June 16, 2021

Peter Binose: The Mockery of Frivolous and Malicious Gun Charges

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6370232203_6d8ae4cd2d_bBy Peter Binose

The Mockery of Frivolous and Malicious Gun Charges in SVG Designed to Take Our Minds off Election Fraud and the Brave Protesters.

What is an offensive weapon?
Any object that has been made or adapted to cause injury and can cover anything from purpose built weapons such as guns, cutlass and knives, to a snooker cue being used to swing at somebody. An offensive weapon is any object carried with the intention of causing harm or injury to another person [intention being the key word].

A lawfully owned and licensed gun that is being stored carried or used in a lawful and responsible manner as permitted by law and the terms of the license or Firearms Act is not at that time classed as an offensive weapon. It is not offensive because it is not part of an offence being committed or is it being used in an illegal hostile, attacking, aggressive, invading, incursive, combative, threatening, or offensive act.

There is nothing within the Firearms Act that says a firearm cannot be carried to or during a public meeting by a licensed owner carrying his license or permit. May I kindly suggest that PM Gonsalves misinterpreted what the law actually says? There is also no reference at all to a licensed fire arm in the act being described as an offensive weapon, in fact the word offensive appears nowhere at all in the act.

CHAPTER 386
FIREARMS ACT

16. Carrying firearm and ammunition in public prohibited
(1) Subject to the proviso to section 29(2), a person shall not carry a firearm or ammunition in any public place unless he has on his person a license, permit or certificate granted by the appropriate authority authorizing him to do so.
(2) Any person who contravenes subsection (1) commits an offence and is liable on Conviction to a fine not exceeding two thousand dollars.

29. Power of seizure and arrest
(1) A police officer may require any person carrying a firearm or ammunition in a public place to produce to him his license or permit.
(2) If any person fails to produce his license or permit or refuses to allow the police officer to examine the firearm or ammunition for the purpose of verifying the particulars in the license or permit, he commits an offence and the police officer may seize and retain the firearm or ammunition until such time as legal proceedings brought against such person are concluded:
Provided that a person who does not have on his person a licence or permit shall be given five days for its production at a designated police station before proceedings are instituted against him.
(3) The police officer who seizes and retains a firearm or ammunition under subsection (2) shall require the holder of the firearm or ammunition to declare his name and address.
(4) A police officer may arrest without a warrant any person who under subsection (3) refuses to give his name and address and whom he reasonably suspects of giving a false name and address or of intending to abscond.
(5) A police officer may at any time require the holder of a licence or permit to produce for inspection the firearm or ammunition to which it relates and any person who without good cause refuses or fails to do so commits an offence.

But what should have been considered by the police and DPP is the discharging of a firearm at a rally by Carlos James, did Carlos James actions fall within the remit of the following clause of the Act.
17. Discharging firearm in public prohibited
(1) a person shall not discharge any firearm or ammunition on or within one hundred yards of any public road or in any public place except—
(a) in the protection of his person or property or the person or property of some other person;
(b) under the direction of some civil or military authority authorized to give such Direction;
(c) with the permission of the Commissioner of Police.
(2) where a contravention of subsection (1) occurs, a police officer may without warrant enter any premises on which he has reasonable cause to believe such
CAP.
386
Firearms Act – Subsidiary Legislation contravention was committed and seize any firearm or ammunition found which he has reasonable cause to believe was used in such contravention and may retain such firearm or ammunition for the purpose of any investigation and where legal proceedings are implemented in relation to the offence, until such proceedings are concluded
(3) Any person who contravenes this section commits an offence and the burden of proof of the facts tending to establish that the discharge of the firearm was lawful shall be upon the person so asserting.

So is this simply one law for the ULP and another for the NDP? Ben Exeter kept his legally licensed gun concealed on his person, he did not draw the weapon, threaten to use the weapon, brandish the weapon or show the weapon to anyone until required to do so by a police officer.
Carlos James was at a ULP political rally, a public gathering a public meeting of hundreds if not thousands of men women and children, and discharged his firearm into the air causing public fright and panic whilst endangering the lives of those present. Yet unlike Exeter he was praised by the PM and was not arrested, prosecuted or even persecuted as in the case of Exeter. The PM never said anything at the time about the view that it was illegal to carry a firearm to a public meeting; Gonsalves said nothing to James about the weapon becoming an offensive weapon when it is taken to a public meeting, in fact Gonsalves appeared to support the very action of James turning a political rally into a wild west rodeo show.

So that is the difference, if you are ULP take your weapon anywhere and fire it at will. If you are NDP keep the legally licensed gun in your pocket and you will be arrested on trumped up charges. Perhaps the whole charge against Ben Exeter is a political matter it is quite simply political spite and malice intended to damage Exeter and to stop him from running again for political office at anytime in the future.

In my opinion the gun charges against Ben Exeter are frivolous and malicious charges and the litigation is frivolous and malicious litigation, as such Ben Exeter and his team should consider suing the police.

In law, frivolous litigation is the practice of starting or carrying on lawsuits that, due to their lack of legal merit, have little to no chance of being won.

Frivolous litigation may be based on absurd legal theories, may involve a superabundance or repetition of motions or additional suits, may be uncivil or harassing to the court, or may claim extreme remedies. A claim or defense may be frivolous because it had no underlying justification in fact, or because it was not presented with an argument for a reasonable extension or reinterpretation of the law. A claim may be deemed frivolous because existing laws unequivocally prohibit such a claim, such as a so-called Good Samaritan law.

Malicious prosecution is a common law intentional tort, while like the tort of abuse of process, its elements include
(1) intentionally (and maliciously) instituting and pursuing (or causing to be instituted or pursued) a legal action (civil or criminal) that is
(2) brought without probable cause and
(3) dismissed in favor of the victim of the malicious prosecution. In some jurisdictions, the term “malicious prosecution” denotes the wrongful initiation of criminal proceedings, while the term “malicious use of process” denotes the wrongful initiation of civil proceedings.

Criminal prosecuting attorneys and judges are protected from tort liability for malicious prosecution by doctrines of prosecutorial immunity and judicial immunity. Moreover, the mere filing of a complaint cannot constitute an abuse of process. The parties, who have abused or misused the process, have gone beyond merely filing a lawsuit. The taking of an appeal, even a frivolous one, is not enough to constitute an abuse of process. The mere filing or maintenance of a lawsuit, even for an improper purpose, is not a proper basis for an abuse of process action.

Malicious prosecution claims

If the police pursue a prosecution spitefully and without reasonable or probable cause, then you may be able to claim compensation if the prosecution against you ended in your favour, such as with an acquittal.
Malicious prosecution is a particularly serious matter because the police and the Office of the Director of Public Prosecutions should carry out their functions honestly and with integrity.

The Court’s have been willing to consider the damage to reputation or loss of earnings in such cases; however a very high standard of evidence required. But in this case there are also nasty political undertones which includes comments made by the Prime Minister Ralph Gonsalves who represents a political party ‘the Unity Labor Party’ [ULP] that is in an election dispute claim by another political party namely the National Democratic Party [DPP] of which Ben Exeter is a part of that dispute and a party to an action in the courts. Gonsalves besides being PM also acts in the capacity of Minister of Legal and Judiciary Affairs and is a highly qualified lawyer. Gonsalves made a public comment which had no basis whatsoever in law and on those comments and therefore advice of a person qualified to give such advice the police acted and laid frivolous and malicious charges against Ben Exeter

It is therefore crucial that Ben Exeter has a specialist team on his side who can guide him through the complexities of a claim for malicious prosecution.

Our human rights solicitors should be able to offer specialist advice on actions against the police including compensation claims against the police or the DPP for malicious prosecution.

The other charges brought against Ben Exeter may also be frivolous and malicious and are in my view there as packing devices. For instance a judge is more likely to acquit on the silly gun charge but will be more likely in doing so find a guilty verdict in the lesser charges regarding one or more of those charges. It’s a trick that I actually believe is a hopeful act by Gonsalves.

But you see the problem goes further than that. Ralph Gonsalves once said “you can go to any court you want but you will have to come back to papa”. So even if Exeter was to gain compensation he would never get paid by the ULP government. There are other instances of people winning cases and awards by the courts against the ULP government and many years afterwards even to this very day they remain unpaid, even after some went back to papa they remain unpaid.

Where is the voice of the DPP in these matters?

DISCLAIMER: The opinion, belief and viewpoint expressed by the author do not necessarily reflect the opinion, belief and viewpoint of iNews Cayman/ieyenews.com or official policies of iNews Cayman/ieyenews.com.

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