Man freed after firearm appeal

David Ashton Whorms won his appeal
against a conviction for possession of an unlicensed firearm last Wednesday. He
was acquitted and told there would be no retrial.

Court of Appeal president Sir John
Chadwick announced the court’s decision, which was that Justice Paulette
Williams had misdirected the jury that found Mr. Whorms guilty on 24 July,
2008. He received the mandatory ten-year minimum sentence.

He was in custody since the night
of 1 January, 2008, when he and two other men were in a vehicle stopped by
police in the Rum Point area of North Side. Officers smelled ganja and searched
the men and the car. They found a .38 revolver with three live rounds under the
front passenger seat.

Mr. Whorms, now 30, was the driver,
and a man nicknamed Slim was the front seat passenger. A backseat passenger was
known as Tired.

All three were arrested on
suspicion of possessing the unlicensed firearm. But DNA test results showed
only Mr. Whorms’ DNA on the gun. This was agreed by Defence Attorney Nicholas
Dixey, but he called an expert witness who explained the possibility of
secondary or indirect transfer of DNA by holding an object.

The expert, Ms Ruth Ballard, declined
to give an opinion as to what happened on the night Mr. Whorms was arrested.
However, she said, “DNA analysis cannot indicate how or when the DNA was
transferred onto an item or person and therefore multiple explanations should
be considered and carefully weighed with other available evidence.”

Mr. Whorms gave evidence that he
and his two passengers had been told to lie on the ground after the gun was
seen. He said one officer came over and picked him up under his left arm,
walked him to the passenger side and showed him the gun on the floor of the
car. The defence was not saying definitely this was how Mr. Whorms’ DNA got on
the gun, but it was raised for the jury to consider. The officers denied Mr.
Whorms’ account. 

The DNA evidence had been submitted
by the Crown at the preliminary inquiry stage of proceedings in March 2008 and
Mr. Whorms was committed to stand trial in Grand Court. About two weeks after
the preliminary inquiry, the results of Gun Shot Residue (GSR) tests became
available. Residue was found on a shirt belonging to Slim and a spent shell was
found at Slim’s residence.

Justice Williams referred to this
evidence in her summing up to the jury. The investigating officer, who provided
this information, made it clear he was not responsible for who came before the
court, she reminded the jury. She also noted that the magistrate did not have
the GSR report at the time of the preliminary inquiry.

“We cannot speculate as to what her
decision may have been if she had that report,” the judge said.

After reviewing the judge’s summing
up to the jury, the Court of Appeal noted that the DNA evidence did not rule
out the possibility that others (whose DNA was not found on the weapon) might
also have handled it.

“In our view the jury needed to be
directed — in clear terms — that, before they could be sure that the weapon
was in the possession of Mr. Whorms on the night of 1 January, 2008, they must
be satisfied that it was not, in fact, in the possession of [Slim, the front
seat passenger].”

The court continued: “In our view
the judge needed to direct the jury that they could not conclude from the fact
that [Slim] was not on trial for possession of the firearm, that there was no
real possibility that he was, in fact, in possession of the firearm.”

In their written ruling the three
appeal judges said jurors had to ask themselves whether, on the facts put in
evidence before them, they were satisfied there was no real possibility Slim
was the person in possession of the gun that night.

“Unless they were satisfied of
that, they could not be sure that it was Mr. Whorms who was in possession of
the weapon at the time; and if they could not be sure of that, they could not
convict him.”

The appeal court
judges said they were unable to avoid the conclusion that there was
misdirection in the case and it was sufficiently material to render the jury’s
verdict unsafe.

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