Court name
Court of Appeal of Turks and Caicos Islands
Case number
CR-AP 4 of 2017

Inelus v. Regina (CR-AP 4 of 2017) [2018] TCACA 20 (31 August 2018);

Law report citations
Media neutral citation
[2018] TCACA 20
Coram
Mottley, P
Adderley, JA
Hamel-Smith, JA

IN THE COURT OF APPEAL

TURKS AND CAICOS ISLANDS

CRIMINAL                                                                                                                                          CR-AP 4/2017

BETWEEN

JOUVLY INELUS                                                                                                                                 APPELLANT

AND

REGINA                                                                                                                                                RESPONDENT

BEFORE:

The Honourable Mr. Justice Mottley,               President

The Honourable Mr. Justice Adderley,            Justice of Appeal

The Honourable Mr. Justice Hamel-Smith,     Justice of Appeal (ag)

APPEARANCES:

Mr. Ashwood Forbes for the Applicant

Ms. Latisha William of the Director of Public Prosecution

HEARD ON: 10, 20 April, 31 August 2018

JUDGMENT

Mottley, P

1.             Following a trial before Shuster J and a jury, the appellant, Jouvly Inelus, was convicted of carrying a firearm contrary to section 3(1) of the Firearm Ordinance Cap 3.08 (the Ordinance). He was sentenced to seven years imprisonment; however the judge ordered that the final two years of the sentence should be suspended. We will comment on this aspect of the sentence later in the judgment.

2.             On 10 November 2016, following a report received by the police, Constable Mitchell and Acting Sargent Jolly were on mobile patrol when a male person was seen running with an object which appeared to be a silver firearm in his left hand. The police pursued the male person who threw the object into a nearby bush. The person continued running but was apprehended by the officers. The male person, who was the appellant, was taken back to the area where the object had been thrown into the bush. The police searched the bush and a silver Taurus 9mm gun was found. The appellant was cautioned and questioned by the police. He was later arrested and charged with the offence under section 3 of the Ordinance. The firearm was subsequently submitted to a lab in Florida for DNA testing. The results of the test showed a mixed DNA result with the appellant being a contributor along with another person.

3.             In his defence, the defendant stated that the police are mistaken. The defendant also alleged that the entire matter had been concocted. The defendant further alleged that the silver firearm found by the police lying in the bushes just yards from the police car was not his.

4.             The defence case is that the defendant was not and never was in possession of a firearm of any type. The defendant accepted that he was running with his right hand holding up his pants but at no time was he holding the firearm as described by the officer. The defence claimed that the police took the defendant's check and plaid shirt from him and kept it for six days. The defence argued that the police likely stored it with the firearm and that is where the defence contended that contamination occurred. The judge reminded the jury that no evidence of that assertion was adduced in evidence by the defence and consequently, the Crown asked them to completely dismiss that suggestion from their minds.

5.             Section 3(1) of the Ordinance provides:

“3 (1) No person (other than a licensed gunsmith in the course of his trade) shall keep, carry, discharge or use any firearm or ammunition unless he is the holder of a firearm licence with respect to such firearm, or in case of ammunition he is the holder of a license for a firearm which takes that ammunition.

6.             In Ground 1, the appellant alleged that the judge misdirected the jury on the issue of Firearms evidence. In giving the jury the definition of a firearm, the judge told the jury that it was “any lethal barreled weapon of any description from which any shot, bullet or other missile can be discharged and includes a prohibitive weapon.” Counsel for the appellant contended that the judge was imprecise in his explanation as to what precisely is a firearm. He argued that the judge's subsequent comment further confused matters as he sought to give an example of a prohibited weapon but did not explain whether the weapon in this case would fall in law to be considered to be prohibited. Counsel suggested that, given the very specific nature of the language in the Ordinance, it was not sufficient to state that the Crown's witness Supt Williams said that the weapon was a lethal barreled weapon without more. He contended that the judge failed to adequately direct the jury on the relevance or otherwise of the fact that the gun's mechanisms in this case were not in fact lethal given that the fact that the relevant lethal components were missing. Counsel reminded the Court that the judge told the jury that he would allow them to examine the Taurus Firearm simply because it was deactivated and it was their duty to properly establish if that weapon is in fact a firearm. Counsel submitted that this was a confusing direction given the technical nature of what constitutes a firearm under the Ordinance. He argued that a detailed instruction would have been appropriate in order to ensure that the jury understood the relevance of the mechanism not being in working order, and how they should assess the evidence as to whether the gun was a firearm under the Ordinance. Later the judge told the jury that the law is clear and when considering whether the thing has the appearance of a firearm, they should consider its appearance at the time of the offence. Counsel suggested that such direction was unequivocally confusing, as the law relating to the definition of a firearm made no mention of appearance but rather speaks to the very technical nature of what is considered a firearm. He contended that the judge's comments were a dangerous simplification of the relevant law and he suggested that the description of the firearm without more was sufficient for an inference of guilt to found a conviction. Counsel finally submitted that the numerous and confusing aspects of the judge's summing up touching and concerning such a pertinent aspect of the evidence undermined the safety of the conviction.

7.             In her response, counsel for the respondent submitted that the judge was clear as to what the evidence was and he assisted the jury on what was required in order for them to find the appellant guilty. Counsel said that the jury were directed as to the definition of a firearm as set out in section 2 of the Ordinance. Counsel said that while the judge did give the jury an example of what a prohibited weapon is, the issue before the jury was whether the firearm was one which they could consider is prohibited

8.             For the reason set out below, we do not consider that it was necessary for the jury to consider whether the weapon is prohibited and was not relevant to the issue of whether the firearm came within the definition as set out in section 2 of the Ordinance.

9.             In his summation to the jury, Shuster J told the jury:

“Now the law pertaining to carrying a firearm is this. You heard the definition of a firearm. Now a firearm in law members of the jury is any lethal barrelled weapon of any description from which any shot, bullet or other missile can be discharged and includes a prohibitive weapon.”

10.          The judge reminded the jury that counsel for the defence, in his closing address stated that the defence does not dispute the fact that the exhibit, Taurus is in fact a firearm. He reminded the jury that the defence orally indicated its acceptance of the evidence of Supt Williams that the firing pin and its magazine were also missing from the weapon. He also reminded the jury that the defence was that the Taurus firearm was never carried by the defendant and that it was not his.

11.          The judge told the jury:

Members of the jury the definition goes on to say a firearm includes any component part of any such lethal or prohibited weapon. That could be the trigger, the slider, a silencer put on anything designed to diminish flash or noise or any accessory for any such weapon as I said designed or adapted to diminish the noise or flash caused by firing the weapon.

The term Deactivated was used to describe that the firearm was safe to be handled. It contained at that point no magazine or firing pin.

12.          Superintendent Darren Williams stated that he was a member of the Royal Turks and Caicos Islands Police Force and at that time was currently the Supervisor of Special Ops in charge of the Firearms Department. He stated that a firearm is a device designed to discharge a specified ammunition and can either be lethal and non lethal. He had examined a silver, a chrome and brown object which he immediately suspected to be a firearm. To confirm his suspicion, he carried out further examination of the firearm. He found that it had all of the components of a firearm such as trigger, hammer, ejection port, barrel; it had a magazine chamber and magazine release which at the time were both missing.

13.          These tests were done to ensure that the exhibit was a functioning firearm. Since the firearm was designed to carry and discharge only 9 MM, he took a 9 MM round of ammunition from the armoury. The exhibit was a semi-automatic firearm a recoil action firearm. He placed the ammunition in the breach of the barrel since it did not have a magazine in which to put the ammunition. He attempted to discharge the one round but he realized the exhibit did not discharge. On examination of the primer of the ammunition, Supt Williams discovered that there were no indentations from the firing pin of the firearm. The absence of indentation meant that (i) either the firing pin was missing or (ii) ammunition had expired. He stripped the weapon in order to examine its internal parts and discovered that the firing pin was missing. He nonetheless concluded that the firearm was a real firearm, even though it did not have all the components or parts to make it a lethal weapon or where it could cause the death or damage to anyone. He said that it would be lethal if it had the firing pin; the firing pin was a very important part as it was the part which discharged the ammunition.

14.          The issue to be considered was in Cafferata v Wilson; Reeve v Wilson [1936] 3 All ER 149.

15.          In giving judgment, Lord Hewart LCJ stated:

“At the material time the article was incapable of being fired, but a part of it needed alternation to make it suitable for firing. The magistrate had held that the article as a whole is part of a firearm within the meaning of the definition. That is quite a tenable proposition. If something had had to be added to the dummy to make it into a complete revolver, the dummy might be said to be part of a revolver. It seems to make no difference that the decisive part was not to be an addition but an adaption of what was already there. It is easier to support the decision from another point of view. The dummy contains everything else necessary for making a revolver except the barrel, and therefore all the other parts of it except those which required to be bored are “parts thereof” within the meaning of the section. The magistrate has not misdirected himself and the appeal must be dismissed.”

16.          In R v Elliston Watson (1976) 28 WIR 123, the Court of Appeal of Jamaica, setting en banc, considered inter alia whether “an object described as a home-made shotgun which had no firing pin but which the ballistics expert concluded was, with the addition of a firing pin, capable of discharging deadly missiles.” In delivery the judgment of the Court, Henry JA said:

“In order to qualify as a firearm a weapon must be lethal, barrelled and capable of discharging a shot, bullet or other missile. That it is barrelled may be determined by mere observation. That it is lethal will have to be determined by having regard to the possible effect of any shot, bullet or missile it discharges. That it is capable of discharging a shot, bullet or missile must, where a cartridge is involved, be determined by having regard to its ability to accommodate the cartridge, to contain the explosive force involved in the firing of the cartridge and to ensure the discharge through the barrel of any shot, bullet or missile contained in the cartridge. A ballistics expert, in the light of his knowledge and experience of firearms, may well be able upon examination of a weapon to express a valid opinion as to its potential ability to discharge deadly missiles and if that opinion is unchallenged a court would be entitled although not obliged to act upon it.”

17.          Later in his judgment, Henry JA continued

“The next matter which engaged our attention was the meaning of the expression 'component part' in the definition of firearm. It was necessary to consider this because the weapon as it stood was devoid of a firing pin and therefore incapable of firing a cartridge. Counsel for the Crown submitted and counsel for the appellant eventually agreed, that the words 'any such weapon' refer to 'any lethal barrelled weapon ...' and therefore a 'component part of any such weapon' means a part necessary to make the weapon a lethal barrelled weapon from which a shot, bullet or missile can be discharged. Applying that interpretation, if the court accepted the ballistics expert's evidence that with the addition of the firing pin the weapon was capable of discharging deadly missiles then in its existing form it would clearly be a 'component part' and therefore within the definition of firearm.”

18.          In the Court of Appeal of St. Christopher and Nevis in Quincy Duncan and the Chief of Police Magisterial Criminal Appeal No.1 of 2004, Rawlins J.A [ag] at paras 12 and 13 made the following observation:

“[12] So far as it is relevant to this case, section 2(1) of the Act provides:

“ ‘firearm' means any lethal barreled weapon from which any shot, bullet or other missile can be discharged...and includes any component part of any such weapon and accessory to any such weapon designed or adapted to diminish the noise or flash caused by firing the weapon...”

[13] The rationale for this definition is clear. Parliament not only intended to prohibit a person from having a complete weapon that is capable of firing a projectile or missile that is lethal. It also intended to prohibit a person from having in possession any part of such a weapon that is capable, if put into place, to assist in the assembly of such a weapon. Parliament further intended to prohibit the possession of even an accessory such as a silencer.”

19.          The judge, in the opinion of the Court, correctly told the members of the jury that the definition goes on to say a firearm includes any component part of any such lethal or prohibited weapon; that could be the trigger, the slider, a silencer put on anything designed to diminish flash or noise or any accessory for any such weapon as I said designed or adapted to diminish the noise or flash caused by firing the weapon.

20.          We conclude that the fact that the firing pin was missing did not prevent the gun from falling within the definition as set out in section 2 of the Ordinance. The gun without the firing would satisfy the definition of firearm as it could be said to be the component part of a lethal barreled weapon. For these reasons, ground 1 is rejected.

21.          In relation to the issue of good character direction, counsel for the appellant submitted that given the good character of the appellant, more could have and ought to have been said to the jury to ensure that they understood the weight of the prosecution burden to prove their case. He added that although mention was made in relation to the standard and burden of proof, the judge's approach to the evidence could have led to the jury drawing inappropriate or adverse inferences in the circumstances and thus rendering the conviction unsafe.

22.          The judge directed the jury that modern case law requires the jury to consider and apply a defendant's good character when raised by the defence. The judge pointed out the defendant had no previous convictions and was a relatively young man, aged 24, of previous good character who worked at IGA. Evidence to this effect came from the record of the appellant's interview with the police. The judge pointed out to the jury that good character itself cannot provide a defence to a criminal charge but was evidence which the jury should take into account when considering their verdict. He also told the jury that a defendant who has no previous convictions should be considered a person of good character. He explained that a defendant might or more likely would be telling the truth than a person who is of bad character. He reminded them that the defendant's case is contained in his record of interview and in the cross examination of the various prosecution witnesses. The judge told the jury that a good character as to credibility is also required when the defendant does not give evidence and he relies on statements which he previously made to police officers or to others. In addition, the judge pointed out to the jury that the second limb he needed to address was in respect to a person's propensity to offend. He indicated to the jury that a defendant who has no previous convictions could be considered as a person of good character and might be less likely to commit a crime more especially one of the nature with which he is charged than a man of bad character.

23.          In Hunter v Ors v R [2015] EWCA Crim 631, the Court of Appeal, sitting en banc, the Lord Chief Justice, President of the Queen Bench Division, Lady Justice Hallett, (Vice President of the Court of Appeal Criminal Division), Mr. Justice Coulson, Mr. Justin Globe, had occasion to review the issue of good character. In dealing with absolute good character, Lady Justice Hallett who delivered the judgment of the Court said:

“[77] We use the term "absolute good character" to mean a defendant who has no previous convictions or cautions recorded against them and no other reprehensible conduct alleged, admitted or proven. We do not suggest the defendant has to go further and adduce evidence of positive good character. This category of defendant is entitled to both limbs of the good character direction. The law is settled.

[78] The first credibility limb of good character is a positive feature which should be taken into account. The second propensity limb means that good character may make it less likely that the defendant acted as alleged and so particular attention should be paid to the fact. What weight is to be given to each limb is a matter for the jury. The judge must tailor the terms of the direction to the case before him/her, but in the name of consistency, we commend the Judicial College standard direction in the Crown Court Bench Book as a basis.”

(ii) Effective good character.

[79] Where a defendant has previous convictions or cautions recorded which are old, minor and have no relevance to the charge, the judge must make a judgement as to whether or not to treat the defendant as a person of effective good character. It does not follow from the fact that a defendant has previous convictions which are old or irrelevant to the offence charged that a judge is obliged to treat him as a person of good character. In fairness to all, the trial judge should be vigilant to ensure that only those defendants who merit an 'effective good character' are afforded one. It is for the judge to make a judgement, by assessing all the circumstances of the offence/s and the offender, to the extent known, and then deciding what fairness to all dictates. The judge should not leave it to the jury to decide whether or not the defendant is to be treated as of good character.

[80] If the judge decides to treat a defendant as a person of effective good character, the judge does not have a discretion whether to give the direction. S/he must give both limbs of the direction, modified as necessary to reflect the other matters and thereby ensure the jury is not misled.

24.          This Court adopts the recommendation of the Court of Appeal in England that a judge should follow the direction set out in the Judicial College Standard directions as set out in the Crown Court Bench Book. A judge should direct the jury in the following terms:

“You have heard that the defendant is a young man with no previous convictions. Good character is not a defence to the charges but it is relevant to your consideration of the case in two ways. First, the defendant has not given evidence but raised his good character in pretrial statements. His good character is a positive feature of the defendant which you should take into account when considering whether you accept what the defendant told you. Secondly, the fact that the defendant has not offended in the past may make it less likely that the defendant acted as is now alleged against him/her.

It has been submitted on behalf of the defendant that for the first time in his life he has been accused of a crime of dishonesty. The defendant is not the sort of person who would be likely to cast their good character aside in this way. That is a matter to which you should pay particular attention. However, what weight should be given to the defendant's good character and the extent to which it assists on the facts of this particular case are for you to decide. In making that assessment you may take account of everything you have heard about the defendant.”

25.          On the third ground, counsel for the appellant alleged that the judge failed repeatedly to highlight that the appellant had no duty or burden to disprove the case against him. He stated that the judge told the jury that no direct evidence of any contamination of any material submitted by the police had been adduced by either the defendant himself or by his counsel although it was suggested by defence counsel in his closing address that the results were contaminated. He said that the judge went on to point out to the jury that there had been no second examination of any material found on the firearm by another laboratory in order to challenge the DNA finding by the Crown's expert. The judge suggested that the appellant did not call a forensic expert to rebut the Crown's case.

26.          Counsel for the appellant submitted that this was a mis-direction in law as it could have led the jury to infer that the appellant had a duty to disprove the case against him. Counsel argued that this was contrary to established principle and, given the fact that the defence case was that there was procedural impropriety in how the DNA was obtained, the relevant evidence to have drawn the attention of the jury was that it is possible to transfer DNA. He argued that it would have been appropriate for the judge to explain that the appellant merely had to establish a reasonable doubt in the mind of the jury not disprove the case against him by finding alternative evidence. He said that this misdirection rendered the conviction unsafe.

27.          In R v Stephen Lawrence [1982] AC 510 where Lord Hailsham observed:

“It has been said before, but obviously requires to be said again. The purpose of a direction to a jury is not best achieved by a disquisition on jurisprudence or philosophy or a universally applicable definitions is often productive of more obscurity than light. A direction is seldom improved and may be considerable damaged by copious recitation from the total content of the judge's note book. A direction to the jury should be custom built to make the jury understand their task in relation to a particular case. Of course it must include references to the burden of proof and the respective rules of jury and judge. But it should also include a succinct but accurate summary of the issues of fact as to which decision is required, a correct statement of the inferences which the jury are entitled to draw from their particular conclusions about the primary fact.”

28.          In dealing with the appellant's right to remain silent, the judge reminded the jury that at the conclusion of the prosecution's case after the defendant's rights had been explained to him in open court and, after consulting with his counsel, the defendant in their presence and hearing elected to remain silent, as was his legal right under our laws. He pointed out that the defendant told the court that he did not want to call any witnesses in his defence. The judge reminded the jury that at that point that he had instructed them not to hold the fact that the defendant did not to give evidence against him. The judge then reiterated the formal direction he had given them earlier in his summing up. In so doing, the judge told the jury that the defendant did not have to give evidence in his defence. He reminded the jury that the prosecution bought this case and therefore had to prove their case beyond reasonable doubt so that they had to be sure and that the prosecution had the burden of proof. The judge repeated that just because the defendant had not given evidence, the jury must not assume that he is guilty. He again pointed out that the defendant was perfectly entitled to sit in the dock and require the prosecution to prove its case. The fact the defendant had not given evidence proved nothing one way or the other and it certainly did not establish his guilt. Evidence might but silence does not.

29.          The judge went on to indicate that the defendant's decision not to give evidence meant that there was no evidence from the defendant himself to undermine, to contradict or to explain the evidence placed before you by the prosecution and all its other witnesses. However, this statement has to be looked at in the context of what the judge had earlier told the jury about suggestion put by counsel in the course of cross-examination. The judge reminded the jury that Counsel complained that in the course of his address to the jury, Mr. Ashwood Forbes suggested that the DNA sample obtained from the silver Taurus 9 MM firearm might have been contaminated by the transfer of the defendant's DNA from his shirt, which he said the defendant was wearing when he was arrested. Counsel suggested that the contamination could have occurred when the defendant was shown the discarded firearm by one of the police officers. The defendant claimed that PC Jolly took possession of the defendant's plaid shirt. This suggestion was rejected or denied by the police officer.

30.          He told the jury that suggestions made to a witness during the course of cross examination was not evidence unless the suggestion was accepted by the witness. The judge reminded the jury that it was a witness who gives evidence not counsel. The judge told them counsel may put a suggestion to a witness for two specific purposes. Firstly, to see if the witness will accept them, in which case, the acceptance by the witness of the suggestion makes the suggestion evidence and secondly, to give him a chance to comment on the defence's case. This, in our view, correctly sets out the law relating to suggestions.

31.          At the beginning of the summation, the judge correctly told the jury that in a criminal trial the burden of proving the defendant's guilt remains on the prosecution for the entire duration of that trial. He pointed out to the jury that a defendant is entitled to sit in the dock and is entitled to say and do nothing; that was his legal right and it is a right enshrined in the law.

32.          Later, the judge again correctly told the jury that the defendant denied the offence and that he has put the Crown to strict proof. He reminded the jury that by pleading not guilty the defendant was saying that he is not guilty of the offence and this meant that he was putting the prosecution to prove his guilt which is his legal right.

33.          In our view, the judge made it clear to the jury that the Crown brought the case against the defendant and were under a duty to prove his guilt. In proving his guilt, the jury had to be sure of his guilt. In other words, the Crown had to prove their case beyond reasonable doubt so that the jury are sure the defendant is guilty as charged. The jury were made aware that if they were not satisfied by the guilt of the defendant or were left in doubt they could not convict.

34.          The Court is satisfied when the directions to the jury are read as a whole, there could not be left in any doubt that the prosecution have brought the case against the appellant and had the burden of proving his guilt. Further to satisfy this burden, the prosecution had by the evidence which they led to satisfy the jury so that they felt sure of the guilt of the defendant. Further, the Court is satisfied that the jury was aware that there was no burden on the defendant to prove his innocence.

35.          In the Attorney General's Reference No. 1 of 2017, this Court held that where a judge was mandated to impose the minimum sentence, he was not permitted to deviate from the mandatory provision under section 3 of the Ordinance, and suspend part of the sentence. In the circumstances, the sentence imposed was null and void. This Court now quashes the sentence imposed by Shuster J and imposes a sentence of 7 years imprisonment.

Mottley, P.

Adderley, JA

Hamel-Smith, JA