In November 2006, Andrew Powery told police he had been shot in the leg as he rode a bicycle at night along Reverend Blackman Road in West Bay.
In September 2007, police arrested Powery and charged him with possession of an unlicensed firearm and one round of ammunition. The allegation was that he was in custody and control of the gun with which he was shot.
In March 2009, jurors heard evidence from police officers, a gunshot residue expert and two forensic pathologists. After deliberating over parts of two days, they found Powery not guilty by a majority of 5-1. The seventh juror was discharged after becoming ill part way through the trial.
In his instructions to the jury, Justice Charles Quin pointed out that Powery did not give evidence, but did tell police after the incident that somebody fired at him from a passing car while he was riding a bike. ‘If you believe the defendant or if you believe what he said might be true, then you are bound to acquit him,’ the judge emphasised.
In his general remarks earlier, the judge noted it is always for the prosecution to prove guilt. The defendant does not have to prove innocence. If after considering the evidence, jurors were sure Powery was guilty, that had to be their verdict. If they were not sure, the verdict had to be not guilty.
Crown Counsel Tricia Hutchinson and Defence Attorney Phillip McGhee agreed about Powery’s injury. A bullet entered the inner thigh of his left leg and travelled from front to back, right to left, and downwards, exiting above the back of the knee and then entering the lower leg.
Dr. John Heidingsfelder, the pathologist called by the Crown, initially said Powery’s account was not possible because pedalling a bicycle requires the legs to be parallel to the frame of the bicycle. A bullet from a passing car would go into the thigh and out the other side.
However, when questioned by Mr. McGhee about such variables as size of the bicycle and height of the seat, Mr. Heidingsfelder softened his view and said Powery’s account was possible, but the track of the bullet would require a complete lateral splaying of the leg. Mr. Heidingsfelder said if Powery were cycling normally, his account was not possible.
Dr. Nathaniel Carey was called by the defence and he gave evidence via video link. He agreed with Mr. Heidingsfelder about the track of the bullet, but said Powery’s account was entirely plausible. He also pointed to the condition of the skin around the entry wound and said this showed it was not a contact wound or even a near contact wound.
Powery told police he had dropped the bike and got a ride to the hospital from a passing motorist. The bicycle was never found. No blood or bullet casing was found when police searched the area where Powery said the incident occurred.
Ms Hutchinson, in her closing speech to the jury, said the absence of such evidence supported the Crown’s case that Powery was in possession of the gun when it discharged. Mr. McGhee suggested no evidence was found because the search was lazy.
Michael Martinez, an expert on gunshot residue, said he found such residue particles on swabs taken from Powery’s left hand, abdomen and left leg. No particles were found on Powery’s right hand.
He concluded that Powery may have discharged a gun or handled a discharged gun or been in close proximity to a discharged gun.
There was no gunshot residue on the pants Powery said he was wearing that night and no bullet hole. Powery told police he had rolled up his pants leg for easier cycling.
Various scenarios were commented on by the three expert witnesses: accidental discharge while the gun was being carried in a pocket or inside a belt; accidental discharge while the gun was being handled or cleaned; discharge while two people were struggling with a gun.
Justice Quin pointed out that these scenarios were only possibilities and there could be others in which gunshot residue might be found on a person.
He warned that jurors should not speculate as to what other evidence there might have been or allow themselves to be drawn into speculation.