D Powery v R

• Jurisdiction: Cayman Islands
• Judge: (Harre, C.J.)
• Judgment Date: 16 July 1993
• Court: Grand Court (Cayman Islands)
• Date: 16 July 1993

Grand Court

(Harre, C.J.)

D. POWERY, J.D. EBANKS and E.D. EBANKS

and

R.

Mrs. P. Levers and G. Hampson for the first appellant;

J. Furniss for the second appellant;

The third appellant appeared in person;

S. Bulgin, Crown Counsel, for the Crown.

Cases cited:

(1) Att.-Gen. (Hong Kong) v Wong Muk Ping, [1987] 1 A.C. 501; [1987] 2 All E.R. 488; (1987), 85 Cr. App. R. 167, dicta of Lord Bridge of Harwich applied.

(2) R. v. Bland, [1988] Crim. L.R. 41.

(3) R. v. Dickens, [1990] 2 Q.B. 102; [1990] 2 All E.R. 626; (1990), 91 Cr. App. R. 164, dicta of Lord Lane, C.J. applied.

(4) R. v. Gibson, 1988–89 CILR 336.

(5) R. v. Gordon, Court of Appeal of Jamaica, Cr. App. No. 30/1991, unreported.

(6) R. v. Hester, [1973] A.C. 296; [1972] 3 All E.R. 1056; (1972), 57 Cr. App. R. 212, dicta of Lord Morris of Borth-y-Gest considered.

(7) R. v. Searle, [1971] Crim. L.R. 592.

Legislation construed:

Misuse of Drugs Law (Second Revision) (Law 13 of 1973, revised 1985), s.7:

‘Without prejudice to any other provision of this Law-

(a) where it is proved beyond reasonable doubt that a person imported anything containing a controlled drug it shall be presumed, until the contrary is proved, that such person knew that such drug was contained in such thing;

(b) where it is proved beyond reasonable doubt that a person had in his possession or custody or under his control anything containing a controlled drug, it shall be presumed, until the contrary is proved, that such person was in possession of such drug;

. . .

(d) where it is proved beyond reasonable doubt that a person is in any way concerned in carrying, removing, harbouring, keeping, concealing, handling or dealing in any manner with anything containing a controlled drug, it shall be presumed, until the contrary is proved, that such person knew that such drug was contained in such thing. . . .

(2) The presumptions provided by this section shall not-

(a) be rebutted by proof that a person never had physical possession of the controlled drug. . . .’

s.16(c) as added by Misuse of Drugs (Amendment) Law, 1988 (Law 8 of 1988), s.6:

‘(1) The court may, for the purpose of determining whether the person against whom proceedings have been instituted for a drug trafficking offence has benefited from drug trafficking and, if he has, of assessing the value of his proceeds of drug trafficking, make the assumptions mentioned in subsection (2), except to the extent that any of them are shown to be incorrect in his case.

(2) Those assumptions are-

(a) that any property appearing to the court-

(i) to have been held by him at any time since his conviction; or

(ii) to have been transferred to him at any time since the beginning of six years ending when the proceedings were instituted against him . . . was received by him, at the earliest time at which he appears to the court to have held it, as a payment or reward in connection with drug trafficking carried on by him;

(b) that any expenditure of his since the beginning of that period was met out of payments received by him in connection with drug trafficking carried on by him;

(c) that, for the purpose of valuing any property received or assumed to have been received by him at any time as such a reward, he received it free of any other interests in it.’

Criminal Law-drugs-possession-presumptions concerning possession-prosecution to show prima facie case of accused”s possession, custody or control of container containing drug for case to answer-by Misuse of Drugs Law (Second Revision), s.7(1)(b), proof concerning container then to be established beyond reasonable doubt and accused to disprove knowledge of contents on balance of probabilities

Criminal Law-drugs-possession-presumptions concerning possession-mere ownership of boat used to transport drugs not sufficient to raise presumption of or establish owner”s possession of drugs on board

Evidence-corroboration-purpose of corroboration-creditworthy corroborative evidence may give credence to questionable evidence-uncorroborated evidence of any witness may be relied on if apparently truthful

Evidence-corroboration-accomplices-evidence of one accomplice cannot corroborate that of another-may rely on uncorroborated evidence of accomplice if suitable warning given-common sense approach necessary in assessing value and magistrate may accept or reject part of evidence

Criminal Law-drugs-investigation into drug trafficking-confiscation of assets-prima facie evidence of property transferred to accused during relevant period permits assumptions of benefit from drug trafficking under Misuse of Drugs Law (Second Revision), s.16(c)(2)-accused to displace assumptions on balance of probabilities with respect to each item

The appellants were charged in the Magistrate”s Court, George Town with possession of ganja and possession with intent to supply.

The appellants were three of several persons arrested and charged with possession of ganja and possession with intent to supply after a search of a boat containing traces of ganja led to the discovery of several pounds of ganja on shore. Three other persons pleaded guilty as charged and were sentenced accordingly. They subsequently became Crown witnesses in the present proceedings which are reported in respect of the first appellant only.

The evidence established that the appellant was a co-owner of the boat which he loaned to persons who travelled to Jamaica to collect

ganja and bring it back to the Cayman Islands. He obtained the services of a licensed pilot for the vessel and was himself present to witness its departure and return and the unloading and weighing of the containers containing the ganja in a secluded place.

At the trial, after hearing the prosecution evidence, including evidence relating to the assets acquired by the appellant and his expenditure during the relevant time, the magistrate ruled that prima facie there was a presumption that the appellant had benefited from drug trafficking and that the evidence so far allowed him to make the assumption under s.16(c)(2) of the Misuse of Drugs Law (Second Revision) that his assets were the benefits he had received. He then heard the appellant”s evidence and submissions from both sides.

In his final judgment the magistrate cautioned himself that the evidence of one accomplice could not corroborate the evidence of another but despite conflicts in their evidence went on to state that their stories supported each other in all material details and that this de facto added credibility to each witness”s testimony. He also found that the appellant had not discharged the burden of proof (on a balance of probabilities) of rebutting the presumptions or assumptions raised against him and accordingly convicted him, ordering the forfeiture of his boat and the confiscation of his assets as part of his sentence.

The appellant appealed, submitting inter alia that (a) there was no case to answer and the magistrate had erred in law in raising the presumption of possession of the drugs on the basis merely that he owned the boat and in holding that he was at all material times in possession of it when even on the prosecution evidence it was clear that he had loaned the boat to persons who were neither his servants nor his agents; (b) the magistrate improperly failed to make a distinction between the possession of the container and possession of the contents of the container and to take account of the necessarily accompanying evidence which should have been applied separately to the drug and container; (c) the magistrate was wrong to rely on the conflicting evidence of two witnesses whom he had treated as accomplices and had failed to direct himself properly on the law relating to accomplice evidence and corroboration; and (d) since the prosecution had led no satisfactory evidence to enable the court to make a presumption that he was involved in drug trafficking or the assumption that property belonging to him represented the benefits of that involvement, the magistrate had been wrong to put him to proof of the contrary and had adopted an improper procedure by making a ruling before his evidence had been heard. Accordingly, the confiscation order based on this evidence should not be allowed to stand.

Held, dismissing the appeal:

(1) In view of the presumptions under s.7(1)(b) of the Misuse of Drugs Law (Second Revision), when a no-case submission was made on a charge of possession, the court had only to consider whether there was sufficient credible evidence to establish a prima facie case in relation to possession, custody or control of the container containing the prohibited

drug, the burden of proving which had then to be discharged to the normal standard in criminal cases, i.e. proof beyond reasonable doubt. Only when the prosecution had established such a case did the question of knowledge of the contents arise and the onus shift to the defendant to show on a balance of probabilities that he had not such knowledge (page 401, line 32 – page 402, line 8).

(2) Mere ownership of a boat used to transport drugs might not, without more, invest the owner with possession of the drugs on board or give rise to the presumption of possession under s.7(1)(b), however easily it might be rebutted. In the case of the appellant, however, there was much more evidence-sufficient in fact for the finding of a case to answer. Although he could not have had more than a hope or expectation that the boat was carrying drugs and therefore could not have been in possession of the drugs while they were on board, he must have had knowledge of what was being weighed on shore. At that stage he had joint possession of the containers and contents even though he had not yet seen the contents. In the alternative, the evidence was sufficient to establish that he had aided, abetted, counselled or procured the offence of possession of ganja with intent to supply and he had...