Toney v Corraspe

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Bereaux, J.A.
• Judgment Date: 26 February 2010
• Neutral Citation: TT 2010 CA 13
• Docket Number: Magisterial Appeal No. 68 of 2008
• Date: 26 February 2010

Court of Appeal

Weekes, J.A.; Yorke-Soo Hon, J.A.; Bereaux, J.A.

Magisterial Appeal No. 68 of 2008

Toney

and

Corraspe

Appearances:

F. Hosein S C, R. Dass & A Toney for appellant

D. Seetahal S C for the respondent

D. Mendes S C, R. Harnanan, S. Alsaran for the Attorney General

Criminal law - Losing firearm and ammunition through negligence — Appeal against convection — Appellant member of bar association leaving Baretta 380 pistol and ammunition in pouch under car seat — Appellant reporting items stolen and charged and convicted — Firearms Act, s. 28(1A) — Whether “loss” by theft a crime or whether “loss” concerned loss of possession — Appellant's negligence justifying conviction due to high prevalence of gun related crime — Appeal dismissed.

The Facts

1 Bereaux, J.A.; The appellant was the holder of a firearm users’ licence (FUL) which permitted him to hold a Baretta 380 pistol as well as ammunition. It is a requirement of section 28(1) of the Firearms Act Chap. 16:01 (“the Act) that “the holder of a licence, certificate or permit in respect of any firearm or ammunition… shall, within twenty-four hours after he discovers the loss or theft of his licence… report the loss or theft at a police station”. On Sunday 13th November, 2005, he reported to the respondent at the Belmont Police Station, that the pistol and twenty-two rounds of ammunition had been stolen from under the front seat of his Mitsubishi Pajero SUV, registration number PBH 2020. He had parked and secured the vehicle at 2.30 pm that day in the compound outside his office, located on Jerningham Avenue, Belmont, Port of Spain.

2 The appellant told the respondent that he had left the pistol and ammunition, together with six thousand dollars ($6,000.) in cash and certain documents, in a pouch under the front seat of the vehicle and went into his office a few yards away. When he returned to the vehicle at approximately 7.00 pm, he opened it with the alarm control and drove off. After driving about three hundred yards, he checked for the pouch and discovered that it was not there.

3 On 14th November, 2007, the firearm never having been recovered, the appellant was convicted of the offence of negligently losing a Baretta 380 pistol and twenty-two rounds of ammunition, contrary to section 28(1A) of the Act. He was fined four thousand dollars ($4,000.), in default of payment, to serve six months imprisonment. The maximum penalty under the Act is a five thousand dollar ($5,000.) fine.

4 The offence set out in section 28(1A) was created by a 2004 amendment to section 28(1) by which two subsections were added. Subsection 28(1A) made it an offence to “lose” a firearm or ammunition “through negligence”. Subsection 28(1B) requires every person who finds a firearm or ammunition to deliver such

items to the police officer in charge of the nearest police station and “shall give a written statement as to the time [at] which and the circumstances in which he found the firearm and ammunition”.

5 Unlike section 28(1)(B), section 28(1) which was never specifically amended, does not expressly require that full particulars of the circumstances of the loss or theft be given. But the effect of the creation of the offence in subsection 1A was to change the character of section 28(1) by potentially exposing the holder of the firearm to the risk of a criminal charge if the police officer to whom he reports, considers that he was negligent in its loss. Prior to the creation of the offence the holder was simply required to report the loss or theft.

6 At the hearing of this appeal, Mr. Hosein for the appellant made a very cogent argument that section 28(1) breaches the appellant's right of silence and the privilege against self-incrimination, contrary to section 5 2(d) of the Constitution. Because of the constitutional importance of the argument, the Court directed that the grounds of appeal in respect of this constitutional issue be served on the Attorney General who is now represented in this appeal by counsel.

The Trial

7 At the trial which proceeded summarily before Her Worship magistrate Quinlan, evidence was led that it was a condition of the FUL that the firearm and ammunition, when not in the actual possession of the holder, should be kept in a safe place, to avoid unauthorised access to them.

8 The respondent, who laid the charge, admitted under cross-examination that when he interviewed the appellant on 13th November, 2005, it was “merely in the capacity of someone making a complaint about the loss of a firearm”. He also admitted that when he conducted the interview it was with a view to discovering how the firearm was stolen and “to apprehending the persons who stole the firearm”. He said that the appellant was not a suspect at that stage “in respect of anything”; there was no need to administer any caution and none was administered during the interview.

9 Earlier, in his evidence in chief, P C Corraspe testified that after the appellant's initial report, he accompanied him to his car, looked at the vehicle and observed “what appeared to be indentations around the keyhole on the front door of the vehicle”. The vehicle was checked for fingerprints but none was found. He then accompanied the appellant to the scene where the appellant pointed out “certain things” to him. He requested a written statement from the appellant who agreed and subsequently provided one. That statement was never admitted into evidence at the trial and is not an issue in this appeal.

10 The appellant, in his evidence in chief, stated that his vehicle was fitted with an alarm and automatic lock both of which automatically engage one minute after he exits the vehicle. Before he went upstairs to the office, he heard the doors lock automatically. He said that the office at 45B Jerningham Avenue was located in a private driveway which leads onto Jerningham Avenue. In addition to the office buildings, there are eight residences on the other side of the driveway, occupied by officers of the Ministry of Health. The compound is enclosed with a concrete fence and at the entrance there is a guard booth. The guard would normally open

and close the gate to facilitate entry. No evidence was led however that there was a guard on duty at the time of the disappearance of the firearm and ammunition.

11 His office was located on the first floor of the building and the vehicle was parked about three feet from the office entrance, just beneath his office window. He could see the top of the vehicle and the entire left side if he looked outside. He had intended to stay about half an hour but stayed until 6.30 pm because he had difficulty accessing information on the internet. He did not hear anything unusual while in the office and had never had difficulty with thefts at that office.

12 When he returned to the car he accessed the vehicle by using the automatic control. He said that he had left the firearm, ammunition and monies there because “I thought it was reasonably safe to leave it there under the seat in the car just outside my office”. Under cross-examination the appellant stated that when he left the firearm and ammunition in the vehicle “he knew what he was doing”, and it was not one of the conditions of the licence that the firearm and ammunition were to be kept in the vehicle. He conceded that the vehicle was not in his view during the period he spent in the office and that he did not hear the alarm go off. He added that it was not the first time that he had left the firearm and ammunition in the pouch under the seat.

Grounds of Appeal

13 The appellant has filed eight grounds of appeal.

• (1) the appellant is not guilty,

• (2) illegal evidence was admitted by the Court and there was not sufficient legal evidence to sustain the decision after such illegal evidence is rejected,

• (3) the decision is unreasonable and cannot be supported having regard to the evidence,

• (4) the decision is erroneous on a point of law, or

• (5) some other specific illegality not mentioned above and substantially affecting the merits of the case has been committed in the course of the proceedings,

• (6) the sentence imposed is unduly severe

• (7) a specific illegality occurred in the course of the matter which affected the merits of the case. In particular, the magistrate erred in law when she failed to give sufficient weight to a number of relevant circumstances which were material to her determination of the issues.

• (8) the magistrate exceeded her jurisdiction [and her] decision is erroneous on a point of law; that is to say, section 28(1A) of the Act creates an offence in respect of someone who loses his firearm through negligence but not in respect of someone whose firearm or ammunition is stolen.

The Appellant's Submissions

14 Mr. Hosein's submissions in this appeal were, in summary:

In view of the fact that submissions (ii) and (iii) hinge on the unconstitutionality of section 28(1A), it follows that if that section is upheld as constitutional those arguments also fail.

• (i) Section 28(1) A of the Act violates the right against self incrimination enshrined under section 5(d) of the Constitution and the appellant's conviction under section 28(1) A should be quashed. (Grounds 4 and 5). This was not an argument raised before the magistrate, nor could it be, given her summary jurisdiction.

• (ii) The appellant's oral and written statements should have been excluded because they were obtained in breach of his constitutional right of silence and the privilege against self incrimination. (Grounds 2, 4 and 5)

• (iii) If the oral statement had been excluded there would not have been sufficient evidence to ground a finding of negligence. (Ground 1 and 3)

• (iv) Even if the appellant's oral statement is not excluded and section 28(1) is not void for inconsistency with the right against self incrimination, the conviction should still be...