Magistrate finds charge is defective
A man charged with possessing an imitation firearm – a flare gun – had the charge dismissed after a magistrate agreed with his attorney that the charge against him did not specify an offense.
Codey Moxam, 24, defended by attorney Prathna Bodden, was charged with possession of an imitation firearm with intent to commit an offense on March 23, 2014 in West Bay.
Crown Counsel Neil Kumar read three witness statements into evidence. Two statements were from police officers who said they were called to a residence that Sunday morning. There was no disturbance.
When Moxam arrived, he mentioned an incident that had occurred the previous day. Officers advised him to go back to his own residence in the eastern districts and avoid contact with a named individual.
Moxam agreed to leave after he got his personal watercraft.
Around 10:45 a.m., officers on patrol were stopped by a relative of Moxam’s who told them that Moxam had a flare gun in the car he was driving. The officers saw Moxam and followed him.
When they stopped him, they asked about a flare gun. He told them he had one under his seat, with cartridges in a console beneath the radio. He told them he had taken the gun from a boat and he told them the name of the person who owned the boat.
The officers confiscated the flare gun and cartridges.
The court heard that Moxam later allegedly told the relative, “I can kill you just like I can with [named person]. If people in this yard don’t take me serious, anybody can get kill.”
After the Crown closed its case, Ms. Bodden pointed out that merely being in possession of a flare gun is not an offense. “For the case to continue, you would have to be sure beyond reasonable doubt that at the time of having the item, he had the intention of committing an unspecified offense. Looking at the charge, you can’t be sure what was intended – robbery? assault? making threats?”
Ms. Bodden pointed out that the threats reported were made after the gun was removed; anything said afterwards could not relate to the offense. She noted that two of the three witnesses statements had referred to Moxam as calm. His actions did not indicate any threat: “He was not waving [the gun] around. He was not doing anything with it,” she emphasized.
If it were a different charge, or if the charge were drafted in a different way, then it could be said that the court was properly directed as to what it was being asked to find,” Ms. Bodden submitted.
In this case, there was simply not enough evidence to support any charge, because having a flare gun is not an offense, she concluded.
Magistrate Grace Donalds dismissed the charge. “You are found not guilty,” she told Moxam, “and you are discharged in this matter.”