R v McCafferty

JurisdictionCayman Islands
Judge(Graham, J.)
Judgment Date31 May 2000
Date31 May 2000
CourtGrand Court (Cayman Islands)
Grand Court

(Graham, J.)

R.
and
McCAFFERTY

Ms. A. Clarke, Crown Counsel, for the Crown;

M. Rosen and J.R. McDonough for the accused.

Cases cited:

(1) R. v. NewtonUNK(1982), 4 Cr. App. R. (S.) 388; [1983] Crim. L.R. 198.

(2) R. v. Sault Ste. Marie (City)UNK(1978), 85 D.L.R. (3d) 161; 40 C.C.C. (2d) 353, applied.

(3) R. v. WilliamsUNK(1998), 40 O.R. (3d) 301; 125 C.C.C. (3d) 552, followed.

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

Legislation construed:

Customs Law (1998 Revision) (Law 17 of 1990, revised 1998), s.10(1): The relevant terms of this sub-section are set out at page 181, lines 10–17.

Firearms Law (1998 Revision) (Law 17 of 1964, revised 1998), s.3(1): The relevant terms of this sub-section are set out at page 179, lines 35–37.

(2): The relevant terms of this sub-section are set out at page 179, lines 38–40.

s.4(1): The relevant terms of this sub-section are set out at page 180, lines 14–17.

s.7: The relevant terms of this section are set out at page 180, lines 20–27.

s.12(1): The relevant terms of this sub-section are set out at page 180, lines 32–39.

(2): The relevant terms of this sub-section are set out at page 180, lines 40–42.

(3): The relevant terms of this sub-section are set out at page 180, lines 43–45.

Firearms-importation-unlicensed importation-mens rea essential element of offence under Firearms Law (1998 Revision), s.3-knowledge of presence of firearm amongst imported goods necessary for conviction

Criminal Law-strict liability-presumption against strict liability-presumption against creation of offence of strict liability unless clear words or irresistible inference from statute as a whole

The accused was charged with importing a firearm without a permit, contrary to s.3 of the Firearms Law (1998 Revision).

The accused was found in possession of a shot-gun and ammunition, together with other undeclared items upon which duty was owed, during an inspection by customs officers of his personal effects recently imported from Canada.

The accused pleaded not guilty. He had bought a house in the Islands and arranged for his furniture to be forwarded. On the day that packing took place there had been considerable confusion and the particular pieces of furniture in which the gun and ammunition were found had allegedly been included for shipping inadvertently by his agents. In Canada, the accused held a gun-dealer”s licence and the shot-gun itself was specifically licensed for use there. He had no previous convictions.

The Crown submitted that since the offence of importing a firearm without an import permit was one of strict liability and did not require proof of mens rea, it was irrelevant whether the accused knew of the presence of the gun in the shipment before its discovery by customs officers.

The accused submitted in reply that (a) he had not knowingly imported the firearm, since he had only realized that it had been included with the shipment when the ammunition was found in another piece of furniture, also wrongly shipped; (b) since s.3 of the Firearms Law disclosed no clear intention by the legislature to create an offence of strict liability, mens rea was impliedly required for the commission of the offence; and (c) accordingly, although he was aware of the unlawfulness of importing a firearm without a permit, he had committed no offence.

Held, acquitting the accused:

(1) Since the word ‘import’ was not defined in the Firearms Law and the legislature had not indicated by clear words in s.3 an intention to create an offence of strict liability, mens rea was a necessary element of

the offence of importing a firearm without a permit. As a matter of policy, it was to be presumed that the legislature did not intend to criminalize unintentional behaviour unless it expressly so provided or that intention was irresistibly to be inferred from the Law as a whole. This was particularly so in view of the grave penalties attached to s.3. The concept of mens rea was specifically retained in other provisions relating to illegal imports (e.g. ss. 4 and 7). Furthermore, by contrast with other provisions of the Firearms Law and the Customs Law, s.3 contained a restriction, not an absolute prohibition on importation. Accordingly, the Crown must show that the accused intended to import the shot-gun (page 180, line 7 – page 182, line 12).

(2) The court was not satisfied that the accused had deliberately con-cealed the firearm and ammunition in order to evade restrictions on importation. He had no particular need of a firearm here and had taken no great precautions to avoid its detection. Having invested considerable funds in moving to the Islands, his future here would have been placed at risk upon discovery. Furthermore, as a man of good character and a licensed gun-dealer in Canada, he would probably have been granted an import permit had he applied for one. Notwithstanding that he had been advised of the stringency of Cayman law on this matter, and despite his attempt to evade duty payable on other goods, the Crown had failed to discharge its burden of proof. The accused would be acquitted, but the gun and ammunition would be forfeited (page 185, line 21 – page 186, line 14).

GRAHAM, J.: On July 27th, 1999, a sealed container containing the
household effects of the accused, Rex McCafferty, was brought to the
front of his recently-purchased villa in Southampton Gardens, West Bay
Rd., Grand Cayman. It was there to be opened and inspected by H.M.
15 Customs. The customs officers arrived at about 10 a.m. but did not
commence their inspection until 2 p.m. This was due to a dispute as to the
payment of duty. The accused maintained that he was not liable to pay
any duty because he had been admitted to the Islands on a six-month
residential permit but Customs contended that he was liable to pay duty.
20 In that respect H.M. Customs was correct in law. The discussions
between McCafferty and the officers became somewhat heated on his
part, so that the actual inspection did not commence until 2 p.m. In the
course of searching items of furniture as they were being unloaded from
the container, a box of 12-bore cartridges and a gun-case were found. At
25 this point, McCafferty was asked if he had a firearm in the container and
he acknowledged that he had. Another officer was summoned to attend
and a 12-bore pump-action shot-gun was discovered in the bottom drawer
of a chest of drawers-cum-bookcase.
The accused had no firearms import permit allowing the lawful
30 importation of that shot-gun, which was a ‘firearm’ within the meaning
of s.2 of the Firearms Law. The accused is a Canadian national who
intended when he came to the Islands to set up permanent residence here.
He is charged on one count alleging the importation of a firearm contrary
to s.3 of the Firearms Law. The relevant sub-sections read as follows:
35 ‘(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.
(2) A person who contravenes subsection (1) is guilty of an
offence and liable on conviction to a fine of one hundred thousand
40 dollars and to imprisonment for twenty years.’
The Crown submitted to me that the offence created in sub-s. (1) is
absolute and therefore does not require the establishment of mens rea.
The defence contends that mens rea is an essential
...

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1 cases
  • R v General
    • Cayman Islands
    • Grand Court (Cayman Islands)
    • 26 Abril 2002
    ...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, [1......

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