Firearm conviction overturned

The Court of Appeal acquitted Robert Aaron Crawford of possessing an unlicensed firearm and set aside his 10-year sentence this week. The court did not order a retrial.

Crawford, 20, had his appeal presented by attorney Nicholas Hoffman, who argued that the conviction was unsafe because of the way DNA and photo evidence was dealt with during the Grand Court trial. He also urged the court to consider whether the police officer chasing Crawford really saw a gun in Crawford’s hand or only thought he saw it because a gun was later found in the area.

Court president Sir John Chadwick delivered the decision reached with Justice Elliot Mottley and Justice Ian Forte on Wednesday.

In his summary of the incident that led to the charge, the judge said that in November 2011, police officers were at a night club parking lot when a person complained that someone had pulled a gun on him. When the citizen and officer went to the car Crawford was driving, the complainant said, “That is the man who pulled the gun on me”. The officer told Crawford to turn off his engine. Instead, when the civilian punched at him, Crawford drove off at speed.

He drove so fast he crashed into guard rails near the Island Heritage roundabout on the Esterley Tibbetts Highway. Two Uniform Support Group officers who had been pursuing the car with their siren and flashing lights saw two men get out of the crashed car. Each officer picked a man to follow and the one chasing Crawford told him repeatedly to stop.

As Crawford ran down the highway, he took from his waist what the officer described as a silver-coloured gun, six to eight inches in length. The officer then saw Crawford throw something into the bush.

Crawford was caught a short time later. Police searched the area where the pursuing officer said he had seen the gun thrown; after they obtained commercial lighting and a metal detector, a loaded Stock German Luger pistol was found.

One of the officers took a photograph with his personal camera; other photos were taken by a Scenes of Crime officer about 40 minutes later. The first photo showed the gun under some growth; the second showed the gun on top of the undergrowth with a bullet visible near the gun.

The officers did not continue searching after finding the gun, Justice Chadwick noted.

The gun was subjected to forensic analysis: Crawford’s fingerprints were not found on it and his DNA was not found, but there was DNA of another person who was known to police.

It could therefore be assumed that the gun had been in the possession of someone else, but it could not be inferred it was in Crawford’s possession, Justice Chadwick pointed out.

Crawford had chosen to be tried by judge alone and Justice Charles Quin posed the question he had to decide: If he were satisfied that the officer chasing Crawford saw him with the gun in his hand and then saw him throw it into the bush, and that officer was truthful and reliable, then Crawford was guilty. If there were any doubt that the officer saw the gun or that he was mistaken, then the verdict had to be not guilty.

The case relied on the identification of the gun by the officer chasing Crawford.

In his verdict, Justice Quin had noted the officer’s evidence that he had been trained to watch a suspect’s hands when in a chase. The judge also visited the scene at night to get an idea of the lighting and foliage. He reminded himself that the officer could be convincing but mistaken.

Reviewing this evidence, the Court of Appeal said there was no doubt the officer was chasing Crawford and did see him throw something. “It seems to have been assumed that what was thrown is what was found subsequently,” the president said.

“In truth, it would have been possible for the defendant to throw something that was not found. There was not a sufficient search for the judge to say the Luger was the only object there to fit the description of what [the officer] said he saw thrown.”

The trial judge had concluded that finding a gun was strong corroboration that the officer did see the gun in Crawford’s hand.

But as Mr. Hoffman had pointed out, it could well be a classic example of someone seeing what he expected to see and this being confirmed when a gun is found in the area he expected it to be. The citizen who reported Crawford pulling a gun never gave a statement; the first police officer who was told Crawford had a gun did not see one; he passed that information on to the Uniform Support Group officers. There was also the indication that Crawford was known to police for other reasons.

The photographic evidence indicated that the gun was not in the same position as when it was first found; that difference had needed explanation, the appeal court said. Had the scene been “improved”? Had the officers been truthful? If not, then the evidence of the officer chasing Crawford had to be approached with particular caution.

The court also said that if the trial had been with a jury, it would have been essential for the judge to tell them how to approach the DNA evidence, but in his own summing up, he did not mention the absence of Crawford’s DNA.

The court was forced to conclude that the judge’s failure to deal adequately with these points rendered the verdict unsafe.

Deputy Director of Public Prosecutions Trevor Ward represented the Crown. The trial and sentencing were reported in the Caymanian Compass on 2 November 2012 and 29 January 2013.

The officers did not continue searching after finding the gun, Justice Chadwick noted.