The King v Marley Sebastien

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EASTERN CARIBBEAN SUPREME COURT
TERRITORY OF THE VIRGIN ISLANDS
IN THE HIGH COURT OF JUSTICE
(CRIMINAL)
Claim No. BVIHCR 2025/0003
BETWEEN:
THE KING
and
MARLEY SEBASTIEN
Appearances: Mr. Sandip Patel KC with him Mrs. Kelli-Gai Smith for the Crown Mr. Valston Graham for the Defendant
Submissions filed: March 12, 2026 for the Defence; March 13, 2026 by the Crown
———————————————-
2026: March 3, 4, 5, 12, 16, 17
2026: March 18
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RULING ON A NO-CASE SUBMISSION
[1]
ANDERSON J (Ag): These are the reasons for the court’s decision on March 18, 2026 to uphold a submission by the Defendant that he should not be called to answer to the case against him (a “no-case submission” or “no-case”).
[2]
The Defendant is charged on a 3-count Indictment: 2 of the counts (count 1 and count 3) being for perjury contrary to section 110(1) of the Criminal Code (as amended); and count 2 being for perverting the course of justice contrary to section 107(c) of the Criminal Code (as amended).
2
[3]
All the counts arose from testimony that he gave on February 22, 2022, in the matter of R v Pamphill Prevost and Simon Power Case No. No. BVIHCR 2016/0009. That case originally concerned several counts of theft before the Indictment was amended to a single count of conspiracy to steal. I will refer to those parties hereafter as the “Conspiracy Defendants” to differentiate them from the present Defendant, who was only involved in that case as a prosecution witness. The Conspiracy Defendants were all serving police officers at the material times and the matter concerned their alleged mishandling of cash seized in various police or police-related operations.
[4]
The Defendant gave evidence in their 2019 trial, which concluded without a verdict. In their 2022 retrial he was tendered for cross examination and was cross-examined, therefore giving evidence again. The retrial ended with successful no-case applications on behalf of the Conspiracy Defendants. Mr. Sebastien was thereafter charged with perjury and perverting the course of justice and is now before the court on those charges.
[5]
The counts are as follows: –
COUNT ONE
STATEMENT OF OFFENCE
PERJURY: contrary to section 110 (1) of the Criminal Code 2013 (as amended) of the Laws of the Virgin Islands.
PARTICULARS OF OFFENCE
MARLEY SEBASTIEN on the 22nd day of February 2022, at the High Court of Justice, Sakal Place, Road Town, on the Island of Tortola, in the Territory of the Virgin Islands, lawfully sworn as a witness in judicial proceedings, willfully made a statement material in that proceeding of Criminal Trial No. 9 of 2016 the matter of Queen v Pamphill Prevost and Simon Power, a judicial proceeding at the High Court of Justice, which he knew to be false or did not believe to be true, in that he described activities and actions of Simon Power in detail contrary to his witness statement and testimony in 2019, where he omitted Simon Power from his description of the relevant events.
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COUNT TWO
STATEMENT OF OFFENCE
PERVERTING THE COURSE OF JUSTICE: Contrary to Section 107 (c) of the Criminal Code 2013 (as amended) of the Laws of the Virgin Islands.
PARTICULARS OF OFFENCE
MARLEY SEBASTIEN on the 22nd day of February 2022, at the High Court of Justice, Sakal Place, Road Town, on the Island of Tortola, in the Territory of the Virgin Islands, obstructed, interfered or knowingly prevented the execution of legal proceedings being Criminal Trial No. 9 of 2016 the matter of the Queen v Pamphill Prevost and Simon Power, judicial proceeding at the High Court of Justice.
COUNT THREE
STATEMENT OF OFFENCE
PERJURY: Contrary to Section 110 (1) of the Criminal Code 2013 (as amended) of the Laws of the Virgin Islands.
PARTICULARS OF OFFENCE
MARLEY SEBASTIEN on the 22nd day of February 2022, being a person lawfully sworn as a witness during a Judicial proceeding at the High Court of Justice, Sakal Place, Road Town, on the island of Tortola, in the Territory of the Virgin Islands, willfully made a statement material in that proceeding which he knew to be false, namely that the after being shown a photograph produced by the defence stated that he observed a pillow case on the countertop, there was no raw cash seen and no one was interfering with the pillow case. This statement was contrary to the statement said in 2019 when you were a sworn witness and stated to the Court that you observed a beige pillowcase in the bedroom tied with a knot and you only glanced the same.
[6]
Perjury is set out in section 110 Criminal Code as follows: –
(1)
A person lawfully sworn as a witness, or as an interpreter, in a judicial proceeding who willfully makes a statement, material in that proceeding, which he or she knows to be false or does not believe to be true, commits an offence and is liable on conviction on
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indictment to imprisonment for a term not exceeding 7 years. (Amended by Act 8 of 2006)
(2)
Where a statement made for the purpose of a judicial proceeding is not made before the court or tribunal itself but is made on oath before a person authorized by law to administer an oath to the person who makes the statement and to record or authenticate the statement, it shall, for the purpose of this section, be treated as having been made in a judicial proceeding.
(3)
For the purpose of this section, it is immaterial whether –
a)
the person making the statement is or is not competent to be a witness and whether or not his evidence is admissible; and
b)
the false testimony is given orally or in writing.
(4)
The question whether a statement, in respect of which a charge of perjury is made, was material is a question of law to be determined by the court of trial.
(5)
A person shall not be liable to be convicted of an offence under this section, or of any offence declared by any law to be perjury or subornation of perjury, solely upon the evidence of one witness as to the falsity of any statement alleged to be false (emphases added)
[7]
As to the requirement for willfulness “conduct is willful only if it is deliberate or intentional. “Materiality” is a question of law. In the context of perjury, it means something significant or important: something that matters1. Blackstone’s also set out that it does not necessarily mean that the truth or falsity of the statement must be crucial to the outcome. However, if lies are immaterial to the outcome then perjury would not have been made out.
[8]
Where, as in this case, the Defendant is accused of perjuring himself by two or more separate statements made on oath, the prosecution must prove which of the statements was false in order to secure a conviction2.
1 Blackstone’s Criminal Practice 2013, paragraph B14.10
2 Blackstone’s paragraph B 14.13
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[9]
The offence of perverting the course of justice was alleged in count 2, pursuant to section 107(c) Criminal Code which says that:
107. A person commits an offence and is liable on conviction on indictment to imprisonment for a term not exceeding 5 years, if he or she—
(a) [not applicable]
(b) [not applicable]; or
(c) obstructs or in any way interferes with or knowingly prevents the execution of any legal process, civil or criminal.
[10]
In R v Murray [1982] All ER 2253 which has been previously applied by this court, it was held that:
In order to prove the offence of attempting to pervert the course of justice it had to be shown not only that the accused intended to pervert the course of justice but also that what he had done, without more, had a tendency to produce that result; and, to establish that, It was not necessary to show that the tendency had in fact materialized: it was sufficient if there was evidence that the accused had done enough for there to be a risk, without further action by him, that injustice would result (emphasis added)
[11]
The act complained of as tending to pervert the course of justice must therefore be so sufficient that nothing else is, or would be, required for it to result in injustice. According to Halsbury’s4, proof of intention alone is not sufficient.
[12]
All the counts require falsity as a necessary element.
3 See also Halsbury’s Laws of England > Criminal Law (Volume 25 (2025), paras 1-554; Volume 26 (2025), paras 555-1008) > 12. Administration of Justice > (4) Obstructing the Course of Justice
4 Halsbury’s Laws of England > Criminal Law (Volume 25 (2025), paras 1-554; Volume 26 (2025), paras 555-1008) > 12. Administration of Justice > (4) Obstructing the Course of Justice
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The evidence
[13]
The Crown called 4 witnesses: retired Deputy Superintendent Alexander Crimmins who investigated the Conspiracy Defendants in the earlier matter and who took a statement from Mr. Sebastien in 2017 as part of his investigation; Inspector John Antoine through whom the transcript extracts from both trials were admitted into evidence in this matter; Chief Inspector Israel Sergeant who served a subpoena on the Defendant to give evidence in the 2022 trial and who also gave evidence of the Defendant’s good character; and Mr. Kael London who was a part of the prosecution team in the 2022 trial of the Conspiracy Defendants.
[14]
Retired Detective Inspector Crimmins (Inspector Crimmins) is a former member of the Royal Virgin Islands Police Force (RVIPF). He was part of a team that investigated the Conspiracy Defendants within a wider corruption investigation amongst officers in the RVIPF. Inspector Crimmins met with Mr. Sebastien in a car in 2017 and took notes of their conversation, the notes being admitted into evidence as Exhibit AC-1. The conversation (the material part of it anyway) concerned his observations on 1 of the police operations for which the Conspiracy Defendants were charged. It was a joint police and immigration operation in Cane Garden Bay (CGB), Tortola on December 20, 2012. At that time, the Defendant and others went to a residence there for suspected immigration violations. The Defendant was a part of the team concerned with security. The Conspiracy Defendants were also present but were with a separate team. Inspector Crimmins then drafted the police statement from his notes and memory and gave Mr. Sebastien an opportunity to review and edit it before signing. Inspector Crimmins admitted under cross examination that the language style used would have been his and not the Defendant’s. There were handwritten changes on the statement said to be made by Mr. Sebastien. This police statement was taken almost 5 years after the incident and was admitted without challenge and identified as Exhibit AC-2.
[15]
Inspector Crimmins also gave evidence of members of his team staging photographs of the CGB residence sometime after the operation. He said that he and his team filled a pillowcase to different levels and took photos of it on a counter in an effort to re-enact what the pillowcase might have looked like in December, 2012. Those photos were not admitted in these proceedings, but the transcript shows an exhibit of a photo being shown to Mr. Sebastien in the 2019 proceedings, showing cash on a counter. The photograph exhibit was of the staged scene.
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[16]
The transcript evidence elicited through Inspector Antoine from both trials was limited. Exhibit “JA-1” was the transcript of a single day of the 2019 trial, being January 28, 2019. On that day 3 witnesses who addressed the CGB incident were called being the Defendant; Joseph Smith, a customs officer; and Ivor Fraser, a police officer. This is all of the evidence that was before me in relation to the 2019 trial proceeding.
[17]
Exhibit “JA-2” was the transcription of the Defendant’s evidence only, given on February 22, 2022. No other evidence was led in this matter regarding the 2022 trial proceedings. The record shows that there were at least twenty-five (25) hearing days in that trial.
[18]
Coming from these witnesses therefore were the 4 documentary items that the Crown relies on to show the inconsistencies that they say amounted to falsehoods in 2022. They are Exhibit AC-1 being Inspector Crimmins’ handwritten notes; Exhibit AC-2 being the 2017 police statement; Exhibit JA-1 the 2019 transcript; and Exhibit JA-2 the 2022 transcript.
[19]
Inspector Israel Sergeant spoke of serving a subpoena on Mr. Sebastien to appear in court in 2022 to give evidence. He testified that the Defendant first appeared surprised and reluctant to do so but later made no protest. Eventually, this evidence was of limited assistance for the present purpose.
[20]
Mr. London was junior counsel for the prosecution in the 2022 trial. He said that he came into the matter at a late stage. From this I took that he could not give any evidence about tactical decisions and that he had limited information as to what transpired before his involvement. He gave evidence that he called the Defendant on short notice to appear at the trial. There was no evidence that until that stage, the prosecution had any intention to rely on any evidence from Mr. Sebastien to advance their case. An email was admitted into evidence which showed that the request for his appearance was made by Mr. Terrence Williams KC who appeared for Mr. Prevost. Mr. London had 2 conversations with the Defendant who, before giving evidence, complained that the statement did not reflect his true statement and that he had indicated some changes that were not reflected. He said that he had made the same complaint to the 2019 prosecution team and further indicated that he was unable to give the same evidence as in the statement. Mr. London indicates that the 2 spoke very briefly; at the time of the first conversation, Mr. Sebastien was imminently due to appear before
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the court. Mr. London could not confirm, but reckoned that he had taken the paper copy of the statement from Mr. Sebastien as this is something that he would normally do, “muscle memory” he called it. After Mr. Sebastien gave evidence, the 2 spoke again for about 1-1 ½ minutes where Mr. Sebastien essentially repeated his complaint. Mr. London promised to speak to his senior Counsel. Mr. Sebastien and Mr. London did not discuss which parts of the statement Mr. Sebastien was not happy with. The prosecution relied on these discussions to show the falsity and willfulness on the part of the Defendant.
No-Case Submission
[21]
The classic formulation by Lord 5Parke in the English Practice Note [1962] 1 All ER 448 is that a submission of no case to answer may be upheld:
i.
When there is no evidence to prove an essential element of the offence; or
ii.
When the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.
[22]
The well-traversed R v Galbraith sets out that the approach should be:
a.
Where there is no evidence that the crime alleged has been committed by the Defendant there is no difficulty;
b.
If there is some evidence but it is of a tenuous character, either because of inherent weakness or vagueness or because it is inconsistent with other evidence:
i.
Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, upon a submission being made, to stop the case;
ii.
Where, however, the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally in the province of the jury and where on one view of the facts there is evidence upon which the jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.
(emphases added)
5 Also set out in Seetahal, D. Commonwealth Caribbean Criminal Practice and Procedure
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[23]
This matter does not fall into that category of cases concerning witness credibility. The no-case submissions were made in such a way as claiming either no evidence at all of the offence, or evidence on which a properly directed jury may not properly convict.
[24]
The no-case ruling in the 2022 matter adopted the language of the Bahamian case of The Director of Public Prosecution v Dwayne Benjamin Decosta [2020] 1 BHS J No. 53 at paragraph 34 which said that:
“…the criterion to be applied by the trial judge is whether there is material on which the jury could, without irrationality, be satisfied of guilt, if there is, the judge is required to allow the trial to proceed. In other words, the judge is merely to consider whether a prima facie case has been established by the evidence adduced by the prosecution.”
Count 1 and Count 2
[25]
On count 1, the Indictment did not particularize what acts of Simon Power were alleged to have been described by the Defendant, knowing or believing them to be false. In its written submissions however, the prosecution set out these complaints to be that:
i.
In February 2022 the Defendant agreed under cross-examination by Mr. Bruce, Counsel for DC Power that DC Power had pursued the escapee from the Elm Suites, that DC Power and Dean Fahie had brought him back, and
ii.
That DC Power’s actions were consistent with the mandate of the operation.
iii.
And that none of the above appeared in his signed witness statement or in his sworn evidence at the 2019 trial.
[26]
The prosecution relied heavily on the allegation above in part (i). Regrettably, its importance to the case against the Conspiracy Defendants was not apparent from the evidence before me. No coherent account unfolded as to what the prosecution says took place at CGB, or how that account matched or differed from Mr. Sebastien’s evidence. Specifically, there was insufficient evidence from the 2022 trial before this court (being only Mr. Sebastien’s evidence) to explain why it mattered that DC Power was identified as running out of the apartment to chase a suspect; and/or why the case could have been different if he were not so named.
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[27]
In coming to this conclusion, I also reviewed Exhibit JA-1. In relation to the physical presence of DC Power in or out of the building running after someone: Mr. Smith “saw a man running” and mentions nothing else about it; Mr. Fraser saw a customs personnel member coming back with a wallet and mentions nothing else about it. Put against the testimony of Mr. Sebastien, I determined that these 2 references were inadequate to allow any understanding as to the context in which the allegation in the Indictment was made out. As such, they are not sufficient to be put to the jury for its own assessment.
[28]
The Defence invited the court to review the court’s written reasons for its decision to uphold the no-case submissions in the 2022 conspiracy matter. While it did not determine my decision, I noted that the judgment did not reveal any indication that Mr. Sebastien’s testimony was impactful on the outcome. Rather, the court expressed serious reservations about another witness, Mr. Michael Isles, whose unreliability appeared to be heavily influential on its decision.
[29]
For these reasons, I find that the materiality of the alleged falsehoods was not made out. It was not enough for the prosecution to emphasize (as they did) that this evidence was important; it was necessary for them to lead evidence to show why it mattered and in what way it could have negatively influenced the trial proceedings in favour of the Conspiracy Defendants. Without this, there is no evidential support for the element of materiality insofar as it relates to the offence of perjury. Accordingly, the no-case submission on this count succeeds.
[30]
In the event that I am wrong on this issue, I also considered whether the requirement for section 110(5) was made out: the statement said to be false must have some corroboration as to its falsity from more than one witness. The case of R v Threlfall (1914) 10 Cr App R 112 was cited for the proposition that a Defendant’s own contradictory, post-testimony statement may be used for corroboration. R v Mayhew (1834) 172 ER 1256 was cited to demonstrate what sufficient corroboration looks like. Comparing the various statements, I could not find any inconsistency that prima facie showed falsity or anything tending to corroboration: Exhibit AC-2, the “original” 2017 police statement drafted by DI Crimmins said that: “I saw Power run out of the apartment”. There is handwriting on the statement which crossed out the words “I saw Power” so that with the overlay, the corrected statement reads: “Somebody run out of the apartment.” The picture therefore is that
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the Defendant says in his 2017 police statement that someone ran out the apartment; in 2019 he says at trial that he did not see anyone run, but he heard; in 2022 he agrees with a proposition put to him that DC Power is the person who ran out of the apartment. In my respectful view, agreeing in 2022 that DC Power ran out of the apartment does not contradict his statement in 2017 or for that matter, his evidence in 2019 that he did not see anyone run.
[31]
The prosecution suggested that Mr. Sebastien had an obligation to use certain words to clarify his position. The concern that this court has with that submission is that the witness was tendered for cross-examination only. He agreed or disagreed with propositions put to him; and the fact that Counsel for the prosecution did not or could not re-examine him to provide clarity on any responses is a matter that was out of his hands. Re-examination is a procedure built in and available in the trial process to clear up any inconsistencies and the witness was not afforded that opportunity. I find that this particular complaint should not be permitted to proceed.
[32]
It was also argued that Mr. Sebastien’s utterances to Mr. London in 2022 operated as corroboration of his intent to perjure, and support for the argument that he did eventually perjure himself. This submission may not succeed in the absence of any indication of what specifically Mr. Sebastien said that he did not agree with in his police statement. There is no way of knowing whether it related to what he eventually said in the trial. This argument is therefore unsustainable.
[33]
In a postscript to the 2022 judgment, that court referenced the fact that this Defendant had been charged with perjury in relation to his then-lately received evidence. The court then commented that the differences in his 2019 and 2022 evidence were unremarkable. While these comments were obiter and are not binding, they were made closer in time to the receipt of his evidence and give an indication consistent with this court’s review of the evidence that is proposed as being sufficient to put to the jury.
[34]
The other allegation under this count is that Mr. Sebastian agreed with the proposition put to him by learned Counsel in cross examination that “DC Power’s actions were consistent with the mandate of the operation.” The complaint is that he did not say this in his 2017 statement. As before, this is a proposition that was put to Mr. Sebastien. There was no evidence in this matter of any disciplinary
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proceedings against DC Power for acting inconsistently with the “mandate of any operation” and Kings Counsel for the Crown confirmed to me that DC Powers was never convicted of any charge associated with his actions at CGB. So, there is no basis on which to suggest that it is anything other than true. Furthermore, DI Crimmins was the original drafter of the statement, and it was he who determined what was relevant to be memorialized in it. The prosecution also complained that Counsel for DC Power, Mr. Bruce, relied on this acceptance by Mr. Sebastien in his no-case submission, but did not show what the impact of that reliance was.
[35]
Finally, this court was unable to ascertain any independent account to verify that either of the 2019 or 2022 testimony tended to the truth. As there is no evidence as to what tended to be true, there was nothing on which to direct a jury to determine whether the Defendant in fact lied.
[36]
The court therefore finds that materiality was not made out; and that there is no prima facie case of falsity or corroboration made out in relation to count 1.
Count 2
[37]
Count 2 constituted the charge of perverting the course of justice. The Indictment did not particularize the acts complained of, rather referring to them in general terms. The prosecution’s written submissions set out that “by giving the false evidence particularized in count 1, the Defendant did an act tending and intended to pervert the course of justice…”. Given the court’s findings that falsity was not made out on count 1, on this argument count 2 is thereby unsustainable.
[38]
However, the court identified an independent issue, and that is the requirement for the Defendant’s 2022 testimony to have caused or be capable of causing an injustice without any further action by him. The prosecution was unable to identify any individual instance in which the Defendant’s testimony influenced or could have influenced the outcome of the matter. There was simply no evidence to put to the jury to assess impact or potential impact of this act. Rather, during the course of submissions, this court was urged to consider that the Defendant’s testimony cumulatively assisted the Conspiracy Defendants. The court was also invited to look at the general tenor and outcome of that case. The only matters before me are whether this Defendant perjured himself – and thereby caused or tended to cause an injustice – by giving false testimony in 2022. He cannot
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properly be held liable for anything else. It is also not appropriate for the court to consider the actions of any other witnesses who are not charged alongside him. This submission is therefore not accepted.
Count 3 – perjury
[39]
There is a material difference between the way the prosecution framed this count in its submissions and the way it was set out in the Indictment.
[40]
The Indictment said that the Defendant:
…….willfully made a statement material in that proceeding which he knew to be false, namely that after being shown a photograph produced by the defence stated that he observed a pillowcase on the countertop, there was no raw cash seen and no one was interfering with the pillowcase.
This statement was contrary to the statement said in 2019 when you were a sworn witness and stated to the Court that you observed a beige pillowcase in the bedroom tied with a knot and you only glanced the same (emphasis added)
[41]
The court was keen to understand the factual basis of the various allegations of falsity in this count and raised the concern during oral arguments. As to its first assertion, Mr. Sebastien was indeed shown a photograph. In fact, the photograph was one of the staged pillowcase-stuffing exercises by Inspector Crimmins’ team. It did show a pillowcase of cash placed on a countertop (as described in this matter by Inspector Crimmins). The Indictment reads as if this was the witness’s personal observation, but Exhibit JA-2 shows clearly that all that Mr. Sebastien did was to confirm the content of the photograph.
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[42]
That was not the only issue. Nowhere in any of the Defendant’s written statement or oral testimony show any reference by him to cash on a counter or to “raw cash.” There was nothing at all about this in Inspector Crimmins’ notes of his meeting with the Defendant; the Defendant’s 2017 statement; or the Defendant’s 2019 evidence. It therefore may not properly form the basis of any complaint of giving false evidence.
[43]
The Crown’s written submissions re-formulated the allegation as follows:
The Defendant gave false evidence on oath at the same retrial concerning the pillowcase: agreeing that it was tied with a knot, that no raw cash was visible on the counter and that nobody had interfered with it. These details appeared for the first time in 2022. Every one of them was exculpatory of both Defendants.
[44]
This formulation was not supported by the evidence either. Regarding the reference to “pillowcase of money”: in examination in chief in 2019 Mr. Sebastien told the court that when he went into the apartment, he saw DC Prevost with a pillowcase of money. What he actually said was: “Sergeant Prevost had it in a knot, but my concern was not too much over that pillowcase, My Lord.” Under cross examination in 2022 he affirmed Kings Counsel’s proposition that the pillowcase had a knot and that he did not see anyone interfering with it.
[45]
Returning to Exhibit JA-1, the witness Joseph Smith does not mention any cash on a counter and the witness Ivor Fraser makes only a brief, single mention that he saw cash on a counter. Mr. Smith also saw DC Prevost with a pillowcase of money but no nexus between those 2 sightings is in the evidence before me. As with count 1, the limited evidence was insufficient to bring the issue into clarity. In my view therefore, the reference to “cash on a counter” is a material part of the case that the Defendant is asked to answer but the basis of its inclusion is unclear. There is no corroboration on this issue and it is in fact not made out at all. There is therefore nothing to put to the jury on these issues.
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[46]
A properly directed jury may not rationally convict on the totality of the evidence at the end of the prosecution’s case. The court considers that its duty is best served by withdrawing this matter from the jury for consideration and accordingly directing them to enter a verdict of “not guilty.”
Akilah Anderson
High Court Judge (Ag.)
By the Court
Registrar