Albert Paulton v R
| Jurisdiction | Jamaica |
| Judge | Brooks P |
| Judgment Date | 14 January 2022 |
| Neutral Citation | JM 2022 CA 3 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 82/2018 |
| Court | Court of Appeal (Jamaica) |
[2022] JMCA Crim 1
IN THE COURT OF APPEAL
THE HON Mr Justice Brooks P
THE HON Mrs Justice Dunbar-Green JA
THE HON Mrs Justice G Fraser JA (AG)
SUPREME COURT CRIMINAL APPEAL NO 82/2018
Miss Samoi Campbell instructed by Peter C Champagnie QC for the appellant
Adley Duncan and Miss Monique Scott for the Crown
On 22 September 2021, having considered Mr Albert Paulton's appeal from his conviction for illegal possession of firearm and ammunition, and having heard submissions from his counsel and counsel for the Crown, this court ordered as follows:
“1. Appeal against conviction is dismissed.
2. The convictions and sentences are affirmed.
3. The sentences shall be reckoned as having commenced on 14 September 2018.”
The court promised, at that time, to put its reasons in writing. This is a fulfilment of that promise.
On 8 June 2018, Mr Paulton was convicted in the High Court Division of the Gun Court for two offences against the Firearms Act (‘the Act’). On 14 September 2018, the learned trial judge (‘the learned judge’) sentenced him to 12 months' probation in respect of the offence of illegal possession of firearm and two months' probation in respect of illegal possession of ammunition, and ordered that the sentences were to run concurrently. Mr Paulton applied for leave to appeal against his conviction. A single judge of this court granted him that leave, mainly on bases of the unusual nature of the defence and the manner in which it had been treated by the learned judge.
The matter is unusual because there was little challenge to the prosecution's case. Mr Paulton accepts the facts advanced by the prosecution; however, his defence was one of duress of circumstances. His case was that he was forced, out of fear for his life, to take the subject firearm and ammunition into his custody. He said that he, therefore, had no intention to possess them. The learned judge was wrong, he says, to have found otherwise.
One of the main issues that this court had to determine was whether Mr Paulton exercised dominion over the firearm and ammunition so as to satisfy the requirements of the definition, in law, of possession. Before conducting that analysis, it is necessary to outline the respective cases of the prosecution and the defence.
The prosecution led evidence that on 3 July 2013 at approximately 6:00 am, Corporal Dwight Bissick (now Sergeant Bissick) was among police officers, who entered a house at 8 Modyford Road Kingston 11, in the parish of Saint Andrew. Sergeant Bissick was armed with a search warrant. He executed the warrant on the person named therein, one “Zeeks”, who afterward gave his correct name as Oneil Wallace. Zeeks was coming from a room inside the house when Sergeant Bissick first saw him. The Sergeant took him back into that room.
On entering the room, Sergeant Bissick saw Mr Paulton, whom he did not know before. Mr Paulton immediately told Sergeant Bissick that Zeeks had just given him a gun to “lock up”. Mr Paulton pointed to a “sweetie pan” on a “whatnot”. The Sergeant said that he opened the pan and saw a silver and black firearm. It was eventually found to contain 16 rounds of ammunition. He cautioned both men but neither said anything. He took them both into custody. On the way to the police station, Mr Paulton told Sergeant Bissick that he was in fear of Zeeks.
At the police station, Mr Paulton gave a cautioned statement detailing what, he said, had occurred at the house, and repeating what he had told Sergeant Bissick. Mr Paulton said that he had obeyed Zeeks' direction, about the firearm, out of fear. He said, in part, “‘true’ me ‘fraid a him, mi tek it and put it inna di sweetie pan and same time him step out, mi see di police bring him back in….”
After an unsuccessful submission that he ought not to have been called upon to state his defence, Mr Paulton gave sworn testimony. He said that he knew Zeeks to be a gunman, but had never spoken to him before the day in question. He said that Zeeks did not live at that premises. Mr Paulton said that on that day, Zeeks rushed into his (Mr Paulton's) room and said, “Lock this”. He was shouting. He gave the gun to Mr Paulton, who understood the command, “Lock this”, to mean that he should put away the firearm.
Mr Paulton said that he was fearful that Zeeks would kill him if he did not follow his directions. He put away the gun, but as soon as Zeeks stepped out of the room, the police came back with him and he, Mr Paulton, told the police what had happened. He said five – 10 seconds had elapsed between the time that Zeeks left, and the time that the police brought him back into the room.
In cross-examination, Mr Paulton said that Zeeks threatened that “things” would happen to him, if he didn't “lock” the weapon. When counsel for the Crown enquired further, he said Zeeks said that things would happen to his family if he did not comply with the direction.
One of Mr Paulton's character witnesses described him as being, ‘coward’. Another described him as ‘accommodating’.
Miss Campbell, on behalf of Mr Paulton, with permission of the court, argued three grounds of appeal:
“a. Ground 1
The learned trial judge erred in not upholding the no case submission[.]
b. Ground 2
The learned trial judge erred in her finding that the defence of duress of circumstances was not raised by the evidence of [Mr Paulton], particularly that he was not in fear and that his response to the circumstances was not reasonable[.]
c. Ground 3
The learned trial judge erred in her finding of fact that there was a major inconsistency in [Mr Paulton's] case in relation to the time given in his caution statement and the time given in his viva voce evidence[.]”
The grounds will be assessed in turn.
Miss Campbell submitted that there was nothing on the prosecution's case that supported an inference that Mr Paulton intended to possess either the firearm or the ammunition. She contended that in the circumstances of the case, the issue of Mr Paulton being in fear, that is, Mr Paulton was not acting on his own volition, arose on the prosecution's case, and had not been disproved by the prosecution. Accordingly, learned counsel argued, the prosecution had failed to prove the element of intention to possess, which is an essential element in proving the offences, with which Mr Paulton was charged.
It would be easy to say that learned counsel's submissions are plainly wrong, for if she were not, all that would be necessary for a person found in possession of a firearm to be discharged at the end of the prosecution's case, is to say, when found with the item, “I was forced to carry it by So and So”. The answer to Miss Campbell's submissions is not complex, but it does require the reiteration of some basic principles.
The first basic principle is identifying the elements of the offences. Section 20(1)(a) and (b) of the Act provides that it is an offence to possess a firearm or ammunition, respectively, without having the requisite licence. In charging an individual for an offence under that section, the prosecution has to prove physical custody or control of the item and that that person knew that he or she had custody or control of the item. The knowledge may be inferred from the circumstances in which the item was found.
The definition of possession in law, has long been established in this jurisdiction. It may be distilled from the decision of the Privy Council in Director of Public Prosecutions v Wishart Brooks (1974) 21 WIR 411 (‘ DPP v Brooks’). In that case, their Lordships dealt with the physical and mental elements of possession separately. At page 415, they stated the elements:
“In the ordinary use of the word ‘possession’ one has in one's possession whatever is, to one's own knowledge, physically in one's custody or under one's physical control. This is obviously what was intended to be prohibited in the case of dangerous drugs.”
The Law Lords also dealt with the mental element by approving the reasoning in R v Cyrus Livingston (1952) 6 JLR 95, where it was held that in addition to the physical possession, it must be further shown that the person had knowledge that the thing which he had was ganja (see page 414 of DPP v Brooks).
Those elements of possession, although set out in the context of the possession of substances contrary to the Dangerous Drugs Act, have been held to apply to the illegal possession of firearms and ammunition. In R v Rupert Johnson (1980) 31 WIR 297 at page 303, Kerr JA, in delivering the judgment of this court referred to the principles concerning possession, as set out in R v Cyrus Livingston and DPP v Brooks and said:
“A similar reason would support a liberal interpretation of possession in section 20 of the Firearms Act, a firearm being so lethal a weapon….”
The principles governing possession were analysed by their Lordships in the decision of the Privy Council in Bernal (Brian) and Moore (Christopher) v R (1997) 51 WIR 241 (‘ Bernal and Moore v R’), where, using broadly the terms mens rea for the mental element of knowledge and actus reus for the physical circumstances of the control of the item, their Lordships said, in part, at page 251:
“The actus reus required to constitute an offence under section 7C of the Dangerous Drugs Act is that the dangerous drugs should be physically in the custody or under the control of the accused. The mens rea which is required is knowledge by the accused that that which he has in his custody or under his control is the dangerous drug. Proof of this knowledge will depend on the circumstances of the case and on the evidence and any inferences which can be drawn from the evidence...
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