The Queen v Fabian Oliver Thompson
| Jurisdiction | Cayman Islands |
| Judge | Mr. Justice Malcolm Swift |
| Judgment Date | 08 May 2017 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | Ind. No.: 0092/2016 |
| Date | 08 May 2017 |
Hon. Mr. Justice Malcolm Swift (Actg.)
Ind. No.: 0092/2016
IN THE GRAND COURT OF THE CAYMAN ISLANDS
CRIMINAL SIDE
Criminal Law — s.18(6) of the Firearms Law — Possession of an imitation firearm with intent to commit an offence — No Case to Answer submission — Evidence of the essential ingredients of the offence argued.
Ms. Nicole Petit for the Crown
Ms. Prathna Bodden of Samson Law for the Defendant
On a charge of possession of an imitation firearm with intent to commit an offence, the Defendant elected to be tried by Judge Alone and, at the close of the Crown's case the Defence made a submission of no case to answer.
The defence submits that there is no case to answer, invoking the well-known principles expressed in the leading case of Galbraith 1 in which Lord Lane CJ stated:
“How then should the judge approach submission of no case? (1) if there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence that it is of a tenuous character, for example because of inherent weakness of vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that that its strength weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.”
It is argued that there is no evidence of the essential ingredients of the offence and alternatively that, if the case stopped here, I, as tribunal of fact, could not at this stage of the proceedings properly direct myself to properly convict the Defendant on this evidence.
The Defendant is charged with possession of an imitation firearm with intent to commit an offence contrary to s.18(6) of the Firearms Law (2008 Revision) — the particulars being that he had with him an imitation firearm on the 20 th January 2016 at 100, Kitty Lane, Bodden Town with intent to resist arrest and the facts are as follows.
On the 20 th January 2016 Police Officers, on information received, attended 100, Kitty Lane at 12:02pm. This was the home of Abbott Thompson, and the Defendant, who is his son.
The Defendant was seen coming from the direction of one of the bedrooms. He was wearing a basketball top and a large pair of shorts with a pair of jeans pants in his hands held at the front of his waist band. The jeans pants were taken from him. He walked quickly away from the door of the house and then, when one officer asked other officers to search him, walked backwards and forwards preventing those officers from searching him.
PC Grant shouted to the Defendant to stop but, instead, the Defendant veered off in the direction of a shed and jumped the adjacent fence at the same time pulling what appeared to be a black-coloured 9mm pistol out of his front right shorts front pocket. PC Grant immediately saw the butt and magazine parts of the weapon and said it was being held in the right hand as a pistol would ordinarily be held. He had 16 years of firearms experience. He said “He held it like a firearm and it looked like a firearm”.
PC Grant shouted “gun” and fired his Taser at the Defendant.
On the other side of the fence, on being hit with the Taser, the Defendant was caused to stumble and fall with the effect also of detaching the Taser wires from which the Defendant was able to free himself and make good his escape. He continued to run away from the officers with the item still in his hand.
From being struck by the Taser, the events are shown on the Taser recording which I have viewed several times in real time and in slow motion.
Inhibited by the presence of what they believed was a firearm, the officers, on reaching the undergrowth, did not give immediate chase to the Defendant as they were frightened of being shot, and so had to go through pre-pursuit procedures. The Defendant was lost in undergrowth.
The Defendant was only a short distance from the officers when observed — being only 3–4 feet from PC Grant and up to 10 feet from PC Millwood. PC Gibson also saw the item. PCs Gibson and Millwood had 19 years' and 16 years' firearms experience respectively. DC Reid viewed the Taser video footage and said he recognised the Defendant to be holding what appeared to be a black 9mm pistol. The item in question was never recovered.
The pistol (if that is what it was) was never intentionally pointed at the officers or used towards them although, having failed to halt the Defendant with the Taser, the officers were inhibited in their pursuit by its perceived presence. The object does point in the direction of the officers as the Defendant was falling over, after being hit by the Taser, but I am satisfied that this pointing was simply in the course of falling over and getting up again.
At 08:56 on the 26 th January 2016 the Defendant turned himself in. He was arrested and Interviewed at 15:35. He made a prepared statement stating that he did not have anything in his waistband (As far as I can discover, the Police had not suggested to him that the item had ever been in his waistband).
On the 27 th January 2016 the DPP ruled that the Defendant should not be charged at that time. The Defendant was informed of the ruling and told he could be rearrested if new evidence was obtained and he was released. After reconsideration, on the 14 th May 2016 the DPP recommended that the Defendant be charged. On the 18 th May 2016 the Defendant was re-arrested and charged with this offence. No point is taken in respect of this series of events.
The Firearms Law (2008 Revision) provides as follows:-
“s. 18(6) Whoever has with him a firearm or imitation firearm with intent to commit an offence, to resist arrest or to prevent the arrest of another person, in either case while he has the firearm or imitation firearm with him, is guilty of an offence and, subject to section 39, is liable on conviction to a fine of one hundred thousand dollars and to imprisonment for twenty years.”
The definition section of the Law provides as follows:-
“imitation firearm” means anything which has the appearance of being a firearm, whether or not it is capable of discharging any shot, bullet or other missile.”
The test of whether the thing has the appearance of a firearm is “does the thing look like a firearm” 2 and that is a question of fact for the tribunal of fact to determine taking into...
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