Jersey Unreported Judgments

Magistrate's Court Appeal - appeal against conviction.

[2016]JRC015

Royal Court

(Samedi)

21 January 2016

Before     :

J. A. Clyde-Smith, Esq, Commissioner and Jurats Fisher and Grime

Graham Miller

-v-

The Attorney General

The Appellant appeared on his own behalf

P. Byrne, Esq., Crown Advocate appeared for the Respondent.

JUDGMENT

THE commissioner:

1.        The appellant appeals against his conviction before the Magistrate's Court on 1^st May, 2015, for an offence under the Firearms (Jersey) Law 2000 ("The Firearms Law").  His appeal against sentence was not pursued.  His appeal against conviction has been allowed in part. 

2.        When convicting the appellant, the Magistrate helpfully handed down a fully reasoned written judgment. 

3.        The charge against the appellant was that he had failed to comply with the conditions of his firearms certificate, contrary to Article 2(1)(c) of the Firearms Law.  Article 2(1)(c) is in the following terms:-

"Requirement of firearm certificate

(1)       Subject to this Law, any person who -

(a)       ...

(b)       ...

(c)       contravenes or fails to comply with any condition subject to which a firearm certificate is held by the person,

shall be guilty of an offence."

4.        The conditions upon which a firearms certificate is held are set out in Article 9 as follows:-

"9       Conditions subject to which a firearm certificate is held

(1)       A firearm certificate shall be held on condition that the certificate holder shall -

(a)       ...

(b)       Without undue delay, inform the Connétable of the parish in which the certificate holder resides and the States of Jersey Police Force of any change in the holder's place of residence;

(i)        at all times (except in the circumstances mentioned in clause (ii)) store the firearm and ammunition to which the certificate relates in a secure manner so as to prevent, so far as reasonably practicable, access to the firearm or ammunition by an unauthorized person,

(ii)       take reasonable precautions for the safe custody of the firearm and ammunition to which the certificate relates where the firearm or ammunition is in use, or the holder of the certificate has the firearm with the holder for the purpose of cleaning, repairing or testing it, or for some other purpose connected with its use, transfer or sale, or the firearm or ammunition is in transit to or from a place in connection with its use or any such purpose."

The prosecution case as summarised by the Magistrate

5.        The appellant was the holder of a firearms certificate No 3014 granted on 19^th April, 2013, and the address on the certificate was Les Grenouilles, La Rue de Boeufs, St Mary ("Les Grenouilles"). 

6.        The prosecution alleged that the appellant left Les Grenouilles in November or December 2014, without informing the Connétable or the States of Jersey Police of his move.  An incident occurred involving the appellant at Les Grenouilles in the early hours of the 4^th February, 2015, which led to the police being called to that address, where they discovered that the appellant was no longer living there; nor were his firearms stored there. 

7.        The certificate relates to four weapons, two of which were lawfully with a firearms dealer on the date in question, and the remaining two were seized by the police on 4^th February, 2015, from a locked gun cabinet at the address of the appellant's sister, Mrs Allison Gregory, at East Wing, Palm Grove, La Pouquelaye ("La Pouquelaye") along with a unregistered air rifle, owned by the appellant's brother-in-law Mr Paul Gregory. 

8.        Although not explicit in the Firearms Law, the prosecution maintained that it was a requirement that the appellant's guns should be kept in a cabinet fixed to a wall at the address on the certificate namely Les Grenouilles.  Its case was that the appellant was not resident at Les Grenouilles; that the firearms were not stored there; that the storage at La Pouquelaye was not secure and that the exceptions to 9(1)(c)(ii) did not apply.  Thus, the appellant was in breach of two elements of Article 9, namely a failure to notify the change of residence and a failure to store the firearms securely.  We interpose to say that, as can be seen later, there is an issue as to whether it was ever part of the prosecution's case that the storage at La Pouquelaye was not secure.  

9.        The Magistrate was satisfied that these two alleged breaches could be the subject of one charge and no point is taken in that respect in this appeal,

The defence case as summarised by the Magistrate

10.      The defence case was that the appellant was living at Les Grenouilles with his girlfriend, Ms Nicola Huelin, when the police attended on 4^th February, 2015.  Les Grenouilles was the address on the firearms certificate and it was still his residence.  The relationship with Ms Huelin was up and down.  The couple had had a row in December 2014 and the appellant had left, but this was only temporary.  He had given two months' notice to the landlord at that time, indicating that he would leave in February; he had paid rent until his departure and still had a set of keys.  Much of his property was still at the address.  He slept at Les Grenouilles almost every night.  As there had been no change in residence, there was no requirement to notify the Connétable and the States Police and therefore, he was not in breach of Article 9(1)(b) of the Firearms Law. 

11.      The appellant's evidence was that the firearms were at Les Grenouilles all the time.  He had never moved them elsewhere except as allowed by Article 9(1)(c)(ii).  On the day in question, they were at La Pouquelaye, but this was on one occasion only.  The firearms were essentially in transit, as he would have taken them home to Les Grenouilles the next day.  He said they were stored securely in a gun cabinet.  He described the storage at La Pouquelaye as "totally secure".  The law does not oblige him to store his firearms at the address on the certificate and so he was complying with Article 9 by storing them securely elsewhere. 

Findings in law

12.      The Magistrate made two findings in law. 

13.      Firstly, she found that it was not a requirement of the Firearms Law that the firearms must be kept securely at the address on the firearms certificate.  Quoting from paragraphs 21 and 22 of her judgment: -

"21      It might be better if it were to be a condition of holding a certificate that the current place of residence is on the certificate, but that is not the same as saying that the firearms must be stored at that address.  Certificates under the Law relate to the holder, not to the address.  The authorities need to know the holder's current address and the firearms need to be stored securely, but I can see no requirement for the place of residence and the place of storage to be one and the same.  I also note that there is not a requirement for the firearms to be stored regularly at a particular address.  However, any transfer of a firearm must be notified in accordance with Article 28 of the Law (see also Yates v AG [2003] JRC 131).  It may be that good practice generally ensures that the firearms are kept in an approved cabinet which is at the certificate holder's residential address, but I am not persuaded that this is a requirement of the Law.

22       I find that there is scope within the Law to store firearms securely at, for example a friend's home, if there is a secure gun cabinet at the property, and the friend does not have control of the firearms - for example, if he did not have access to the key to the cabinet.  The certificate holder would still have possession in the sense that he had ownership and control.  If the friend did have access to the firearm there would be an offence under Article 9(1)(c)(i) as he would be an unauthorised person, or the friend could be deemed to be in possession and therefore commit offences himself."

14.      Secondly "Residence" is not defined in the Law, which she held must therefore be given its ordinary meaning, namely a place where a person lives, sleeps and eats on a daily basis.  Quoting from paragraph 78 of her judgment: -

"78      ... Clearly people go on holidays or go away for work and remain resident at their addresses.  They might even go away for work and remain resident at their addresses.  They might even go away for some time but there is always the intention to return and the ability to return unhindered."

15.      No point was taken in the appeal in respect of either of these findings, which we endorse. 

The trial

16.      A number of admissions had been agreed and the Magistrate heard evidence from PC Le Cornu and Ms Melanie Copas (who had been living at Les Grenouilles between December 2014 and March 2015) for the prosecution and Ms Huelin (by video link, as she had moved to Cornwall) and the appellant's sister, Mrs Gregory for the defence.  The appellant also gave evidence.  He was represented throughout the trial by Advocate Susan Pearmain.  

The evidence

17.      We summarise the evidence as found by the Magistrate. 

PC Taylor

18.      She had arrived at Mrs Gregory's address at La Pouquelaye, finding the door at the rear of the building unlocked.  She and PC Le Cornu went through to the laundry room, which was again unlocked and where they found a toolbox.  The key to the gun cabinet was in there as the appellant had told them it would be.  It was not labelled as a gun cabinet key.  The appellant's two guns were found in a gun cabinet in an adjoining room, together with the air rifle belonging to Mr Gregory. 

Ms Copas

19.      The Magistrate found Ms Copas to be an honest and reliable witness who had no reason to lie.  She had been looking for temporary dog friendly accommodation and had posted an advert on Facebook, to which Ms Huelin had responded.  She had moved in to Les Grenouilles on Saturday 20^th December, 2014, and remained there until 29^th March, 2015.  No one else was living there from the date she arrived in December until the incident on 4^th February, 2015.  The appellant visited perhaps seven or eight times but Ms Huelin had explained that he was her ex-partner.  She had no knowledge of him staying overnight and she believed absolutely that she would have known if anyone else had been living in the house over that period.  

The 999 call

20.      It is not in dispute that at 02:03hrs on 4^th February, 2015, Ms Copas telephoned the police from Les Grenouilles on the 999 emergency service.  Ms Huelin took over the call and spoke to the operator.  Quoting from the Magistrate's judgment: -

"42      Ms Huelin took over the call and spoke to the operator.  Referring to [the appellant] who by then had left the property, Ms Huelin said:

'43      He invited himself round, he's my ex (indistinct) .. We were having a very pleasant evening cause we got back to the stage where sometime we can be civil ... He turned up unexpectedly.'

44       When asked where he lives, Ms Huelin replied:

'45       Um, I don't actually know the name of the address, but I could take you to the house but I don't know it.  [He lived with me] when we first moved in a couple of Novembers ago he lived here and then he moved out in, oh, emm, I'm stabbing in the dark as my brain is not working as it should right this minute.  Something like September, October time.  Um at that point I advertised for a flat mate ...'"

Mrs Gregory

21.      Mrs Gregory gave evidence that the appellant came to stay at her home at La Pouquelaye on 16^th December, 2014, by way of a pre-arranged visit to look after her dogs, leaving on 24^th December, 2014.  She believed that the appellant was living at Les Grenouilles throughout the relevant period.  She had no knowledge of the firearms stored at her property, but was aware that a gun cabinet had been installed by her husband Mr Gregory, which a Centenier had come to check (according to the appellant on 23^rd January, 2015, when he said he happened to be there).  She was aware that her husband did not have a firearms certificate for his air rifle and that he had been to Les Grenouilles to collect some of the appellant's belongings in November 2014, which were now stored under the house. 

22.      The Magistrate found her evidence was not entirely helpful to the defence, in that she was not frequently at Les Grenouilles.  She visited perhaps twice over the period in question and assumed that her brother was still living there.  The Magistrate did not feel that Mrs Gregory was telling the whole truth in that as her husband had collected some of the appellant's possessions from Les Grenouilles, it is likely that the appellant was at her home for some or all of the days leading up to the planned visit on 16^th December, 2014. 

Ms Huelin

23.      The Magistrate found Ms Huelin a largely unreliable witness.  

24.      On the evening of 4^th February, she had given a very detailed statement to the police.  She confirmed that the appellant was her ex-partner, who had moved out in November 2014 to his sister's address and then to a new permanent address in St Clement, where she delivered some of his belongings.  In her statement she says that within 48 hours of the appellant moving out in November 2014, he came to Les Grenouilles with Mr Gregory in his blue Landrover Defender.  They backed up the car and emptied the guns from the cabinet.  She presumed that the guns were going to be kept at his sister's house temporarily. 

25.      As the relationship was on and off, now and then the appellant would bring the guns up to her house on a Saturday afternoon or night for a stay-over and they would shoot on the Sunday mornings (she was a range warden at the Clay Target Club).  The guns would be at her house for no more than twelve hours.  This happened maybe five times at the most.   On 20^th March, 2015, she made a further statement by way of clarification, and in particular, that the appellant had moved out in mid-December rather than in November 2014, although they remained in contact.  As far as she was concerned, he was only staying with his sister on a temporary basis until they had resolved their differences. 

26.      In evidence, she said that she had made a mistake or been misinterpreted in her statements in that the relationship with the appellant had actually continued throughout these months, during which he continued to live with her at Les Grenouilles; in fact, he slept next to her nearly every night.  She hid the appellant's presence at Les Grenouilles from Ms Copas, who had been told this was a "girl only house", to ensure Ms Copas continued to live at the address and pay rent. For the same reason she had told the appellant that he needed to keep a low profile. 

27.      The only conclusion the Magistrate could draw was that Ms Huelin changed her account to try and undo the harm she realised that her original statement had inflicted upon the appellant.  The 4^th February statement was a detailed statement, revealing a familiarity with firearms regulations: a matter not to be taken lightly.  They were not throwaway comments made in the heat of the moment that could have been misinterpreted.  She concluded that Ms Huelin was prepared to lie for the appellant.  The retractions and re-interpretations of her first statement were not credible and her oral evidence was unconvincing.  Even the appellant said that she often told lies. 

28.      The only aspect of Ms Huelin's evidence which was consistent was her saying that the firearms had been removed from her address by Mr Gregory and the appellant after they had had a row in November (or December) 2014.  This is inconsistent with the appellant's evidence, but it was consistent with their being found at La Pouquelaye on 4^th February, coupled, the Magistrate said, with an implausible story as to why they were there. 

The appellant

29.      The Magistrate did not find the appellant to be a convincing witness.  She accepted that he still had a set of keys to Les Grenouilles and a number of possessions at the address, and that he continued to receive mail and other deliveries there.  His account, and that of Ms Huelin, that he was constantly at Les Grenouilles in January 2015, was in direct contrast to the account of Ms Copas, who he claimed that he and Ms Huelin jointly deceived in order to ensure her rental contribution continued.  The Magistrate found it impossible to believe, even in relatively large accommodation, that a person could be living at the address unknown to another resident.  Ms Copas had nothing to gain by lying to the Court, but the appellant on the other hand, had much to gain by trying to re-write the events of December 2014 to February 2015.  He is a keen firearms sportsman and does not wish to put his certificate in jeopardy.  

30.      The Magistrate did not find credible his account as to how the guns came to be at La Pouquelaye on 4^th February, the logical inference being that they were being kept at Le Pouquelaye and not at Les Grenouilles.  The appellant stated that the guns were "totally secure" at La Pouquelaye.  He said the key was in a toolbox that had many drawers and it was not obvious that the key was there.  The house was in quiet dead-end road, there are no passers-by and it is very unlikely that anyone would be able to find the guns.  

31.      The Magistrate concluded that the appellant was not living at Les Grenouilles when the police were called by Miss Copas in the early hours of 4^th February, 2015.  He had moved out following the row with Ms Huelin in either November or December 2014, removing the firearms shortly thereafter.  Although he had a number of possessions at Les Grenouilles and still had a set of keys to the property, he had no intention to return there and he had therefore changed his residential address without informing the Connétable or the States of Jersey Police Force of that fact.  He had therefore failed to comply with the condition contained in Article 9(1)(b) of the Firearms Law. 

32.      In relation to the guns themselves, the Magistrate found the appellant's account that they were at La Pouquelaye overnight implausible and she said this in relation to their security: -

"82      Firstly, PC Taylor found the house empty and the back door (to an outhouse) unlocked.  Going through there to a laundry where the gun cabinet was, she again found the door unlocked.  Furthermore, the key to the cabinet was in a toolbox nearby.  The toolbox was not locked.  It had, apparently, many drawers and the key was not immediately obvious, but it was close by, in the same room and not difficult to find.  I do not consider this to be a secure system.  One of the teenage girls in the house was interested in shooting and might have come looking at the gun cabinet.  Mr Paul Gregory was the owner of the gun cabinet.  He must have known where the key was.  His gun was in that cabinet too.  He did not have a certificate for his own gun.  I am therefore satisfied that he did not have a certificate for the appellant's guns either.  He is an unauthorized person who had full access to the appellant's firearms."

33.      Finally, the Magistrate said this in finding the appellant of being in breach of both conditions and thus convicting him of the offence:-

"85      In convicting the appellant I observe that his leaving Les Grenouilles and finding somewhere else to live was not straightforward.  He might have had one or two temporary addresses before finding somewhere permanent.  He should nevertheless have informed the Connétable and the States of Jersey Police so that whatever temporary arrangements he made for storage of his firearms could be checked.  The insecure storage he arranged at La Pouquelaye was not sufficient and should have been inspected and approved.  I note that the appellant took some steps to secure his firearms in a proper cabinet which is somewhat to his credit.  However, this was only installed on January 23rd and there is no information as to where the firearms were, nor how they were stored since they left Les Grenouilles in November or December 2014.  The appellant did not inform the authorities where the firearms were until his arrest on 4th February and did not give them the opportunity to inspect what in my view, proved to be inadequate arrangements."

Grounds of appeal

34.      The appellant's grounds of appeal were as follows, quoting from the notice filed with the Judicial Greffe on 29^th May, 2015:-

"GENERAL GROUNDS OF APPEAL

(1)       The finding of guilt by the Magistrate was against the weight of the evidence presented.

(2)       The magistrate was wrong in her finding that the key of the gun cabinet was found in the same room as the cabinet and that the guns were not secure.

(3)       The Magistrate was wrong in law in her finding that the appellant had left his residential address.

(4)       The Magistrate found that the appellant failed to comply with the condition contained in Article 9(1)(b).  He was not charged with breaching that condition under that sub-article."

35.      His reference to Article 9(1)(b) was clearly meant to be a reference to Article 9(1)(c)(i) as made clear in his supplemental and expanded written submissions, in which he raised a number of points which we address below. 

Test on appeal

36.      In considering an appeal from a decision of the Magistrate, this Court must be careful not to usurp the functions of the Magistrate.  The approach is summarised in Milho v The Attorney General [2000] JLR 363, citing Rushton v The Attorney General 1989/174 [16th October 1989] Jersey unreported:-

"The Court of course has on many occasions said that its duty in looking at an appeal on conviction from the Magistrate below is to examine the transcripts to see if there was evidence on which the Magistrate concerned could properly have come to the decision he did.  If there was that evidence then even though the Court might not necessarily have come to the same decision, the Court does not lightly interfere with it.  The Court has to be satisfied that there was insufficient evidence for the Magistrate to have come to the decision he did, or that he drew the wrong conclusions and inferences from the evidence before him."

Decision on the appeal

37.      The purpose of the Firearms Law, as set out in its preamble, is to "control ...the possession and use of firearms ...".  As Sir Philip Bailhache, then Bailiff, said in Milner v Connétable of St Helier [2006] JRC 178 at paragraph 15:-

"The possession of a firearm is a privilege not a right.  This is not a community where the bearing of firearms is some traditional right.  A firearm is a dangerous weapon and the legislature has recently indicated, through the enactment of the Law, that the possession and handling of firearms are to be strictly controlled."

38.      Taking the first condition set out in Article 9(1)(b), requiring the holder of a firearm certificate to notify the Connétable of the parish and the States of Jersey Police Force of any change in the holder's "place of residence", there was ample evidence that the defendant had moved out of Les Grenouilles in November or December 2014:-

(i)        The 999 call made in the early hours of 4^th February, 2015, in which Ms Huelin told the police that the appellant had moved out and that she could show them where he lived. 

(ii)       Her detailed statement to the police made on the evening of 4^th February, 2015, in which she confirmed in very clear terms that he had moved out. 

(iii)      The evidence of Ms Copas that she was living at Les Grenouilles between December 2014 and March 2015 and the appellant was not living there during this period. 

(iv)      The appellant's own evidence that on the evening of 3^rd February, 2015, he had been "invited in" to Les Grenouilles, an unusual term to use for his own place of residence. 

(v)       The appellant's own evidence that he had given the landlord of Les Grenouilles two months' notice of the termination of his tenancy. 

(vi)      The fact that after the incident, the appellant had left Les Grenouilles and was arrested at the house of a friend. 

39.      It is true, as the Magistrate accepted, that the appellant had left some possessions at Les Grenouilles and retained keys, but there was ample evidence on which she could base her finding that from at least December 2014, Les Grenouilles was not the place where he lived, slept and ate on a daily basis.  He had left with no intention of returning. 

40.      There was little evidence of the defendant having established a new place of residence, the indication being that he was accommodated on a temporary basis either with his sister or with friends.  The Court considered whether reference to a "change" in the holder's place of residence required going from one established place of residence to another established place of residence and the requirement to notify the authorities only arose when the new residence was established. 

41.      Advocate Byrne, for the Attorney General, was asked to see if there was any case law under the equivalent English legislation or under the Motor Traffic legislation under which the owner of a motor vehicle has to give notice of any change of address to the Inspector of Motor Traffic within seven days (Article 5 of the Motor Vehicle Registration (Jersey) Law 1993).  He was unable to find any. 

42.      In Milner, Sir Philip Bailhache said this in a postscript:-

" Postscript

Article 9(1) of the Law provides that it is a statutory condition of a firearms certificate that the holder should inform the Connétable who issued the certificate and the States of Jersey Policy of any change in the holder's place of residence.  The purpose of this provision is presumably to ensure that the authorities know where the firearms are stored."

43.      Storage of the firearms, as found by the Magistrate, does not have to be at the certificate holder's place of residence and so the whereabouts of the firearms, which the Firearms Law seeks to control, can only be ascertained through the certificate holder, hence the importance of the requirement that the certificate holder inform both the Connétable of the parish and the States of Jersey Police of "any change" (our emphasis) in the certificate holder's place of residence.  That, in our view, must mean what it says, namely any change, which would include a change of residence that was of a temporary nature or when in transition between permanent addresses, for example, staying with friends or some other accommodation.  Only then, as Advocate Byrne submitted, can the potential risks involved be assessed and appropriate control measures put in place, which may, dependent on the circumstances, involve the suspension of the certificate. 

44.      Whilst the appellant had not established a new place of residence, there was a change in that he had ceased to reside at Les Grenouilles.  That should have been notified to the authorities, so that they could assess the risks. 

45.      We can see no basis upon which we can interfere with the finding of the Magistrate that the appellant was in breach of the condition under Article 9(1)(b). 

46.      Turning to the storage of the firearms, there is a substantive procedural issue to which we will come in a moment, but on the basis of the evidence before the Magistrate, there is no dispute that:-

(i)        On the 3^rd/4^th February, 2015, the appellant's guns had been locked in Mr Gregory's gun cabinet at La Pouquelaye, a cabinet that had been approved by a Centenier for the purpose of his obtaining a licence for his own gun. 

(ii)       The appellant had placed the key to that cabinet, which was not labelled, in one of the 30 odd drawers of a toolbox situated in an adjacent room (not the same room as mentioned by the Magistrate). 

(iii)      The gun cabinet contained Mr Gregory's own air gun, which at that stage he had no licence for. 

(iv)      There was open access to both rooms from the outside. 

47.      The requirement of Article 9(1)(c)(i) is that the firearms should be secured to prevent, as far as reasonably practicable, access to the firearms by an unauthorised person.  Both the key and the gun cabinet belong to Mr Gregory but according to the appellant, he was in Guernsey that night and could not have had access to it. 

48.      However, the Magistrate did not accept the appellant's "implausible" account of how the firearms were in Mr Gregory's cabinet that one day.  In her statement to the police, given on 4^th February, 2015, Ms Huelin described in some detail how, some 48 hours after the appellant had moved out of Les Grenouilles in November/December 2014, he had come back with Mr Gregory in order to collect the guns.  The guns were important to the appellant and the Magistrate concluded that they had been moved to La Pouquelaye where they were stored for the whole of the period from December 2014 through to 4^th February, 2015.  They were therefore being stored in a gun cabinet belonging to an unauthorised person who used the same cabinet to store his own gun.  He must have had access to it, and therefore to the appellant's firearms, and thus she found that there was a breach of Article 9(1)(c)(i) of the Firearms Law. 

49.      Leaving keys nearby to a gun cabinet is not a safe system, as Sir Philip Bailhache commented in Milner:-

"15     ...

A key to a secure cabinet containing firearms should not be left in some accessible place in the vicinity of the cabinet.  Too many tragedies have occurred by reason of unauthorised persons, including children, gaining access to firearms which were not secured."

50.      There was, therefore, evidence upon which the Magistrate was able to find the appellant in breach of the condition contained in Article 9(1)(c)(i), namely failing to keep the firearms in a secure manner at La Pouquelaye so as to prevent, so far as reasonably practicable, access to the firearms by an unauthorised person, assuming that was the case against him. 

51.      However, the appellant argued that he had not been charged with failing to store his firearms securely at La Pouquelaye and in our view, there is substance in this complaint:-

(i)        The charge sheet gives no particulars of the conditions which he was alleged to have breached. 

(ii)       The prosecution case, as outlined by Advocate Baglin at the commencement of the hearing on 27^th April, 2015, was as follows (page 10 of the transcript): -

"Ma'am, the Prosecution say that in particular Mr Miller failed to comply, in that he did not inform the Constable and the Police of a change in his residence, and there clearly will be some legal argument as to what that means; and also, Ma'am, that Mr Miller stored his firearms at an address other than that on the certificate.  You will see from the certificate that the address there is Les Grenouilles, La Rue es Boeufs, St Mary."

(iii)      That the defence understood this to be the prosecution's case is clear from Advocate Pearmain's opening remarks at the start of the second hearing on 1^st May, 2015, (page 2 of the transcripts): -

"And the two conditions in particular they are concerned with is that he failed to notify the Constable within a reasonable time that he had changed his residence, the first one, and the second one is that he failed to secure, he was not keeping his firearms at the registered address, so that is what we are dealing with today, as we were on Monday."

(iv)      In his cross-examination of the appellant Advocate Baglin explored, inter alia, the security of the firearms La Pouquelaye on the 3^rd/4^th of February, 2015. 

(v)       In his closing submissions, Advocate Baglin made reference to the security of the firearms at La Pouquelaye when summarising the evidence, but his closing comments were as follows (page 175 of the transcripts):-

"Ma'am, the Prosecution submit, respectfully, that the evidence shows beyond a reasonable doubt that Mr Miller was acting in contravention of his firearms certificate.  He had not informed the constable or the Police of his change of address and was storing his firearms other than at the address on the certificate and the only decision, Ma'am, that you can reach is that he is guilty."

(vi)      In her closing address, Advocate Pearmain responded to Advocate Baglin's comments on the security of the firearms at La Pouquelaye, but concluded that they were only there on a temporary (but secure) basis, by implication submitting that they were otherwise at Les Grenouilles, where the prosecution said they should have been. 

52.      Thus, from the outset of the trial, the prosecution case was that it was a condition under the Firearms Law to store the firearms securely at the address on the certificate, namely Les Grenouilles; it was not the prosecution's case that the firearms had been stored insecurely at La Pouquelaye on 3^rd/4^th February, 2015. 

53.      In her written judgment, the Magistrate when outlining the prosecution case, said this at paragraph 13:-

"15      The prosecution case is that the defendant was not resident at Les Grenouilles; that the firearms were not stored there; that the storage at La Pouquelaye was not secure and that the exceptions in 9(1)(c)(ii) did not apply.  Thus the defendant was in breach of two elements of Article 9, namely a failure to notify change of residence and a failure to store the firearms securely."

54.      The assertion that "the storage at La Pouquelaye was not secure" constitutes a shift in the prosecution case from that outlined at the outset.  

55.      A defendant is entitled to know precisely the case he has to meet and to stop the prosecution shifting its ground during the trial (see R v Landy, 72 Cr. App. R. 237).  The appellant successfully met the precise case against him in relation to the alleged breach of the condition under Article 9 (1)(c)(i) as outlined by the prosecution at the outset of the trial, namely that his firearms should have been stored securely at the address on his certificate; there is no such requirement.  That should have been an end to that part of the case against him.  However, the case against him shifted during the course of the trial and he was found in breach on the different ground that his firearms were not stored securely at La Pouquelaye. 

56.      It may seem a narrow somewhat technical point, in that there was evidence before the Magistrate upon which she could find that his firearms had not been stored securely at La Pouquelaye, but in the context of a criminal prosecution, with the serious consequences which follow from a conviction, allowing the precise case to shift in this way is not fair to the appellant.  He can say, as he does, that he has been prejudiced by this in that he was not able to prepare his defence to the actual case against him. 

57.      Accordingly, we conclude that this part of the Magistrate's finding, namely that the appellant was in breach of Article 9(1)(c)(i), must be set aside. 

58.      The conviction stands, however, because the finding in relation to Article 9(1)(b) remains and it is a breach of "any condition" which constitutes the offence.  We need therefore to address the remaining points raised by the appellant in his submissions in relation to this breach. 

59.      The appellant makes various complaints about Advocate Pearmain's conduct of his defence, and in particular, her decision not to call Mr Nick Doherty, a senior firearms law barrister, who advises the Home Office, and Mr Derek Barnard, an expert on Firearms Law who lives in Jersey, and character witnesses who could attest as to his responsibility towards gun safety. 

60.      There is no application before this Court to admit further evidence, but from the copy e-mails which were appended to the appellant's written submissions, nothing said by either potential expert would, in our view, have any bearing on the Magistrate's findings.  We were not shown any character references. 

61.      The procedure to be followed when grounds of appeal are based upon the conduct of the advocate in a court below are well established (see Mendes v Attorney General [2003] JCA 106).  At an early stage, the new advocate must procure the swearing of an affidavit by the appellant, the waiver of privilege and the obtaining of the response of the previous advocate to what is now said. 

62.      That procedure has not been followed here, and we therefore do not have the response of Advocate Pearmain to the criticisms made.  However, from our reading of the transcripts, we can see no grounds for complaint in this respect.  The appellant volunteered to us, incidentally, that Viberts had advised him that he did not have strong enough grounds for an appeal on the basis of his representation by Advocate Pearmain. 

63.      The appellant asserted that Ms Copas was lying in giving her evidence because of her conduct in the hot tub on the evening of 3^rd February/early morning of 4^th February, 2015, which she did not want her family and work colleagues to know about, and also "being newly single, she was no doubt susceptible to pressure from Mr Baglin, the prosecutor, who is her ex lover". 

64.      In Court, the appellant informed us that Advocate Baglin and Ms Copas had been in a relationship some 20 years ago and that he had drawn this to the attention of Advocate Pearmain.  Advocate Pearmain did not find it necessary to raise this in Court and there is no evidence at all that Ms Copas was acting under any pressure of any kind; the Magistrate was clearly impressed by her evidence.  Advocate Baglin has not been given an opportunity to respond to the assertion that he had a relationship with Ms Copas some 20 years ago, but even if there had been such a relationship, there is nothing to suggest that she was susceptible to pressure from Advocate Baglin, or, more seriously, that he had put pressure on Ms Copas to falsify her evidence. 

65.      As to the remaining submissions made by the appellant, essentially, he takes issue with all of the findings of the Magistrate.  In his view, she got it wrong.  His evidence as to where he was residing between December 2014 and February 2015 is true and should be believed.  Miss Copas was lying, what Ms Huelin said in her 999 call (when he said she was drunk) and much of her detailed statement of 4^th February, 2015, (when she had had little sleep) was lies.  She was being vindictive.  What she said in evidence was to be believed. 

66.      It is the role of the Magistrate, who heard the appellant and the other witnesses give evidence, to decide who is to be believed and not believed.  The Magistrate had ample evidence to conclude that it was the appellant's evidence as to where he was residing that was not credible. 

67.      We therefore uphold the appellant's conviction on the grounds that he was properly found to be in breach of the condition in Article 9(1)(b) of the Firearms Law.  He was fined £1,000 for the failure to comply with two conditions.  In view of our finding in relation to the second condition, we think a fair outcome would be to reduce his fine to £500. 

Authorities

Firearms (Jersey) Law 2000.

Milho v The Attorney General [2000] JLR 363.

Rushton v The Attorney General 1989/174.

Milner v Connétable of St Helier [2006] JRC 178.

Motor Vehicle Registration (Jersey) Law 1993.

R v Landy, 72 Cr. App. R. 237.

Mendes v Attorney General [2003] JCA 106.