McKenzie et Al v Fuller
| Judge | Meerabux, J. |
| Judgment Date | 03 May 2000 |
| Court | High Court (Belize) |
| Docket Number | 7 of 2000 |
| Date | 03 May 2000 |
High Court
Meerabux, J.
7 of 2000
Mr. Lutchman Sooknandan, for the appellants.
Mr. Rory Field, Director of Public Prosecutions, for the respondent.
Practice and procedure - Appeal against conviction — Charge of possession of a prohibited firearm — Possession of unlicensed ammunition — Firearms Act — Ammunition and firearm found under front seat where first appellant was traveling in taxi — Whether the decision was unreasonable or could not be supported on the evidence based on the alleged inconsistencies in the prosecution's evidence — Finding that there was no merit in the ground of appeal — Whether the Magistrate properly directed himself on the aw relating to possession of a prohibited firearm, unlicensed ammunition and joint charges — Finding that the Magistrate had rightfully found that the actus reus and mens rea of the offences had been made out — Appeal dismissed.
The appellants and one Kareem Gentle were charged on the 24th of October, 1999, with possession of a prohibited firearm, i.e., a 9 mm sub-machine gun and possession of unlicensed ammunition i.e., 33 9 mm rounds of ammunition, contrary to secs. 37(1) (a) and 3(1) of the Firearms Act, as amended. The charges against Kareem Gentle were withdrawn and the appellants were convicted on the 1st February, 2000, and each sentenced to four years and six months imprisonment in respect of the two charges, j sentences to run consecutively.
The facts of the case are as follows: On October 24th, 1999, at about 1:35 a.m. P.C. 105 Kareem Fuller and Special Constable Alfonso Bennett were on mobile patrol in a marked police motor vehicle when they came upon a taxi; stationary at the Texaco Gas Station on the Northern Highway which was well lit. In the front seat of the taxi sat the taxi-driver in the driving seat, in the middle sat the second-named appellant and the first-named appellant sat by the door, three other persons were in the rear of the taxi. As the Police Officers approached the second-named appellant sitting in the middle of the front seat touched the first-named appellant who immediately reached between his feet and came up with a black object which looked like a firearm which he passed back to one of the men sitting in the back seat of the taxi. The taxi was searched and a Tec 9 mm machine gun with magazine and 33 rounds of 9 mm ammunition were found beneath the seat where the first-named appellant sat in the front seat. There were six occupants in the taxi including the driver and the two appellants, two of the occupants in the back seat of the taxi ran away during the search of the car.
The following grounds of appeal were filed on behalf of the appellants:
- The decision was unreasonable or could not be supported having regard to the evidence. 2. The decision was erroneous in point of law. 3. The decision was based on a wrong principle or was such that the inferior court viewing the circumstances reasonably could not properly have so decided. 4. Some specific illegality, other than herein before mentioned, substantially affected the merits of the case were committed in the course of the proceedings therein or in the decision.
During the hearing of the Appeal ground 3 was abandoned.
Before the commencement of the Appeal on the resumed hearing on 7th April, 2000, both appellants stated that they wished the case to be heard by another judge because they did not feel they would get justice. Attorney for the appellants informed the court that he was not appraised of this and had nothing to do with the application.
The learned D.P.P. stated that no good reason had been given for this request and wondered why the application was not raised on the previous occasion when they appeared with their attorney and had the opportunity to do so and submitted that this was an attempt to delay the hearing of the Appeal and to waste the court's time. This Appeal came up for hearing on the 30th March, 2000 in the presence of both attorneys. No such application was made. However, on the resumed hearing on the 7th April, 2000 the application was made. I held that no good reason was given for the matter to be transferred to another judge and was an attempt to delay the hearing of the matter and was a time wasting exercise.
On reflection however, it is my considered view that I should for future guidance set out what the law states when dealing with applications of this nature. I find that in the public interest there should be confidence in the integrity of the administration of justice echoed in the words of Lord Hewart, C.J. in R v. Sussex Justices ex parte McCarthy [1924] 1 K.B. 256 at 259 that it is: “of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
However, this issue of bias or apparent bias examined by the House of Lords in R v. Gough [1993] All E.R. Vol. 2 p. 724 which, having examined the learning on this issue, held that:
“Except where a person acting in a judicial capacity had a direct pecuniary interest in the outcome of the proceedings, when the Court should assume bias and automatically disqualify him from adjudication, THE TEST TO BE APPLIED IN ALL CASES OF APPARENT BIAS, WHETHER CONCERNED WITH JUSTICES, MEMBERS OF OTHER INFERIOR TRIBUNALS, JURORS OR ARBITRATORS, WAS WHETHER, HAVING REGARD TO THE RELEVANT CIRCUMSTANCES, THERE WAS A REAL DANGER OF BIAS ON THE PART OF THE RELEVANT MEMBER OF THE TRIBUNAL IN QUESTION, IN THE SENSE THAT HE MIGHT UNFAIRLY REGARD OR HAVE UNFAIRLY REGARDED WITH FAVOUR OR DISFAVOUR THE CASE OF A PARTY TO THE ISSUE UNDER CONSIDERATION BY HIM…” (my emphasis)
I have no pecuniary interest directly or indirectly in the Appeal before me. This is the first occasion in which the appellants are appearing before me, and I have no views favourable or unfavourable against the appellants. My duty is to deal dispassionately with the law and facts of the Appeal and to render a decision conscientiously and impartially without fear or favour, affection or ill will in accordance with my oath of office.
In support of ground 1 was submitted that there were the following inconsistencies in the prosecution's evidence:
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(a) Variation of distance as to where both Police Officers were in relation to the taxi in which the appellants were found, in that Fuller's evidence was that he was about 10 ft (p. 3 line 15) and Bennett's evidence was that he was 5ft. (p. 11 line 2) whereas both appellants testified that the taxi was 15–20 ft. from the Officers (p. 21 line 10 and p. 24 line 10 respectively).
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(b) Location of the black object
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(i) Fuller's evidence was that he was 10 ft. from the appellants (p.3 line 15);
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(ii) He saw while approaching the taxi George McKenzie take something from between his legs which fit the description of a firearm and pass it over his left shoulder to someone behind him (p. 3 line 19);
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(iii) He found the firearm directly beneath the seat of George McKenzie (p.3 line 28).
Under cross-examination — Fuller (at p. 7 line 16) admitted he searched the back seat of the taxi and found a firearm, ammunition and magazines but stated that he found them under the front seat (p. 7 lines 26–31);
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(iv) Fuller could not say with certainty that the defendants passed the specific gun or ammunition behind him. (p. 8 line 15)
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Bennett's evidence was that –
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(i) He saw McKenzie go down between his feet in the back seat of the car and pass a black object which looked like a firearm (p. 11 lines 15–25);
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(ii) Accused passed a dark object to the back seat of the car (p. 15 line 15).
Furthermore, the windows of the taxi were tinted and no photos were taken of the taxi to assist the court.
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(c) Where the exhibits were found in the taxi
Fuller claimed the firearm and ammunition were found under the front seat (p. 7 line 31) whereas Bennett's evidence was that it was found in the back section of the car. In support of ground 2, it was submitted that the learned magistrate erred in law in finding that the defendants were in possession or in joint possession of the firearm and ammunition.
None of the Police Officers saw the defendants with any firearm or ammunition.
The cases of R v. Bovesen [1982] A.C. 2 All E.R. 161; Richard Leslie v. P.C. Wilworth Archer Belize Crim. App. No. 6 of 1985 and Halsbury's Laws 3rd Ed. Vol. 29 — “meaning of possession”, were to referred to.
In support of ground 3, it was submitted that:–
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(i) There is no evidence of participation whatsoever by either Appellants nor of aiding and abetting or procuring the commission of the offence of possession of a firearm and ammunition.
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(ii) The mere tapping of the first-named appellant by the second-named appellant could not be joint enterprise in law and there was no evidence to connect the appellant in any joint enterprise to possess the firearm and ammunition.
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(iii) There was no evidence that the second-named appellant had the intent to possess.
The following cases were referred to in support of this ground Anderson v. Morris [1966] 2 Q.B. 110; [1966] 2 W.L.R. 1195; Robert Galeano Aguilar, Abel Martinez v. The Queen Belize Crim. App. Nos. 5 and 6 of 1992; Orceneo Flores v. The Queen Belize Crim. App. No. 16 of 1980 and Archbold 42nd Ed. para. 16 — p.1143 — “meaning of accomplice.”
The following submissions were made by the learned D.P.P. in respect to ground 1.
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(i) No inconsistency about the object passed back by the first-named appellant.
Fuller's evidence who was 10 ft. away from the taxi was that the first-named appellant passed something to the back which fit the description of a firearm. (p.3 line 20).
Bennett's evidence — first-named appellant came up with a black object which looked like a firearm and passed it back.
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(ii) No inconsistency...
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