peter Lugay at paragraph 56 of this ruling.
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