Crown to pick up legal tab over false charges

(CNS): A local man who was wrongly charged with robbery at a jewellery store in January 2013 has managed to recoup some of his legal costs from the crown as a judge found the director of public prosecutions was slow to drop charges against him despite having evidence proving his innocence. Although charged with taking luxury watches from Kirk Freeport at the Strand in an armed heist, thrown in jail and refused legal aid, Aaron Bernardo (30) was able to prove he was not one of the four robbers.

Having gone to his own expense to undertake CCTV analysis, collect phone records and statements — because law enforcement authorities had not done so — to demonstrate he could not possibly be the villain, the crown still took nearly five months to drop robbery and gun charges against him.

As a result, in a ruling handed down last October by Justice Richard Williams, the prosecutor’s office has been ordered to cover Bernardo’s undisclosed legal fees during the period of time it took for the review of the case against him. The payment to be made to Bernardo for some of his legal bills will come from the public purse but it won’t cover the true costs he incurred in clearing his name.

Despite the obligation police have to rule suspects out as well as gather evidence against them, they did not undertake the necessary work to check Bernardo’s original claims during interviews that he could not have committed the robbery.

Phone records later showed he was in West Bay at the time and masks used by the robbers were not connected to balaclavas found in Bernardo’s house. After the crown dropped robbery charges they continued to pursue handling stolen goods charges against Bernardo. Although he had an Oyster Rolex, valued at over $10,000, in his possession when he was arrested, Bernardo said he had purchased the watch legitimately outside O’Bar in the early hours of the morning, believing it to be a fake. After trial he was cleared by a jury in December 2013 but still had to cover those legal fees.

Following his arrest on the morning after the heist, for which no one else has ever been charged, Bernardo spent more than two months in jail before he was bailed on the grounds of the pending dismissal hearing, and then waited another five months, paying his own legal fees, before the DPP reviewed and finally dropped the charges.

Despite the patchy case history in Cayman regarding the issue of costs in such cases, as there are no funds set aside to deal with these kind of circumstances, the court has wide discretion in the law to make a costs order against prosecutors for people who are wrongly accused and refused legal aid.

In his ruling Justice Williams said that the crown could have made a “more timely decision”, as the defendant had incurred legal expenses in pursuing a dismissal hearing because, despite the evidence in front of it, the crown had continued to press ahead with the charges. It was not until the morning of the dismissal hearing that the crown conceded it had no evidence against Bernardo for robbery or gun possession and amended the indictment to handling stolen goods.

The judge said the crown had an “ongoing responsibility to actively review the case, especially after receipt of the additional evidence and a failure to then do so went to the heart of whether the case should have proceeded.” Justice Williams added, “I view it as unreasonable for the crown to have failed to actively do so post March 2013,” when the crown had received the evidence.

“I accept that mistakes may be made and that resources may be stretched but in the circumstances of this case that should not prevent a far more timely proper consideration of the new materials leading to a timelier conclusion concerning the robbery and firearms counts.”

The judge said Bernardo’s legal fees incurred between March and August 2013 were as a result of the crown’s failings, as he ordered the DPP’s office to foot the legal bill once it was reviewed by the court’s taxing officer.

The judge made no comment about why investigating officers from the RCIPS had not checked out Bernardo’s alibi in the first instance and their failure to pursue the lines of enquiry which would have ruled him out as one of the robbers.

The evening robbery happened at around 6:45pm at the Strand Plaza off the West Bay Road on 7 January 2013. Four masked men, one armed with a gun, charged into the Kirk Freeport store and smashed the jewellery display cases and made off with some 44 high-end watches. Although several arrests were made and a reward of $20,000 posted, no other charges in the case were ever brought.