IN THE COURT OF APPEAL
TURKS AND CAICOS ISLANDS CR-AP 16/2018
DOMINIC SWANN APPELLANT
Sir Elliott Mottley, President
The Hon. Mr. Justice Adderley, Justice of Appeal
The Hon. Mr. Justice Hamel-Smith, Justice of Appeal (acting)
Ms. Lara Maroof for the Appellant
Ms. Shatelia Hall for Director of Public Prosecutions
Heard: 17th September 2019
Delivered: 30th January 2020
Sir Elliott Mottley, P.
1. Following a trial before Mr. Justice Aziz and a jury, the appellant was convicted of the offences of unlawfully discharging a firearm without being a holder of a licence with respect to the firearm and of common assault of Kofi McCartney. He was sentence to a term of imprisonment on count 1 for six years for discharging the firearm and on count 2 six months for common assault to run concurrently to sentence on count 1. Time spent in custody to be taken into consideration. He has appealed against the conviction relating to discharging the firearm.
2. At the conclusion of the appeal, the appeal was allowed and the conviction was quashed and sentence set aside. At that time, we promised to put into writing our reasons for allowing the appeal. These reasons are now handed down.
3. The prosecution case was that in the early hours of 7th April 2017, during the course of a confrontation, the appellant had discharged a fireman at Kofi McCartney.
4. McCartney stated that earlier while he was at the Blue Bar, Grand Turk, the appellant had called one of his friends, Kazamine Simmons, who he alleged had approached him and threatened him with a bottle. McCartney said that he pushed Simmons away and then walked off and went home. McCartney alleged that he returned later to the Blue Bar and was then involved in an argument with the appellant. The argument ended when the police arrived at the Blue Bar. McCartney stated that he then left to go home on his bicycle.
5. Around 2:00am PC Jonathan Roberts saw and spoke to the appellant in Maxie Folly. At the time, the appellant was wearing all black. Later at around 3:00am, PC Roberts and PC Mata saw and spoke to the appellant in the area behind the Blue Bar. He was still wearing all black and black and white shoes.
6. Around 4:25, McCartney alleged that he was by the Dominican Supermarket in Back Salina, Grand Turk on his bicycle, at which time he saw the appellant come out of the bush. McCartney alleged that the appellant shoved him off his bicycle and said, “Pussy I come to kill you tonight.” McCartney alleged that the appellant then pulled a gun from under his shirt, held it directly to McCartney's chest and pressed the trigger. McCartney heard a “pop”, however, when he lifted up his shirt he saw no blood and no injury. McCartney then walked into the appellant who then fired another two shots at him. The appellant then ran down an alley. McCartney estimated the distance between the appellant and himself when he discharged the gun to be around 3 feet.
7. McCartney described the “gun” as looking like a revolver and being black. He also described the gun as looking like “sup'n like the guns they shoot at races”. He suffered no injury as a result of the incident.
8. CCTV from outside the Dominican supermarket was retrieved. This showed some interaction between two persons including one person pushing another off a bike. PC Astwood stated that when she watched the CCTV she could see a bright flash from one of the persons during what appeared to be an exchange of words between the two persons.
9. The next day a search of the appellant's home took place and officers seized black clothing which the police had seen him earlier that morning. The clothing seized including a black graphic T shirt (multi-coloured marijuana leaf on the front and big white writing “PUFF PUFF PASS” on the back) found in the appellant's home in a pile with other clothing. Gunshot Residue was found; 1 particle characteristic of GSR on the right side and 2 particles characteristic of GSR on the left side. In addition, a pair of black jeans pants with a red, yellow and green belt were seized. Although PC Astwood's evidence was that these been seized from the appellant's home, in the evidence of McCartney identified the pants as belonging to him. Upon analysis, they were found to have 2 particles characteristic of GSR on the right leg.
10. The appellant provided a written statement under caution and answered questions during a police interview under caution. In the interview, although he gave no reply to many questions, in response to the allegation that he had pulled out a gun, he stated “imitation” and “it ain't a real gun” and “a fake gun that you is put the lil plastic thing and it is go pop pop, is that a firearm?” In response to the allegation that he had fired shots, he said “he lie”.
11. At trial, the appellant's defence was that McCartney had swiped a knife against his throat and torso whilst outside the Blue Bar on the night in question. He denied that he was present at the Dominican Supermarket with McCartney and that had ever discharged a firearm or anything at McCartney. He did not give evidence himself but called Dale Robinson, owner of the Blue Bar, to give evidence as to what had occurred at the Blue Bar on the night of 20th April 2017.
12. The appellant filed 3 amended Grounds of appeal. These were:
“ The judge erred in refusing the submission of no case to answer on behalf of the Appellant in relation to count, Discharging a Firearm. There was no evidence upon which an inference could safely have been drawn that the appellant was in possession of a “firearm” as defined in the interpretation section of the Firearms Ordinance.
 Alternatively, the judge erred in permitting the Crown to adduce evidence of one and two particles of gunshot residue found on a T-shirt seized from the appellant's home and a pair of black pants.
 The judge failed to adequately direct the jury as to how they were to assess and determine the issue as to whether the item discharged by the appellant was a “firearm” as defined in the Firearms Ordinance.”
13. In support of the amended ground 1, counsel stated a submission of no case was made to the judge in relation to count 1, discharging a firearm. The submission was that there was no evidence upon which the jury could safely conclude that the gun described by McCartney was a firearm as defined in the Interpretation section of the Firearms Ordinance.
14. The judge rejected the submission holding that the issue as to whether the appellant discharged a firearm was within the province of the jury and required an assessment of the credibility of the evidence.
15. Counsel submitted that the judge erred in refusing the submission of case. Counsel argued that in order to safely convict, the jury would have needed to have been sure that the item which the appellant was alleged to have had was a lethal barreled weapon from which a shot, barrel or missile could be discharged. In support of this submission counsel relied on Grace v DPP  Crim L.R. 365 (DC).
16. Counsel further submitted that there was no evidence that either the gun which the appellant was alleged to have had was either capable of discharging a missile or “lethal”. Although McCartney described being shot at, he did not give any evidence that anything at all had been discharged from the gun. He described a pressing of a trigger, a “pop” sound and flash. No spent shells were seen or found at the scene. In addition, in terms of deciding whether the weapon was ‘lethal', the test to be applied was whether the weapon was capable of causing an injury from which death may result. On the Crown's case, McCartney had been shot at three times at close range and received no injury at all. There was simply no basis from which the jury could conclude that the weapon was “lethal”.
17. In response, counsel for the respondent contended that the basic rule in deciding on a submission of no case at the end of the evidence adduced by the prosecution is that the judge should not withdraw the case if a reasonable jury properly directed could on that evidence find the charge in question proved beyond reasonable doubt. Counsel argued that this focus on the weight which could not properly be attached to the testimony of McCartney which was relied upon by the Crown as implicating the appellant and that in the circumstances the assessment of the strength of the evidence must be left to the jury. Counsel relied on DPP v Varlack, a judgment by the Judicial Committee of the Privy Council which considered the onus on a trial judge when hearing submissions at the close of the Crowns case.
18. In DPP v. Varlack, the Judicial Committee of the Privy Council held:
“If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open are drawn, a reasonable mind could not reach a conclusion of guilt beyond a reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence.”
19. In Archbold Criminal Practice at paragraph [??] it is stated:
“To prove that a weapon is a firearm, it is essential to call evidence that it is one from which any missile can be discharged or which can be adapted to discharge any missile: Grace v DPP, ante, where the conviction was quashed in the absence of evidence that an air rifle had been fired or was capable of being fired. Such evidence need not necessarily come from an expert-it could also come from somebody who had seen the weapon being fired or who was familiar with the weapon and could indicate that it did work and what its observed effect was when fired (ibid), although the absence of any evidence as to the firing's effect was not fatal to conviction in Castle (J.) v DPP, The Times, April 3, 1998, DC.”
20. In our opinion, there was no evidence that the firearm involved in this matter met the definition of a firearm as set out in the Firearm Ordinance Cap 18.08. Section 2 of the Firearm Ordinance Cap 18.08, the Interpretation section provides:
“firearm” means any lethal barreled weapon of any description from which any shot, bullet, or other missile can be discharged and includes any prohibited weapon, whether it is a lethal weapon or not, any component part of any such lethal or prohibited weapon, or any accessory to any such weapon designed or adapted to diminish the noise or flash caused by firing the weapon, but does not include-
(a) any toy-pistol or toy-gun from which any shot, bullet or missile is discharged by the force of a spring alone or any firearm or gun which the Commissioner of Police certifies not to be firearm or gun for the purposes of this Ordinance; and
(b) any firearm which is preserved for antiquarian interest and not for use;”
21. The issue of what constitutes a firearm under the Firearm Act of 1968 engaged the attention of the English Court of Appeal. In that matter in Grace v DPP  Crim. L.R. 365:
“The appellant was convicted of trespassing with a firearm. contrary to section 20 of the Firearms Act 1968 and having a firearm, having previously been sentenced to a term of imprisonment of three years or more (contrary to section 21 of the 1968 Act). He was found to have driven on a private road while in possession of an air rifle. There was no evidence before the justices as to whether the weapon worked or was capable of being made to work or as to its capacity. No tests were performed in court although the justices had the weapon before them. There was however evidence of a gamekeeper who saw the rifle protruding from the car window on three occasions when the car was stopped and on one of those occasions a bird rose and flew away. Police were called but found no ammunition in the car. For the appellant it was submitted that there was no case to answer. The justices rejected the submission, concluding that they find that the rifle was a weapon which was capable of causing injury from which death might result if the weapon was misused and therefore could be lethal within the terms of section 57 of the 1968 Act. They considered the cases of Moore v Gooderham  3 All E.R. 575, Read v. Donovan  1 All E.R. 27 and R v Thorpe  2 All E.R. 108. No evidence was called on behalf of the appellant. The justices convicted, finding themselves satisfied that the rifle fell within section 57 of the 1968 Act. The appellant appealed by way of case stated.”
22. On appeal and quashing the conviction it was held that:
“...the test applied by the justices as to what constituted a firearm within section 57(1) was correct. Their error lay in their approach to determining whether on the evidence before them the prosecution had proved that the weapon satisfied the definition. Their injury should have involved two issues: (1) whether the weapon was one from any shot, bullet or other missile could be discharged or whether it could be adapted so as to be made capable of discharging such missile and (2) if so satisfied, whether it was a lethal barreled weapon. There is no evidence before the justices upon which they could have relied in reaching the conclusion that they did. There was no evidence that the weapon had been fired nor as to whether it worked or was capable of being made to work. No tests were carried out on the weapon in court. Moore v Gooderham (supra) did not as a matter of law establish that an air gun as a species of weapon is a lethal weapon for the purposes of section 57 or that an air rifle, in a case where there is no evidence as to its capacity or working order, is a lethal weapon. It amounted to no more than that the facts established in that case the weapon was a lethal one.
It could not constitute evidence as to the working or the capacity to work and the capacity or potential capacity to injure or kill of the air rifle in the present case. Expert evidence might not have been necessary. It would have been established by evidence of a witness to the firing of the gun or of someone familiar with such weapon who could indicate to the court not only that it did work but what its observed effect was when it was fired.”
23. In Moore v Gooderham  3 All E.R. 575 the court held:
“That if a gun was capable of cause more than trifling injury when misused, it was capable of causing injury from which death might result and was, in consequence, lethal and a firearm within the meaning of the section; that the findings of the justices led inevitably to the conclusion that this gun was a firearm; and that the appeal must, therefore, be allowed.”
24. The evidence showed that even though the weapon had been fired at McCartney at close range no injury was caused to him at all. In the absence of expert evidence as to whether it was a lethal barrel, the judge in our view ought to have accepted the no case submission and withdraw the case from the jury.
25. Accepting all the evidence for the prosecution and drawing all inferences in favour of the prosecution it would not be possible for a jury to convict the appellant as there was no evidence to support the suggestion that what he had was a lethal barrel weapon
26. As stated previously, it was for these reasons we allowed the appeal.
Hamel-Smith JA (ag)