Judge points out that DNA evidence on firearm may show contact, but by itself not enough to show possession
Osbourne Wilfred Douglas was found not guilty of possession of an unlicensed firearm after Justice Alexander Henderson directed the Grand Court jury to return that verdict on Tuesday.
Douglas had been charged after police stopped the car he was driving in George Town last May and a .38 Auto calibre AMT pistol fell from the right pants leg of his passenger, Roger Antonio Moore. Moore, 28, pleaded guilty on 29 January when the two men were to have gone on trial together; Moore has not yet been sentenced.
Douglas, 26, was initially charged with obstructing the officer who retrieved the dropped firearm. He pleaded guilty in Summary Court and was sentenced to 60 days. After DNA swabs from the gun were compared with swabs from Douglas, he also was charged with possession of the unlicensed firearm. Crown Counsel Kenneth Ferguson concluded the case for the prosecution on Monday. Then, in the absence of the jurors, Justice Henderson heard submissions from defence attorney Fiona Robertson that there was no case for Douglas to answer.
The judge gave his decision early Tuesday morning. He pointed out that the presence of DNA on an object shows a person’s contact with the object, but not possession of it. Possession is just one way the DNA could have been placed on the gun.
Another way could have been Douglas touching it while it was in someone else’s possession. Or, there could have been a transfer of Douglas’ DNA to co-defendant Moore, who then touched the gun. Or Douglas’ DNA could have been on a cloth used by Moore to wipe the gun.
Another possibility was the transfer of Douglas’ DNA to the hand of the officer with whom he had struggled at the scene, and then a transfer from the officer’s hand to the gun.
DNA samples were taken from the chamber of the gun and a round of ammunition. Ms Robertson raised questions as to whether transfer could have occurred when the round and the gun were placed in the same evidence bag; or whether the officer taking samples for DNA testing did not change gloves between swabbing the outside of the gun and the inside.
The judge said it would not have been unreasonable or unsafe for the jury to conclude there had been no transfer of DNA, but the real question was whether Douglas had physical possession of the gun.
Justice Henderson cited a 2009 case in which the jury had been directed to return a not guilty verdict in a firearm trial. The chief justice had listened to arguments and concluded: “I think the jury could be invited to say there could have been contact, but it would be pure speculation to say how that contact occurred.” In Douglas’ case, Justice Henderson said he had carefully considered Ms Robertson’s extensive arguments and Mr. Ferguson’s reply, He decided there was not enough evidence to justify any jury, properly instructed and acting reasonably, to convict.
The jury was then called into the courtroom and Justice Henderson explained what had happened. He reminded jurors of what they had been told at the start of the trial – that they decide the facts of the case, but he as judge had the sole mandate regarding any question of law. One question of law was whether the Crown’s case, taken in isolation and by itself, would support a finding of guilt.
He said that, after hearing extensive arguments from both attorneys, he had carefully considered them and decided there was not enough evidence to justify any jury, properly instructed and acting reasonably, to convict. Justice Henderson explained that was because of the weakness in the DNA evidence and the various possibilities as to how that DNA evidence could have been deposited on that gun.
For that reason, he had acceded to the arguments of Ms Robertson that there was no case to answer. “I now direct you as a matter of law that Mr. Douglas must be found not guilty,” he told jurors.
He further explained that, since they had been put in charge of the case, they had to go through the formality of discussing it among themselves and returning the verdict. The jurors did discuss it without leaving the courtroom and the foreman announced their verdict moments later.
Douglas remained in custody a little while longer because he faced a charge in Summary Court. Ms Robertson appeared for him there and advised Chief Magistrate Nova Hall of the not guilty verdict in Grand Court. The magistrate granted bail with a recognizance of $1,000 and a surety, for Douglas to return for trial on 15 May.