Following a trial on June 14, Magistrate Christilyn Benjamin found Elisha Barry guilty of possession of a controlled substance and criminal damage, charges that were laid after he was arrested for allegedly throwing a rock at the windshield of a police car and carrying five grams of marijuana.
But noting Mr. Barry’s mental health issues and previously clean criminal record, Ms. Benjamin deferred sentencing until November and ordered him to attend counseling in the meantime.
Before Ms. Benjamin gave her ruling, Crown Counsel Lyn Daley called just one witness to the stand.
While giving testimony and answering questions from the prosecution and defence, police Sergeant Lenroy Samuel claimed to have seen Mr. Barry throw a rock at his police car and crack the windshield on March 29, 2019.
Mr. Samuel said he then chased and arrested the defendant.
Mr. Barry and his attorney, Ruthilia Maximea, denied the police officer’s allegations, claiming Mr. Barry did not throw the rock and that he was at home when the sergeant entered his property, drew a firearm or taser, and arrested him.
Mr. Samuel testified that he had just begun his shift at theVirgin Gorda police station on the day in question when he went to speak to some people inside an establishment on North Road that houses a salon and apartments.
While leaving the establishment, he observed the defendant, who he claimed to know “very well,” throw a rock at the parked police vehicle, Mr. Samuel alleged.
Mr. Samuel “heard a bang, observed that the glass was damaged and … immediately gave chase,” he testified.
After a short pursuit, the officer intercepted Mr. Barry at the gate of the apartment complex where he lived, cautioned him, and informed him of the reason for his arrest, Mr. Samuel alleged.
Mr. Barry responded by saying “something to the effect of, ‘You did not see me do it; I know how the system works; I’m sticking to my story,’” the sergeant alleged.
At the police station, Mr. Samuel informed Mr. Barry of his rights and searched him, uncovering a plastic bag in his front pocket filled with what appeared to be “vegetable matter and alleged cannabis seeds,” the officer testified.
The sergeant again cautioned the defendant and asked him about the contents of the bag, which Mr. Barry claimed were tomato seeds.
Mr. Samuel informed Mr. Barry that he would be charged for possession of a controlled drug, but Mr. Barry made no reply, the officer alleged.
Mr. Samuel then weighed the alleged cannabis in the presence of the defendant, placed Mr. Barry in a police cell, and the next day formally charged him with “destroying property and possession [of ] cannabis,” Mr. Samuel said.
Mr. Barry was then bailed to appear in court with one signed surety, the officer testified.
Mr. Barry and his lawyer, however, refuted the allegations, and alleged that Mr. Samuel had mistaken Mr. Barry for someone else.
While cross-examining the police officer, Ms. Maximea asserted that based on the evidence he had provided, he would not have been able to see his police vehicle because of trees obstructing his line of sight.
“That is not correct,” replied Mr. Samuel.
The attorney also called into question whether the officer knew the defendant as well as he previously suggested, asking Mr. Samuel whether he and Mr. Barry had ever socialised together or whether Mr. Samuel knew about his personal life or had any nicknames for him.
Mr. Samuel said that he knew Mr. Barry from “seeing him in the community” and from making reports at the police station.
“So you don’t really know Mr. Barry: That’s my point,” Ms. Maximea said.
The officer replied, “I do not know him personally.”
Lack of evidence
As the police officer had previously testified that there were workers in the building at the time of the incident, Ms. Maximea asked Mr. Samuel why none of them were in court giving evidence.
After the incident, Mr. Samuel explained, he went back to the establishment to ask whether any of the workers had seen what transpired, but they all said that they hadn’t.
He added that he did not know of any CCTV footage covering that area.
Ms. Maximea then suggested to Mr. Samuel that he had arrested the wrong person, and that the wrong person was before the court.
“The person I chased was Elisha Barry, who is before the court today,” Mr. Samuel said.
After Ms. Maximea finished her cross-examination of Mr. Samuel, Mr. Barry took the stand.
In response to questions from his lawyer, he alleged that he was sitting in his yard when Mr. Samuel arrived and arrested him.
Mr. Samuel just “put me to the ground, put cuffs on me, and took me to the truck,” Mr. Barry alleged.
Asked by Ms. Maximea if he knew why the officer put him on the ground, Mr. Barry alleged, “He didn’t tell me nothing. He just came out of nowhere. … I just put my hands up cause I didn’t know if he had a gun or taser.”
Mr. Barry also denied seeing Mr. Samuel in the North Road area or holding a rock in his hand on that day.
“I never throw no rock,” he said, adding, “If I had thrown [a] rock he would have gotten the rock as evidence.”
During her cross-examination of Mr. Barry, Ms. Daley asked the defendant how he reacted when Mr. Samuel entered his yard.
Mr. Barry replied that the officer told him to “stop, stand up,” and put him on the ground and cuffed him.
Following this line of questioning, Ms. Daley asked the defendant why he was instructed to “stop,” given that he had previously told the court he was just sitting on the ground when Mr. Samuel entered his yard.
Mr. Barry responded that he wasn’t sure what the officer meant, but he just took his time and laid on the ground.
“I am putting it to you that the officer did not come to your yard and pull out a gun or taser on you,” Ms. Daley alleged.
Mr. Barry disagreed. “He pulled a taser on me,” he insisted.
Asked if his father was in the yard when he was arrested, Mr. Barry said that he “ain’t sure.”
In making her decision, Ms. Benjamin claimed the prosecution did not produce “sufficient evidence,” as the only witness called was the arresting police officer.
However, Ms. Benjamin also said that it seemed possible that Mr. Barry was making up his defence “as he goes along.”
She cited his inability to recall whether or not his father was home, and the fact that he alleged during his examination that the officer pulled a gun or taser on him even though the court hadn’t previously heard this allegation.
She also found Mr. Samuel “to be a credible witness” in the case.
Ultimately, Ms. Benjamin decided to defer the sentencing largely because of Mr. Barry’s medical history.
After asking that the magistrate not impose a custodial sentence for the criminal damage charge, which carries a maximum sentence of five years, Ms. Maximea said, “If he’s punished for what he’s done, and he understands why he’s been punished, I think he can be rehabilitated.”
Ms. Benjamin appeared to agree, and deferred sentencing for both charges.
In relation to Mr. Barry’s possession charge, Ms. Benjamin referred to a doctor’s report that said the defendant has “a psychotic disorder induced by the use of cannabis.”
While waiting for police to prepare a second estimate of the cost of damage to the vehicle, Ms. Benjamin ordered Mr. Barry to attend mental health counseling, and to meet with a psychiatrist and take whatever medicines the psychiatrist prescribes.
For the criminal damage charge, Ms. Benjamin again said that “if compensation could begin between now and November, that would be a mitigating factor.”
The matter was scheduled for Nov. 18.