By LAMECH JOHNSON
Tribune Staff Reporter
A MAN was told yesterday that he should have offered sworn testimony in his defence if he had, in fact, panicked when a former Defence Force marine, to whom he had given a ride, pulled out a gun and began firing shots and were moments later pursued by police.
Steven Wemyss and his lawyer, Ian Cargill, appeared in the Court of Appeal seeking an approval of Wemyss’ extension of time application concerning his appeal against conviction for possession of an unlicensed firearm and possession of ammunition.
Officers responded to reports of gunshots near the Hot Spot on Faith Avenue around 2.40am on October 6, 2014. They allegedly saw Phillip Adderley and Wemyss leaving the area in a white Honda Accord. Adderley, the passenger, was allegedly firing shots into the air as the car sped away. He had completed a tour of duty at the Defence Force base shortly before the incident.
Police eventually stopped the car and found a 9mm pistol with its serial number erased and five rounds of 9mm ammunition in the glove compartment. The car belonged to Wemyss, who worked as a bellboy at Atlantis.
Wemyss denied any involvement or knowledge of the weapon but remained silent at his trial before Magistrate Samuel McKinney. He and Adderley were ultimately convicted and sentenced to two years at the Department of Correctional Services.
In yesterday’s appellate hearing, Mr Cargill said the appeal had been filed out of time by a mere 13 days only due to the inability of Wemyss’ family to raise the necessary funds to retain counsel to argue his appeal.
“Once his mother was able to find the funds, he was able to instruct counsel,” Mr Cargill said.
“You don’t need funds to file an appeal, you can file an appeal by yourself,” Justice Dame Anita Allen countered.
“For the average person, they don’t know,” the lawyer said.
“Everyone is presumed to know the law. What else can be said if you’re told that you have seven days to file your appeal,” the appellate president said, adding that the law was clear in requiring the magistrate to inform the convict that they can assert their right to appeal on the condition it is done within a week.
“I’d say there wasn’t an inordinate delay,” the lawyer said.
“What are the prospects of success if the extension is granted?” Dame Anita asked.
Mr Cargill said there was no evidence at the trial which suggested the appellant had custody of the firearm. “The magistrate inferred that because he didn’t stop right away that he knew of the gun,” the lawyer said.
“Wasn’t the case done on the fact that it was a joint enterprise?” Justice Roy Jones asked.
“We say the appellant didn’t know of the firearm until it was drawn and fired and he eventually stopped. He did not run and he remained at the scene,” Mr Cargill answered.
The lawyer was asked if the co-accused had given sworn testimony and he said yes. “But the magistrate found that it was the passenger who fired the muzzled shots,” Mr Cargill added. He said the appellant had denied the offence.
“So what are the prospects of success of the appeal?” Justice Stella Crane-Scott asked.
“He was not in possession of the firearm,” the lawyer said.
“But it was in the car being pursued by police, the car being driven by the appellant,” Justice Crane-Scott said.
All three judges queried why Wemyss did not seek to immediately distance himself from the actions of the co-accused when they were stopped by police.
Mr Cargill said his client panicked.
“And say nothing at your trial?” the appellate president asked.
Mr Cargill said that people react differently in sudden, stressful situations.
“Didn’t the evidence say that the car was stopped at a dead end road?” Justice Jones probed.
“I don’t know that it was,” the lawyer said.
“Your client did not make an answer to the charge. I accept that he had a right to remain silent but it called for an answer,” Dame Anita said.
“He was the driver of the vehicle,” Justice Jones added in agreement.
“If you remain silent, there may be consequences, depending on the evidence, and in this case, the evidence called for an answer,” the appellate president said.
Mr Cargill said that even though Wemyss remained silent, his defence was made in cross-examination of the prosecution witnesses, when it was confirmed that the shots were fired from the passenger’s side of the vehicle.
The appellate court did not call on Crown respondents Eucal Bonaby and Randolph Dames to respond to the submissions when they made their decision.
“We’re satisfied the appeal has no prospects of success. We refuse the extension and the conviction and sentence shall stand,” the appellate president ruled.