R v Webster
| Jurisdiction | Cayman Islands |
| Judge | (McDonald-Bishop, Ag. J.) |
| Judgment Date | 11 December 2019 |
| Date | 11 December 2019 |
| Court | Grand Court (Cayman Islands) |
(McDonald-Bishop, Ag. J.)
Firearms — possession and use of firearms — “in possession” — defendant acquitted of possession of unlicensed firearm and ammunition found in his home — prosecution failed to prove defendant knew firearm and ammunition hidden on premises and had them under his control — no DNA or fingerprints of defendant on firearm or ammunition — presence of DNA of defendant and others on packaging in which firearm and ammunition wrapped insufficient
Held, finding the defendant not guilty:
The prosecution had to prove, to the extent that the judge was sure, that the defendant was in possession of the firearm and ammunition. The critical question was whether the defendant knew that the items were hidden in his house and that he had them under his control. The defendant did not have exclusive occupation and control of the house and therefore nothing turned on the fact of his ownership and occupation of the property, standing alone. The firearm and ammunition were found in a secret compartment in the kitchen. It was not a location to which persons unconnected to the house would have had ready and easy access. The judge had no doubt that someone in the house knew the firearm and ammunition were there and could have retrieved them or permitted others to retrieve them. However, the location, by itself or when coupled with the elements of ownership and occupation, was not enough to ground possession in the defendant. In order for the DNA evidence to assist theprosecution it must be proved beyond a reasonable doubt that not only was the defendant’s DNA on the objects (which the judge concluded it was) but that (a) the DNA was deposited directly by the defendant and not by secondary or indirect transfer; and (b) his DNA was deposited by him during the commission of the offence, i.e. while he handled the firearm and placed it behind the microwave. The prosecution’s case was substantially weakened by the absence of any DNA or other scientific evidence linking the defendant to the firearm and ammunition. As the defendant lived in the house, it was unsurprising that his DNA was found on the wooden ledge near the location of the firearm and ammunition. The presence of his DNA did not necessarily mean that he had come into direct contact with it. Furthermore, it was mixed with his wife’s DNA. In relation to the towel and plastic bag, which were easily movable items and could have been found in the defendant’s house in the ordinary course of things, there was nothing surprising about his DNA being found on them. There was no evidence establishing the date on which or the circumstances in which his DNA came to be on them. He could have innocently come into contact with them or he might not have come into direct contact with them at all. Secondary transfer of his DNA to those items could not be ruled out. There was also the DNA of other unidentified persons. When the DNA evidence was considered against the background of all the circumstances of the case and the relevant legal principles, there was no evidence from which the judge could conclude, to the extent that she was sure, that the defendant had touched the firearm with or without a barrier and had knowledge of its presence in his house. The court concluded that not only the defendant but also any other occupant of the house with knowledge of and access to the secret compartment behind the microwave could have placed the firearm and ammunition there. A third party, acting in collusion with someone in the house, could also have done so. The judge was not satisfied to the extent that she was sure of the defendant’s guilt (paras. 49–53; para. 80; paras. 101–120).
(1)Campbell v. H.M. Advocate, [2008]HCJAC50, considered.
(2)Hall v. Cotton, [1987] 1 Q.B. 504; (1986), 83 Cr. App. R. 257, referred to.
(3)McLauglin v. R., CICA Crim. App. 22/15, August 23rd, 2016, referred to.
(4)Maguire v. H.M. Advocate, Appeal No. XC589/03, Appeal Ct., High Ct. of Justiciary, October 30th, 2003, referred to.
(5)Martin v. R., CICA Crim. App. No. 2/2010 (Ind. 27/2009), December 7th, 2010, dictum of Mottley, J.A. applied.
(6)R. v. Adams (No. 1), [1996] Crim. L.R. 898; [1996] 2 Cr. App. R. 467, referred to.
(7)R. v. Adams (No. 2), [1999] 1 W.L.R. 1500; [1998] 3 All E.R. 805, [1998] 1 Cr. App. R. 377, referred to.
(8)R. v. Bryon, [2015] EWCA Crim 997; [2015] 2 Cr. App. R. 21, referred to.
(9)R. v. Doheny, [1997] Crim. L.R. 669; [1997] 1 Cr. App. R. 369, referred to.
(10)R. v. Ebanks (C.M.), Indictment Nos. 50/11 & 3/12, referred to.
(11)R. v. FNC, [2015] EWCA Crim 1732; [2016] 1 W.L.R. 980; [2016] Crim. L.R. 275; [2016] 1 Cr. App. R. 12, referred to.
(12)R. v. Grant, [2008] EWCA Crim 1890, referred to.
(13)R. v. Kelly, [2014] EWCA Crim 1968, referred to.
(14)R. v. Ogden, [2013] EWCA Crim 1294, referred to.
(15)R. v. Tsekiri, [2017] EWCA Crim 40; [2017] 1 W.L.R. 2879; [2017] Crim. L.R. 628, referred to.
(16)R. v. Whorms, CICA Crim. App. No. 19/2008 (Ind. 308/2008), August 25th, 2010, considered.
(17)Sullivan v. Earl of Caithness, [1976] 1 Q.B. 966; [1976] 1 All E.R. 844; (1976), 62 Cr. App. R. 105, referred to.
Penal Code (2017 Revision), s.3: The relevant terms of this section are set out at para. 41.
The defendant was charged with possession of an unlicensed firearm and ammunition.
A joint team of police and customs officers had executed a search warrant at the defendant’s home and found a firearm and ammunition. The firearm and ammunition were found wrapped in a towel in a plastic bag which was hidden in a secret compartment behind the microwave on a wooden ledge. It was not an easy location to access. The defendant lived with his wife and their minor children. Their helper was also at the property during the daytime and occasionally at night.
The major findings of the prosecution’s DNA expert were that (a) DNA matching that of the defendant and his wife was found on the wooden edge near the plastic bag; (b) DNA matching the defendant’s DNA profile was found on one side of the towel and on the interior of the plastic bag (there was also evidence of the presence of other persons’ DNA on the towel and the outside of the bag); (c) no DNA matching the defendant or his wife was found on the firearm or ammunition (there was a multi-source mixture of the DNA of other persons on the firearm); and (d) there was no DNA matching the helper’s profile on any of the items examined. There was evidence of the presence of the DNA of at least four persons on the exterior of the plastic bag. No identifiable fingerprints were recovered. The defendant and his wife were charged with illegal possession of the firearm and ammunition. The wife was discharged at the committal proceedings.
The defendant denied any knowledge of the firearm and ammunition being in his home.
“Possession” was defined in s.3 of the Penal Code (2017 Revision):
“‘[P]ossession’ includes not only having in one’s own personal possession, but knowingly having anything in the actual possessionor custody of any other person, or having anything in any place (whether belonging to or occupied by oneself or not) for the use or benefit of oneself or any other person, and if there are two or more persons and any one of them or more of them with the knowledge and consent of the rest has or have anything in his or their custody or possession, it shall be deemed and taken to be in the custody and possession of each and all of them . . .”
The joint conclusion of the experts was that—
“there is no way to differentiate between the two competing propositions that which is more likely—whether Elton Webster had handled the firearm (with a barrier such as the yellow cloth) and none of the DNA was deposited or that he did not directly handle the firearm and his DNA was deposited to the inside of the Ziploc bag and to the yellow cloth, either by direct or indirect means which could be independent, prior to the introduction of the firearm.”
The prosecution’s contention was that the circumstances—i.e. the defendant’s ownership and occupation of the house, the place in the house in which the firearm and ammunition were found, which was a secret compartment with restricted access, and the defendant’s DNA on the packaging in which the firearm and ammunition were found—gave rise to the obvious and inescapable inference that the defendant put the items behind the microwave and, at all material times, was in unlawful possession of them. There was no plausible explanation to the contrary.
The defendant submitted that there was insufficient evidence to establish possession. The prosecution could not prove his guilt beyond a reasonable doubt with the competing possibilities, none of which could be excluded. The defendant did not have exclusive use of the house. The evidence did not exclude the possibility of a third party placing the firearm behind the microwave. The DNA evidence did not establish guilt. There was no evidence of custody, control and actual knowledge on the part of the defendant.
C. James-Malcolm for the Crown;
A. Fosuhene for the defendant.
1 McDONALD-BISHOP, Ag. J.: The defendant, Elton David Webster, is charged on an indictment containing two counts. The first count charges him with the offence of possession of an unlicensed firearm, and the second with the offence of possession of ammunition, both contrary to s.15(1) and 15(5) of the Firearms Law.
2 The combined particulars of both offences aver that on or about April 11th, 2018 at an address at Elderberry Drive, Bodden Town, Grand Cayman, in the Cayman Islands, the defendant had in his possession a Glock 17 9mm. pistol and fifty nine (59) rounds of firearm ammunition, which were not in accordance with the terms of a Firearms User’s (Restricted) Licence.
3 To this indictment, the defendant pleaded not guilty and subsequently elected trial by judge alone.
4 The defendant is presumed by law to be...
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