Laurie Ferron v R
| Jurisdiction | Jamaica |
| Judge | Simmons JA |
| Judgment Date | 07 October 2022 |
| Neutral Citation | JM 2022 CA 102 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | PARISH COURT CRIMINAL APPEAL NO COA2021PCCR00010 |
[2022] JMCA Crim 49
THE HON Miss Justice Straw JA
THE HON Miss Justice Edwards JA
THE HON Miss Justice Simmons JA
PARISH COURT CRIMINAL APPEAL NO COA2021PCCR00010
IN THE COURT OF APPEAL
Keith Bishop and Andrew Graham instructed by Bishop and Partners for the appellant
Ms Judi-Ann Edwards for the Crown
On 4 September 2020, Mr Laurie Ferron (‘the appellant’), was tried and convicted for the offence of negligent loss of firearm pursuant to section 41A of the Firearms Act in the Parish Court for the parish of Saint James before Her Honour Miss Austin (‘the learned judge’). He was sentenced to a fine of $80,000.00 or three months' imprisonment in default of payment.
The appellant aggrieved by the outcome of this decision filed a notice of appeal in the Parish Court dated 14 September 2020. The grounds of appeal were set out as follows:
“1. That the learned Parish Court Judge erred in law in failing to accede to the appellant's submission of no case to answer;
2. The learned Parish Court Judge erred in law in convicting the appellant notwithstanding the fact that the appellant has taken all reasonably foreseeable steps to forestall the possibility of his firearm being stolen;
3. The learned Judge erred in law in imposing a sentence of $80,000.00 or three months' imprisonment, which is excessive and/or unreasonable.”
On 3 November 2021, when the appeal was heard, ground three was abandoned by the appellant. On that date the court made the following orders:
“1. The appeal against conviction and sentence is dismissed.
2. Conviction and sentence is affirmed.”
On that date, we promised to provide our reasons in writing. This judgment is a fulfilment of that promise. The delay is sincerely regretted, and the court apologises for it.
It was the prosecution's case that on 26 January 2017, at about 7:20 pm the appellant, who was a registered firearm holder, went to the supermarket at the Blue Diamond Shopping Centre in Montego Bay, in the parish of Saint James (‘the shopping centre’). He left his licensed firearm in a knapsack that he placed on the floor behind the driver's seat in his motor vehicle. The appellant then locked the motor vehicle which was parked about 30 feet from the entrance of the supermarket. At the time, there was one security guard in the car park. Upon returning to the motor vehicle, the appellant observed that the glass of the right rear window was broken and the knapsack and its contents were missing. He subsequently reported his firearm stolen at the Coral Gardens Police Station and was later charged with the offence which was the subject of this appeal.
The prosecution relied on the evidence of four witnesses: (i) Constable Shantel Watson—the officer to whom the theft was reported by the appellant; (ii) Deon Scarlett, the security guard who was on duty at the shopping centre; (iii) Chevanese Burke, Regional Manager of the Firearm Licensing Authority, whose statement was tendered into evidence and (iv) Constable Ryan Harrison, the investigating officer who interviewed the appellant at the police station.
The officer stated that on the night in question the appellant made a report to her that his vehicle had been broken into and certain items, including his licensed firearm stolen. She recounted that he told her that he had business meetings earlier that day and based on his attire, had placed his firearm in his black knapsack which he took with him to those meetings. Later that day, he went to a supermarket and left the bag with other items therein in his motor vehicle. Upon his return to his vehicle about 10 minutes later, he realized that it had been broken into and the bag with the items removed.
In cross examination, she could not recall whether the appellant had told her that the area where he parked his motor vehicle was brightly lit. Her evidence was that he had said something about the lighting. She confirmed that the appellant had told her that he had seen a security guard close to where he parked, that he had parked about 30 feet from the entrance of the supermarket and had locked the vehicle by electronic means and physically checked the doors.
In re-examination, she said that the appellant told her that he saw a security guard when he entered the car park and that when he returned to his car, he saw someone who identified himself as a security guard.
It was Mr Scarlett's evidence that whilst he was patrolling the car park of the shopping centre, he heard a banging sound like glass being broken. He went in the direction of the sound and observed a gentleman coming from between two cars. He observed that the glass of one of the cars had been broken.
He stated that the car park was accessible to persons shopping at the plaza and that “[t]hings always do happen there so [he] always make sure that whenever [he was] working there [he paid] attention”. He also stated that criminals would target the car park every three to four months. In respect of the lighting, his evidence was that the lights in the car park were not working properly and were situated “way up on the cantilever on the building”. The lights were about the distance of two lengths of the courtroom from where the appellant had parked. He further explained that there was a big street light a little distance from the car park. He indicated that the tint on the appellant's vehicle was dark.
He stated further, that the area where the appellant had parked his motor vehicle was not bright enough for him to observe anything properly even though he was about two chains from the motor vehicle when the incident occurred. On that night, there were many vehicles in the car park and many persons were shopping and going to and from the car park to the supermarket. The witness stated that the appellant's motor vehicle was parked at a distance less than two lengths of the courtroom away from the supermarket.
The statement of this witness was admitted in evidence pursuant to sections 31A and 31C of the Evidence Act. Ms Burke who was the regional manager of the Firearm Licensing Authority, indicated that the appellant was a licensed firearm holder at the time of its loss.
Constable Harrison who was the investigating officer, stated that due to the length of time that had elapsed between the incident and the report he did not attend at the scene. His explanation was that the scene could have been tainted as a result of vehicular and pedestrian traffic. He did, however, indicate that the car park based on his experience, was a very busy area that was traversed by many shoppers and vehicles.
At the conclusion of the Crown's case, a no case submission was made on the basis that the appellant's actions did not meet the threshold to establish criminal negligence. It was submitted by counsel for the appellant, that the security arrangements at the car park, the location where the vehicle was parked, the lighting, the presence of security personnel and the security features of the motor vehicle made it reasonable for the appellant to have left his firearm in the motor vehicle.
The prosecution on the other hand, submitted that the appellant as a licensed firearm holder had a duty to keep it safe. He had failed to do so, as based on his report to the police, he left the firearm in a bag on the floor behind the driver's seat. The car park, it was submitted, was poorly lit and not well guarded.
The court ruled that the appellant had a case to answer.
The appellant gave sworn evidence. It was his defence that he took sufficient steps to ensure the safekeeping of his firearm. He stated that his motor vehicle was parked in close proximity to the entrance of the supermarket. The vehicle was “heavily tinted” and had “reasonable” security features which were stated to be “the locking mechanism which it comes with”. The windows which were tinted were closed. Before going into the supermarket, he checked twice to ensure that the doors were locked and that the windows were up.
He could view the cashiers from where his motor vehicle was positioned. On the night in question, it was his opinion that the car park was reasonably lit with lights from the building and from the front of the supermarket. Further, he observed security personnel stationed close to where he had parked and that the car park was not crowded. All these circumstances led him to conclude that the premises were safe for him to leave his knapsack which contained his firearm, magazine, Samsung tablet, architectural seal, cash and documents “tucked in below the driver's seat to the back”.
The appellant was in the supermarket for about seven minutes. Upon his return, he noticed that the right rear window of his motor vehicle was smashed and there was glass on the back seat. He noted that the knapsack was missing. A security guard for the premises informed him that he had seen someone break the glass. The appellant subsequently made a report at the Coral Gardens Police Station.
In cross examination, the appellant could not say whether the window that was broken was the one closest to where he had placed the knapsack. He also stated that the knapsack was not something of value and disagreed that it would be if something was inside. The appellant stated that his motor vehicle was equipped with an alarm system which was engaged on the night of the incident. When asked why this was now being mentioned, he said, “I cannot answer that. I do not know”. He indicated that having seen his statement he was maintaining that he had placed the knapsack under the driver's seat. He, however, agreed that he had told Constable Watson that he put the knapsack on the floor behind the driver's seat.
In re-examination,...
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