Court upholds firearm conviction, sentence

Appellant did not give evidence at his trial

Ray Kennedy Smith lost his appeal against conviction and a 10-year sentence for possession of an unlicensed firearm, as the Court of Appeal rejected arguments against the judge-alone verdict. 

The firearm was a 9-mm Smith and Wesson handgun loaded with five live rounds. 

Smith elected to be tried without a jury, and chose not to give evidence during his trial. Justice Charles Quin found him guilty in February 2014 and imposed the mandatory minimum sentence of 10 years.  

The appeal tribunal heard the matter during its sitting that ended on Friday. 

Smith was 18 when he was arrested outside a West Bay nightclub in July 2011. Police officers on patrol had seen three males outside the bar and, after they drove into the parking lot, Smith walked off to the side of the building and then returned to join the other two. Since one of the officers smelled ganja, a search of the men was requested. One of the officers went to the area where Smith had briefly gone and did a ground search, using his flashlight, because he suspected illegal drugs. He saw a pistol grip of a firearm under a ski mask and gloves, behind an air-conditioning unit. 

Examination by a DNA expert showed a partial DNA profile on the interior of one of the gloves. The expert gave evidence that Smith could not be excluded as a contributor to that partial profile. The chance that an unrelated person from the general population could be included as a contributor to the profile was one in 1.4 billion individuals. Other partial DNA profiles on the gloves were inconclusive. There was no identifiable DNA on the gun nor any fingerprints. 

Attorney Amelia Fosuhene argued the appeal. Crown counsel Candia James, who had conducted the case for the prosecution at trial, responded. 

Court president Sir John Chadwick delivered the court’s decision. He first referred to Ms. Fosuhene’s submission that Justice Quin was wrong when he referred to Smith not giving evidence and not availing himself of the opportunity to present any reason for the DNA match. She argued that the judge had fallen into the trap of thinking that the match pointed necessarily to Smith handling or wearing the glove. 

Ms. James had replied that the judge did clearly understand the DNA evidence: it did not show that Smith had worn the glove, only that he could not be excluded. Justice Quin had reminded himself that Smith could not be convicted on the basis of that partial profile match. What was needed was to evaluate all of the evidence, of which the DNA was only a part. 

Justice Chadwick pointed out that in addition to not using the opportunity to explain his movements before his arrest, Smith also did not avail himself of the opportunity to present any reason for the DNA match. There was no suggestion that there could have been involvement by a close relative as a reason for the DNA partial profile, “and the judge was entitled to take the view that this was not a suggestion the defense was advancing.”  

All of the facts and Smith’s failure to give evidence led to the inescapable conclusion that Smith put the gloves, mask and gun behind the A/C unit at the side of the building when he saw police coming. The judge was entitled to come to that conclusion on the basis of all of the evidence before him.  

Justice Chadwick said the appeal court rejected the argument that the judge had fallen into the trap of thinking that the DNA evidence was sufficient of itself to convict. Justice Quin had weighed that evidence along with all the other factors in coming to his verdict.