REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

MAG. APP. NO. 31 of 2013

BETWEEN

P.C. CHAPDEOSINGH #16786

Appellant
AND

ANAND SANKAR
Respondent

PANEL: P. Weekes J.A.

M. Mohammed J.A.

APPEARANCES:
Mrs. K. Waterman Latchoo for the appellant
Mr. R. Heffes-Doon for the respondent

DATE DELIVERED: 18th DECEMBER 2013

 JUDGMENT

Delivered by: M. Mohammed J.A.

Background

1. The respondent was charged with the negligent loss of a firearm and ammunition on
September 13th, 2007, contrary to section 28 (1A) of the Firearms Act Chap. 16:01 (“the
Act”). On 18th May 2010, after a full trial, the learned Magistrate found the respondent “not
guilty” and dismissed the Complaint.

The Facts

2. The respondent testified, before the Magistrate, that he took two of his nephews to a
thanksgiving service in Lange Park, Chaguanas. In his written statement given to the police,
in relation to this matter, the respondent asserted that he took his two children and his
nephew to the service. It was a children’s function. The respondent carried along his
licensed firearm and ammunition because his wife, a week before, had been robbed of her
handbag in front of the couple’s gate.

3. The respondent could not secure parking at the residence where the service was being held
and so proceeded to the corner of Galera and Nelson Streets approximately one hundred
(100) feet away. He observed two security officers and had a brief discussion with them.
The respondent then parked his SUV at the corner approximately twenty (20) feet away
from the security officers. He deposited his firearm deep under the driver’s seat and
proceeded to the service.

4. The respondent said that he opted not to carry the firearm into the thanksgiving service
because there were many children in attendance and he believed the children might have
jumped on him and pulled at the pouch containing the firearm. Additionally, he was familiar
with the house in question and was not aware of any vault where he could have placed the
firearm for safekeeping.

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5. The respondent testified that ten (10) minutes after entering the service, he came out and
proceeded to his vehicle. He observed that the two security officers he had earlier spoken
with were in the same position as before and that his vehicle was intact. There was no
evidence to suggest that the respondent, at that time, inspected the vehicle in order to ensure
that the firearm was still there. He returned to the service, and after about thirty to forty
minutes, the respondent came back out and observed that three security officers, including
the two officers he had spoken with before, were at the entrance of the property. The
respondent then checked on his vehicle and discovered that the back left window had been
smashed and the firearm and ammunition missing.

6. The respondent reported the incident to the police at around 10:15 p.m. on September 13th,
2007 and gave a written statement to P.C. Chapdeosingh. The statement was tendered and
marked “AC 1”. The following is an extract of “AC 1” found at pages 19 and 20 of the
Record of Appeal:

“………… I have been the holder of a user’s firearm licence for about seven (7)
years. On Thursday 13th September 2007 I had left home around 8:30pm to attend a
one (1) night Ramayan (hindu prayers) at my brother in law…… resident at Galera
Road Lange Park Chaguanas. When I left home I picked up a black pouch which is
tied to the waist. This pouch contained my black Sig Sauer 9mm Pistol and 13 rounds
of 9mm ammunition. I got into my Toyota Prado vehicle number PBT 385 unhook the
black pouch and placed it under the driver seat. My two kids and my nephew ages
14, 12 and 16 then got into my car ……. I drove to Galera Road Lange Park. I
reached there around 8:40 pm and I parked my vehicle at the corner of Galera and
Nelson Street Lange Park which is about 100 feet away from my brother in law
house. When I got out of the vehicle I left the pouch containing my firearm and the
magazine containing the thirteen rounds of ammunition under the driver seat……
After parking and securing my car, I walked to my brother in law house and I stood
at the gateway looking around to see if any suspicious person was around. About 10
minutes later I walked back to my vehicle and checked the door and found them to be
lock. I then walk back to my brother in law house and when the prayers finished
about 9:30 pm I left. I walked back to my vehicle to check on it. On reaching my
vehicle I observed the left back door window broken and upon checking for my
pouch containing my firearm I saw that it was missing……” (sic)

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7. At the trial, the respondent accepted that he signed a declaration, when he obtained the
firearm user’s licence, to the effect that he would keep the firearm in a vault under his bed or
lodge it at a Police Station when it was not in use. On previous occasions, when the
respondent left the country, he would deposit the firearm with the old St. Joseph Police
Station (pg. 14 of the Record of Appeal).

The Magistrate’s Decision

8. At page 27 of the Record of Appeal the Magistrate concluded that:

“The Prosecution’s claim of negligence is based on the mere or bare circumstances

of him leaving his firearm in his car, and further, on the fact that he having filled out
in his application for a Firearm User’s Licence, that if not in use, he would keep the
firearm in a vault under his bed or lodge it at the Police Station, he failed to do either
one.

…this Court found that to convict for negligence a man who leaves his firearm under
the driver’s seat of a locked vehicle, in a well lit area, some twenty feet away from
security guards attached to the said function to which he was to attend, is to advocate
a “counsel of perfection,” and to equate the offence created by S. 28(1A) Firearm Act
Chap. 16:01 as amended to an offence of strict liability.

Moreover, the information filled out by the respondent in his application for a Firearm
User’s Licence cannot be said to bind him into a contract for the use of such firearm,
(the breach of which would be tantamount to negligence on his part).”

The appellant’s arguments

9. The appellant argued that the Magistrate misconstrued the nature of the Prosecution’s case,
not having had the benefit of relevant case law on the point, and thus misdirected herself on
the fundamental issue of what constituted negligence in the circumstances.

10. The appellant further submitted that given the prevailing circumstances and the realities of
life in the Chaguanas area, a reasonable man, aware of all of those realities, would not have
left his firearm in his vehicle under the circumstances that existed. The appellant contended
that the fact that the respondent checked on his vehicle suggested that he must have

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 appreciated that there was no assurance that the security officers would remain in a fixed
position, or that they could be relied on to ensure the safety of the vehicle, and that the
situation was not a safe one in which to leave the firearm.

The respondent’s argument

11. Counsel for the respondent submitted that the Magistrate directed herself to all relevant
factors and that it could not be demonstrated that she had fundamentally misdirected herself
on an issue of law or had arrived at a factual conclusion which was “plainly wrong” by
virtue of having given insufficient weight to relevant facts and therefore, we should not
disturb her findings simply because another tribunal could come to a different decision.

12. We are mindful of the cardinal principle that, it is only in the rarest of cases that the Court of
Appeal would interfere with a primary finding of fact, but in an appropriate case, the court
will not hesitate to do so when the magistrate has misperceived, misconstrued and
misdirected herself on the evidence and where it is palpably clear from the record that the
Magistrate did not come to grips with the evidence in the case. See Superintendant Jack
and Another v Horace Lionel Hosein Mag. App. No. 60 of 1992 (at pg. 10 per Sharma
J.A.).

The Law

13. The relevant law and cases were recently examined in the case of Hayden Toney v PC
Joseph Corraspe Mag. App. No. 68 of 2008 which involved the theft of a firearm which
was left in a motor vehicle, in what was at the time in question, an unguarded private
driveway to the appellant’s office in Port of Spain. This Court examined the purpose of
section 28 (1A) of the Act.

14. At paragraph 53 of the Judgment, the Court said:

“One must again look to the purpose of the amendment. The intention is to place
greater responsibility and accountability on firearm holders, in the care and control
of firearms and ammunition. Failure to properly secure a firearm can result in the

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 firearm falling into the wrong hands, including those of children. A stolen firearm
will be used, almost inevitably, for criminal purposes. Thus, loss of a firearm
whether by theft or otherwise, poses serious consequences for the public at large.”

15. The Court noted the cumulative relevance of the following factors as being supportive of the
Magistrate’s decision to convict in that case:
(a) That there was no evidence that a guard was actually on duty during the incident;
(b) That a locked vehicle fitted with an alarm was no great obstacle or deterrent to those
wishing to enter the vehicle unlawfully;
(c) That the appellant did not have sight of the entire vehicle while in his office;
(d) That the appellant had conceded that when he left the items under the front seat, he
was well aware of the conditions of the licence and knew what he was doing;
(e) The marked increase in the theft of guns from persons authorized to own and carry
them which in turn require licensed holders to be vigilant in the care and control of
those firearms and that they be held accountable for lapses in that standard of care.

16. The Court observed that motor vehicles are never places in which to leave valuable items,
far more so, dangerous weapons and concluded that all that was required was proof of
negligence simpliciter akin to that of careless driving, as opposed to willful negligence. The
test was one of reasonableness. Given the realities of life in Port of Spain, the Court
concluded that a reasonable man knowing those realities, would not have left his firearm in
his vehicle in the circumstances that existed. Accordingly, the Court concluded that the
Magistrate had been right to have convicted the appellant and that there was ample evidence
upon which she could have done so.

17. The purpose of the legislation is to impose a duty of care on persons who possess firearms
by virtue of a firearm user’s licence in order to promote a greater level of responsibility and
accountability on their part. A firearm which is lost through a careless chain of events may
ultimately fall into the wrong hands and its use results in acts inimical to public safety.

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18. The imposition of this duty may appear, at first blush, and on occasion, to be somewhat
onerous but upon closer scrutiny, as was conducted in the case of Toney v Corraspe
(supra), such a duty is not disproportionate to the legitimate aims of the legislation which
can only be reasonably accomplished by the imposition of a measure of strict accountability.

19. In the assessment of what constitutes negligent conduct in the given factual milieu, it is
imperative that Magistrates evaluate and weigh two factors of overarching significance in
the context of such offences. These factors are the increase in the theft of guns from lawful
carriers and the “realities of life” in the area where the offence occurs. These factors are of
essential significance in determining what a reasonable man would have done.

20. This must not be interpreted as suggesting that positive evidence of these matters need be
adduced. There are matters of which judicial notice can be taken as they are of sufficient
notoriety. However, Magistrates must explicitly demonstrate in their Reasons that the
considerations adverted to have been evaluated and they must provide a brief description of
that evaluation. In the absence of this, it will be impossible for this Court to determine
whether the Magistrate had in mind these two highly relevant considerations. It would then
be a matter of unadulterated guesswork to attempt to infer that these considerations have
been appropriately factored in by the Magistrate.

21. In this matter, the Magistrate failed to demonstrate that she took into account the following
five matters:
(a) The ‘realities of life’ in the Chaguanas area, especially during night time hours;
(b) The prevalence of theft from parked vehicles;
(c) That it would be unreasonable to expect that the two security officers would remain
in a fixed position in close proximity to the respondent’s parked SUV;
(d) That the respondent had the option, as can be gleaned from his cross-examination at
pg. 14 of the Record of Appeal, to lodge the firearm at the nearest Police Station,
including the Chaguanas Police Station;

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 (e) That, overall, the situation that presented itself to the respondent was not by way of
an emergency and it did not require instantaneous action as to where he should leave
his firearm.

22. In our view, the learned Magistrate fundamentally misdirected herself on an issue of law and
erred in her evaluation of the elements of negligence and the standard of care required, in the
context of the offence charged. The Magistrate was also plainly wrong in her factual
conclusions that the Prosecution’s case was based on the “mere” or “bare” circumstance of
the respondent leaving his firearm in his car and his having filled out an application for a
firearm user’s licence. The Magistrate misapprehended the nature of the Prosecution’s case
and did not properly consider and weigh in the balance all the relevant factors identified
above.

23. It is important for us to clarify that the combined effect of the judgments in Toney v
Corraspe (supra) and in this appeal is not to be taken to suggest that the theft of a firearm
from a vehicle, absent any other factors, will in and of itself inevitably imply negligence on
the part of the holder of the licence. However, such a theft may frequently, depending of
course on the circumstances, support a strong inference of negligence. Each situation must
be assessed against the background of what constitutes reasonable conduct in all the
prevailing circumstances.

24. The following example serves to illustrate the non-culpable end of the broad range of
circumstances which may exist. The holder of a firearm’s user licence, who carries the
firearm in a vehicle, is suddenly and unexpectedly confronted with an urgent or critical
situation outside the vehicle, to which he must attend immediately, and he quickly assesses
that it would be unsafe to take the firearm outside the vehicle. The licence holder considers
it safer, for the moment, given all the circumstances, to leave the firearm in the vehicle for a
comparatively short period. During that time, while the licence holder’s attention is diverted,
the firearm is stolen. In such a scenario, it can hardly be suggested that the loss of the
firearm is negligent.

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25. The facts of this case are far different from the hypothetical situation described in
paragraph 24.

Disposition

26. For the reasons explained at paragraph 21 of this judgment, the appeal is allowed. The
Magistrate’s order for Dismissal is set aside. The matter is remitted for trial de novo before
another Magistrate.

Dated: 18th December, 2013

P. Weekes
Justice of Appeal

M. Mohammed
Justice of Appeal

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