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'5' Or 'S': Firearm Conviction Overturned On Technicality

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

A MAN’S conviction for having an illegal firearm has been overturned because of the appellate court’s uncertainty over whether the serial number of the firearm police said they found him with contained the number “5” or a capital “S”.

Police said the serial number of the firearm recovered from Sean Wright’s car in 2011 was TD572610, but a subsequent forensic firearms expert’s report noted the receipt of a firearm bearing the serial number TDS72610.

And it was that “inconsistency” combined with unexplained gaps in the firearm’s chain of custody, and an unexplained hole in the exhibit bag, that prompted appellate Justices Jon Isaacs and Milton Evans to set aside Wright’s 18-month sentence and $5,000 fine. Court of Appeal President Sir Hartman Longley dissented.

According to the ruling, at about 10.40pm on November 4, 2011, Corporal Deon Moss was having dinner at Indigo Café on West Bay Street and Skyline Drive when he observed Wright enter the restaurant and sit at a table where another man and woman were having dinner. A few minutes later the appellant got up from the table and fixed his clothing, and while doing so, Cpl Moss observed what appeared to be the handle of a firearm in the appellant’s right front pocket.

Wright subsequently exited the restaurant, and the officer followed him. In doing so, Cpl Moss observed Wright getting into a silver Range Rover, licence plate number 238197. The vehicle then reversed onto Skyline Drive and proceeded around the roundabout in a western direction. Cpl Moss subsequently contacted the Cable Beach Police Station and gave Corporal 73 Mackey certain instructions.

Another officer, Corporal Charles Anthon, testified that about 11.15pm on the same night, he was on mobile patrol in a marked police vehicle in uniform along with Reserve Corporal Symonette when acting on information received, they went to Olive’s restaurant. While there he observed a silver Range Rover fitting the description given.

Cpl Anthon said he located the driver of the vehicle who identified himself as Wright. Cpl Anthon said he told Wright he had information that he was in possession of an unlicenced firearm, at which point Wright admitted that he was in possession of an unlicensed weapon and it was in the vehicle.

Cpl Anthon said Wright gave him a key to the vehicle, and after searching the car in Wright’s presence, he discovered a black handgun, serial number TD572610 in the centre console . Upon examining the weapon, it was found to contain seven live rounds of ammunition. Cpl Anthon said he arrested and cautioned Wright, who said, “Officer, I’m not that kind of people. I live in the ‘White Grove’ area where persons attempt to rob us occasionally.” Cpl Anthon further stated that he marked the black handgun for future identification purposes.

A forensic firearms report prepared by firearms examiner Charles Bain was entered into evidence. In his report, Mr Bain said on December 15, 2011, he received one Taurus 9mm Luger caliber model PT-709 auto loading pistol, serial number TDS76210 and seven 9mm Luger caliber unfired cartridges from P/C 3098 Gray.

At the close of the Crown’s case, Wright’s attorney made a no-case submission on his behalf. After the court did not accede to the no-case submission, Wright exercised his right to remain silent.

Chief Magistrate Joyann Ferguson-Pratt convicted and sentenced Wright to 18 months in prison together with a fine of $5,000 for being in possession of both the firearm and the ammunition. She ordered that if he didn’t pay the fine, he would face an additional 18 months in prison.

At the time, the chief magistrate said she was “satisfied” that based on the Crown’s case, the firearm found in the vehicle was the firearm exhibited during the trial notwithstanding the issue over whether the gun’s serial number bore a “5” or a “S”. She concluded that “it was the benefit of the expert eyes that could distinguish between the letter and the figure, ‘S’ and ‘5’”.

She further ruled that she did not find there to be a broken chain of custody, and neither did she find any “material evidence” to substantiate the claim that the integrity of the exhibits was compromised from the time the firearm was discovered to its production in court.

However, Justices Isaacs and Evans disagreed with the chief magistrate’s ruling for the most part, asserting that her explanation of how she resolved the issue with the serial number was “based on speculation and not evidence led before her.”

Firstly, the appellate judges noted that Cpl Anthon never identified the items as being the same ones he found in Wright’s car. The record showed that Cpl Anthon’s evidence was that he marked the firearm he took from Wright with his police number. However, the record did not reflect him being shown the firearm in court and his identifying the mark on the gun as being the one made by him.

Additionally, the appellate judges said the Crown provided no evidence to account for the difference between Cpl Anthon’s and Mr Bain’s evidence concerning the serial number.

“In the circumstances which pertained it was of the utmost importance that the Crown be able to trace the items from the hands of (Cpl Anthon) to that of Mr. Bain,” Justice Evans said. “If this was done the difference in the serial numbers would be of less significance. As noted earlier the evidence is that Charles Bain received the purported firearm and ammunition from (Officer Gray). However, there is no evidence as to who (Cpl Anthon) passed the items to which were found by him. Likewise there is no evidence as to from whom (Officer Gray) received the items which he passed to Bain to be examined. It follows then that in my view the prosecution failed to establish that the items tested by Bain were the same ones found by (Cpl Anthon).”

He added: “In my view the learned magistrate on the state of the evidence erred in admitting into evidence a firearm and ammunition that was not shown to be the firearm and ammunition allegedly recovered. Further that on the state of the evidence the firearm and the ammunition allegedly recovered was not shown to be the firearm and ammunition that was examined. In these circumstances, it follows that she should have accepted the no case submission as without the nexus between the items found and those tested an essential element of the prosecution’s case was missing.”

Wayne Munroe, QC and Christina Galanos represented Wright on appeal.

Comments

DDK 3 days, 6 hours ago

So, are Bahamians now permitted to license pistols or revolvers for home self-defence?

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