McLean v R

• Jurisdiction: Cayman Islands
• Judge: (Summerfield, C.J.)
• Judgment Date: 01 August 1979
• Court: Grand Court (Cayman Islands)
• Date: 01 August 1979

Grand Court

(Summerfield, C.J.)

McLEAN (D.D.)

and

R.

R.D. Alberga, Q.C. for the appellant;

J. Martin for the Crown.

Cases cited:

(1) Boodoo v. JosephUNK(1964), 7 W.I.R. 373, applied.

(2) Cedeno v. O”BrienUNK(1964), 7 W.I.R. 192.

(3) Hussien v. Chong Fook Kam, [1970] A.C. 942; [1969] 3 All E.R. 1626.

(4) R. v. SpraggUNK(1975), 23 W.I.R. 371.

Legislation construed:

Misuse of Drugs Law, 1973 (Law 13 of 1973), s.5(1): The relevant terms of this sub-section are set out at page 384, lines 10–13.

s.11: The relevant terms of this section are set out at page 384, lines 18–19.

Criminal Law-drugs-possession-search of suspect-police officer”s ‘reasonable grounds to suspect’ accused of possession under Misuse of Drugs Law, 1973, s.5(1) to be determined objectively according to standards of reasonable man-suspect entitled to resist search if unlawful because no reasonable grounds

The appellant was charged in the Magistrate”s Court, George Town, with resisting a lawful search contrary to the Misuse of Drugs Law, 1973, s.11.

A traffic officer stopped the appellant when he saw him driving a motorcycle with one hand, the other hand being clenched and resting on the handle-bar. He asked to search the appellant because he suspected him of being in possession of drugs but the appellant refused and, when he attempted to do so, pushed him away. The appellant was arrested but nothing was found on him at the police station.

The officer gave evidence that his reason for suspecting the appellant was solely his driving with the hand clenched and resting on the handle-bar. The appellant submitted that this was not a reasonable ground for suspecting him of possession of drugs, under s.5(1) of the Misuse of Drugs Law, and accordingly the search was not lawful and one that he was entitled to resist. The appellant was convicted as charged and sentenced to a fine of $300 or six months” imprisonment in default of payment.

On appeal, the appellant repeated his submissions in the lower court.

Held, allowing the appeal:

The appellant had been entitled to resist the search because it was unlawful: there was nothing in the circumstances to make an ordinary, reasonable man suspect that the appellant was in possession of drugs and the police officer had therefore no justification for searching him. The test for having ‘reasonable grounds to suspect’ him of possession, under s.5(1) of the Misuse of Drugs Law, 1973, required the officer to examine all the circumstances dispassionately and assess them according to the standards of a reasonable man to determine the presence or absence of such grounds. As he had acted without such consideration of the...