Larenzo Rigby v R
| Jurisdiction | Turks and Caicos Islands |
| Judge | John, JA |
| Judgment Date | 29 March 2022 |
| Neutral Citation | TC 2022 CA 4 |
| Docket Number | Appeal No. CR-AP 2/21 From CR 64/19 |
| Court | Court of Appeal (Turks and Caicos) |
The Hon. Mr. Justice C. Dennis Morrison P
The Hon. Mr. Justice Stanley John JA
The Hon. Mr. Justice Humphrey Stollmeyer JA
Appeal No. CR-AP 2/21 From CR 64/19
IN THE COURT OF APPEAL
Ms. Sheena Mair for the Appellant
Ms. Nayasha Hatmin for the Respondent
This is an appeal against conviction. On 11 th June 2021, after a trial lasting eighteen (18) days before Tanya Lobban Jackson J and a jury, the appellant was convicted of the offences of keeping firearm and keeping ammunition contrary to section 3 (1) of the Firearms Ordinance Chapter 18.09 of the laws of the Turks and Caicos Islands.
On Monday 31 st January 2022, following submissions from counsel for the appellant and counsel for the Crown we dismissed the appeal. We indicated then that we would give written reasons at a later date. This we now do.
The Prosecution case was that on 18 th October 2019, police officers were on their way to execute a warrant in Five Cays at a motel known as Sally-Ann Motel in Providenciales. There were three police vehicles in the party. DC Jevon Hall was sitting in the passenger seat of one of the vehicles. On arrival at the location he got out of the vehicle and stood at a particular position.
While he was in his position, he saw a black object being thrown from the direction of an open window at the back of the building. He saw where the object fell, and he observed the appellant coming out of the apartment from where the object came. DC Hall spoke to the appellant and asked him what it was he threw outside. DC Hall went to the area where the black object fell and upon searching the area he found a small silver and black firearm.
DC Hall brought the appellant to the area and showed him the firearm in the bush. The appellant responded “I don't know anything about that”. Other officers saw a person later identified as ‘GG’ standing on the balcony of the apartment. The appellant together with GG was taken into custody.
Sometime later DC Carl Wynter, a scenes of crime officer, was summoned to a scene at the John Morley apartment located at School Hill Road in the Five Cays district. He processed the scene and took photographs. He also took swabs from a silver and black Taurus millennium pistol which was pointed out to him. Additionally, he took swabs from parts of the pistol. DC Wynter testified that in accordance with universal guidelines, he wore two (2) pairs of gloves. The first pair of gloves he described as base gloves and another glove was placed over it. Each item he handled, he wore a clean glove over the base glove. He labeled, packaged, and sealed each separately and placed them in a gun evidence box in the presence of the accused and other officers. The items were later handed over to the exhibit keeper for safe custody.
The items were marked as follows:
-
▪ CW1A- handle of pistol
-
▪ CW1B- slide of pistol
-
▪ CW1C- trigger and trigger guard
-
▪ CW1D- magazine
-
▪ CW1E- 9mm cartridges
Swabs were taken both from the accused and GG and they were labelled as follows:
-
▪ AA1 for GG
-
▪ AA2 for the accused
Ms. Tarah Neiroda, a DNA analyst attached to the DNA Labs International, was cross examined by Ms. Mair. She said in answer to Ms. Mair that she reviewed the case submission form which was received from the Turks and Caicos Islands Police Force. She received exhibits labelled CW1A CW1B, CW1C, CW1D, CW1E, AA1, and AA2, all to be examined for touch DNA. She subsequently submitted a report which showed that the DNA on all items retrieved from the firearm matched the DNA buccal swabs from AA2.
At the close of the case for the prosecution, counsel for the appellant made a submission of ‘no case to answer’. Counsel submitted that there was insufficient evidence to establish that the DNA swabs were not compromised, that is to say, contaminated or otherwise tampered with. The evidence she submitted showed a lapse in the chain of custody. Counsel further submitted that DC Carl Wynter was not deemed an expert witness by the court. In support of her submission, counsel referred the Court to the case of Damian Hodge v The Queen 1.
The trial judge overruled the submission and called upon the accused who elected to remain silent. He called one witness on his behalf, Ms. Kelsey Neary, who appeared by video link. At the time she was employed at the Broward County Sheriff's Office and she is a criminalist, that is to say a forensic scientist in the field of DNA Analysis who was deemed an expert by the court.
On 13 th July 2021, the appellant filed an appeal against his conviction relying on the following grounds:
-
(1) The court erred in repelling the ‘no case submission’ made by the defence.
-
(2) The court erred by failing to properly address a part of the defence case to the jury.
-
(3) The court failed to properly direct the jury on the law as it relates to the offences charged.
Ms. Mair reiterated her submission made before the trial judge that the court fell into error in not upholding the ‘no case submission’. Counsel submitted that there was no chain of custody as opposed to break in the chain of custody. She placed reliance on the cases of Damian Hodge v The Queen ( supra) and the Irish cases of Whelan v The DPP 2 (Unreported, ex tempore, High Court, O'Neill J, 2 nd February, 2009) and DPP v Corbally 3.
The first ground of appeal centered on the chain of evidence concerning the items retrieved by DC Carl Wynter and later examined by Tarah Nieroda, the DNA analyst at the Universal Laboratory. Counsel for the appellant submitted that DC Wynter was not deemed an expert.
We were satisfied that there was no requirement for him to be an expert in the instant case as he was not giving evidence of any opinion as is required of an expert. He was an experienced scenes of crime officer and his function was to process the scene. In so doing he took photographs, retrieved the firearm, labelled and secured separately all parts in keeping with universal guidelines. He said that each item that he touched, a new glove was placed over the base glove. It follows therefore that at all material times DC Wynter was double gloved.
Additionally, each item was labelled, sealed and placed in a brown bag. The items were...
To continue reading
Request your trial