Beacher v R

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Taylor and Forte, JJ.A.)
• Judgment Date: 25 July 2007
• Date: 25 July 2007
• Court: Court of Appeal (Cayman Islands)

Court of Appeal

(Zacca, P., Taylor and Forte, JJ.A.)

BEACHER

and

R.

A. Akiwumi for the appellant;

Ms. C. Richards, Solicitor-General, and T.N. Ward, Crown Counsel, for the Crown.

Cases cited:

(1) Boodhoo v. Att. Gen. (Trinidad & Tobago), [2004] 1 W.L.R. 1689; (2004), 18 BHRC 429; 101 (15) L.S. Gaz. 28; [2004] UKPC 17, dicta of Lord Carswell applied.

(2) R. v. Gray, [1995] 2 Cr. App. R. 100; [1995] Crim. L.R. 45; (1994), 91 (39) L.S. Gaz. 38, distinguished.

(3) R. v. Jones, [1997] 2 Cr. App. R. 119; [1996] Crim. L.R. 901, referred to.

(4) R. v. Mills, [1997] 2 Cr. App. R. 206; [1997] Crim. L.R. 603, referred to.

(5) Robinson v. R., [1985] A.C. 956; [1985] 2 All E.R. 594; [1985] Crim. L.R. 448; (1985), 32 W.I.R. 330, dicta of Lord Roskill applied.

Criminal Procedure-fair trial-right to legal representation-court may deny legal aid and refuse adjournment for appellant to seek further representation after he dismisses five legal aid attorneys and fails to retain own counsel-not improper denial of right to legal representation

Criminal Law-drugs-importation-sentence-15 years” imprisonment not excessive for being concerned in importation of 460g. of cocaine

The appellant was charged in the Magistrate”s Court with being concerned in the importation of 460g. of cocaine.

A drug courier was arrested by Customs officers on arrival in the Cayman Islands and found to have ingested a significant amount of cocaine. He stated that the supplier of the drugs in Jamaica had given him the appellant”s telephone number written on an envelope. The number was incorrect and the courier obtained another number from Jamaica, which he gave to the Customs officer, who, posing as the courier, telephoned the number and recorded the conversation, which allegedly demonstrated that the appellant was intending to traffic in cocaine. The officer arranged to meet the appellant in an hotel and he was subsequently arrested.

The trial was adjourned several times over a period of 18 months, for the principal reason that the appellant was unable to retain counsel. He dismissed five different attorneys who were assigned to him on legal aid and briefly represented himself before informing the court that he would be retaining counsel privately. However, shortly thereafter he asked the court to extend legal aid to cover the expenses of another attorney, which was refused. At the trial, at which the courier gave evidence for the Crown, the appellant was convicted and sentenced to 15 years” imprisonment. He appealed on the ground, inter alia, that he had been denied the right to elect the mode of trial and the Grand Court (Henderson, J.) allowed the appeal and ordered a re-trial. On appeal by the Crown, the Court of Appeal held that there was no election prescribed for the offence and that the trial had been properly conducted in the Magistrate”s Court, and the case was remitted to the Grand Court to consider the appellant”s other grounds of appeal. The Grand Court (Henderson, J.) dismissed the appeal and affirmed the conviction, in proceedings reported at 2007 CILR 6.

On appeal against his conviction and sentence, the appellant submitted that (a) he had been denied the right to legal representation by the Grand Court”s refusal to grant legal aid for a sixth attorney, as the court had merely counted the attorneys but failed to consider his substantive reason for dismissing them, i.e. because they disagreed that he was entitled to elect a jury trial; (b) the statements of the courier, in the absence of a conspiracy charge or a joint charge, were hearsay evidence and inadmissible against the appellant; (c) he had also been denied the right to a fair trial within a reasonable time due to the inordinate delay of five months by the Grand Court in delivering its judgments on two occasions; and (d) the sentence imposed was, in any event, manifestly excessive.

The Crown submitted in reply that (a) the appellant was entirely to blame for his lack of legal representation, as he had had at least six attorneys but refused to accept the representation he was offered; (b) the evidence of the courier was not hearsay in this context, when there was clear evidence that the parties had been acting together in relation to a joint enterprise; (c) the appellant had not suffered any prejudice as a result of the alleged delay in pronouncing judgment; and (d) in view of the significant amount of cocaine involved, the sentence was not excessive and was within the guidelines for the offence.

Held, dismissing the appeal:

(1) The appellant had not been improperly denied the right to legal representation, since his lack of an attorney had resulted from his refusal to accept the representation he had been offered and his inability to retain counsel of his own choice. The court had been entitled to deny legal aid and to refuse another adjournment for the appellant to seek further representation pro bono, and there had been no miscarriage of justice as a result (paras. 13–14).

(2) The statements given by the witness fell within the exceptions to the hearsay rule and had been properly admitted, notwithstanding that the parties had not been either jointly charged or charged with conspiracy. The Crown had provided clear evidence of a joint enterprise between the appellant and the persons in Jamaica, and the words spoken by the witness related to directions or arrangements for the purpose of advancing the common enterprise and were therefore admissible (paras. 18–19).

(3) The only relevant delay was that of five months between the second appeal hearing in the Grand Court and the delivery of the judgment, which was not inordinate, and the appellant had failed to show that this had resulted in any prejudice to him or inaccuracies in the judgment. A distinction had to be made between delay in affording a hearing, where the judge”s ability to deal properly with the issues might be compromised, and delay in the pronouncement of a judgment, particularly after an appeal hearing when the decision did not depend on oral evidence or the recollection of witnesses”...