Brac firearm charges dismissed

Crown offers no evidence against police officer Alexander Caraballo-Kelly

Two firearm charges against a suspended police officer were dismissed when a judge ruled the law was ambiguous on whether the shotgun component the policeman imported could be considered a firearm. 

Judge Alexander Henderson dismissed the charges against Alexander Caraballo-Kelly last week in Grand Court. 

Crown counsel Candia James offered no evidence against him after Justice Henderson ruled on arguments from her and defense attorney Ben Tonner. 

The defendant was a serving police officer in Cayman Brac at the time of the incidents that led to the charges – Dec. 31, 2012, and March 13, 2013. He was accused of importing a firearm not in accordance with the terms of either an import or export permit and then having it in his possession. The item specified was a “20 round calibre 12-gauge drum magazine.” 

Mr. Kelly was the holder of a firearm license for a 12-gauge semiautomatic shotgun. 

The Firearms Law provides that no person shall import a firearm without the appropriate permit. The legal definition of firearm includes “any component part of any such weapon.” 

Justice Henderson pointed out many objects form part of a firearm, that by themselves are no different from what may be obtained in a hardware store – nuts, bolts, washers, springs and so on. 

“Accepting a literal definition of the phrase ‘component part’ would stigmatize the importation and possession of such minor parts if they are intended for use in a firearm,” Justice Henderson said, adding that the “real question” was what was intended by the Legislative Assembly when it was decided that importation or possession of a component part would attract criminal liability in the same manner as importation or possession of a firearm. 

He said there was a valid policy reason for prohibiting the separate possession of some parts of firearms, such as magazines, when they cannot be shown to be covered by the license for a particular firearm, “but it is silly to suggest that all component parts of a licensed firearm must be licensed separately whenever they are detached.” 

The judge noted that there is no definition of “component parts” in the Firearms Law. 

A crown expert had said that the magazine, as an important part of the firearm, requires a separate permit. The defense submitted the U.K. Home Office “Guide on Firearms Licensing Law,” which includes a list of parts considered to be components; magazines were expressly excluded from the list. 

The judge explained that a person should not be penalized except under clear law. A court should strive to avoid any interpretation that penalizes a person where the legislature’s intention to do so is doubtful, or penalizes the person in a way that was not made clear. 

“The definition of a firearm in section 2(1) of the [Firearm] Law does not provide clear warning to the public about which parts of a firearm will or will not be treated as component parts. A person with a sincere desire to comply with the law may find he has violated it unintentionally, with profound consequences…. 

“I find that the phrase ‘component parts’ suffers from a latent ambiguity which renders its meaning doubtful. Since the law is doubtful, this defendant cannot be penalized. I find that the magazine is not a component part and therefore not a firearm,” Justice Henderson concluded, and he dismissed the charges against the police officer. 

Mr. Tonner and his client appeared in Summary Court the same day before Magistrate Grace Donalds on the only remaining matters, charges of evading customs duty between Nov. 19, 2012, and Feb. 25, 2013. Mr. Tonner said the amount of duty involved was less than $90 and he asked that trial be held as soon as possible, given the defendant’s job situation. 

The magistrate set Aug. 28 for trial, with a backup date in November.