Att Gen v Skoog

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Collett and Rowe, JJ.A.)
• Judgment Date: 01 August 2003
• Court: Court of Appeal (Cayman Islands)
• Date: 01 August 2003

Court of Appeal

(Zacca, P., Collett and Rowe, JJ.A.)

ATTORNEY GENERAL

and

SKOOG

Ms. C. Richards, Senior Crown Counsel, for the Crown;

L. Aiolfi for the respondent.

Cases cited:

(1) R. v. Bland, [1988] Crim. L.R. 41; (1987), 151 J.P. 857, considered.

(2) R. v. Coid, [1988] Crim. L.R. 199, referred to.

(3) R. v. Conway, [1994] Crim. L.R. 826, applied.

(4) R. v. HayeUNK(1972), 18 W.I.R. 361, considered.

(5) R. v. Searle, [1971] Crim. L.R. 592; (1971), 115 Sol. Jo. 739, considered.

(6) R. v. Tao, [1977] Q.B. 141; [1976] 3 All E.R. 65; (1976), 63 Cr. App. R. 163, considered.

(7) Romero v. R.UNK(1994), 46 W.I.R. 151, dicta of Floissac, C.J. considered.

(8) Warner v. Metropolitan Police Commr., [1969] 2 A.C. 256; [1968] 2 All E.R. 356; (1968), 52 Cr. App. R. 373, dicta of Lord Reid considered.

Legislation construed:

Interpretation Law (1995 Revision) (Laws of the Cayman Islands, 1963, cap. 70, revised 1995), s.3(1): The relevant terms of this sub-section are set out at para. 23.

Misuse of Drugs Law (2000 Revision) (Law 13 of 1973, revised 2000), s.3(1):

‘Whoever, without lawful excuse or without being authorised in that behalf-

. . .

(m) has in his possession, whether lawfully or not, with intent that it be supplied … to another person in contravention of this subsection,

any controlled drug … or who attempts, assists or is concerned in any of such matters is guilty of an offence.’

s.3(2)(a): The relevant terms of this sub-section are set out at para. 26.

Criminal Law-drugs-possession-control over drugs not prerequisite for joint possession-if control over premises and knowledge of presence of drugs, accused in joint possession if encourages offender in his possession-court may infer encouragement from control over premises and continued joint residence without pressure on offender to remove drugs

Criminal Law-drugs-permitting use of premises-‘occupier’ within Misuse of Drugs Law (2000 Revision), s.3(2) has meaning provided in Interpretation Law, s.3, i.e. resident other than as caretaker or servant-sufficient if resident as of right, paying portion of rent and outgoings and in ‘husband and wife’ relationship with legal tenant

The respondent was charged in the Magistrate”s Court with possession of ganja with intent to supply and permitting premises to be used for the distribution of controlled drugs.

The respondent shared an apartment with her boyfriend, who was the legal tenant. She paid rent to him and also a portion of the outgoings. Some time after she moved in, she learned that he was storing large quantities of ganja in a locked storeroom adjacent to their bedroom. She asked him to remove the drugs but he failed to do so and she later found two large bags of ganja in their wardrobe. In her absence, these were

taken to the airport by her boyfriend as part of a consignment of approximately 250 lb. for transportation to the United States. On the same day, the police found around 1,000 lb. of ganja in the storeroom, together with scales, cling-wrap and other packaging. The respondent did not have a personal key to the storeroom, but one was found in the bedroom.

The respondent denied the charges in relation to the 1,000 lb. of ganja found on the premises. She stated that she had asked her boyfriend to get rid of the drugs when she found them and that she had never inquired why the scales and packaging material were in the room. She considered the premises to be her home and believed that she had the right to exclude persons other than her boyfriend.

The Magistrate convicted the respondent on both charges. She concluded that the couple were in fact co-tenants, that the respondent had known of the presence of drugs on the premises for some time and had an element of control over them. Furthermore, she held that by permitting her boyfriend to keep drugs in their room to supply to others, the respondent had encouraged him and thereby aided and abetted him in the offence. Accordingly, the respondent was convicted of possession with intent to supply, contrary to s.3(1) of the Misuse of Drugs Law (2000 Revision), and sentenced to three years” imprisonment. The Magistrate also found that, as a co-tenant, the respondent was an occupier who had permitted her boyfriend to use the premises for the distribution of drugs, and was also guilty of the second offence. She was sentenced to two years on this charge, to run concurrently.

On appeal, the Grand Court (Sanderson, J.) set aside both convictions. On the facts, she did not have control over the drugs in the apartment, as she was not a co-tenant but at most a sub-lessee and her inaction did not constitute encouragement so as to make her an aider or abettor of her boyfriend”s offence, and she was therefore not in possession of the drugs. Moreover, she was not an ‘occupier’ within the meaning of the Misuse of Drugs Law, s.3(2)(a), as she could not exclude her boyfriend from the apartment. The proceedings in the Grand Court are reported at 2002 CILR 457.

On further appeal, the Crown submitted that (a) the Grand Court had erred in finding that the necessary elements of possession were not present; (b) in order to prove joint possession of the drugs it was not necessary to show that the respondent exercised control over the drugs, provided that she had control over the apartment and had encouraged her boyfriend in his possession; (c) furthermore, the respondent”s inaction, combined with her knowledge of the drugs and her boyfriend”s intention to distribute them, constituted encouragement or assistance to him, thereby aiding and abetting his offence; and (d) the Grand Court had erred in holding that since the respondent could not exclude her boyfriend from their apartment, she was not an occupier of the premises within the meaning of the Misuse of Drugs Law, s.3(2)(a).

The respondent submitted in reply that (a) she did not have control over the premises, as she was unable to exclude her boyfriend; (b) her

awareness of the drugs in their apartment was the entirety of her knowledge and involvement; and (c) as the lease for the apartment was not in her name and she could not exclude her boyfriend, she was not an ‘occupier’ and could not be held liable for permitting the apartment to be used for the distribution of a controlled drug.

Held, allowing the appeal:

(1) The Grand Court had erred in finding that the respondent was not in possession of the ganja. It was unnecessary to prove that she had control over the drugs, provided that she exercised control over the apartment in which she knew her boyfriend was storing drugs for supply. Although she was unable to exclude her boyfriend, she did exercise control over the apartment, as she could exclude everyone else. The Magistrate had been entitled to find that, given the presence in the apartment of drug paraphernalia and the large quantity of ganja stored, the respondent must have known that her boyfriend was intending to supply it. Her conviction and sentence for possession with intent to supply would be reinstated if, in addition to having control over the premises and knowledge that ganja was stored there for supply, she had encouraged the commission of that offence (para. 13; para. 22).

(2) As the respondent had control over the premises and knowledge of...