Jamaal Hamilton v The Commissioner of Police

• Jurisdiction: Bahamas
• Judge: Mr. Justice Evans, JA
• Judgment Date: 08 March 2023
• Neutral Citation: BS 2023 CA 32
• Docket Number: MCCrApp & CAIS No. 163 of 2022
• Court: Court of Appeal (Bahamas)

Between

Jamaal Hamilton

Appellant

and

The Commissioner of Police

Respondent

Before:

The Hon Sir Michael Barnett, President, Kt

The Hon Mr. Justice Evans, JA

The Hon Sir Brian Moree, JA, Kt

MCCrApp & CAIS No. 163 of 2022

IN THE COURT OF APPEAL

Criminal Appeal — Appeal against convictions and sentence — Possession of an unlicensed firearm-Contrary to section 5b of the Firearms Act Chapter 213 — Possession of ammunition: Contrary to section 9 (2) (a) of the Firearms Act Chapter 213 — Section 8A of the Firearms Act

On the morning of April 1, 2011, police officers were conducting a road check in the area of Paradise Island beach when they noticed a silver Suzuki Swift motor vehicle trying to avoid the checkpoint. The officers pursued the vehicle and forced it to stop, and upon approaching it they saw two men inside and the passenger was holding a gun. The officers ordered the two men, Jamaal Hamilton and Ombre Moss, out of the vehicle. Upon inspection, they found a firearm and 15 rounds of ammunition inside the car. Both men denied any ownership or possession of the gun and ammunition. On November 15, 2022, Jamaal Hamilton and Ombre Moss were found guilty of possession of an unlicensed firearm and possession of ammunition, and were sentenced to 18 months in prison. On November 17, 2022, Jamaal Hamilton filed an appeal against his convictions and sentences.

Held: Appeal dismissed. The Appellant's convictions and sentences are confirmed.

The evidence presented to the Magistrate was clear. A road check was ongoing, and the car driven by the Appellant drew the attention of the police. Upon searching the vehicle, a firearm was found wedged between the passenger seat and the center console of the interior. Section 8A of the Firearms Act became applicable in this situation. Generally, an accused person has a right to remain silent and is not required to answer any questions; however, due to the terms of Section 8A, it would have been in the Appellant's best interest to provide an explanation for the presence of the firearm in the vehicle. Since he failed to do so, no rebuttal was made to the prima facie evidence of his guilt. Therefore, the Magistrate had no choice but to convict him. It is evident why the Magistrate arrived at this conclusion, and there is no cause to believe that the convictions were unsafe. Thus, the appeal against conviction must be dismissed.

I hasten to add, however to be clear and as a caution, that Magistrates should be aware of the importance of providing reasons for their decisions in their rulings. It is important for confidence in the Judiciary, as it allows parties to better understand the decisions made in their cases. The provision of reasons also serves to help the appellate court to determine whether the decision of the judge was reasonable and according to law. As stated by Sir Michael Barnett, in Adnan Oliver v R SCCrApp. No. 191 of 2014 ‘ as a general proposition adequate and intelligible reasons must be given for judicial decisions. A judge failing to give reasons must be the exception rather than the rule…”

Adnan Oliver v R SCCrApp. No. 191 of 2014 considered

Ashano Knowles v The Commissioner of Police MCCrApp. No. 141 of 2022 mentioned

Derek Belle v The Commissioner of Police MCCrApp & CAIS No. 277 of 2015 considered

Kapry Kemp v Commissioner of Police MCCrApp No 37 of 2005 followed

Mario Taylor v Regina SCCrApp. No. 265 of 2017 considered

APPEARANCES:

Mr. Ian Cargill, with Mr. Alphonso Lewis, and Mr. Levan Johnson, Counsel for the Appellant.

Mrs. Jacqueline Forbes-Foster, Counsel for Respondent

Judgment delivered by The Hon . Mr. Justice Evans, JA

1 The Appellant in this matter appeals against his convictions and sentence for the offences of (1) Possession of an unlicensed firearm: Contrary to section 5b of the Firearms Act Chapter 213; and (2). Possession of ammunition: Contrary to section 9 (2) (a) of the Firearms Act Chapter 213. The Appellant was sentenced to ‘imprisonment of 18 months with immediate effect’.

2 The Notice of Motion which was filed on the 18 November, 2022 contained five(5) grounds of Appeal set out as follows:-

• 1. The decision of the Learned Magistrate to convict the Appellant was unreasonable and could not be supported having regard to the evidence.

• 2. The decision by the Learned Magistrate was one that another Magistrate viewing the circumstances could not properly arrive at.

• 3. The Conviction is unsafe and unsatisfactory.

• 4. The sentence is harsh and unduly severe.

• 5. Such other ground(s) that the Court deems just and reasonable.”

THE PROSECUTION'S CASE AT TRIAL

3 The evidence led by the Prosecution indicated that on Friday 1 ^st April, 2011 around 10:40 am while in the area of Paradise Island beach the police were conducting a road check. The officers' attention was drawn to a silver 2009 Suzuki Swift motor vehicle license plate AX1220 as it turned around, appearing to attempt to avoid the road check that was being conducted in the area. As a result Chief Inspector Daniel Gabriel along with woman Police Constable Kacey Johnson pursued the vehicle and beckoned it to stop, which it did.

4 The evidence of Gabriel was that when he approached the vehicle he observed that there were two individuals in the vehicle. He testified that he was able to see the passenger with what appeared to be a gun in his hand which he attempted to hide away. The two men were ordered from the vehicle and a gun was located the passenger exited the vehicle he noticed the subject firearm wedged between the passenger seat and the centre console on the interior of the vehicle.

5 The evidence which was undisputed was that the Appellant was the driver of the vehicle and his co accused was the passenger. The men were arrested and were taken to Paradise Island Police Station where they were checked in. WDC 4081 Major testified that at the station she conducted an interview with the Appellant and when questioned about the firearm and ammunition he replied “no comment”. She further testified that he refused to sign the interview sheet.

6 The Appellant was subsequently, charged for the offences for which he was tried and convicted. At his trial the Appellant's Counsel made an unsuccessful no case submission. When called upon to answer the charges the Appellant elected to remain silent and gave no evidence. He was convicted after closing submissions were made on his behalf.

THE LEGAL POSITION

7 Section 5 of the Firearms Act as amended is in the following terms:-

“5. Penalties for revolvers.

Any person importing a revolver into The Bahamas or being found in possession of a revolver in contravention of this Part shall be liable —

• (a) on conviction on information to imprisonment for a term in the range of ten years to fifteen years;

• (b) on summary conviction, to imprisonment for a term in the range of twelve months to ten years and in addition to such term of imprisonment every such revolver shall be forfeited to the Crown:

Provided that where the court is satisfied that such person was the holder of a special licence issued under this Part and did not renew such licence during the period specified in the proviso to subsection (3) of section 4, or during the period of six months next following that period, the court may, in lieu of passing a sentence of imprisonment, Impose on such person a fine not exceeding five thousand dollars.”

8 Section 9 of the Act provides that—

• “9. (1) Subject to the provisions of section 12, 43 and 44 of this Act, no person shall purchase, acquire or have in his possession any firearm or ammunition to which this Part of this Act applies unless he holds a firearm certificate in force at the time.

• (2) If any person —

  • (a) purchases, acquires or has in his possession any firearm or ammunition to which this Part of this Act applies, without holding a firearm certificate in force at the time, or otherwise than as authorised by such certificate, or, in the case of ammunition in quantities in excess of those so authorised; or

  • (b) fails to comply with any condition subject to which a firearm certificate is held by him, he shall, subject to the provisions of sections 12, 43 and 44 of this Act, for each offence be liable —

    • (i) on conviction on information, to imprisonment for a term being in the range of ten years to fifteen years;

    • (ii) on summary conviction to imprisonment for a term in the range of twelve months to ten years:

  Provided that where the court is satisfied that such person was the holder of a firearm certificate granted under this Part and did not renew such firearm certificate during the period specified in the proviso to subsection (4) of section 10, or during the period of six months next following that period, the court may, in lieu of passing a sentence of imprisonment, impose on such person a fine not exceeding five thousand dollars.

• 9A. Possession of firearm and ammunition with intent to supply.

  • (1) It is an offence for a person to have a firearm or ammunition in his possession with intent to supply it to another in contravention of the provisions of this Act.

  • (2) A person who contravenes this section commits an offence and is liable –

    • (a) on conviction on information to a term of imprisonment in the range of ten years to fifteen years;

    • (b) on summary conviction to imprisonment to a term in the range of four years to seven years.

  • (3) For the purposes of subsection (1), where a person is found in possession of two or more firearms or twenty—five more rounds of ammunition without a firearm certificate, it shall be presumed, unless the contrary is proved, that he is in possession of the said firearm or said ammunition with intent to supply it to another person irrespective of whether that person is within The Bahamas or elsewhere.

  • (4) For the purposes of this Act, “supply” includes sell, transfer or...