A Swiss national, sixty-one-year-old Ernard Gerber, who was arrested and charged with several firearms and ammunition related offences, has been set free.
Magistrate Asquith Riviere upheld submissions put forward by defense counsel Wayne Norde who asked that the charges be dismissed because the prosecution had failed to prove their case.
Gerber, a former soldier and his Swiss girlfriend, Brigitte Muller, were charged with having an assault rifle, one brown carbine rifle without being the holder of a firearm import license as well as 80 rounds of 7.5 mm ammunition, 97 rounds of 9mm ammunition, 4 rounds of .22 ammunition, 5 rounds of 7.5 ammunition and 100 rounds of .22 ammunition without a valid license.
Gerber pleaded guilty to all seven charges while his girlfriend pleaded not guilty. The prosecution then decided to withdraw the charges against his girlfriend while proceeding with the charges against him.
On October 18, 2019, a 20-foot container with items belonging to Gerber was opened by customs in Jimmit where he resides. Upon inspection, the assault rifle and carbine rifle along with 97 rounds of 9mm ammunition and 4 rounds of .22 ammunition were discovered. They were not declared by him and customs seized them and reported the matter to the police. On October 26, 2019, the police, armed with a search warrant, went to the home of Gerber and his girlfriend in search of “illegal firearm and ammunition.” They found 100 rounds of .22 ammunition and 5 rounds of 7.5 ammunition. He admitted all the ammunition belonged to him.
However, Gerber’s defense attorneys, Wayne Norde asked that the charges be dismissed since the prosecution had failed to prove its case.
“From the facts presented by the prosecution; they did not prove if the defendant had a valid license. He was not asked if he had one and they did not inquire…no checks were made by the police to find out if he had a firearms license,” Norde told the court.
He continued, “The burden is on the prosecution to prove its complaint as charged and they have failed, hence in the circumstances, the matter should be dismissed.”
But in response, the prosecution headed by Sergeant Innocent Toussaint told the court that having a license is a strict liability.
“The prosecution produced evidence that the firearm was found in possession of the defendant from a container he imported into the state. He did not declare those to customs; a search conducted at his home in Jimmit by the police resulted in ammunition being found. He did not show or said he had a firearm and or ammunition license,” Toussaint stated.
In his ruling, Magistrate Riviere explained that the law is clear.
“A person who is charged is innocent until proven guilty and the prosecution must prove every element of the alleged offense or charge,” he posited.
“He was not asked if he has a firearm and or ammunition license…the police was supposed to ask. The burden of proving its case never shifts and if they fail to prove, the case falls, notwithstanding the guilty plea,” Riviere stated.
The police he said never asked Gerber if he had a firearm license and so he said nothing.
“The court is not at liberty to assume…the prosecution must prove its case, he is under no obligation to provide incriminating evidence against him. In criminal law, there is no room for speculation,” the Magistrate said.
He continued, “In the circumstances, I am satisfied that the prosecution failed in its un-shifting duty to prove its case beyond reasonable doubt. The charges are therefore dismissed.”
The firearms and ammunition were forfeited to the State.