Henry v R

• Jurisdiction: Cayman Islands
• Judge: (Summerfield, C.J.)
• Judgment Date: 01 March 1978
• Court: Grand Court (Cayman Islands)
• Date: 01 March 1978

Grand Court

(Summerfield, C.J.)

HENRY

and

R.

K. Brandon for the appellant;

D. Ritch for the Crown.

Cases cited:

(1) Brannan v. Peek, [1948] 1 K.B. 68; [1947] 2 All E.R. 572, observations of Lord Goddard, C.J. applied.

(2) R. v. Elliott, 1952–79 CILR 9; (1952), 6 J.L.R. 173.

Legislation construed:

Misuse of Drugs Law, 1973 (Law 13 of 1973), s.3(1)(ii)(k):

‘Whoever without-

(ii) being authorised in that behalf . . .

(k) possesses, constructively or otherwise . . .

any controlled drug . . . is guilty of an offence.’

Police-agent provocateur-effect on criminal charge-incitement by agent provocateur justifies dismissal of charge of selling ganja-charge of possession prior to sale not tainted by incitement

Criminal Law-drugs-possession-possession inferred from accused”s possession of unoccupied premises in which drug found-lack of exclusive possession does not prevent inference of possession of drug-evidence to be considered as a whole

The appellant was charged in the Magistrate”s Court, George Town with the unlawful possession and sale of ganja.

The appellant was the target of a police operation in which two officers went to his house to buy ganja. The appellant sold them ganja which he was seen to get from an unoccupied house on the same plot of land as his own. The appellant used the house to store some personal belongings but other persons also had access to it. A search of the appellant”s house revealed no ganja but a search of the other house uncovered a parcel of ganja of which the appellant denied all knowledge.

He was charged with (i) selling a controlled drug and (ii) the unlawful possession of a controlled drug. He was convicted of the second charge only, the first having been dismissed on the basis that it was an offence procured or incited by an agent provocateur.

The appellant appealed against conviction. He submitted inter alia that (a) since the conduct of the police officers as agents provocateurs was improper, their evidence as a whole was tainted and unreliable; accordingly, the charge of possession should have been dismissed on the same grounds as the charge of selling, there being no break in the chain of events and both charges being based substantially on the same evidence; and (b) the evidence of possession was unsatisfactory as it was not shown that he had exclusive possession of the house in which the drug was found nor was it shown that he had any direct connection with the ganja found.

Held, dismissing the appeal:

(1) The charge relating to the sale of ganja had been properly dismissed since that offence had been incited by agents provocateurs and might not otherwise have been committed. The conduct of the police officers was therefore very relevant to that charge but had no relevance to the charge of possession. The appellant was already in possession of the ganja when the police officers came to his house. He continued in

possession at the moment when they procured the sale of some of it and was still in possession of the remainder after they left. It would have been otherwise if because of the incitement he had procured a quantity of ganja and thus become in possession of it, but that interpretation of the facts was not supported by the evidence (page 267, lines 30–33; page 268, lines 13–35).

(2) Exclusive possession of the unoccupied house in which the drug was found was only one factor to take into account. Its absence did not necessarily mean that other evidence relating to possession could not be relied on. The court had to...