Evidence for window cleaner's alleged theft 'not strong enough'

Wednesday 02 February 2022

There is “nowhere near strong enough” evidence against a window cleaner accused of stealing foreign money from a house he was working on, his defence lawyer has argued before a jury.

Gilberto De Sousa Fernandes (32) denies charges of illegal entry and larceny in the Royal Court. His trial, over which Deputy Bailiff Robert MacRae presiding, opened on Monday.

The prosecution, represented by Advocate Rebecca Morley-Kirk, claims that Mr Fernandes had climbed through the bathroom window of a St Lawrence property he was working on, and stolen $1,140 and €700.

Summing up yesterday, she told the jury: "The only explanation that you can be sure of, says the crown, was that house was illegally entered... by the defendant, and it was the defendant that stole the money."

Arguing in Mr Fernandes' defence yesterday, Advocate Francesca Pinel told the jury that "the evidence is not strong enough to make you sure."

She argued that the prosecution did not have an eyewitness who saw him enter or climb out of the property, and that they were relying on the fact that "as a window cleaner, he had the opportunity."

She said that he was only left alone by his boss for 10 minutes, questioning whether in that time he would have been able to clean the windows, decide to commit a theft in "the spur of the moment", before proceeding to "gain entry, search for something to steal and then exit the property."

Advocate Pinel explained that Mr Fernandes would have had to have leaned in to undo both latches in the bigger window, "get himself through the 34cm opening in the window, and then possibly... jump across to the toilet seat, putting the lid of the toilet seat down so he could stand on it", before lifting it up again and avoiding knocking anything of the window sill.

She also said there was "no possible way he could know that that drawer of that bedside table contained money."

Referring to the fact some money was left behind, she pointed out to the jury: "...You're asked to believe he specifically opened that drawer... takes some [money], but leaves a bit, including the useable sterling currency."

On the homeowner's account that he heard a "thud" from upstairs when he came back into his house, Advocate Pinel highlighted that this "could have been his ladder."

She also questioned whether the one-and-a-half minutes between when homeowner heard this thud, and when Mr Fernandes was alleged to have departed the house was "realistically enough time" for an exit back out the window and down the ladder, all without leaving fingerprints, and no witnesses noticing - despite there being a main road outside.

"It may be that you think that simply would not have been possible," she remarked.

Looking to the DNA evidence on a cloth found on the floor of the scene, she picked up on the DNA expert's judgement that it was "21,000 times more likely" that Mr Fernandes' DNA contributed to the cloth than not.

"The range of possibility goes over a million, which you may think provides some context to the figure of 21,000," she said.

However, she then referenced the expert's admission that there was a possibility the DNA on the cloth could have been as a result of "secondary transfer" depending on timing.

She pointed out that the homeowner had admitted he had touched both an invoice Mr Fernandes had posted through the door and the cloth said to likely have his DNA on it.

Advocate Pinel detailed that, throughout proceedings, Mr Fernandes had not sought to blame anyone or come up with any theories, had voluntarily given his DNA sample and had consistently denied taking the money in police interviews.

She concluded that, based on what the jury had heard in the trial, they could not say beyond "reasonable doubt" that he was guilty, and asked them to acquit him.

The jury has now retired to deliberate their verdict.