Jersey Unreported Judgments

[2003]JRC131

royal court

(Samedi Division)

 

18^th July 2003

 

 

Marc Silvanus Dorey Yates

-v-

The Attorney General

 

Magistrate's Court Appeal

 

Application for an extension of time within which to give notice of appeal.

Appeal against conviction on 17^th April 2003, following a guilty plea to 1 count of contravening Article 2(1)(a) of the Firearms (Jersey) Law 2000.

 

 

Advocate J. C. Martin for the Attorney General

Advocate R. S. Tremoceiro for the Appellant.

 

judgment

the Commissioner:

1.        The appellant was sentenced on 17^th April 2003 to a contravention of Article 2(1)(a) of the Firearms (Jersey) Law 2000.  He filed a notice of appeal on 4^th June 2003 against his conviction.  The appellant is an Advocate of the Royal Court.  His general grounds of appeal were that although he pleaded guilty to the offence "on the facts as I now know them to be, I could not in Law have been convicted of the offence charged".

2.        Article 15(1) of the Police Court (Miscellaneous Provisions)(Jersey) Law 1949, as amended, provides that notice of appeal has to be given within 8 days of the Magistrate's decision.  His notice of appeal was filed 47 days after the Magistrate's decision.

3.        We have to consider the appellant's first application, also dated 4^th June 2003, which is an application for extension of time within which to give notice of appeal.  His grounds are set out in these words -

"That I did not become aware of the ground of appeal until after the time limited for appealing had expired".

4.        On 14^th March 2003, the Court of Appeal considered the case of Wood v the Attorney General.  The Court of Appeal, under the presidency of Mr. R.C. Southwell QC said in the course of its judgment -

"The third (procedural) hurdle is that an appeal against conviction following a plea of guilty will not be allowed by the Court of Appeal unless either

(1) the applicant did not understand the nature of the charge;

(2) he did not intend to admit that he was guilty of the charge, or

(3)on the admitted facts he could not in law have been convicted of the offence charged.  See AG v Fossey (1982) JJ 223 Royal Court; AG v Foster (1990) JLR N15 Court of Appeal;  AG v Bush (1992) JLR N6 Royal Court and AG v Jeune (2000) JLR N42 Royal Court".

5.        The Court went on to mention a fourth hurdle which was

"to satisfy this Court that he had persuasive grounds for allowing an appeal against conviction".

6.        We need to consider the facts before we consider whether an extension of time should be granted.

7.        The fact that Mr. Yates held a firearms licence until 29^th June 1997 is not relevant to the offence with which he was charged, except to say that he held his firearm unlicensed from 1997 to 2003 when publicity on the matter compelled him to action.

8.        The applicant applied for the renewal of his firearms certificate by letter dated 23^rd January 2003.  It is a two page detailed letter.  In its final paragraph of fact it reads -

"In the light of the present circumstance whereby I now believe that I do not have a current certificate, I no longer have actual possession of the firearms.  My .22 Anschutz Target Rifle is being kept in the strong room at Grouville Miniature Rifle Club and my other three firearms have been delivered to Mr. Brian Fossey, the firearms dealer to be kept in his armoury pending resolution of my application. I attach a receipt from him for those firearms and I will get one from a Grouville MRC official as soon as possible to forward to you".

9.        The applicant delivered his application letter to the Parish Hall on Friday evening 24^th January.  The Parish Hall was open.  He spoke to a Centenier who, in turn, spoke to the Constable.  On Monday 27^th January the application form was sent to Police Headquarters.  On 22^nd February two police officers attended at the appellant's home.  The police officers believed (having seen the application) that Mr. Yates did not have a firearms certificate.  He was invited to attend at the Police Station on the following day.  At that interview it was established that he had been without a firearms certificate since 1997.  He was accordingly told that he would be charged.  The charge was duly put to him at the Parish Hall by Centenier E. O'Toole on 14^th March at 8 o'clock.  He was charged with a breach of the Firearms Law "by having in his possession a firearm without holding a valid Firearms Certicate".  "A firearm" relates not to the firearm at the Gun Club but to the three firearms in the custody of Mr. Fossey.  

10.      There are certain anomalies in this case.  On 17^th April, Mr. Yates was sent a copy of the charge sheet.  The date on which he was charged was 22^nd February 2003.  Mr. Yates wrote to the Centenier stating that if that was to be the relevant date then he would plead not guilty because he felt that having handed the guns to Mr. Fossey he was no longer in possession of them. 

11.      That seems to be based on an argument that he had only proprietary possession of the firearm but not actual possession because, as we have seen, he delivered the three firearms into the hands of Mr. Fossey, an arms dealer, on 24th January.  He told the Constable he had done this when he wrote to him on 23^rd January.  Mr. Fossey had written a letter not on headed notepaper on 24^th January "To whom it may concern" which says "I confirm that I have received from Marc Sylvanus Dorey Yates of Les Ormes, Rue de la Chesnaie, St. John, the following firearms for safe-keeping pending the resolution of an application for a firearms certificate".  The three firearms are then listed.

12.      Advocate Tremoceiro relied on the case of Sullivan v Earl of Caithness (1976) 1 All ER 844.  We have carefully studied that case as well as a case not cited to us Woodage v Moss (1974) 1 All ER 504. The argument was that the appellant was not in proprietary possession of the firearms.  He wrote to Centenier O'Toole having discussed the matter with him saying that if the Court proceeded to hear the case on a date when he had handed the firearms over to the dealer he would plead not guilty.  The prosecution considered the matter.   The charge sheet was altered to show the date as 23^rd January and not 22^nd February.  It was, of course, on 24^th January that he surrendered the weapons to Mr. Fossey.

13.      In Towers & Co v Gray (1961) 2 All ER 68 at 71 Lord Parker CJ said -

"The term "possession" is always giving trouble.  For my part I approach this case on the basis that the meaning of "possession" depends on the context in which it is used.  In each case, the meaning must depend, in my judgment, on the context in which the word is used.  In some contexts, no doubt, a bailment for reward subject to a lien;  where perhaps some period of notice has to be given before the goods can be removed, could be of such a nature that the only possession that there could be said to be, would be possession in the bailee.  In other cases, it may be that the nature of the bailment is such that the owner of the goods who has parted with the physical bailment of them can be truly said still to be in possession".

14.      We do not see that this appellant can in any case avoid the fact that he was in possession of the firearms.  We only have to ask ourselves the question of what would have happened had he changed his mind and demanded the firearms back?  Mr. Fossey, in the terms of his instructions, would have had no alternative but to return them to him.

15.      We must note that Article 55 of the Firearms (Jersey) Law gives only a limited right of appeal.  The legislature expressed very clearly the three reasons why an aggrieved party may appeal against certain provisions of the law.  This is not one of those reasons.

16.      The law is pellucid.  Let us look at Article 2(1) under which the appellant was charged.

"Subject to the law, any person who has in his possession or purchases or acquires a firearm to which this article applies without holding a valid firearm certificate .... shall be guilty of an offence".

17.      When the appellant applied to the Constable, he did not have a licence.  When the appellant was seen by the police officers, he did not have a licence.  He had not held a licence since his original licence expired on 29^th June 1997.  Advocate Tremoceiro who has expressed his client's arguments admirably, says that his client had no compelling reason to collect his certificate when he was informed by the Parish Hall that his firearms certificate was ready for collection by letter dated 19^th March.  The appellant cannot recall the letter but he certainly knew on 14^th or 15^th April that his certificate was ready because the Police phoned him to tell him of that fact.  He may have been out of the Island from 25^th April, but it is quite ridiculous to argue that he could only have collected the certificate when the Parish Hall was open on a Friday evening.  Each parish hall has working hours during the day.  If he had treated the matter with real concern the certificate would have been available to him at the Magistrate's Court.

18.      In our view it would have availed him nothing.  The purpose of the law is perfectly clear.  We do not need to add words to it to make sense of it.  The purpose of Article 2 is to ensure that all persons who have firearms in their possession whether it be physical possession or under their control must have a valid firearms certificate which is only issued after extensive enquiries by the police as to their suitability.  The backdating of a licence to the date of the original request for a licence does not help any applicant and it would be illogical to say that it did.  It is not for us to comment on the actions of the Police.  The appellant may very well feel aggrieved.  Judge Christmas gave the impression that the appellant was not alone.  He told the appellant that he would take the matter up - presumably with the authorities - in due course.  We would hope that he will. 

19.      Accordingly, we refuse leave to appeal out of time and the application is dismissed.

Authorities

R -v- Richardson (5^th December 1996) Court of Appeal of England and Wales (Criminal Division): Unreported Judgment.

R -v- Hawkins [1997] 1 Cr. App. R. 234; (6^th August 1996) "The Times".

Wood -v- AG [2003] JCA 051.

R -v- Paul (1999) Cr.L.R.79.

Sullivan -v- Earl of Caithness (1976) 1 All ER 8 44.

4 Halsbury 44(1): Statutes: paras 136-79, 1434, 1442, 1450, 1477-82.

Towers & Co -v- Gray (1961) 2 All ER 68 @ 71.