Biddy, Kelly and Richardson v The Queen
| Jurisdiction | Caribbean States |
| Judge | Moore, J.A. |
| Judgment Date | 20 March 2014 |
| Court | Caribbean Court of Justice |
| Docket Number | Criminal Appeal No. 2 of 2008; Criminal Appeal No. 3 of 2008; Criminal Appeal No. 4 of 2008 |
| Date | 20 March 2014 |
Caribbean Court of Justice
Moore, J.A.; Burgess, J.A.; Goodridge, J.A.
Criminal Appeal No. 2 of 2008; Criminal Appeal No. 3 of 2008; Criminal Appeal No. 4 of 2008
Mr. Arthur Holder for Appellant Biddy.
Mrs. Angella Mitchell-Gittens for appellants Kelly and Richardson.
Mr. Alliston Seale for the respondent.
Criminal Law - Importation, possession and trafficking of controlled drug — Appeal against conviction — Directions to jury — Admissibility of confession evidence.
The appellants were jointly charged in an indictment containing six counts that on 3 July 2003, they imported, were in possession of and trafficked in a controlled drug, namely, 209.8 kilogrammes of cannabis, contrary to section 18(4) of the Drug Abuse (Prevention and Control) Act, Cap. 131 (Cap.131); and imported, were in possession of and trafficked in a controlled drug, namely, 40 grammes of cocaine, contrary to section 4(3) of the said Act. They were tried by Worrell, J. and a jury. On 24 July 2007 they were each convicted on all counts and sentenced on 4 February 2008: Biddy to imprisonment for 5 years on the first count, 5 years on the second count, 6 years on the third count, 12 years on the fourth count, 10 years on the fifth count, and 10 years on the sixth count, all sentences to run concurrently; Kelly to imprisonment for 4 years on the first count, 4 years on the second count, 4 years on the third count, 5 years on the fourth count, 12 years on the fifth count and 10 years on the sixth count, all sentences to run concurrently; and Richardson to imprisonment for 12 years on the first count, 10 years on the second count, 10 years on the third count, 5 years on the fourth count, 4 years on the fifth count and 4 years on the sixth count, all sentences to run concurrently.
On 2 July 2003 about 3.10 a.m., the appellants were on board a pirogue about 25 yards off Batts Rock Beach in St. Michael. Coast Guard and police personnel who were on patrol in the area saw the pirogue. The appellants made a run for it but the Coast Guard and police personnel fired warning shots and the pirogue with the appellants on board was apprehended.
Personnel from the Coast Guard vessel boarded the pirogue. Constable McDonald Forte asked the appellants their business in the area and appellant Kelly replied, “I bring up some herb.” He pointed to an area about 25 yards from the shoreline where the pirogue was first seen and said, “The herb dey. A Bajan man jumped off this boat to swim it ashore.” The appellants, the pirogue and 16 bales which were recovered from the sea were taken to Willoughby Fort. The bales were found to contain 209.8 kilogrammes of marijuana and 40 grammes of cocaine.
The appellants Biddy and Kelly made oral and written confession statements and appellant Richardson made a number of oral statements, including, “Me, the two Vincy men and a Bajan man bring up them drugs but the Bajan man jumped off the boat.”… “I don't know he name or where he lives”; and in respect of the pirogue he said, “That is the boat that I come up ‘pon’.” At the trial each appellant denied making the oral statements attributed to him, and the appellants Biddy and Kelly said that the written statements were not theirs.
The three appellants have variously appealed against conviction and sentence on five grounds. Grounds 1, 2, 4 and 5 are considered together because they are common to the three appellants.
The grounds, in substance, allege that the trial judge erred when he failed to direct the jury that the presumption established by section 42 of Cap. 131 is rebuttable by proof on the balance of probabilities as provided by section 134 (2) of the Evidence Act, Cap. 121 (Cap. 121) and not by proof beyond reasonable doubt. Both counsel for the appellants submit that the appellants were denied a fair trial because the trial judge had directed the jury only in relation to the standard of proof required by the prosecution as proof beyond reasonable doubt. Both counsel relied on Hooper v. The Queen Criminal Appeal No. 18 of 2008 (unreported) ( Hooper).
Counsel for the respondent conceded that the trial judge did indeed fail to give the appropriate direction on the standard of proof applicable to the accused but submitted that in the circumstances the appellants suffered no prejudice.
In Hooper, the appellant was charged with possession of a controlled drug and drug trafficking. He was driving his motor car along the Tom Adams Highway when he was stopped by the police who searched the motor car and found a bag containing cocaine. The appellant denied knowledge of the bag and said that the first time he had seen it was when the police brought it to him at the back of the vehicle. The judge directed the jury that if they were satisfied that Hooper had the bag in his car and that the bag was in his possession, custody and control, then there was the presumption that he was in possession of the cocaine found in it and if they were so satisfied, then the burden of proof shifted to the appellant. However, the judge failed to direct the jury that in those circumstances proof was on the balance of probabilities.
In the instant case the three appellants were caught on board a boat. The appellants Biddy and Kelly made oral and written statements confessing their knowledge of the drugs and the part they played in its transportation from St. Vincent to Barbados. The appellant Richardson made oral statements to like effect. At the trial, Biddy and Kelly were represented by Mr. Arthur Holder now counsel for Biddy only. During the trial, Mr. Holder on behalf of those two appellants objected to the oral statements attributed to them on the ground that they did not make the statements and he objected to the written statements on the ground that they were not the statements of the appellants. He agreed that it was a question of fact for the jury to decide.
The appellant Richardson denied making the oral statements attributed to him by the police. That also became a question of fact for the jury to decide.
The law relevant to this issue is contained in section 42 of Cap. 131 which must be read in conjunction with section 6(3) and section 39 of that Act. Section 6(3) provides as follows:
“(3) Subject to section 39, it is an offence for a person to have a controlled drug in his possession, whether lawfully or not, which is intended, whether by him or some other person, for supply in contravention of section 5(1).”
Subject to regulations made under section 12, section 5(1) prohibits the production of a controlled drug and the supply of the controlled drug by one person to another.
The relevant parts of sections 39 and 42 are:
“39. (2) Subject to subsection (3), in any proceedings for an offence to which this section applies it shall be a defence for the accused to prove that he neither knew of nor suspected nor had reason to suspect the existence of some fact alleged by the prosecution which it is necessary for the prosecution to prove if he is to be convicted of the offence charged.
(3) Where in any proceedings for an offence to which this section applies it is necessary, if the accused is to be convicted of the offence charged, for the prosecution to prove that some substance or product involved in the alleged offence was the controlled drug which the prosecution alleges it to have been, and it is proved that the substance or product in question was that controlled drug, the accused
(a) shall not be acquitted of the offence charged by reason only of proving that he neither knew nor suspected nor had reason to suspect that the substance or product in question was the particular controlled drug alleged; but
(b) shall be acquitted thereof
(i) if he proves that he neither believed nor suspected nor had reason to suspect that the substance or product in question was a controlled drug; or
(ii) if he proves that he believed the substance or product in question to be a controlled drug, or a controlled drug of a description, such that, if it had in fact been that controlled drug or a controlled drug of that description, he would not at the material time have been committing any offence to which this section applies.”
“42. (1) Without prejudice to any other provision of this Act
(a) where it is proved that a person imported anything containing a controlled drug it shall be presumed, until the contrary is proved, that such person knew that such drug was contained in such thing;
(b) where it is proved that a person had in his possession or custody or under his control anything containing a controlled drug, it shall be presumed until the contrary is proved, that such person was in possession of such drug;
(c) where it is proved that a person supplied to any other person anything containing a controlled drug, it shall be presumed, until the contrary is proved, that such first-mentioned person knew that such drug was contained in such thing;
(9) where it is proved that a person handled, within the meaning of section 7, anything containing a controlled drug, it shall be presumed, until the contrary is proved, that such person knew that such drug was contained in such thing;”
At paragraph 51 of R v. Lambert [2001] U.K.H.L. 37 ( Lambert), Lord Hope of Craighead cited with approval the following direction of the trial judge which was based on UK statute which was the source of Cap. 131:
“Now, members of the jury the law is this. A person who is in possession of a controlled drug shall be acquitted if he proves that he neither believed nor suspected nor had reason to suspect that the substance in question was a controlled drug. He doesn't have to know the type of drug but he must prove that he neither believed nor suspected nor had...
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