DNA leads to gun conviction

(CNS): A 20-year-old West Bay man is looking at a decade behind bars after a DNA match on a glove led to a gun conviction. Ray Kennedy-Smith Jr was found guilty Thursday of possession of an unlicensed firearm by Justice Charles Quin, who presided over the trial earlier this month. The loaded Smith & Weston pistol, which was recovered by a USG police officer outside the Memory Lane Bar in West Bay, was with a ski mask and a pair of gloves, one of which carried a match for Kennedy-Smith’s DNA. The convicted man was seen outside the bar with two other men when police drove into the car-park on the night of 31 July 2011 as they felt the men were behaving in a ‘fidgety’ manner.

The smell of ganja led the police to conduct a search of the men and the area where Smith said he had “gone to take a piss” as the police car had approached him and the other men. It was then that the officer found the ski-mask, gloves and pistol by an air conditioning unit.

Although it was later discovered that there were no prints or DNA on the gun, a DNA match for Kennedy-Smith on the gloves was enough to lead the judge to the “inescapable conclusion” that he was guilty and that as a result of other circumstantial evidence he was “satisfied beyond all reasonable doubt”.

During his judgment Justice Quin went over the events of the night and the evidence presented by the crown.

The USG officer had expected to find ganja when he took his torch and examined the side of the building where he had seen Kennedy-Smith disappear to as the police car drove in. Having detected a strong smell of cannabis and after searching all three men and finding a spliff on one of them, the officer asked Kennedy-Smith why he had disappeared so quickly when the police pulled up. Kennedy-Smith told the officer he had “gone to take a piss” but the officer concluded that he had been gone for far too short a time for that to be the case and went to search around the area where he had seen the suspect go.

After finding the weapon, the police officer shouted, "Gun!" to alert his colleagues and drew his own firearm as he ordered the men outside the bar on the ground. Kennedy-Smith, who was described by the officer as “sweating profusely”, was the only man who remained silent while the others protested their innocence.

During his interview following his arrest and throughout the trial Kennedy-Smith denied knowing anything at all about the gun and stuck to his story about urinating as the police arrived.

However, he chose not to give evidence at trial and Justice Quin explained that he was entitled to take an adverse inference from the defendant’s silence because the DNA, together with the circumstantial evidence, did present a clear case to answer. At the close of crown's case the judge said the defendant had the opportunity to take the stand and explain why his DNA was found inside theglove but he chose not to do so.

The fact that he did not led Justice Quin to conclude in his decision that the “only sensible explanation is that he had no answer to give”.

Although a defendant still has a right to silence, changes in the law have given judges and juries the right to draw adverse inferences from someone’s silence in certain circumstances.

Justice Quin noted that while the DNA alone could not lead to a conviction, the fact that all three items were found together was no coincidence. The judge said he felt the three were inextricably linked and it was common sense that they could be used together for unlawful purposes.

With no sensible explanation for why the defendant’s DNA was inside the glove, coupled with the circumstantial evidence that he had disappeared just as the police arrived, that he was acting suspiciously and sweating, plus the finding of the three items together at that time led the judge to the conclusion that the defendant was guilty as charged and had possessed the firearm.

Following the verdict, Kennedy-Smith, who was on bail, was immediately remanded in custody. Despite having no previous criminal convictions, the young man, who was 18 at the time of his arrest, will be facing a mandatory ten years in jail. Justice Quin stated that he would deliver the sentencing ruling in January.

Following the delivery of the verdict, defence attorney Prathna Bodden, from Samson McGrath, confirmed that she would be seeking an appeal in the case on behalf of her client.