Anwar Strachan v Commissioner of Police
| Jurisdiction | Bahamas |
| Judge | Madam Justice Indra Charles |
| Judgment Date | 25 July 2023 |
| Neutral Citation | BS 2023 CA 108 |
| Docket Number | MCCrApp No. 19 of 2023 |
| Court | Court of Appeal (Bahamas) |
The Honourable Sir Michael Barnett, P
The Honourable Sir Brian Moree, JA
The Honourable Madam Justice Charles, JA
MCCrApp No. 19 of 2023
COMMONWEALTH OF THE BAHAMAS
IN THE COURT OF APPEAL
Criminal appeal — Possession — Unlicensed firearm — Ammunition — Component part — Proper practice and procedure — Whether onus is on magistrate to bring witnesses to court — Whether magistrate is obligated to inform the appellant of the statutory presumption in section 8 (a) when case was not decided on that issue — Whether failure to do so amounts to an irregularity rendering the convictions unsafe or unsatisfactory — Whether identification evidence was faulty — Recognition evidence — Was decision of magistrate on primary facts plainly wrong
On 19 July 2017, police officers executed search warrants at residences numbered 4 and 5 on
Rosewood Street, Pinewood Gardens, suspecting the occupants of possessing firearms and dangerous drugs. While at No. 5, one of the officers spotted the appellant at the doorway of No. 4. According to the officer, the appellant looked in their direction and took off running. The door was left open. The appellant did not return to the residence. Upon a search of the residence, the police found a firearm, ammunition and an additional firearm magazine. The appellant's Bahamian passport and voter's card were found under the mattress of the one bedroom efficiency in which he resides. The appellant was arrested many months later. He was tried and convicted on 3 February 2023 for various firearm-related offenses, receiving a two-year sentence for possession of an unlicensed firearm, a three-year sentence for possession of ammunition with intent to supply and a three-month sentence for possession of a firearm component.
Dissatisfied with the Magistrate's Ruling, the appellant filed an appeal against the convictions and sentences on 10 February 2023 and later supplemented his appeal with additional grounds. He alleged, inter alia, that the Magistrate erred in law in not addressing his mind to section 8(a) of the Firearms Act. Further, he was obligated to inform the appellant of the statutory presumption in that section and his failure to do so amounted to an irregularity which made the convictions unsafe and unsatisfactory. The appellant also alleged that the Magistrate acted unreasonably in convicting him based on the quality of the identification evidence. He alleged that he was not the sole occupier of the residence. On 5 July 2023, the Court heard the appeal and reserved its decision.
Held: The appeal is dismissed. The appellant's convictions and sentences are affirmed.
The appellant conceded that the Magistrate did not convict him on the basis of section 8(a) of the Firearms Act. As such, the Magistrate was under no obligation to inform him of the statutory presumption that he is deemed to be the possessor of the firearm, ammunition and component part. There is also no statutory presumption in relation to section 204 of the Criminal Procedure Code Act nor was the Magistrate under a duty to bring the appellant's witnesses to court. In addition, the appellant did not make a submission of no case to answer. After the prosecution closed its case, the appellant chose to remain silent and called a witness in support of his defence to the charges. The procedure adopted by the Magistrate in the conduct of the trial was perfectly proper.
In relation to the identification evidence, the Magistrate believed the prosecution witnesses particularly Sergeant Taylor who said that the appellant was known to him as Anwar Strachan, the appellant was about 40 feet away from him, there was nothing obstructing his view of the appellant and the incident happened in broad daylight. This was not a case of a fleeting glance by someone who was not known to Sergeant Taylor but a case of recognition. The Magistrate acknowledged that the prosecution had to prove its case beyond a reasonable doubt. He found the witnesses for the prosecution to be credible and convincing and their evidence was not discredited. It is clear from the Magistrate's convictions that he believed the witnesses for the prosecution. Applying the law to the facts as found by the Magistrate, this conclusion was not an unreasonable one.
It is well-established that an appellate court will not easily interfere with a judge's verdict based on primary facts unless it is “plainly wrong.” Such interference with a judge's factual findings would only occur if no reasonable judge could have arrived at that decision, which lacks reasonable explanation or justification. In this particular case, the Court finds no grounds to assert that the Magistrate's decision is entirely incomprehensible and unjustifiable. The Court is satisfied that the Magistrate possessed a distinct advantage over this appellate court by having the opportunity to directly observe and hear the witnesses. The Court is further satisfied that the Magistrate properly considered and addressed the issue that the appellant was the sole occupier of the premises.
Jean Pierre Dieudonne v The Commissioner of Police MCCrApp No. 105 of 2013 considered Johnson v R (2017) 91 WIR 23 considered
Kevin Cooper v The Commissioner of Police MCCrApp No. 318 of 2013 considered
Larry Artillus v The Commissioner of Police MCCrApp & CAIS No. 116 of 2015 considered
Noel Lionel Cash v Commissioner of Police MCCrApp No. 47 of 2013 mentioned
Pedro Dean v Commissioner of Police MCCrApp No. 26 of 2010 considered
Quincy Johnson and Regina SCCrApp No. 142 of 2015 considered
R. v. Cooper (1968) 53 Cr App R 82 considered
R. v Fergus (Ivan) (1994) 98 Cr. App. R. 313 mentioned
Regina v W.H. 2013 SCC 22 mentioned
Tito Davis v The Commissioner of Police MCCrApp No. 68 of 2013 mentioned
Mr. C. Alexander Dorsett for the Appellant
Ms. Linda Evans for the Respondent
On 3 February 2023, Anwar Strachan (“the appellant”) was convicted and sentenced by Magistrate Samuel McKinney for possession of unlicensed firearm to two years imprisonment, possession of ammunition with intent to supply to three years imprisonment and possession of a component part of a firearm (additional firearm magazine) to three months imprisonment. All sentences were to run concurrently.
Dissatisfied with the Magistrate's Ruling, the appellant filed a Notice of Appeal on 10 February 2023 appealing the convictions and sentences. The Notice of Appeal contains three grounds of appeal. On 9 May 2023, he added nine new grounds. Since the filing of the Supplemental Grounds of Appeal and upon the provision of the Transcript of Proceedings, the appellant has abandoned two of those grounds. The remaining ten grounds of appeal will be addressed later on in this Judgment.
The case for the prosecution as recounted by their three police witnesses is that, on 19 July 2017 at about 3:15 p.m., a posse of police officers went to Nos. 4 and 5 Rosewood Street, Pinewood Gardens, to execute search warrants on the occupants of those two residences in relation to suspicion of possessing firearms and dangerous drugs. While at No. 5 Rosewood Street, which is in close proximity to No. 4 Rosewood Street, Corporal Taylor (now Sergeant Taylor) saw the appellant standing in the doorway of 4 Rosewood Street. Sgt. Taylor was in the company of other officers. According to him, he saw the appellant looked in their direction and took off running. The door to the unit was left open. The appellant did not return to the residence whilst the officers were searching it or when the discovery was made of drugs and ammunition.
In his testimony, Sgt. Taylor stated that the appellant was “known” to him as Anwar Strachan. He did not expound on how he came to know the appellant.
A search was conducted of No. 4 Rosewood Street where, as it relates to this case, a firearm, ammunition and component part (magazine) were found. Also found in the residence under a mattress were the appellant's passport and voter's card. The appellant was arrested several months later and, during an interview, he admitted to living at No. 4 Rosewood Street. Inspector Kemp, the officer who conducted a Record of Interview under caution with the appellant, questioned him as to his whereabouts on 19 July 2017 when the officers executed a search warrant on his residence. The appellant made no comment. Notably, he did not say that he was not on the island. When asked about the whereabouts of his Bahamian passport, the appellant also made no comment. According to Inspector Kemp, the appellant was evasive with certain answers in that to some questions he gave direct responses and in relation to other questions, he stated “no comment.” Under cross-examination by then Counsel for the appellant, Attorney Kellman, Inspector Kemp stated that the appellant said that other persons lived at the residence. The appellant was further asked if other persons “stayed” at the residence and he answered that his sister visited from time to time.
At the close of the prosecution's case, the magistrate called on the appellant to answer to the charges. The appellant did not testify but called one witness, Troy Bethel, to give evidence on his behalf. Troy lives at the back of the appellant's residence. He was not present when the officers arrived. He was unable to say whether the appellant was home when the police arrived. He stated “ I don't know because he goes fishing and travel”. Troy agreed that he does not see the appellant every day and he is not aware of his whereabouts at all times.
After comprehensively setting out the respective testimonies of the witnesses, the Magistrate stated at paragraphs 22 to 25 of the Ruling that:
“ 22. The court...
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