Presiding Officer : Mr. Moniz

Prosecuting Officer : Mr. Smith

Defence P.C. 217 Swift

Date : 24th February, 22nd and 23rd March 1988

SUBMISSION FOR THE DEFENCE

Sir,

The prosecution in this case have attempted to show that officer6, whilst on night duty between 22nd and 23rd August 1987, failed to discover insecure premises known as Bermuda Railway Co. on Mangrove Bay, Sandys Parish.

It is the contention of the defence that there is no case to answer, the prosecution having failed to provide a case favouring ' the balance of probabilities ', let alone satisfy the criteria of ‘beyond all reasonable doubt’.

The ‘standard of proof ' the defence will, in due course, argue to be of the higher standard. But at this juncture it may be deemed unnecessary inlight of the circumstances surrounding this case to pursue the matter beyond no case to answer through lack of evidence, 'there being no evidence to prove an essential element in the alleged (Phipson on Evidence, twelfth edition by John Huxley Buzzard).

There is NO EVIDENCE WHATSOEVER that confirms the premises in question were not locked. No one can comment on the position that the locks were in from the point that the shop was 'secured' by Mrs. Bean onward, save for the people seen to leave the store by the Papageorge's, if in fact this is what occurred.

Unfortunately, Mr. and Mrs. Papageorge were not present to give evidence.

There is evidence to suggest that the premises were locked and that is provided by Mrs. Bean who states that " as far as she is aware, she had closed and locked both doors, leaving".

This matter is pursued and she reinforces the belief that the premises were locked saying "I did what I always do and that is lock the doors before leaving"

References made to 'insecurity' and 'failing to lock' the premises are pure assumptions. This may be enough to initiate an enquiry, but it is insufficient to convict upon.

Sergeant Cleave 'takes one step further', in relation to Mrs. Bean's statement of not being able to recall locking the door, and 'assumes that the store was open’, his very words. When asked if the converse could not also be true, he conceded that there was a possibility that she locked the door. This possibility is enough to have the charge against officer6 dismissed.

Irrespective of what officer6 did, or did not, do that night, the offence with which he is charged cannot be substantiated.

officer6 is not guilty of ‘Failing to discover INSECURE premises’ because it cannot be proved that the premises in question were not secure.

I cite exhibit #2 (the second schedule - the complaint document detailed on the previous page of this web site) in support of the grounds for this submission.

The defence acknowledges the fact that persons were on the premises and that this in itself has led to the supposition of insecurity, coupled with no sign of forced entry. Although we sympathise with their being unable to produce either the school girl, the Papageorge’s or the two persons seen leaving prior to the Papageorge’s entry, it is fallacious for the prosecution to claim that the circumstances in which entry was gained was as a result of insecurity.

Evidence has been tendered of a ‘1/2 locked position’ in which the door can be ‘secured’. The private witness, for the prosecution, has provided evidence of a situation in which the ‘front door was closed and locked’ and yet could be ‘shaken open’

A possibility exists that this occurred once again, and no matter how remote a possibility, it casts doubt upon the prosecution case.

But by far the most damaging circumstance to the prosecution case is the presence of two people in the store prior to the Papageorge's. Were they disturbed in the process of crime ? Had they managed to enter because some other person(s) was in before them ? Did they enter using some instrument ? Had they been sleeping / locked in the premises all night ? Was the alarm operating correctly ? ( There is no evidence from the alarm company to suggest to the contrary ).

Too many possibilities all tending to prove that the prosecution are in a despairing position, there are too many unaccountable factors for them to satisfactorily prove their case.

As has been commented upon earlier, it is not possible to get at the truth in respect of the security of these premises. The general rule is that burden of proof lies on the party who asserts the affirmative of the issue in dispute i.e. the prosecution. In these circumstances they have not adduced evidence sufficient to raise a presumption that what they assert is true. Having not shifted this burden of proof through a lack of evidence, officer6 should not be required to defend his actions.

Reference has been made during the hearing to ‘the balance of probabilities'. This suggesting that a hearing does not require or adopt such a high degree of probability as a Criminal Court. In fact the following is an extract from 'Evidence', by Sir Rupert Cross F.B.A. ,D.C.L. (1979), where he speaks of Denning, L.J., on the degrees of proof:

"It is of course true that by our law a higher standard of proof is required in criminal cases than in civil cases" Page 111, Civil and Criminal Standards.

But it would be folly to pursue the standard of proof required in civil proceedings when dealing with discipline hearings. Of the two standards of proof, the higher is called for.

I cite BHANDARI v. ADVOCATES COMMITTEE and attach a copy of the record from the ‘All England Law Reports’ (1956) Page 742 to 745. The following extract being relevant before the Public Service Commission in Bermuda with regard to a previous discipline appeal (see Commissioner of Police v. officer9, appeal 1987 - another case where I represented officer9)

"We agree that in every allegation of professional misconduct involving an element of deceit or moral turpitude a high standard of proof is called for and we cannot envisage any body of professional men sitting in judgment on a colleague who would be content to condemn on a mere balance of probabilities"

Applying the higher standard 'beyond reasonable doubt' can, the defence claim, only lead to one conclusion in a case where alleged facts in statements, reports and answers to questions are prefixed with 'possible' 'maybe' and 'could have been'.

Give officer6 the benefit of the doubt in these circumstances, after all P.S. Cleave came so close to doing so, albeit with reservations. In paragraph 24 of his four page report the following is written:

"Bearing in mind very slight chance that the door was secure when the officers were supposed to make their checks, I would not be able to say without reservation that they were lying."

To ascertain who asked P.S Cleave to say that the officers were lying, may have proved beneficial to the defence of officer6, but his inclusion of 'very slight chance' should allay all fears of paranoia. This doubt is just another example of the uncertainties expressed throughout the prosecution case and we conclude by reinforcing, with repetition, the logic in our assessment of the evidence: