A Grand Court jury on Tuesday found Tonie Elford Bush, 46, not guilty of possessing a Remington shotgun for which he had no license.
The gun, with four live cartridges in it, was found in a room in the West Bay house where Bush and his mother were the only occupants when police went there with a search warrant around 6:15 a.m. on Nov. 5, 2015.
The case for the prosecution, conducted by Crown counsel Scott Wainwright, was that Bush had knowledge, custody and control of the shotgun. It was found under cushions of a sofa in a room said to be Bush’s bedroom. DNA matching Bush’s DNA profile was found on the slide and butt of the shotgun and also on the cartridges inside it.
Each officer taking part in the operation was called; no officer who touched Bush entered the room in which the gun was found, nor did any of them touch the gun or the cartridges, the court heard.
Bush, who chose to represent himself, did not give evidence. But in questions he put to the various witnesses, he suggested that his DNA could have got onto the gun by indirect transfer.
His defense was that police or some family member put the shotgun there without his knowledge. In his closing speech to the jury, Bush said he had slept on that sofa, so his DNA would have been on the sofa and then it would have transferred from the sofa to the gun. He pointed out that a DNA swab from the sofa was not tested.
He charged that the room had been rearranged: no officer admitted to moving the cushions from the sofa and no officer admitted to opening a window in the room. He suggested that the window was open wide enough for a gun to have been passed through it.
Bush also pointed out that no evidence had been brought to show that the room was his and it was only speculation to say so.
Both the prosecution and the defense had called DNA experts as witnesses and they did not disagree on the scientific evidence.
In summing up the case to the jurors, Justice Malcolm Swift noted that Bush did not really disagree that the DNA found was his; he suggested that the items had been exposed to his DNA by someone else. The judge directed that it was for the Crown to prove that Bush’s DNA was not transferred by someone else.
He suggested that the jurors consider whether there was a reasonable possibility that the gun arrived in the room without Bush’s DNA and became contaminated by some action of the police or a third party.
The DNA swab from the gun showed that the major component matched Mr. Bush’s profile “so that, although it cannot be concluded that it is definitely his profile, it is one quintillion times more likely to be his than for it to have come from someone else,” Justice Swift said. None of the DNA came from other people named by the defendant.
As to the DNA on the cartridges found inside the shotgun, Bush could not be excluded as a contributor, the judge said.
The question of indirect transfer was a question for the jury, Justice Swift instructed.