The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A Customs officer has seen his four-year sentence for participating in a conspiracy to steal $30,000 of John Bull’s watches quashed as “unsafe and unsatisfactory” by the Court of Appeal.

Appeal justice Jon Isaacs, in a unanimous verdict, found that the evidence presented against Rondino Ferguson “could only rise to the level of high suspicion” that was insufficient to meet the standard of proof required to convict in criminal cases.

Mr Ferguson was sentenced to time in Fox Hill prison by magistrate Derence Rolle-Davis after being found guilty of two counts of stealing by reason of employment. His fellow accused, Bastian, negotiated a plea agreement and pled guilty to the charges the prosecution levied against him. But, while Bastian was hit with just a fine and restitution, Mr Ferguson was convicted and sentenced to prison after pleading not guilty.

“Between 29 and 30 October, 2019, the appellant and Bastian are alleged to have entered an area of the Bahamas Customs’ warehouse, the FedEx bonded area, also referred to as the high value cage (the HVC), where sensitive goods are kept. He carried with him a backpack. He later exited the HVC with the backpack,” Appeal justice Isaacs wrote.

“Some days later, it was discovered by an employee of John Bull that 15 Cartier watches valued at approximately $29,844 were missing. The appellant was arrested and charged with Bastian with two counts of stealing by reason of employment, contrary to section 340(4) of the Penal Code.

“He also faced a charge alleging that on 6 November, 2019, he stole an assortment of jewellery valued at $20,667, the property of John Bull. On the date the items were reported missing, the arresting officer, Woman Sergeant 2461 Yvette Deveaux, made a search of the appellant’s residence for the missing items but none were found.”

David Cash, the attorney acting for Mr Ferguson, argued that the magistrate relied heavily on surveillance footage of the warehouse and HVC area in his decision to convict. Magistrate Rolle-Davis found that Mr Ferguson entered with an empty backpack, and left with a full one, at a time when he was not scheduled to work.

Appeal justice Isaacs said the magistrate should have asked the witnesses whether their observations of the backpack matched his own. “I note that in the evidence of Customs officer Corey Gibson that he saw the appellant with a backpack when he viewed the video footage. However, he also said that the appellant normally brings a backpack to work,” the verdict stated.

“It is instructive, for example, that Ricardo Hart, safety manager at Odyssey Bahamas, viewed the footage during the trial and while he was able to identify the appellant as being shown therein, was unable to say if the appellant was opening any boxes nor could he say what was in the backpacks in the video.

“I, myself, viewed the footage and was unable to see the condition of the alleged backpack before the appellant entered the HVC. The video footage is grainy and dim due to a lack of light save from what seems to emanate from devices carried by the two persons in the HVC, and brief flashes of light when they apparently entered another room.”

Mr Cash also argued that the prosecution had failed to produce any evidence that there were watches in the crate to be stolen, as it had relied on shipping invoices to determine that was the case rather than physical evidence.

“Rudolf Steinlechner, the buyer for John Bull, concluded that 15 Cartier watches were missing based, it seems, on the order that he placed. However, it appears that he too was relying on the shipping details,” Appeal justice Isaacs acknowledged.

“Welewski Gordon, a FedEx ramp agent, testified that on 6 November, 2019, he was in a warehouse with Customs officer Corey Gibson to open up the bond. He scanned a box from John Bull that appeared tampered with. He said that: ‘On examination the watches were missing. Cartier invoices told me that’.

“Sanchia Clarke, assistant watch buyer of John Bull, testified that she opened the Movado and Omega shipment and found several items missing. She said: ‘The two boxes’ container didn’t match the slip to the bottom of both boxes. Three missing pieces’. Again, she could only surmise from the shipment information that items were missing. Furthermore, she examined the boxes on 9 November, 2019, some four days after they had been at John Bull.”

In the absence of physical evidence that the watches had been present, and subsequently stolen, and the prosecution’s failure to call Bastian to testify against Mr Ferguson, the Court of Appeal ruled: “Not having resorted to any of those alternatives, the evidence against the appellant could only rise to the level of high suspicion, but even high suspicion is not sufficient to meet the criminal standard of proof.”