R v General

• Jurisdiction: Cayman Islands
• Judge: (Graham, J.)
• Judgment Date: 26 April 2002
• Court: Grand Court (Cayman Islands)
• Date: 26 April 2002

Grand Court

(Graham, J.)

R.

and

G.A. GENERAL

A. Mon Desir, Crown Counsel, for the Crown;

D.S. Schofield for the accused.

Cases cited:

(1) B (a minor) v. D.P.P., [2000] 2 A.C. 428; [2000] 1 All E.R. 833, considered.

(2) R. v. Howells, [1977] Q.B. 614; [1977] 3 All E.R. 417, followed.

(3) R. v. Hussain, [1981] 1 W.L.R. 416; [1981] 2 All E.R. 287; (1980), 72 Cr. App. R. 143, followed.

(4) R. v. McCafferty (R.), 2000 CILR 177, considered.

(5) R. v. NewtonUNK(1982), 77 Cr. App. R. 13; 4 Cr. App. R. (S.) 388; [1983] Crim. L.R. 198, referred to.

(6) R. v. Steele, [1993] Crim. L.R. 298, followed.

(7) R. v. Waller, [1991] Crim. L.R. 381, followed.

(8) Sweet v. Parsley, [1970] A.C. 132; [1969] 1 All E.R. 347; (1969), 53 Cr. App. R. 221, dicta of Lord Reid applied.

(9) Warner v. Metropolitan Police Commr., [1969] 2 A.C. 256; [1968] 2 All E.R. 356, followed.

(10) Woodage v. Moss, [1974] 1 W.L.R. 411; [1974] 1 All E.R. 584, followed.

Legislation construed:

Firearms Law (1998 Revision) (Law 17 of 1964, revised 1998), s.3(1):

‘No person shall import into or export from the Islands a firearm except under and in accordance with the terms of a Firearms Import permit or a Firearms Export Permit, as the case may be.’

s.15(1): The relevant terms of this sub-section are set out at para. 4.

(2): The relevant terms of this sub-section are set out at para. 4.

(3): The relevant terms of this sub-section are set out at para. 4.

Firearms-possession and use of firearms-mens rea-possession of firearm contrary to Firearms Law (1998 Revision), s.15 is strict liability offence and no proof of mens rea required-mitigating circumstances of possession to be reflected in sentencing

The accused was charged with possession of a stolen handgun and ammunition, contrary to the Firearms Law (1998 Revision), s.15(1).

The accused was a passenger in a car which failed to stop when police sought to check the driver”s documentation. During a chase, police observed a package thrown from the passenger window. As the car stopped, the accused got out of the car and produced a handgun, which he threw to the ground when the police fired a warning shot. He attempted to run away but was arrested. The handgun was found to be loaded, but the other package was not found. When interviewed by the police, the accused said he did not know where the gun had come from, and thereafter made no comment to all questions. The gun was found to have been stolen in Florida many years previously.

At his trial, the accused produced a witness statement to the effect that he had found the gun buried in the ground whilst urinating in some bushes, and had taken possession of it with the intention of later handing it in to the police to obtain a reward. He had arranged a lift with an acquaintance (whose name he did not know) to a party, but the driver had refused to drop him at the police station. The car had then been chased by police and the accused had thrown the gun from the car. When he got out of the car he had tried to run away because he was unarmed and was frightened by the shot fired by the police. Once caught, he had been assaulted by the police.

The accused requested a ruling on whether the contents of his statement could amount to a defence in law, stating that if it did not he would plead guilty and require a Newton hearing prior to sentencing. The court visited the scene where the accused claimed to have discovered the gun, but did not observe a hole in the ground.

Held, convicting the accused:

(1) The accused”s account of events, even if true, could not constitute a defence to the offence of possessing a firearm without a licence, contrary to s.15(1) of the Firearms Law (1998 Revision), since the offence was one of strict liability and the accused did not fall within any of the exceptions listed in s.15(2). Despite the presumption-in the absence of a clear indication in the legislation as to the necessary mental element of the offence-that mens rea was required, the case law interpreting equivalent English legislation showed that possession of a firearm was an absolute offence. The degree of culpability involved in a particular case could be reflected in sentencing. Consequently, had the present case gone to trial, the court would have withdrawn it from the jury”s consideration, and convicted. However, if the accused”s version of events were found to be true, an absolute discharge or a small fine would be appropriate (para. 3; paras. 6–7; paras. 11–13).

(2) The court rejected the accused”s account of how he had obtained the gun and his professed intention of handing it in to the police. That explanation given in court and his allegations of assault by the police were not credible, and the latter, even if true, did not adequately explain his refusal to answer questions when interviewed by the police. Whilst he was entitled to remain silent when questioned, he had passed up the opportunity to explain his actions, indicating that the story was in fact concocted at a later stage. The evidence as a whole indicated that the accused had been engaged in some criminal enterprise with the driver of the car, involving the package which had been thrown from it, and had then emerged from the car holding a gun in the hope of sufficiently intimidating the police to effect his escape. He would be sentenced to eight years” imprisonment (paras. 20–31).

1 GRAHAM, J.: The accused, George Anthony General, then aged 17, was, on July 21st, 2001, arrested and later charged with possession of a stolen Sturm Ruger .357 Magnum revolver and two rounds of ammunition, contrary to s.15(1) of the Firearms Law (1998 Revision). His arrest took place four days after his return to his native Cayman Islands after a year”s residence in New York.

2 At the trial of this action and after the jury had been sworn in but not put in charge, Mr. Douglas Schofield, counsel for General, asked me to rule in limine whether a witness statement made by General and served on both the court and the Crown could, in law, amount to a defence to the charge. He indicated that if the answer were in the negative his client would plead guilty to the indictment but would require the court to hear the evidence from both sides in order to establish the factual basis for its eventual sentence. In other words, a Newton hearing (5) would take place.

3 In the event, I decided that the offence charged was an absolute offence. The accused”s version in his witness statement, if accepted by the court or not demonstrated to be untrue, would amount to circumstances whereby an absolute discharge or a very small fine would be imposed. I later heard the evidence in the case and decided General”s version of the facts was untrue and contrived, and I announced my decision. I undertook to give written reasons for my decisions both as to the law and the facts, and I now do so.

The law

4 Part IV of the Firearms Law (1998 Revision) deals with the possession and use of firearms. Section 15 reads:

‘(1) Subject to subsection (2), no person shall be in possession of any firearm except under and in accordance with the terms of a Firearm User”s (Restricted) Licence.

(2) Subsection (1) shall not apply...