R v Wynter

• Jurisdiction: Jamaica
• Judge: Downer, J.A
• Judgment Date: 18 November 1996
• Neutral Citation: JM 1996 CA 44
• Docket Number: No. 27 of 1996
• Court: Court of Appeal (Jamaica)
• Date: 18 November 1996

Court of Appeal

Downer, J.A.; Patterson, J.A.; Walker, J.A. (Ag.)

No. 27 of 1996

R.

and

Wynter

Appearances:

Leonard S. Green for the appellant

Bryan Sykes and Miss Sharon George for the crown

Criminal practice and procedure - Illegal possession of firearms — Whether magistrate drew right inferences.

Downer, J.A

1 What was the circumstantial evidence which convinced Her Honour Miss Paulette Williams, the Resident Magistrate for Westmoreland, that the appellant Robert Wynter was guilty of Illegal possession of a firearm and of ammunition contrary to section 20 of the Firearms Act?

2 Firstly, Detective Sergeant Clarke told the court that he visited the appellant Wynter at the Black River Hospital on 30th July, 1995, during the course of his investigation. On inspecting the appellant he questioned him as to what occurred on the previous Saturday night. The appellant reported that he was shot at Petersville.

3 In continuing his Investigation, he went to Petersville and he recovered a burgundy-coloured tall pants taken from Wynter's home. He noted that the pants had a hole to the right foot. Further, he also received a fragment of a bullet from Detective Corporal Chambers. These were sent to the ballistics expert. When the appellant was questioned he said “Me no know what fe seh sah.” The only challenge in cross-examination emerged thus:

“Suggt: He said to you ‘me nuh know who more fi seh sa cause It happen already.

Ans: Nothing like that.”

4 So there was no challenge to the principal words used. The only difference was that additional words were suggested. The suggested words lacked sincerity for they did not emerge subsequently in the evidence-In-chief of the appellant when he went into the witness box. The careful Resident Magistrate could hardly have failed to note that lapse.

5 The medical contribution comes from Dr. Audley Hamilton, the medical officer of Black River Hospital. He told the court that the appellant was brought to the hospital by a party of about five. His examination of the appellant revealed one entry wound but no exit. The entry wound was on the outer aspect of the right leg and a mass was detected on the lower part of the right leg just behind the ankle joint. The mass was surgically removed and this turned out to be a bullet. This bullet was handed over to Corporal Chambers who was present during its removal.

6 The Resident Magistrate accepted the opinion of the doctor on the issue of whether the wound could have been self-inflicted and it is pertinent to record his answer as it was noted by the Resident Magistrate. Here it is:

“Ans: From my observation and examination taking into consideration the entry wound and where the bullet eventually ended up It is clear that the firearm was discharged from upper part of body. It is a possibility firearm could be discharged from his waist or pocket.”

7 It is significant that Mr. Green, who cross-examined, did not challenge the doctor on this aspect of the evidence. He objected to the expertise of the doctor. The Resident Magistrate rightly over-ruled the objection and Mr. Green did not cross-examine the doctor on any aspect of the evidence. The other important opinion was obtained from the ballistics expert by way of his certificate. There was no request to call him for cross-examination, although there was an entitlement to do so pursuant to section 46A(4) of the Firearms Act. On the certificate the exhibits were listed as follows:

“One sealed envelope marked ‘A’ containing: One.38 Calibre fired copper jacketed hallow-point firearm bullet, slight nose damaged, 5 lands and grooves. right twist, weight - 125 grains.

One sealed envelope marked ‘B’ containing: One red jeans pants, Tagged ‘Jonathan Martin’ 100% cotton/algodon, size 36.”

8 So far as the examination of the bullet was concerned, here is his report.

“Examination of Exhibit ‘A’ revealed that it was a.38 calibre copper jacketed hallow-point firearm bullet of a type used in.38 Special+P firearm cartridge and that It was discharged from a firearm of the class of o.38 Special ‘Smith and Wesson’ revolver and that “after it was discharged, it impact on a hard surface at close to right angle.”

9 Then turning to his examination of the trousers, he found:

“Examination of Exhibit ‘B’ revealed three holes, entry, exit and entry, 3/4 x 1 /2 Inch diameter and 1 x 1/2 inch all in a line over 5 3/4 inch on the outer side of the right leg, commencing 18 1/2 inches down from the waist band and 2 inches to 1 inch forward of the side seam. There was evidence of gunpowder deposited on an area commencing approximately 12 inches down from the waist band suggesting that a firearm was discharged along side the right side of Exhibit ‘B’ and within a 12 inches radius.”

10 This is telling evidence in favour of the crown. Since the firearm was fired within a 12 inches radius then that compelling evidence must have...