Logan v R

• Jurisdiction: Cayman Islands
• Judge: (Harre, J.)
• Judgment Date: 11 October 1991
• Court: Grand Court (Cayman Islands)
• Date: 11 October 1991

Grand Court

(Harre, J.)

LOGAN

and

R.

N.W. Hill, Q.C. and J. Furniss for the appellant;

Cases cited:

(1) Bramblevale Ltd., In re, [1970] Ch. 128; [1969] 3 All E.R. 1062, dicta of Winn, L.J. considered.

(2) R. v. Cappello(1959), 122 C.C.C. 342, considered.

(3) R. v. Carr-Briant, [1943] K.B. 607; [1943] 2 All E.R. 156; (1943), 29 Cr. App. R. 76, dicta of Humphreys J. applied.

(4) R. v. Edwards, [1975] Q.B. 27; [1974] 2 All E.R. 1085.

(5) R. v. Gibson, 1988–89 CILR 336, considered.

(6) R. v. Hunt, [1987] A.C. 352; [1987] 1 All E.R. 1, dicta of Lord Griffiths applied.

(7) R. v. Price(1961), 130 C.C.C. 259, dicta of Tysoe J.A. considered.

(8) R. v. Sharpe(1961), 131 C.C.C. 75, dicta of Morden J.A. considered.

(9) Woolmington v. D.P.P., [1935] A.C. 462; [1935] All E.R. Rep. 1.

Legislation construed:

Misuse of Drugs Law (Second Revision) (Law 13 of 1973, revised 1985), s.7(1)(b) and (d): The relevant terms of this sub-section are set out at page 333, lines 16–28.

Criminal Law-drugs-possession-presumptions concerning possession-accused required to disprove on balance of probability possession and knowledge of drug presumed under Misuse of Drugs Law (Second Revision), s.7(1) (b) and (d)

The appellant was charged in the Magistrate”s Court, George Town with the possession of cocaine contrary to the Misuse of Drugs Law (Second Revision), s.3(k).

The appellant picked up at the airport a person (‘G’) he appeared to know and when his car was stopped shortly afterwards by the police, 346 g. of cocaine concealed in a container was found in the personal custody of G. The appellant was charged with possession of the cocaine.

During the trial, the appellant denied that he knew G and, in defence, gave two contradictory explanations, quite different from that he had originally given to the police, as the reason for having picked up G. The prosecution brought evidence to show that several calls had been made that same day from the appellant”s telephone to G”s number in Jamaica and that some weeks before he had introduced G to two officers of the Drug Squad.

The court found on the facts that the appellant was ‘in possession of,’ which includes custody of or control over, the container. It then applied the presumptions under the Misuse of Drugs Law (Second Revision),

s.7(1)(b) that the appellant”s possession of the container meant that he was in possession of the drugs contained in it, and under s.7(1)(d) that his being concerned in carrying, keeping or handling the container meant that he knew that the drugs were in the container-and as the contrary had not been proved, convicted the appellant as charged.

On appeal, the appellant submitted that the magistrate had erred in his interpretation of the presumptions and in his analysis of the evidence, as he was only required by s.7(1) to give an explanation which might raise a reasonable doubt to support his plea of not guilty. This he had done, but the Crown had failed to prove beyond reasonable doubt that he had been in possession of the container or been concerned in carrying, keeping or handling the container.

Held, dismissing the appeal:

Although it was a fundamental rule of criminal law that the prosecution should prove every element of an offence beyond reasonable doubt, a persuasive burden of proof could be placed on an accused by statute. The phrasing of the Misuse of Drugs Law (Second Revision), s.7(1)(b) and (d) (‘it shall be presumed until the contrary is proved’) clearly and unambiguously required the accused to disprove the possession and knowledge that were presumed under the section to support a conviction for possession of the drugs. The standard of proof required of him was that of proof on a balance of probability. The magistrate had correctly concluded that this was the test to apply and, since the evidence against the appellant was overwhelming, the magistrate was entitled to find him guilty as charged (page 334, line 37 – page 335, line 23; page 339, lines 24–35; page 340, line 20 – page 341, line 2).

R. Sheehan, Crown Counsel, for the Crown.

HARRE, J.: In dismissing the appeal against conviction in
this case on August 8th, 1991 I undertook to give reasons at a
5	later date. This I now do.
This appeal arises from an incident which took place at Owen
Roberts Airport on January 18th, 1990. Evidence about what
happened there was given by two police officers, the appellant
himself, and one Lancelot Gowie. While patrolling in their car
10	the officers saw the appellant driving towards the airport and
decided to follow him. On reaching the airport arrival area they
saw him pick up Gowie. One officer said the appellant was not
there for more than 10 seconds, for as he was driving up Gowie
was walking towards him. The other said that the appellant drove
15	up and stopped in front of Gowie, who was standing near to the
roadside, and as he brought the car to a stop Gowie immediately
entered and they drove off. The officers stopped the car in the
vicinity of the airport fire station after the appellant had driven a
short distance with Gowie. Between Gowie”s legs was a travelling
20	bag subsequently found to contain two aerosol cans containing
346 g. of cocaine.
The inference was irresistible from what the officers saw in the
arrival area, and other evidence of the surrounding circumstances
to which I shall refer, that the appellant went to the airport to
25	pick up Gowie and that Gowie was expecting him. However, the
appellant told the officers just after they had stopped the car that
he went to the airport to pick up a girlfriend but she did not come
on the flight and he saw Gowie who begged him for a ride. He
told a quite different story at the trial. Then he said he had
30	received a telephone call to the effect that there was someone
waiting at the airport to be picked up by him, but he was not told
who it was. When he got there, he saw Gowie walk straight to the
car. He asked whether he was the one and when Gowie said ‘Yes’
he opened the car door and invited him in. He also said that he
35	did not that day have any earlier conversation with Gowie and
indeed that he did not know him. That is significant in view of the
evidence of telephone calls made that day. Five telephone calls
were made to Gowie”s number in Jamaica, all originating from
the appellant”s residence. It was also established that he had
40	himself introduced Gowie to two officers of the Drug Squad at a
restaurant in George Town weeks before. In evidence the

appellant sought to explain that the meaning which he had meant
to convey was that he did not know Gowie”s background but had
been prevented from explaining this fully.
The grounds of appeal against conviction as amended during
5	the appeal were that-
‘(a) the Crown failed to prove beyond reasonable doubt
that the appellant had possession of the controlled drugs
contained in the aerosol containers; and
(b) the Crown failed to prove beyond reasonable doubt
10	that the appellant was concerned with the possession of the
controlled drug concealed in the aerosol containers.’
From the facts to which I have referred, and these grounds of
appeal, arguments arising from the presumptions under s.7(1)(b)
and (d) of the Misuse of Drugs Law (Second Revision) fall to be
15	considered. Those paragraphs read as follows:
‘(b)[W]here 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
20	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, hand-
25	ling 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. . . . ’
Counsel for the appellant

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