Golaub v Walker et Al
| Jurisdiction | Jamaica |
| Judge | Downer, J.A. |
| Judgment Date | 23 June 1992 |
| Neutral Citation | JM 1992 CA 57 |
| Docket Number | Criminal Appeal No. 1 of 1992 |
| Court | Court of Appeal (Jamaica) |
| Date | 23 June 1992 |
Court of Appeal
Rowe, P.; Forte, J.A.; Wolfe, J.A. (Ag.)
Criminal Appeal No. 1 of 1992
Gayle Nelson for the appellant.
Bryan Clarke for the Crown.
Real Property - Easement — Defendant claimed an easement by prescription over the land of the appellants who had sued for trespass to their property — Defense of prescription succeeded — The defense of prescription should have been raised before reference to the surveyor had been made — Then it would have been possible to ascertain whether such an easement existed — 40 years user — Appeal allowed since magistrate should not have determined the case on the basis of the new defense without reference to the surveyor — Appeal allowed — Order of court below set aside and new trial before a different pendent magistrate ordered.
The appellant Derrick Brown was found guilty of the offences of illegal possession of firearm and wounding with intent by Wolfe, J., presiding in the High Court Division of the Gun Court. He was charged jointly with Anthony Angel and Donovan Smith and the finding of the Court was that the firearm assigned to the appellant was used to shoot at and wound the victim, Detective Corporal Zimroy Green. The circumstances of the shooting coupled with the fact that the appellant was a member of the Special Constabulary Force has raised an important issue of law which was argued with great force by Mr. Gayle Nelson.
Detective Corporal Green recalled that about 1:30 a.m. on Friday 5th July, 1987 on reaching the corner of Lacy and Portland Roads, he noted that there was a crowd at a street dance. About a chain away, he saw four men of whom he knew two previously. These two were Angel, who was tried and convicted, and the other was Arthur, who played the crucial part in the incident. As he proceeded, Corporal Green recounted that the four men who were under a street light were following him. He became suspicious and concealed his service revolver under his shirt when one of the men called out to him saying, “Hey big man, don't move.” The officer heard an explosion and realised that he was shot. He fell to the ground and observed the four men who followed him and that Arthur was pointing a gun at him. They were then just on the opposite side of the road away from him.
It was in those circumstances that he attempted to draw his service revolver when Arthur fired more shots at him which caused him to feel burning sensations in his left hip and abdomen. At that point the men ran away together, and he crawled away until he saw a police vehicle which rescued him.
That the wounds inflicted on him were serious was attested to by Dr. Dundas, an Orthopaedic Surgeon. Detective Corporal Green was a patient firstly at Kingston Public and thereafter at St. Joseph's Hospital. The extent of his injuries can be gauged from the fact that he was kept in hospital from 1st to 24th October, and that a bullet was recovered from his spinal canal.
This bullet was an important link connecting the appellant with the crime. On comparison with a bullet test-fired from the gun which was entrusted to the appellant for the performance of his duties as a special constable on assignment to the Family Court, this bullet proved to have been fired from the said gun. It is therefore appropriate to turn to the caution statement of the appellant and his unsworn statement for his account as to how Arthur came to misuse the gun to shoot and wound Detective Corporal Green.
He reported from the dock that he had been drinking rum-punch and as a consequence felt it was unsafe for him to keep his firearm, so he handed it over to Arthur who would return it when the appellant reached his home. He therefore was surprised when Arthur misused the firearm to shoot Corporal Green. His further account was that he was “so frightened” that he ran towards his home. He said that when he got home, Arthur returned the gun. On his account, he did not report the incident to the nearest police station at the time, nor the following morning. His caution statement was even more damaging. He said that he delivered up his service revolver because Arthur asked him for it Further, he recounted that Arthur had said to him, “See the bwoy deh way shoot me.” Then again he replaced six rounds of ammunition which Arthur had fired, with six rounds in his possession. The clear finding was that he was attempting to conceal the illegal use of the firearm on the previous night. The inference that the learned judge drew from his conduct was that the appellant did nothing at the time of the shooting or subsequently to dissociate himself from the criminal acts of Arthur and the other men. Further, having accepted me victim's account of the incident, the learned judge found that the three men indicted were acting in concert, and that Arthur was also a party to the concerted action.
It is in the light of the above facts that the grounds of appeal argued are to be considered and it is appropriate to deal with the first ground at some length as it was emphasised in counsel's submission:
“1. That so far as the applicant was concerned the offence changed in the First Count of the Indictment was not a firearm offence because the Firearms Act does not apply to a Member of the Island Special Constabulary Force in respect of a firearm in his possession in his capacity as such member and therefore the offence was not one ‘involving a firearm and in which the offender's possession of a firearm is contrary to s.20 of the Firearm's Act’.”
It is clean that the solution to this problem must be resolved by interpreting the proviso in section 52(e) of the Firearms Act to determine if it exempted the appellant as Mr. Gayle Nelson contended. The relevant part reads thus:
“52. This Act shall not apply:
(e) to any … special constable …in respect of any firearm or ammunition in his possession in his capacity as a special constable.”
The submission made on half of the appellant was that he was in possession of the firearm in his capacity as a special constable on that fateful morning.
It is true that he was assigned the firearm in his capacity as a special constable. The firearm was to enable him to carry out his lawful duties as a special constable. In such circumstances, the proviso in section 52(e) would apply. But the proviso does not cover instances where the specie constable delivered up his firearm to his co-conspirator who then used the firearm to commit criminal acts. When the appellant was not acting as a constable, the Firearms Act applied to him and he was “A person” subject to a charge of illegal possession contrary to section 20 of the Firearms Act. This section comes into play because of section 2 of the Gun Court Act which states:
2. ‘firearm offence’ means:–
(a) “Any offence contrary to section 20 of the Firearms Act;
(b) Any other offence whatsoever involving a firearm and in which the offender's possession of the firearm is contrary to section 20 of the Firearms Act; …”
The appellant's possession of the firearm contrary to section 20 of the Firearms Act is to be considered when he delivered up the firearm to Arthur. Then he was an aider and abettor to the illegal possession of the firearm and liable to be tried, indicted and punished as a principal offender: see section 41 of the Criminal Justice Administration Act. Section 52(a) throws light on the status of the firearm, because the proviso did not cover it since Arthur was not authorised by the Government of Jamaica to be in possession of it. For emphasis it is pertinent to set out this section of the proviso which reads as follows:
“52. This Act shall not apply:–
(a) To any firearm or ammunition the property of the Government of Jamaica except, at the time when such firearm or ammunition is in the possession of some other person other than a person authorised by or on behalf of the Government of Jamaica to be in possession of such firearm or ammunition; …”
It is instructive to contrast subsections 52(a) and 52(d) with 52(e) of the Firearms Act. Section 52(a) emphasises the exemption of firearms from the Act as property of the Government of Jamaica when in the possession of authorised persons. Then section 52(d) reads:
“(d) To any person authorised by the Government of Jamaica to be in possession of a firearm or ammunition, in respect of any firearm or ammunition the property of the Government of Jamaica in his possession pursuant to that authority; …”
This proviso limits the exemption to a specific authority. Turning again to the crucial section 52(e) where the person in authority is named and his functions are detailed elsewhere:
52. This Act shall not apply:
(e) To any … special constable … in respect of any firearm or ammunition in his possession in his capacity as a special constable.”
This proviso relates to the appellant in his capacity as a special constable. It does not cover him when he is “A peon” acting in concert to breach section 20 and section 25 of the Firearms Act.
To examine the position of a special constable “in his capacity as such special constable” pursuant to section 52(e) of the Firearms Act, it is necessary to examine section 22(1) of the Constables (Special) Act. That section in so far as material reads thus:
“22-(1) Every Special Constable enrolled under this Part shall while on duty in the capacity of a special constable have, exercise and enjoy all the powers, authorities, privileges and immunities and shall perform all the duties and have all the...
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