Edun v R
| Jurisdiction | Cayman Islands |
| Judge | (Graham, J.) |
| Judgment Date | 26 June 2002 |
| Date | 26 June 2002 |
| Court | Grand Court (Cayman Islands) |
(Graham, J.)
F. Phipps, Q.C. and G.W. Hampson for the appellant;
Mrs. M. Smith-Andalcio, Crown Counsel, for the Crown.
(1) Brannan v. Peek, [1948] 1 K.B. 68; [1947] 2 All E.R. 572, distinguished.
(2) Browning v. J.W.H. Watson (Rochester) Ltd., [1953] 1 W.L.R. 1172; [1953] 2 All E.R. 775, referred to.
(3) Henry v. R., 1952–79 CILR 264, overruled.
(4) MacNeil v. H.M. Advocate, 1986 S.C.C.R. 288, followed.
(5) R. v. JakemanUNK(1983), 76 Cr. App. R. 223; [1983] Crim. L.R. 104, dicta of Wood J. applied.
(6) R.v. Sang, [1980] A.C. 402; [1979] 2 All E.R. 1222, applied.
(7) Watt v. Thomas, [1947] A.C. 484; [1947] 1 All E.R. 582, referred to.
Criminal Procedure Code (1995 Revision) (Law 13 of 1975, revised 1995), s.179:
‘. . . Provided that the court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if the court considers that no substantial miscarriage of justice has actually occurred.’
Penal Code (1995 Revision) (Law 12 of 1975, revised 1995), s.302(1): The relevant terms of this sub-section are set out at para. 24.
s.302(2): The relevant terms of this sub-section are set out at para. 24.
(3): The relevant terms of this sub-section are set out at para. 24.
Police-interrogation of suspects-notes of interrogation-interviewing police or customs officers to retain contemporaneous notes to support formal record of interview-may be used to refresh witness”s memory-record incomplete and admissions against interest inadmissible unless both adduced in evidence
Criminal Law-drugs-being concerned in importation-encompasses broad range of activity before and after act of importation, including accepting future role in smuggling enterprise (e.g. distribution), rather than merely being kept informed of others” participation
Criminal Law-drugs-possession with intent to supply-attempt-mens rea indicated by accused”s arrival in Islands and receiving drugs with proved intention to distribute them-irrelevant, under Penal Code (1995 Revision), s.302, that prevented from fulfilling intention and that misled by accomplice at instigation of customs officers
Criminal Law-drugs-investigation into drug trafficking-use of agent provocateur-no dismissal of criminal charge on ground that accomplice to smuggling operation, acting on direction of customs officers, procured accused”s arrival in Islands where arrested-intervention of agent provocateur relevant only to mitigation, not guilt-entrapment only if accused would not (rather than might not) otherwise have committed offence
The appellant was charged in the Magistrate”s Court with being concerned in the importation of cocaine and attempting to possess cocaine with intent to supply.
The appellant was arrested after taking possession of a package containing over 300g. of crack cocaine from an accomplice. He had been induced by a series of telephone calls from the accomplice, made at the instigation of and tape-recorded by Customs and Excise, to come to the Cayman Islands to receive the drugs and sell them on. He came on the understanding that their pre-agreed plan to import the drugs and distribute them would otherwise be frustrated. The accomplice had been arrested on arrival at the airport, having ingested the cocaine in pellet form. The first telephone conversation took place on the same day,
according to customs officers, although the date recorded in the officers” log contradicted this.
When first questioned, according to the senior customs officer present, the appellant admitted knowing the accomplice and preparing the drugs for him, and said that the accomplice was to have introduced the ultimate recipient of the drugs to him. The same officer made contemporaneous notes of the interview, but was unable to produce the notebook into which he had transcribed them. Another officer in attendance stated that the appellant had admitted allowing the accomplice to swallow the cocaine at his house in Jamaica. That officer produced his notebook, but not his notes of the questioning. In a subsequent formal interview, the appellant made no comment and his earlier admissions were not put to him. The defence accused the officers of concocting the alleged admissions.
At trial the appellant denied having known in advance of the accomplice”s plan to import and distribute cocaine, stating that he had come here in order to recoup money owed to him by the accomplice, through selling of the drugs. He denied being the person to whom the accomplice spoke on the telephone on the day of his arrival, but admitted receiving subsequent calls on the same number. The accomplice gave evidence for the Crown but resiled from his witness statement, denying that the appellant had prepared the cocaine and bought him a plane ticket.
The Magistrate convicted the appellant on both counts, stating that although the appellant denied making any admissions, he had not challenged the admissibility of the documentary evidence, and she found the two officers to be credible, if incompetent, witnesses. She concluded from the contents of the tape-recorded calls that the appellant had had prior know-ledge of the plan to import and sell cocaine. She rejected the appellant”s explanations of the calls, and accepted the customs officers” evidence that the accomplice had swallowed the drugs at the appellant”s house.
On appeal, the appellant submitted that (a) the Magistrate had erred in accepting evidence of the appellant”s admissions on the basis of an incomplete record of the informal Customs and Excise interview; (b) the Magistrate had failed to resolve a crucial discrepancy between the evidence of the two officers, since the presiding officer had not recorded any admission by the appellant as to the accomplice”s use of his home to swallow the drugs; (c) the Magistrate had erred in accepting the customs officer”s oral evidence of the date of the first telephone call above the contrary evidence in the log; (d) the Crown had failed to prove that the appellant had been knowingly concerned in the importation of cocaine, i.e. playing or agreeing to play, if necessary, a role in the smuggling, rather than merely being kept informed of the accomplice”s movements; and (e) he could not have formed the necessary mens rea to commit the offence of attempting to possess cocaine with intent to supply, since his accomplice had misled him as to the true nature of events.
The court also considered the objection, which had been raised before the Magistrate and rejected by her, that the appellant should not be convicted because the accomplice had acted as an agent...
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