Kashorn John v Commissioner of Police

• Jurisdiction: St Vincent and the Grenadines
• Judge: EDWARDS J.A. [AG.],Ola Mae Edwards,Dane Hamilton, QC,Tyrone Chong, QC
• Judgment Date: 16 September 2008
• Judgment citation (vLex): [2008] ECSC J0916-6
• Court: Court of Appeal (Saint Vincent)
• Docket Number: MCRAP 2007/086
• Date: 16 September 2008

[2008] ECSC J0916-6

IN THE COURT OF APPEAL

Before :

The Hon. Mde. Ola Mae Edwards Justice of Appeal [Ag.]

The Hon. Mr. Dane Hamilton, QC Justice of Appeal [Ag.]

The Hon Mr. Tyrone Chong, QC Justice of Appeal [Ag.]

MCRAP 2007/086

Between:

Kashorn John

Appellant

and

Commissioner of Police

Respondent

Appearances:

Mr. Bertram Stapleton for the Appellant

Mr. Colin Williams, Director of Public Prosecutions and

Mr. Carl Williams for the Respondent

Criminal Appeal — Unlawful possession of a firearm — Section 4(3) of the Firearms Act No. 12 of 1995 of the Laws of St. Vincent and the Grenadines — Appeal against conviction — whether safe or unsatisfactory — quality of evidence that must be adduced by the prosecution from the ballistics expert — whether the homemade gun was a firearm — definition of firearm — Appeal against sentence — what are the guidelines for sentencing in firearm offences — whether the chief magistrate took all of the guidelines into account —

The appellant was convicted for unlawful possession of a firearm and sentenced to three (3) years imprisonment. She appealed against her sentence only on the ground that it was severe and too harsh having regards to her personal circumstances, but was given leave to appeal against her conviction at the hearing. The weapon in question is a homemade gun and the appellant contends that there is no evidence that it is one from which a missile can be discharged and that it is impossible to get a license for the alleged firearm. The main issue on this appeal is whether the prosecution led sufficient evidence from the ballistics expert to secure a conviction for unlawful possession of a homemade firearm.

Held: dismissing the appeal against conviction and allowing the appeal against sentence by reducing the sentence of 3 years imprisonment to 18 months imprisonment:

• (1) The prosecution had adduced sufficient evidence from which the chief magistrate could find that the homemade gun was the "component part" of what was necessary to make a lethal barreled gun from which a deadly 12 gauge shot could be discharged; and the homemade gun in question was a "firearm" as defined in section 2(c) of the Firearms Act.

• (2) Where on the ballistics expert evidence there is insufficient proof or doubt that the weapon has the capacity to discharge a deadly missile the court should proceed and consider whether the subject of the charge is the "component part" of such a weapon. There is no requirement under the Firearms Act that the subject matter should be the "component part" of a lethal barreled weapon that is in existence. What is required is that the subject matter is a necessary part to make a lethal barreled weapon from which a deadly missile can be discharged, or that the subject matter in its existing state can be made to work as such a weapon by adapting it, or adding to it a missing component part, or replacing a defective component part. There must be evidence adduced which proves beyond a reasonable doubt that the subject of the charge is the "component part" of a weapon described under section (a) or (b) of the definition of a "fireman."

  R v Elliston Watson (1979) 28 W.I.R. 123 ; Leroy Clint v The State (2001) 62 W.IR. 366; R v Kenneth Rose (1977), 16 J.L.R. 8 considered and distinguished.

  Cafferata v Wilson; Reeve v Wilson [1936] 3 All E.R. 149 [1936] 3 All E.R. 149; R v Brandford Freeman (1970) 54 Cr. App. T. 251 ; Quincy Duncan and Chief of Police Mag. Cr App No. 1 of 2004 (St. Christopher and Nevis) delivered 28^th July 2004 followed.

• (3) In determining the appropriate level of sentence the chief magistrate ought to have taken into account the fact that the home made gun was the "component part" of a lethal barrelled weapon, and that the appellant had no previous conviction and was not the user of the firearm; and these circumstances should serve to reduce the appellant's period of imprisonment from 3 years to 18 months.

  Kenrick Marksman and Commissioner and Police Mag. Cr. App. No. 41 of 2003 (St. Vincent and the Grenadines) 6/12/04; R v Avis and Others [1998] Cr. App. R. 420 applied.

EDWARDS J.A. [AG.]

1 This appeal raises the question as to the quality of the evidence that must be adduced by the prosecution from the ballistics expert in order to sustain a conviction for illegal possession of a homemade firearm under section 4 (3) of theFirearms Act No. 12 of 1995 of the Laws of St Vincent and the Grenadines ("the Act").

2 On the 9^th August, 2007 the appellant Kashorn John was tried and convicted in the First Magisterial District Court at Kingstown, St. Vincent for unlawful possession of a firearm under section 4(3) of the Act. She was not represented by a lawyer at her trial. She was sentenced to three (3) years imprisonment.

3 The appellant had appealed against sentence only. At the hearing of the appeal the court gave her leave to appeal against her conviction also. The grounds of appeal were: (1) there is no evidence that the "gun" is one from which a missile can be discharged; (2) it is impossible to obtain a license for the alleged firearm. The other grounds relate to the sentence imposed by the Chief Magistrate which the appellant contends was severe and too harsh having regard to her personal circumstances.

4 At the trial the prosecution called 5 witnesses including Inspector Ardell Tannis who is a gazetted ballistics expert. The weapon in question is a homemade "firearm" which was found in a knapsack that the appellant had taken up from a window ledge on the approach of the police, put it at the side of her house, and had then run with it to the eastern side of her house where she threw it through an open window into a bedroom occupied by a child. The finding of Chief Magistrate Simone Churaman that the appellant was in possession of the homemade firearm has not been challenged by the appellant on appeal.

Ballistic Expert's Evidence

5 Inspector Tannis testified that on Tuesday 7^th August, 2007 PC Morgan gave him a home made firearm, which had the characteristics of a professionally manufactured firearm. It had a perfect working trigger mechanism. The barrel was made from pipe. The hammer was made of scraps of metal. He said he checked the caliber of weapon; put a 12 gauge cartridge in the barrel which fit perfectly. He then attempted to close the weapon with the bullet in it, the weapon closed. The fire mechanism was in perfect working condition. He was unable to lock the round in the barrel. He did not test fire the weapon as it was possible that on explosion of the bullet he might sustain personal injury. In his opinion, the gun, if fired will discharge the 12 gauge cartridge and the weapon is capable of discharging 12 gauge shots. His opinion was not challenged as the appellant failed to cross-examine the witnesses for the prosecution.

The Law

6 The learned chief magistrate, had to determine whether the homemade gun in the knapsack was "a firearm" or a "component part" of a firearm within the definition in section 2 of the Act which states that "firearm" means—

• (a) any lethal barreled weapon capable of discharging any shot, bullet or missile;

• (b) any restricted or prohibited weapon;

• (c) any component part of a weapon described at (a) or (b);

• (d) any accessory to any weapon described at (a) or (b) designed or adapted to diminish the noise or flash or discharge of such weapon.

7 Under the Act a "restricted weapon" means "any weapon designed or adapted for the discharge of noxious liquid, gas or other substance; and a "prohibited weapon" means "(a) any automatic firearm; (b) any grenade, bomb or other similar missile."

Submission of Appellant's Counsel

8 Learned counsel Mr. Stapleton, referred us toArchbold on Criminal Practice 2006 where it is stated that "whether a weapon is a firearm is a question of fact; and reported cases do not establish as a matter of law that a particular type of weapon is a firearm."1 Mr. Stapleton submitted that the magistrate as trier of fact had to satisfy herself that the homemade weapon was a lethal barreled weapon; capable of discharging a shot, bullet or missile; and that the evidence did not establish this beyond a reasonable doubt.

9 In the course of the arguments before us we were referred to the following cases in which each appellant had appealed against his conviction for unlawful possession of a

homemade firearm under the respective firearms legislation: R v Elliston Watson (1979) 28 W.I.R. 123;2Leroy Clint v The State (2001) 62 W.I.R. 3663 The definition of a "firearm" in section 2 of the Firearms Act (Jamaica) is similar to the statutory definition in St Vincent and the Grenadines and Trinidad and Tobago.

10 InEllison Watson the Court of Appeal in Jamaica held that a ballistics expert, in the light of his knowledge and experience of firearms, may well upon examination of a weapon 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. If the court accepted the ballistics expert's evidence that with the addition of a firing pin the weapon was capable of discharging deadly missiles it would be a "component part" and therefore within the definition of firearm.

11 Henry J.A. "observed that a test firing need not be conducted in order to establish that the weapon in question is or is not a firearm…At the same time where a home made weapon is involved more evidence will generally be required to enable a court to draw inferences as distinct from indulging in mere speculation as to its capability. In order to qualify as a firearm a weapon must be lethal barreled and capable of discharging a shot, bullet or other missile. That it is barreled 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...