AND
M.A. de la Bastide C.J.
J. Permanand JA
A.
Lucky JA
Mr. L. Gokool for the Appellant
Mr. R. Gaspard for the Respondent
27th June, 2001.
Delivered by M.A. de la Bastide C.J.
The
appellant seeks leave to appeal against two convictions, one for being in
possession of a firearm and the other for being in possession of ammunition, in
both cases without being the holder of the appropriate firearm user’s licence.
The appellant was also charged in the same indictment with three separate
counts of robbery with aggravation. These
were respectively that he, being armed with a gun, robbed Conrad Juman of
$300.00 in cash, Dave Sampath of $400.00 in cash and Boodoo Sookwah of $70.00 in
cash. All five offences were
alleged to have been committed on the 16th May, 1997. The jury found
the appellant guilty of the two charges of being in possession of an unlicensed
firearm and ammunition, but could not agree on the three counts of robbery on
which he was ordered to be retried. We
grant the appellant leave to appeal and treat the hearing of his application for
leave as the hearing of the appeal.
The
victims of the alleged robberies were three market vendors who were all in
Juman’s stall at the Central Market at about 8.15 a.m. when they were robbed
of the cash they had on them by three men, one of whom had what appeared to be a
gun which he pointed at Juman’s belly. The
man with the gun took Juman’s cash out of his shirt pocket and the other two
vendors being afraid, handed over their cash to him.
The bandits then ran off. Juman
went in pursuit of the man with the gun, shouting as he went to raise an alarm.
The man jumped over a side-wall of the market. Juman made his way through a gate and then along the Beetham
Highway to Bhagwansingh’s Hardware store where there was a commotion.
He went inside and there saw the appellant lying on the ground and a
policeman nearby. Juman testified
that he immediately recognised the appellant as the man with the gun who had
just robbed him. He told the
policeman so. The policeman was
P.C. Lashley. His evidence was that
he had been on foot patrol with another police officer in the vicinity of the
Central Market when he saw a man running. The
man was clutching something in his right trousers’ pocket.
Lashley called out to him but the man responded by running faster.
Lashley ran after him and caught him within a short distance.
That man was the appellant. He
searched him and found in his right trousers’ pocket what appeared to be a gun
with what appeared to be a cartridge in it.
In his other trousers’ pocket he found $233.00 in cash made up of
twenty, ten, five and one dollar bills. Lashley
took the appellant into
Bhagwansingh’s store in order to phone for transport.
While there Juman came up and claimed that the appellant had just robbed
him. The case for the prosecution
was founded on the evidence of Juman and PC Lashley.
The other two vendors, Sampath and Sookwah, gave evidence about the
robbery that was similar to Juman’s (except that Juman thought there were only
two bandits) but neither was able to identify the appellant as one of the men
who had robbed them.
The
appellant gave evidence at the trial and also called his mother, Alice Simmons,
as a witness. The appellant
testified that he had left his home in Laventille to go to Bhagwansingh’s
Hardware to purchase some building materials for his mother. She had given him $1,000.00, all in one hundred dollar bills,
for the purpose and he had this money in his right trousers’ pocket.
He also had in his left trousers’ pocket, $163.00 of his own in cash.
While walking along the Beetham Highway in the vicinity of the fly-over,
he heard two explosions and saw a man running towards him with what appeared to
be a gun in his hand. The man got
into a parked car. Shortly
thereafter a number of men approached and asked him if he had seen anyone, to
which he replied that he had not. One
of the men then said he was lying. Another
one searched him, took the money from his trousers’ pockets and asked him
where he had got all this money. He
explained that he was going to purchase items for his mother whereupon one of
the men said he was lying and that he must have just robbed somebody.
Another one said: “He lying, let we carry him and give him a case and
go and drink something”. They
then handcuffed him and when he protested, they threw him to the ground. After that he was ‘not too conscious’. They were hitting him “small lash”. He regained consciousness in a car and found that one of the
men had his foot on his face. He
was taken to the Besson Street Police Station and placed in a cell.
Shortly thereafter the officer who had taken his money, came with an East
Indian man to whom he said: “Take a good look at him, that is the man who
robbed”.
The
appellant’s mother testified that she had given the appellant $1,000.00 in
cash to buy building materials for her at Bhagwansingh’s store.
She also confirmed the evidence which he had given as to the type of
hairstyle which he was wearing at the time.
The issue of his hairstyle was raised by the defence at the trial because
of allegedly wrong descriptions of it given by Juman and Lashley.
Conclusive evidence of the appellant’s hairstyle at the relevant time
was provided by a police photographer who was called as a witness by the defence
and produced two close-up photographs taken of him shortly after his arrest.
The alleged misdescriptions were in any event of no significance given
the quick sequence in which the robbery, arrest and identification occurred in
this case.
There
were twelve grounds of appeal filed on behalf of the appellant.
Four of these grounds, Nos. 4, 7, 9 and 10, were not pursued before us.
Two other grounds, Nos. 8 and 11, though not abandoned were not pressed
and can be dealt with shortly. Ground
No. 8 complained of the alleged failure of the prosecution to disclose to
defence counsel copies of the first description given to the police by the
witnesses. No factual basis was
laid for this complaint, but in any event Juman identified the appellant at
Bhagwansingh’s store before Juman had given a description of the appellant to
anyone. No other witness identified
the appellant for the purpose of linking him with any of the offences charged
except P.C. Lashley whose identification of the appellant as the man he arrested
was not in issue. There was
therefore clearly no merit in this ground.
Ground
No. 11 complained of the Judge’s failure to give the jury a ‘Lucas
direction’, that is, to instruct them as to what use they might make of any
lies which they found the appellant to have told.
The account which the appellant gave of the circumstances in which he was
arrested and of what ensued thereafter, was so closely linked with the issue of
his guilt or innocence that it was quite unnecessary in the circumstances of
this case for the Judge to have given any such direction. This ground too, therefore, never got off the ground.
Grounds
Nos. 1 and 2 complained that the two counts alleging that the appellant robbed
Sookwah and Sampath respectively, were included in the indictment although the
appellant had been discharged by the magistrate at the preliminary inquiry on
the separate informations which charged those offences.
This complaint raises some interesting questions e.g. can a magistrate
who commits an accused person, at the same time “discharge” him on
informations charging offences other than that on which he is committed?
If so, does such a “discharge” preclude the Director of Public
Prosecutions from including in the indictment a count which charges the same
offence as that to which the discharge relates?
We raised with counsel for the appellant the question whether this
complaint was relevant to this appeal which did not touch or concern the counts
to which objection was taken. Counsel
responded that the wrongful inclusion of the two robbery counts
“contaminated” the whole indictment, but he was unable to support this
submission with any authority. The
inclusion in the indictment of the counts objected to did not result in any
evidence being adduced which was not also relevant to, and admissible in support
of, the charge of robbing Juman on which the appellant was committed.
Clearly, the evidence of the other two vendors Sampath and Juman handing
over their money to the robbers, would have been admissible as part of the
‘res gestae’ in relation to the count which charged the appellant with
robbing Juman. We know of no
authority for the proposition that the whole of an indictment is void if it
includes counts in respect of which a plea of “autrefois acquit” or
“autrefois convict” is available. I
might add that no objection to the inclusion of these counts was taken at the
trial, though that will not preclude it from being raised at the re-trial.
It is, however, neither necessary nor appropriate for us to consider this
objection in this appeal.
Ground
No. 3 reads as follows:
“The
conviction of the applicant/appellant constitutes a miscarriage of justice in
that it is based on an inconsistent verdict in circumstances where the jury
having considered certain evidence not sufficiently reliable to support a
conviction of the other charges, relied on evidence from that same source in
order to convict the applicant/appellant”.
The
argument here is that although the jury (or rather some jurors) did not feel
able to rely sufficiently on the evidence of P.C. Lashley to convict the
appellant on the robbery charges, nonetheless, convicted him on the possession
charges on the strength of the evidence given by P.C. Lashley in relation to
those charges. The obvious flaw in
this argument is that while the evidence of P.C. Lashley certainly provided
strong support for the prosecution’s case on the robbery charges, it would not
have been sufficient if it stood alone, to convict the appellant on those
charges. The evidence of
identification by Juman was essential for that purpose.
The clear inference to be drawn from the jury’s inability to agree on
the robbery charges on the one hand, and their conviction of the appellant on
the possession charges on the other, is that while all of them accepted the
evidence of P.C. Lashley, some of them did not feel able to rely on Juman’s
identification of the appellant as the man who had pointed the gun at him.
The authorities on inconsistent verdicts were reviewed by me in
delivering the judgment of this Court in Michael Paul and Others v. The
State Crim. App. No. 62/99. I
ventured in that judgment to extract from those authorities certain guidelines
among which were the following:
“1.
The Court of Appeal should be extremely slow to quash a conviction on the
ground that it is supported by evidence from a source which must have been
regarded by the jury as unreliable having regard to a “not guilty” verdict
which they returned against the same accused on another count or against a
co-accused on the same charge. If there is any plausible way at all of explaining how a
reasonable jury might have reached the two verdicts, the Court of Appeal will
not quash the conviction.
2.
If there is any evidence to support the conviction which is confirmatory
of, or supplementary to, the evidence which has been rendered questionable by
the acquittal, this is sufficient to justify different verdicts and the
conviction will be upheld.”
In
this case the prosecution’s case on the robbery charges depended on Juman’s
evidence while the case against him for possession of an unlicensed firearm and
ammunition did not. That is an
entirely plausible explanation of the verdicts which the jury returned.
Accordingly, this ground of appeal fails.
Ground
No. 5 was framed in the following way:
“The
trial of the accused was a nullity as a consequence of an unlawful committal
which was conducted in a manner contrary to sections 17, 18 and 23 of the
Indictable Offences (Preliminary Enquiry) Act, Chap. 12:01” (‘the Act’).
I
will set out first what happened before the magistrate. Throughout the
preliminary inquiry the appellant was unrepresented.
At the conclusion of the evidence for the prosecution the magistrate
according to the printed form of ‘Caution to Prisoner’ signed by her,
addressed the appellant as follows:
“I
now inform you that you are entitled to give evidence on oath or remain
silent”
In
response the appellant said: “I
wish to remain silent”. The
magistrate then, again according to the printed form signed by her, addressed
him as follows:
“Having
heard the evidence, do you wish to say anything in answer to the charge?
You are not obliged to say anything but if you do, you must do so under
oath, and you will be subject to cross-examination.
In any event whatever you say, will be taken down in writing and may be
given in evidence at your trial.”
This
is the formula of words which the magistrate is required by the new section 17
(2) introduced by Act No. 8 of 1990, to address to the accused person but
only if he has indicated a desire to give evidence.
In
response to this second question and caution the appellant appears to have said
nothing. Thereupon the magistrate
proceeded to commit him to stand trial on the charge of robbing Juman.
The
magistrate made two errors. Firstly,
she wrongly and unnecessarily questioned and cautioned the appellant as set out
above, although he had already indicated that he wished to remain silent.
Counsel for the appellant sought to rely in part on this error as a
ground for treating the committal as void.
But it is obvious that it did no harm, and we are satisfied that it did
not impact on the validity of his committal.
The
other more serious error committed by the Magistrate was in proceeding to commit
the appellant without first asking him (as required by section 18 of the Act)
whether he wished to call any witnesses. Counsel
for the appellant submitted that this failure was fatal to the committal and all
that followed it. He emphasised
that the appellant was unrepresented before the magistrate and argued that
compliance with section 18 was even more important than compliance with section
17, inasmuch as it gave the accused person an opportunity to have the evidence
of his witnesses recorded in permanent form.
He argued that no decision to commit the accused person could be validly
taken by the magistrate without a section 18 enquiry as that decision was
required by section 23 (2) of the Act to be taken “upon the whole of the
evidence” and it was impossible unless such an enquiry were made, to know
whether the magistrate had before him “the whole of the evidence”.
By the same token, the accused person was entitled to have the magistrate
decide under section 23 (1) whether to discharge him “upon the whole of the
evidence” and “when all the witnesses on the part of the prosecutor and of
the accused person, if any, have been heard”.
The evidence, therefore, cannot be treated as closed unless and until the
section 18 question has been asked and answered.
Counsel
for the State conceded that there had been a failure by the magistrate to make
the enquiry mandated by section 18, but submitted that such a failure was only
fatal if it resulted in some prejudice to the accused person, and in this case
there had been none. He argued that
even in the case of an accused who was unrepresented, it was still necessary for
him to show prejudice if an objection to the proceedings based on failure to
make the section 18 enquiry, was to succeed.
Both
counsel claimed support for their conflicting submissions from the judgment of
this Court delivered by me in Charles Matthews v. The State
Crim. App. No. 99 of 1999. Oddly
enough, both relied on the same two passages taken from that judgment.
The first of these reads as follows (at page 8):
“No
doubt, if an accused at a preliminary enquiry expressed the wish to call
witnesses but was not permitted to do so, or if being unrepresented, was not
facilitated in doing so, the committal and any subsequent proceedings would be
held to be void. Different
considerations will, however, apply if the same thing happens at a preliminary
inquiry to an accused person who is legally represented”.
Even
without relying on my own knowledge of what these words were intended to convey,
I would suggest that the whole of the first sentence in this passage is premised
on the accused having expressed the wish to call witnesses.
In other words, what is said is that the penalty of voidness will fall on
the proceedings if despite such a wish having been expressed, either the
accused is not allowed to call witnesses or being unrepresented, is not
facilitated in doing so. I agree that the second sentence quoted in its context is
somewhat unclear, but it should be understood as saying no more than that the
same sequence of events at a preliminary inquiry may give rise to different
consequences depending on whether or not the accused is represented.
The
other passage from the same judgment on which both sides relied, reads as
follows (at page 12):
“In
our view a breach of section 18 is one of those irregularities about the
consequences of which one must say “it all depends” i.e. on the
circumstances of each case. It
would be foolish to try and make a list of what the circumstances are, but they
would certainly include whether or not the accused was represented, and whether
or not there was anyone whom the accused would have called, or might with
advantage have called, as a witness. A
breach of section 17 on the other hand is almost certainly on the other side of
the line which separates fundamental breaches or more correctly breaches of
fundamental rules of procedure, from the rest.”
In
this passage, the absence of legal representation of an accused person and the
availability of helpful witnesses are identified as two of the factors which
have to be taken into account in determining the consequences of a breach of
section 18. Since the passage
contemplates that there may be other relevant factors to be considered, it
clearly was not intended to suggest that either of the two factors identified is
conclusive. Incidentally, the last
sentence in the passage makes it clear that, contrary to Mr. Gokool’s
submission, the Court took the view that a breach of section 17 is more
fundamental than a breach of section 18.
I
do not propose to quote extensively from my judgment in Matthews
nor to repeat the fairly detailed review of authorities that it contains.
It is true that the facts of Matthews are
distinguishable from those in the instant case in that Matthews was represented
at the preliminary inquiry while the appellant was not.
The instant case is more on all fours with The State v. Roger
Hinds in which Archie J. held the committal void.
In Matthews this Court expressed its respectful
disagreement with the decision in Hinds and the reasoning
on which it was based. One of the
arguments which appealed to Archie J. was founded on the requirement that the
committal or discharge of an accused under section 23 of the Act must be based
on the whole of the evidence and the contention that failure to make the section
18 enquiry rendered the evidence incomplete.
We again respectfully disagree with that contention.
The evidence of witnesses called by the accused person obviously falls to
be considered only if such witnesses are in fact called.
If they are not (for whatever reason), the evidence is nonetheless
complete. The question which arises
from the magistrate’s failure to ask the section 18 question, is what effect
does that failure have on the validity of the proceedings given the possibility
that had the question been asked, the body of evidence might have been
amplified. It seems unreasonable to
treat the evidence as incomplete if in fact there were no witnesses whom the
accused intended to call or could have called, to give relevant evidence in his
favour merely because he was not given the opportunity of confirming this to be
the case. We do not think that
section 23 provides a definitive answer to the question what is the effect of a
failure to make the section 18 enquiry in the circumstances of any particular
case. In our view, as indicated if
not explicitly stated in Matthews, the answer depends in
most, though possibly not all, cases on whether the accused has suffered any
prejudice as a result of not being expressly invited to call witnesses.
If, as here, there was no one whom he wished to call, or whom, if his
mind or that of his attorney, had been directed to it, he might have called with
advantage – including such advantage as appears only with the benefit of
hindsight - then this kind of breach of section 18 does not render the committal
and subsequent proceedings void. In this case, the only witness whom the appellant called at
the trial was his mother. It is
evident from the account of her brief evidence already given, that nothing she
might have said was capable of affecting in any way the decision of the
magistrate to commit. Happily her
evidence was available at the trial and therefore nothing was lost as a result
of it not having been recorded at the preliminary inquiry. There was no one else who could have given any evidence on
behalf of the appellant that was relevant to the issue which the magistrate had
to decide, or indeed to any issue at the trial.
We wish to repeat what was said in Matthews about
the desirability of deciding the effect of non-observance of section 18 on a
case by case basis. It is important
to note that our decision in this case takes account of the following facts and
circumstances:
(a)
The appellant gave no intimation at the preliminary
enquiry of wishing to call any witness and there has been no suggestion at any
stage that he would have done so, even if expressly invited.
(b)
There was no one who could have given evidence that
could properly have influenced the magistrate’s decision whether or not to
commit the appellant.
(c)
There was no one in a position to give evidence
helpful to the appellant who was available at the preliminary inquiry but not at
the trial.
It
is against this factual background that we hold:
(a)
There has been no breach of natural justice or want of due process.
(b)
The failure of the enquiring magistrate to ask the appellant whether he
wished to call witnesses as required by section 18, was in the circumstances a
mere irregularity which, since it did not result in any prejudice to the
appellant, provides no basis for quashing the committal and the subsequent
proceedings.
For
these reasons, we reject the submission that the committal was void, and this
ground of appeal also fails.
We
come finally to grounds Nos. 6 and 12 which were argued together.
Ground 6 reads:
“The
learned trial Judge erred in law when he wrongly admitted into evidence the
Armourer’s Report in the face of the document not containing the factual basis
on which his opinion was founded.”
Ground
12 reads:
“The
learned trial Judge erred in law when he neglected to direct the jury that it
was open to them to reject the evidence of the Armourer, Mr. Best, and further
compounded this dereliction of duty by directing the jury to accept as a fact
the conclusion of the Armourer that the objects resembling the firearm and
ammunition that were received from Sgt. Singh were in fact a firearm and
ammunition merely because they were stipulated to be so in the certificate of
Mr. Best.”
The
evidence of the armourer, Inspector Best, was in fact contained in a report
which was introduced into evidence under section 19 (2) of the Evidence Act
Chap. 7:02. That report stated as
follows:
“I,
number 7348, rank Inspector, name Best, police armourer, examined and tested
exhibit registered and numbered 72/97, one homemade firearm with 1.32 /7.65 mm
pistol cartridge, each with markings SS 16-5-97, and I find that it is a firearm
and ammunition as defined within the meaning of the Firearms Act, Chapter.
16:01”.
With
regard to ground No. 12, it is simply not the case that the trial Judge
neglected to direct the jury that it was open to them to reject Mr. Best’s
report, far less is it true that he directed the jury to accept as a fact Mr.
Best’s conclusion that the objects which he examined were respectively a
firearm and ammunition. On the
contrary, the Judge expressly told the jury that they were free to reject the
evidence of an expert even though it was unchallenged, and also made it clear
that Mr. Best’s report fell into the category of expert evidence.
Accordingly there is no merit in ground No. 12 as framed.
That still leaves untouched the thornier question whether Mr. Best’s
report was admissible and even if it was, whether it constituted prima facie
evidence of that which it purported to certify.
Section
19 (2) of the Evidence Act provides as follows:
“In
any criminal proceedings any document purporting to be a certificate or report
under the hand of a Government expert on any matter or thing which has been
submitted to him for examination, analysis or report is admissible as evidence
of the facts stated in it without proof of the signature or appointment of the
Government expert, unless the Court, acting ‘ex proprio motu’ or at the
request of a party to the proceeding requires the expert to be called as a
witness. …”
It
is to be noted that this section makes the document admissible as evidence “of
the facts stated in it” and says nothing about expressions of opinion which it
may contain. This gap has been
plugged in England by the inclusion in the counterpart provision of appropriate
words so as to extend the admissibility conferred by it to expressions of
opinion as well as statements of fact – see section 30 of the Criminal Justice
Act, 1988 (U.K.). This is a matter
which was adverted to in the judgment of this Court in Rampersad
Ramdial v. The State Crim. App. No. 97 of 1992.
In that case the question of admissibility and weight arose in relation
to the viva voce evidence of a scientific officer who testified that a substance
which he examined was cocaine, without describing the test he performed to
determine this. The judgment in
that case examined the question of how far an opinion expressed by an expert,
whether viva voce in the witness-box or in a written report, had to be supported
by an explicit statement of the facts, including any tests performed, on which
it was based in order to be admissible, or if admitted, to carry any weight at
all. The answer which the Court
gave to that question was that it depends on the nature of the ‘opinion’ in
question. The Court held that the
fact that the expert in the case before it testified that he had examined a
certain substance and found it to be cocaine, was not rendered inadmissible or
valueless by his failure to explain what test he performed in order to reach
that conclusion. We do not propose
to traverse again the ground that was covered in our judgment in Ramdial.
In
our view the effect of section 19 (2) is not to render admissible if tendered in
the form of a report, evidence which would not be admissible if given viva voce
by the author of the report. Accordingly,
it may be possible to avoid having to consider the effect of the gap in section
19 (2) mentioned above on the admissibility of the armourer’s report, by first
considering whether the contents of that report would have been admissible if
given by Mr. Best orally under oath. For
this purpose it is necessary to consider separately the two objects examined by
Mr. Best, which we may for convenience, but without prejudging the issue, call
‘the gun’ and ‘the cartridge’ respectively.
Inspector Best said two things about the gun in his report.
Firstly, he described it as “one homemade firearm” and secondly he
said that he found that it was a firearm ‘as defined within the meaning of the
Firearms Act’. The fact that the gun was homemade does immediately raise the
possibility that it may not have satisfied the conditions prescribed in the
statutory definition of firearm to be classified as a firearm for the purposes
of the Firearms Act. The conclusion
that this was a firearm as defined by that Act, has been criticised on the
ground that it was totally unsupported by any explanation of the basis on which
it was reached. There was nothing
to indicate for instance, that Mr. Best had tested the gun’s capabilities by
firing it. There is substance in
this criticism but there is an even more fundamental objection.
In certifying baldly that the gun was a firearm as defined by the
Firearms Act, Mr. Best was not so much expressing a scientific opinion as
deciding a question of law, for inherent in that statement is an interpretation
and application of the statutory definition of firearm.
The broadness of the conclusion so stated can be better appreciated if
one examines the definition itself. “Firearm”
is defined in section 2 (1) of the Firearms Act Chap. 16:01 as follows:
“‘Firearm’
means any lethal barrelled weapon from which ammunition can be discharged or any
prohibited weapon and includes any component part of any such weapon and any
accessory to any such weapon designed or adapted to diminish the noise or flash
caused by firing the weapon, but does not include any air-rifle, air-gun, or
air-pistol, of a type prescribed by order made by the President and of a calibre
so prescribed.”
In
the same section “prohibited weapon” is defined as meaning:
“
(a)
any artillery or automatic firearm;
(b)
any grenade, bomb or other like missile; or
(c) any
weapon of whatever description or design which is adapted for the discharge of
any noxious liquid, gas or other thing”.
It
is incumbent on an expert who sets out to establish either by a written report
or by viva voce evidence that an object is a firearm within the meaning of the
Firearms Act, to indicate by what ‘door’ the object enters the definition.
By that we mean that he must identify to which of the various categories
of object covered by the definition this particular object belongs, and
demonstrate by such means as are appropriate, why this object does fall into
that category. If one leaves aside
components and accessories, there are two categories of object that fall within
the definition of firearm. One is a lethal barrelled weapon from which ammunition can be
discharged and the other is a prohibited weapon. The latter is further divided as we have seen into three
sub-categories by a definition of its own.
More often than not, a firearm will fall into the first category i.e. a
lethal barrelled weapon from which ammunition can be discharged.
In the case of a factory-made gun, it may well be sufficient for the
expert to state that he has examined the gun, that it has a barrel and that it
is so constructed as to be capable of discharging a bullet of a particular size
and description at a speed sufficient to kill a person.
In the case of a homemade weapon it is necessary for the expert to go
somewhat further and to point to the individual components of the gun which
match the features of a firearm as described in the definition, and explain the
capabilities of the gun by reference to what the definition requires for
classification as a firearm. If it
is safe for the gun to be fired, then it would be helpful for the armourer to
have fired it and to include in his report the effect which this produced,
though this is a matter which is best left to the direction of the armourer.
He should confine himself, however, to describing the object which he has
examined, though of course with an eye to the statutory definition.
He should leave it to the Judge to decide whether in the light of his
description the object is capable of falling within the statutory definition of
firearm, and to the jury to decide whether it in fact does.
It is no part of the expert’s function to express a view on these
questions, one of which is a question of law for the Judge to decide, and the
other which is a question of fact for the jury to decide.
A statement by an expert that in his opinion a certain object is (or is
not) a ‘firearm’ within the definition of ‘firearm’ in the Firearms Act,
is inadmissible and of no probative value whatever, whether such opinion is
given in a report or in oral evidence. What
has been said in this connection about a ‘firearm’ applies equally to
‘ammunition’ and is supported on balance at least, by previous decisions of
this Court, to which I now turn my attention.
Firstly,
in Harford v. Nelson Mag. App. No. 262 of 1973, the proper
function of an expert witness who sets out to establish that items examined by
him fall within the definition of ‘ammunition’ in the Firearms Act, was
explained by Corbin JA in this way:
“It
is very essential, as I have said, that the Prosecution should establish that
these objects fall within the definition of ‘ammunition’ and although the
Armourer is competent to express an opinion about firearms and about ammunition,
in our view this is a legal point and he would have to give evidence from which
it would be established that the correct legal opinion would be that these
objects fall within the definition of ‘ammunition’.”
The
Court of Appeal in that case held that upon a critical examination of the
armourer’s evidence, it did not satisfy them that the ‘blanks’ which he
examined fell within the statutory definition of ‘ammunition’.
In
Errol Edmund & Ors. v. Morris Mag. App. No. 5 of 1973,
a corporal of police testified that a starting pistol was a “firearm” within
the meaning of the Firearms Act, but gave no explanation of why he said so.
The Court of Appeal held that his evidence on this point was inadmissible
because he had not established his expertise as an armourer but the Court also
found that his evidence was valueless “because he not only failed to state the
facts on which it was based but omitted to furnish the Court with the scientific
criteria for testing the accuracy of his conclusions”.
The
Court of Appeal did go on in that case, however, to find that on the evidence it
was established that the starting-pistol was within the definition of
‘prohibited weapon’ because it was capable of discharging a noxious
substance and as such held it to be a ‘firearm’.
Commenting on this case in Rampersad Ramdial v. The State
I said:
“Approaching
the matter from a purely commonsense point of view and without any preconceived
notion of what the rules of evidence do or do not require, it is easy to see why
in the context of this case the bald statement of the Corporal that the
starting-pistol was a firearm, without any explanation of why he said so, should
be treated as valueless”.
In
Basdeo Baldeo v. The State, Crim. App. No. 111 of 1990,
there was evidence of the appellant having been found in possession of a number
of guns consisting of a .22 rifle, a .44 rifle and a 12 bore shotgun, all
carrying the well-known brand name ‘Winchester’, and another .22 rifle. In order to prove that these guns were ‘firearms’ within
the meaning of the Firearms Act, the prosecution produced a report from an
armourer which was admitted without objection under section 19 (2) of the
Evidence Act. In that report the
armourer certified that the exhibits had been “examined, tested and identified
to be firearms”. It was submitted
in the Court of Appeal that since that report contained no statement of the
scientific criteria or factual basis required for testing its accuracy, the
document was valueless. The Court
of Appeal in rejecting that submission treated the statement in the report as
one of fact rather than of opinion (or of law).
This
decision appears to be in conflict with Edmund & Ors. v. Morris
but in Rampersad Ramdial I suggested a possible way of
reconciling them. I said:
“The
two cases can sensibly be distinguished on the basis that all that was required
of the expert in Baldeo was to confirm that the four guns
were indeed what they appeared to be, while in the case of Edmund &
Ors. v. Morris there was obviously room for doubt as to whether a
starting-pistol was within the definition of ‘firearm’ and if so, under what
head of that definition it fell”.
If
that is a valid basis for distinguishing the cases, then it seems to us that the
homemade gun in this case has more in common with a starting-pistol than with a
Winchester rifle in that it does not so self-evidently and reliably proclaim
itself to be a “lethal barrelled weapon from which ammunition can be
discharged”. If on the other
hand, the two decisions are really irreconcilable, then we hold that the
decision in Edmund & Ors. v. Morris is the one to be
preferred and followed.
Finally,
the instant case is clearly distinguishable from Rampersad
on at least two grounds. Firstly, a
juror is far more capable of understanding and considering an armourer’s
description of the features of a ‘firearm’ which bring it within the
statutory definition than he would be of appreciating and critically assessing a
scientific explanation of how the presence of cocaine was detected.
Secondly, the objection that the expert was purporting to state a
conclusion of law was not available in Rampersad.
Accordingly
we hold that the statement in Mr. Best’s report that he found that one of the
objects which he examined was a firearm “as defined within the meaning of the
Firearms Act Chap. 16:01” to be of no probative value whatever and strictly
speaking, inadmissible. The
description in the same report of the same object as “one homemade firearm”
is incapable of establishing, to adopt the language of Corbin JA, that the
‘correct legal opinion’ is that it was a ‘firearm’ within the meaning of
the Firearms Act. Accordingly, we
uphold ground No. 6 in relation to the appellant’s conviction for being in
possession of an unlicenced firearm.
We
turn now to consider the position in relation to the cartridge.
For the reasons already given with respect to the gun, we hold that the
statement in the armourer’s report that he found one of the objects he
examined to be ammunition ‘as defined within the meaning of the Firearms
Act’, was valueless and inadmissible. There remains, however, the description of this object in Mr.
Best’s report as a “1.32/7.65 mm pistol cartridge”. The primary meaning of the term “ammunition” is more
self-evident than is the case with the term “firearm”.
This is reflected in the fact that the Firearms Act uses the same word
‘ammunition’ as part of its definition of ‘ammunition’.
The definition reads in part:
“ “Ammunition” means:
(a)
ammunition for any firearm of any kind:
(b)
every shell, cartridge case, bomb, hand-grenade, bullet or like missile
whether containing any explosive or gas or chemical or not, and whether intended
to be discharge from or by any gun or other propelling or releasing instrument
or mechanism or not, except missiles which can be used only for the purpose of
extinguishing fires;
…
(e)
every bullet, clip or cartridge clip; …”
In
our view the description in the armourer’s report of the object found in the
gun as a “pistol cartridge”, preceded by a collocation of figures and
letters of the kind used to designate in millimetres the calibre or diameter of
a bullet or shell, is sufficient to constitute prima facie evidence that the
object in question was ammunition for a firearm and also comprised in part both
a bullet and a cartridge case, and therefore fall within the definition of
‘ammunition’ in the Firearms Act.
We
also consider that the identification of an object as a ‘pistol cartridge’
of a certain calibre may be made by a process of inspection and recognition
rather than testing, and may be regarded as a ‘statement of fact’ for the
purposes of section 19 (2) of the Evidence Act, so that no question arises as to
its admissibility when contained in a report introduced into evidence under that
section. We hold, therefore, that
ground No. 6 fails in relation to the charge of being in possession of
unlicenced ammunition.
Before
parting with this case there is one further matter on which we would like to
comment. At the conclusion of his
summing-up the Judge asked counsel on both sides whether they wished him to add
anything to the directions he had given. Counsel
for the defence thereupon took the opportunity to embark on what was in effect a
second speech to the jury. In this
speech he criticised the way in which the Judge had dealt with certain matters
in his summing-up, answered some of the points made against the defence by the
Judge, and made some points of his own on behalf of the defence.
This he was allowed to do at considerable length.
There followed a reply by counsel for the prosecution, which though not
as long as his opponent’s speech, was by no means brief.
Throughout all of this the Judge showed a degree of tolerance and
patience which was truly remarkable, and in our view, excessive.
Counsel should not have been allowed this second round of speeches.
If counsel are invited at the end of a summing-up to draw attention to
any omission by the Judge, they should be limited to a very brief statement in
response simply identifying the omissions (if any).
If a Judge cannot be sure that counsel will not abuse the opportunity of
responding to such an enquiry in the presence of the jury, then that opportunity
should not be offered. On the other
hand, Judges should adopt more often than they now do, the practice of
discussing with counsel in the absence of the jury before they begin to sum up,
any difficult decision they may have to take which will affect the shape of
their directions to the jury e.g. whether they should leave a particular issue
to the jury, whether and how they should deal with something prejudicial that
may have been said in the presence of the jury in the course of the trial.
It may also be necessary for the Judge to advise counsel in advance of
their speeches of any line which he proposes to take in his summing-up that is
likely to take them by surprise.
For
the reasons we have given in dealing with ground No. 6, we allow the appeal
against conviction on the charge of being in possession of an unlicenced firearm
and quash the sentence of three years’ imprisonment which was imposed on the
appellant for that offence. We
dismiss the appeal, however, against the conviction for being in possession of
ammunition without the appropriate licence and affirm the sentence of two
years’ imprisonment with hard labour which was imposed for that offence. That
sentence will run from today.
M.A. de la Bastide
Chief Justice
J. Permanand
Justice of Appeal
A. Lucky
Justice of Appeal
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