Att Gen v Merren (RL)
| Jurisdiction | Cayman Islands |
| Judge | (Zacca, P., Rowe and Taylor, JJ.A.) |
| Judgment Date | 20 April 2001 |
| Court | Court of Appeal (Cayman Islands) |
| Date | 20 April 2001 |
(Zacca, P., Rowe and Taylor, JJ.A.)
Ms. A. Clarke, Crown Counsel, for the Crown;
N.W. Hill, Q.C. and Mrs. L.D. DaCosta for the respondents.
(1) Beaver v. R., [1957] S.C.R. 531; (1957), 118 C.C.C. 129; 26 C.R. 193.
(2) R. v. Smith, [1973] 3 W.W.R. 81; (1973), 10 C.C.C. (2d) 384.
(3) Towers & Co. Ltd. v. Gray, [1961] 2 Q.B. 351; [1961] 2 All E.R. 68.
Customs Law (Law 17 of 1990), s.53(1):
‘Whoever (unless without guilty knowledge, the proof of which is upon him) is found in possession or control of-
(a) any smuggled goods; or
(b) any vessel or thing used for or adapted to be used for smuggling or concealing goods,
is guilty of being engaged in smuggling.’
Evidence Law (1995 Revision) (Law 13 of 1978, revised 1995), s.23(1):
‘In criminal proceedings where direct oral evidence of a fact would be admissible, a statement contained in a document . . . shall . . . be admissible as evidence of that fact if-
(a) the document is, or forms part of, a record relating to any trade or business and compiled, in the course of that trade or business, from information supplied (whether directly or indirectly) by persons who have, or may reasonably be supposed to have, personal knowledge of the matters dealt with in the information they supply; and
(b) the person who supplied the information recorded in the statement in question is . . . beyond the seas. . .’
Marine Conservation Law (1995 Revision) (Law 19 of 1978, revised 1995), s.14: The relevant terms of this section are set out at para. 11.
Environmental Protection-marine conservation-spear guns-no offence of possessing unlicensed spear gun-Marine Conservation Law, s.14 offence to be charged as possession of spear gun otherwise than under licence from Marine Conservation Board
Customs and Excise-smuggling-being engaged in smuggling-may convict of being engaged despite dismissal of substantive smuggling charge-need not prove by whom goods smuggled
Customs and Excise-smuggling-being engaged in smuggling-constructive possession suffices as ‘possession or control’ of smuggled goods contrary to Customs Law, s.53(1)(a), e.g. accused”s claim to right to take delivery and acceptance of responsibility for goods with knowledge of nature before seized by Customs
The respondents were charged in the Magistrate”s Court with offences relating to the smuggling of spear guns and spear gun parts into the Islands.
Three spear guns (one with its retail tag still attached) and some spear gun parts were found by customs officers searching the respondents” premises. The first respondent subsequently attempted to claim a parcel
from the Airport containing further spear gun parts, which had arrived on a flight from Miami. The attached luggage tag bore the second respon-dent”s (his brother”s) name, and credit card receipts for the parts in the respondents” names were also inside. The first respondent claimed responsibility for the contents and Customs officers confiscated the parcel. The Crown also relied on invoices for recent purchases by both respondents of spear guns and parts at a dive shop in Miami.
The respondents were charged with possession of unlicensed spear guns contrary to s.14 of the Marine Conservation Law (1995 Revision), and the smuggling of, and being engaged in smuggling, spear guns and spear gun parts contrary to ss. 51 and 53(1)(a) of the Customs Law. The Magistrate dismissed the charges of smuggling on the basis that there was no proof that the respondents had brought the goods into the Islands. She convicted both respondents of possession of unlicensed spear guns and being engaged in smuggling them, and the first respondent of being engaged in smuggling the parts found at the Airport.
The Grand Court (Sanderson, J.) set aside the convictions for possess-ing unlicensed spear guns on the ground that the charges were defective, since s.14 of the Marine Conservation Law (1995 Revision) required that a person be licensed (to own or use a spear gun) by the Marine Con-servation Board rather than the gun itself...
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...1990 S.L.T. 715; 1990 S.C.C.R. 527, applied. (2) Merren (R.L.) v. R., 2000 CILR 234; on appeal, sub nom.Att. Gen. v. Merren (R.L.), 2001 CILR 181, followed. (3) R. v. AshdownUNK(1974), 59 Cr. App. R. 193, considered. (4) R. v. Bland, [1988] Crim. L.R. 41; (1987), 151 J.P. 857, applied. (5) ......
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