O'Connor v R

• Jurisdiction: Cayman Islands
• Judge: (Smellie, C.J.)
• Judgment Date: 12 February 2008
• Court: Grand Court (Cayman Islands)
• Date: 12 February 2008

Grand Court

(Smellie, C.J.)

O”CONNOR

and

R.

N. Dixey for the appellant;

Ms. T. Lobban, Crown Counsel, for the Crown.

Cases cited:

(1) Minott v. StateUNK(2001), 62 W.I.R. 347, applied.

(2) R. v. Andrews-Weatherfoil Ltd., [1972] 1 W.L.R. 118; [1972] 1 All E.R. 65; (1972), 56 Cr. App. R. 31, referred to.

(3) R. v. Bell, [1997] 6 Arch. News 2, referred to.

(4) R. v. Green(2005), 149 Sol. Jo. 1350; [2005] EWCA Crim. 2513, referred to.

(5) R. v. Lucas, [1981] Q.B. 720; [1981] 3 W.L.R. 120; (1981), 73 Cr. App. R. 159, referred to.

(6) R. v. McCluskeyUNK(1994), 98 Cr. App. R. 216, referred to.

(7) R. v. Segal, [1976] Crim. L.R. 324, referred to.

(8) R. v. Velasquez, [1996] 1 Cr. App. R. 155, referred to.

Legislation construed:

Misuse of Drugs Law (2000 Revision), 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, whether by himself or some other person, and whether in the Islands or elsewhere to another person in contravention of this subsection,

any controlled drug, pipe, utensil or thing used in the preparation or consumption of any controlled drug, or who attempts, assists or is concerned in any of such matters is guilty of an offence.’

Criminal Procedure-co-accused-inconsistent verdicts-accused convicted and co-accused acquitted primarily on basis of evidence of same unreliable witness-conviction quashed unless plausible explanation given for apparently inconsistent verdicts-guiding principles listed

The appellant was charged in the Summary Court with being concerned in the possession of a controlled drug (cocaine) with intent to supply, contrary to the Misuse of Drugs Law (2000 Revision), s.3(1).

The appellant, who had allegedly recruited a woman to travel from Grand Cayman to Cayman Brac to retrieve a consignment of cocaine from his accomplice, was charged with being concerned in the possession of cocaine with intent to supply. He was tried, with his accomplice, in the Summary Court, where the Crown primarily relied on the evidence of the recruited woman in respect of both accused. Based on this evidence, the appellant was convicted as charged and sentenced to 12 years” imprisonment and his accomplice was acquitted.

On appeal, the appellant submitted that the Magistrate”s acceptance of the evidence of the Crown”s primary witness (which was inconsistent in certain important respects and led to doubts as to her all-round credibility and reliability) in regard to him, yet her refusal to accept that same

evidence in respect of his accomplice, was illogical, irreconcilable and resulted in ‘a manifestly unsafe’ conviction.

The Crown submitted in reply that (a) there was a reasonable basis for the Magistrate”s inconsistent verdicts in that the cases of both the appellant and his accomplice were entirely different from each other in so far as they relied on the evidence of the primary witness-applying the test of whether a reasonable jury applying their minds properly could have arrived at the conclusion reached; and (b) the existence of other evidence, such as the appellant”s reaction when apprehended by the police and his own statements, led to no reasonable inference other than that he was guilty, regardless of the evidence in regard to his accomplice.

Held, dismissing the appeal:

(1) There was no inconsistency between the Magistrate”s decision to convict the appellant and that to acquit his accomplice and the appellant”s conviction and sentence would therefore be upheld. The two cases were entirely separate from each other in so far as they depended on the evidence of the primary witness. While there were certain discrepancies in this evidence, which led to doubts as to the witness”s credibility regarding the accomplice”s involvement, her evidence in relation to the appellant was accepted by the Magistrate to be reliable and truthful, and there was no basis for her to hold otherwise (para. 26; para. 32; para. 35).

(2) The main question was whether there was any plausible way of explaining how the two different verdicts could have been reached. The guiding principles to be applied in regard to that question were: (a) the court should be slow to quash a conviction based on evidence from a source regarded as unreliable in respect of one accused, but reliable in respect of a co-accused on the same charge; if there was any plausible way of explaining how a reasonable jury might have reached those verdicts, the court would not quash the conviction; (b) if there was any supplementary or confirmatory evidence to support that rendered questionable by the acquittal of a co-accused, it would justify different verdicts and the conviction would be upheld; (c) if the rejection of a witness”s evidence, inherent in a verdict of acquittal, could be explained on any basis other than attributing to that witness a deliberate intention to mislead, a conviction based on other evidence from the same witness would not necessarily be regarded as unsafe; (d) even if an acquittal indicated a lack of confidence by the jury in the truthfulness of a witness, a conviction based on the evidence of that witness might nonetheless be upheld if there was some reasonable basis for believing that the witness lied in relation to one accused, but told the truth in relation to another; (e) in determining whether it was reasonable for a jury to have accepted a witness”s evidence in respect to one accused, but not another, it was material to consider how closely linked the two pieces of evidence were in terms of time, place and subject-matter; and (f) if an acquittal depended on the rejection of the evidence of a witness as untruthful, there would have to be a reasonable explanation for a conviction based on the acceptance of certain other

evidence of that same witness. In light of the application of these guiding principles, the court was able to conclude that there was such a plausible explanation for the inconsistent verdicts here (para. 23).

(3) The Magistrate”s verdict in respect of the appellant was based not only on the evidence of the Crown”s primary witness but also on supplementary evidence, such as the appellant”s own statements upon his arrest, and her decision not to accept this evidence, while accepting that of the primary witness, was based on the reasonable inference that he was lying about certain aspects of his statement, which damaged his credibility, more than that of the witness (paras. 26–30).

(4) The appeal would therefore be dismissed and the appellant”s conviction and sentence affirmed.

1 SMELLIE, C.J.: On May 28th, 2006, the appellant was convicted after trial in the Summary Court before Magistrate Hall of the offence of being concerned in the possession of cocaine with intent to supply. Subsequently, on June 7th, 2006, the learned Magistrate imposed a

sentence of 12 years” imprisonment. This is the appellant”s appeal against that conviction (his appeal against sentence having been withdrawn at the outset of this hearing).

2 The...