Andrews v R

• Jurisdiction: Cayman Islands
• Judge: (Summerfield, C.J.)
• Judgment Date: 06 March 1984
• Date: 06 March 1984
• Court: Grand Court (Cayman Islands)

Grand Court

(Summerfield, C.J.)

ANDREWS

and

R.

R. Voaden for the appellant;

A. Smellie, Crown Counsel, for the Crown.

Cases cited:

(1) Fisher v. Bell, [1961] 1 Q.B. 394; [1960] 3 All E.R. 731; (1960), 125 J.P. 101; 104 Sol. Jo. 981, followed.

(2) Phillips v. Dalziel, [1948] W.N. 429; [1948] 2 All E.R. 810; (1948), 64 T.L.R. 628; 112 J.P. 445, distinguished.

Legislation construed:

Misuse of Drugs Law, 1973 (Law 13 of 1973), s.3(1):

‘Whoever without-

(i) lawful excuse; or

(ii) being authorised in that behalf

. . .

(e) sells, buys or otherwise deals in,

. . .

any controlled drug . . . or who attempts or offers so to do . . . is guilty of an offence.’

Criminal Law-drugs-offer to sell-no ‘offer’ unless acceptance would constitute legal contract-inquiry whether customer interested in buying drugs not offer to sell

The appellant was charged in the Magistrate”s Court, George Town, with unlawfully offering to sell ganja contrary to s.3(1)(i)(e) and unlawful possession of the same drug contrary to s.3(1)(i)(k) of the Misuse of Drugs Law, 1973.

The appellant allegedly asked an acquaintance (Bodden), who worked in an hotel, if he would like to buy ganja from her for the guests at the hotel. She added that she had returned from Cayman Brac a few days before with a substantial quantity. Bodden agreed to meet her at her place of work when he had received his wages but instead reported the matter to the police.

Later, the appellant showed Bodden a substance in a bottle, which she referred to as being ‘the best.’ The appellant and the man with whom she lived were arrested when driving in the appellant”s car apparently trying to find Bodden. Substantial quantities of ganja were found in the car.

The appellant was convicted of unlawfully offering the drug for sale (and sentenced to 2 years” hard labour and a fine of $3,000 with 6 months” imprisonment in default) and of unlawful possession (for which she was sentenced to 18 months” imprisonment and $1,000 fine with 3 months” imprisonment in default, the sentences to run concurrently). On appeal, she submitted inter alia that she should not have been convicted of offering to sell the drug because her conversation with Bodden at the most amounted to an invitation to treat and not to an offer to sell.

Held, allowing the appeal in part:

A person does not ‘offer’ to ‘sell’ a drug within the meaning of s.3(1)(i)(e) of the Misuse of Drugs Law, 1973 unless the acceptance of such an offer would conclude a legal contract. The appellant”s conversation with Bodden involved no more than an inquiry whether he was interested in buying ganja and did not even amount to an invitation to treat. The appeal would therefore be allowed to the extent that the conviction for offering to sell would be quashed but since the sentence passed for possession was in line with other sentences in similar cases, the appeal against that sentence would be dismissed (page 45, line 29 – page 46, line 30).

SUMMERFIELD, C.J.: The appellant was convicted of two
offences under the Misuse of Drugs Law, 1973, namely, unlaw-
20	fully offering ganja for sale and unlawful possession of ganja. She
was sentenced to 2 years” hard labour and fined $3,000 or 6
months” imprisonment in default for the offence of offering the
drug for sale and 18 months together with a fine of $1,000 or 3
months” imprisonment in default for possession, the sentences to
25	run concurrently. The car involved in the transaction was ordered
forfeit. She appeals against conviction and sentence.
She was originally charged jointly for those offences with Carl
Ebanks, her boy-friend with whom she was living at the time. On
arraignment the co-accused pleaded guilty to the offence of pos-
30	session. No evidence was offered against him on the charge of
offering for sale.
One ground of appeal can be disposed of fairly briefly. In the
course of the transactions said to have taken place a key witness,
Eugene Bodden (‘Bodden’), is alleged to have had a conver-
35	sation with the co-accused in which the co-accused is alleged to
have implicated the appellant in a deal for the sale of ganja in
three recorded passages. The appellant was not present during
that conversation. Clearly those passages implicating the appel-
lant were hearsay and, therefore, not admissible against her.
40	Objection was taken but the objection was overruled. The basis
for the admission was this. It was conceded that those passages

were not evidence of the truth of what was said and therefore
could not be used against the appellant but, because the prosecu-
tion anticipated-wrongly as it turned out, that the defence
would be calling the co-accused as a witness, the prosecution
5	wanted the evidence of Bodden on this aspect to rebut any
suggestion in evidence by the co-accused to the effect that the
appellant was unaware of the transaction. In short the prosecu-
tion was trying to lay the foundation for

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