The Court of Appeal has quashed a couple’s conviction of possessing an unlicensed gun, which was found hidden in an oven, and ordered a retrial be held.
Kevan Maxhoward Smith and Sharis Alexandra Ford were convicted on 8 Nov. 2022 of possession of an unlicensed firearm and ammunition, following a Grand Court jury trial before Acting Justice Frank Williams. Both were sentenced to 10 years in prison.
The appeal hearing was heard 17 Sept. this year before three justices of the Court of Appeal, whose judgment was made publicly available on 8 Oct.
During the 2022 trial, the jury had heard that Smith and Ford were in a relationship, and living together in Ford’s apartment. On 5 Nov. 2021, the boyfriend of a friend of Ford’s went to the apartment, believing there had been an incident there involving his girlfriend. There, the court heard, he was threatened by a man with a gun, whom he did not identify as Smith, but whom he described as being Ford’s boyfriend. He reported the incident to police the next day.
On 10 Nov. 2021, police executed a search warrant at Ford’s apartment, where they found a black plastic case in the bottom of the oven. Inside the case was a Tanfoglio Force 99 9mm pistol with five rounds of ammunition.
DNA evidence
DNA samples taken from the firearm and the plastic case indicated that both Ford and Smith had handled the gun, and that Smith had handled the case.
Smith declined to answer questions at his police interview, but produced a short prepared statement where he described being attacked by three men on 3 Oct. 2021, following which he feared for his life and felt the need to protect himself. He denied threatening the man who visited the apartment on 5 Nov. with a gun.
Ford did answer all questions put to her by police, and denied any knowledge of the firearm.
The Court of Appeal written judgment noted that the couple’s defence at trial had concentrated on challenging the interpretation of the DNA evidence and raising questions about possible contamination during the collection of evidence. The defence also raised the possibility of transfer of DNA between Smith and Ford on the basis that they were in an intimate relationship and were living together.
‘Material misdirections’
Neither Smith nor Ford gave evidence at the trial.
In their ruling, the appeals court judges found that there was “a material misdirection” in part of Justice Williams’ summing up of the case to the jury at the trial. They stated, “When giving … direction about adverse inferences from the decision not to give evidence at the trial, the judge should have pointed out that Ford had answered questions and put forward her case during her police interview.”
The Court of Appeal justices said, after reading the transcript of the trial judge’s summing up, they were still unclear as to what the main basis of the defence had been. They had questioned counsel during the appeal hearing, where they were advised that the possibility of innocent transfer of DNA was a main focus of the defence.
“In those circumstances, it was the duty of the judge to make clear to the jury that the defence case was that, despite the existence of the DNA evidence, there might be an innocent explanation by reason of innocent transfer. It was not sufficient for the judge simply to quote from the answers given by [the prosecution’s DNA expert Christian Taylor] to certain questions asked by defence counsel. Accordingly, we find that there was a material misdirection in this respect,” the judges said.
The appeals court justices also noted that the fact that the jury was never informed that Ford had no previous criminal record was also a consideration.
Retrial ordered
In their conclusion, the judges stated, “This was a case where, given the DNA evidence, the key plank of the defence case was that the DNA had been innocently transferred. This might have been by reason of the police doing so during the execution of the search.
“But it might also have been a case where Ford’s DNA had been introduced to the firearm by Smith handling it in circumstances where, being in an intimate relationship with Ford, he had Ford’s DNA on his skin. The position might also have been the reverse, with Smith’s DNA being introduced as a result of Ford handling the firearm. These were the key issues for the jury to consider.”
They said the trial judge had failed to make this key part of the defence case clear and “also gave a potentially confusing direction on the standard of proof and inadequate directions”.
Hence, they allowed both appeals and quashed the convictions.
However, because there was “clearly evidence against both appellants”, they ordered that a retrial be held, and remanded Smith and Ford in custody pending bail applications to the Grand Court.
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