Merren v R

• Jurisdiction: Cayman Islands
• Judge: (Sanderson, J.)
• Judgment Date: 23 June 2000
• Court: Grand Court (Cayman Islands)
• Date: 23 June 2000

Grand Court

(Sanderson, J.)

R.L. MERREN and G.B. MERREN

and

R.

N.W. Hill, Q.C. and Mrs. L.D. DaCosta for the appellants;

Ms. A. Clarke, Crown Counsel, for the Crown.

Cases cited:

(1) Beaver v. R., [1957] S.C.R. 531; (1957), 118 C.C.C. 129; 26 C.R. 193, dicta of Cartwright J. applied.

(2) D.P.P. v. Brooks, [1974] A.C. 862; [1974] 2 All E.R. 840, distinguished.

(3) Logan v. R., 1992–93 CILR 304.

(4) Margeson v. R., 1990–91 CILR 144; on appeal, 1990–91 CILR 250.

(5) R. v. Blondin, [1971] 2 W.W.R. 1; (1970), 2 C.C.C. (2d) 118; on appeal, [1972] 1 W.W.R. 479n; (1971), 4 C.C.C. (2d) 566n.

(6) R. v. Cavendish, [1961] 1 W.L.R. 1083; (1961), 45 Cr. App. R. 374, distinguished.

(7) R. v. Gibson, 1988–89 CILR 336, distinguished.

(8) R. v. Martin(1948), 92 C.C.C. 257; 7 C.R. 44; [1948] O.W.N. 847.

(9) R. v. SengerUNK(1955), 16 W.W.R. 1; 112 C.C.C. 351.

(10) R. v. Smith, [1973] 3 W.W.R. 81; 10 C.C.C (2d) 384, considered.

(11) R. v. WilliamsUNK(1998), 40 O.R. (3d) 301; 125 C.C.C. (3d) 552.

(12) Towers & Co. Ltd. v. Gray, [1961] 2 Q.B. 351; [1961] 2 All E.R 68, followed.

Legislation construed:

Customs Law (Law 17 of 1990), s.51(a): The relevant terms of this paragraph are set out at page 239, lines 5–7.

s.53(1)(a): The relevant terms of this paragraph are set out at page 241, lines 23–28.

Evidence Law (1995 Revision) (Law 13 of 1978, revised 1995), s.23(1): The relevant terms of this sub-section are set out at page 242, lines 14–32.

Marine Conservation Law (1995 Revision) (Law 19 of 1978, revised 1995), s.14: The relevant terms of this section are set out at page 239, line 43 – page 240, line 2.

Environmental Protection-marine conservation-spear guns-no offence of possessing unlicensed spear gun-Marine Conservation Law, s.14 offence to be charged as possession of spear gun otherwise than under licence from Marine Conservation Board

Customs and Excise-smuggling-being engaged in smuggling-may convict of being engaged despite dismissal of substantive smuggling charge-need not prove by whom goods smuggled

Customs and Excise-smuggling-being engaged in smuggling-actual possession of smuggled goods contrary to Customs Law, s.53(1)(a) requires physical handling together with act of control and knowledge of nature of goods-burden of disproving guilty knowledge on accused-no constructive possession if no unrestricted right to take delivery

The appellants were charged in the Magistrate”s Court with offences relating to the smuggling of spear guns and spear gun parts into the Islands.

Customs officers acting on information received searched the appellants” premises and found three spear guns (one with its retail tag still attached) and some spear gun parts. The first appellant subsequently visited the Airport to claim a parcel which had been brought on a flight from Miami. The luggage tag attached to the parcel bore the second appellant”s name. The parcel was found to contain further spear gun parts and credit card receipts for their purchase in the second appellant”s name. The first appellant claimed responsibility for the contents. Customs officers confiscated the parcel before he took physical possession of it. They also produced credit card receipts, which were later adduced as evidence by the Crown, showing the purchase by both appellants of spear guns and parts at a dive shop in Miami on two separate occasions.

The appellants were charged with the possession of unlicensed spear guns contrary to s.14 of the Marine Conservation Law, and the smuggling of, and being engaged in smuggling of, spear guns and spear gun parts contrary to ss. 51 and 53(1)(a) of the Customs Law. The Magistrate dismissed the charges of smuggling on the basis that there was no evidence to prove that the appellants had brought the goods into the Islands. She convicted both appellants of possession of unlicensed spear guns and being engaged in smuggling them, and the first appellant of being engaged in smuggling the parts on the basis of his constructive possession of them.

On appeal, the appellants submitted that (a) the charge of possessing an unlicensed spear gun was defective and unknown to law, since the Marine Conservation Law, s.14 prohibited possession by an unlicensed person, not possession of an unlicensed gun; (b) having dismissed the smuggling charges, the Magistrate could not properly convict them of being engaged in an offence which had not taken place; (c) furthermore, the credit card receipts upon which she had relied were inadmissible as hearsay and did not prove conclusively that the spear guns to which they related were the same as those found on their premises; and (d) the first appellant was not guilty of being engaged in smuggling the spear gun parts retained by customs officers at the Airport, since the charge of being engaged was based on his possession of allegedly smuggled goods, and also required proof that he knew the contents of the parcel.

The Crown submitted in reply that (a) the wording of the possession charge was immaterial since its essence was understood and proved as against the appellants; (b) there was ample evidence that the appellants had purchased spear guns and parts in Miami and had been in possession of the same in the Islands, and the fact that they might not themselves have smuggled them into the Islands was not necessary to the charge of being engaged in smuggling; (c) the credit card receipts were admissible under s.23 of the Evidence Law; and (d) the first appellant had been in constructive possession of the parcel sent from Miami, since he attempted to reclaim it from the Airport authorities as bailees, and proof of his advance knowledge of the contents of the parcel was unnecessary since s.53(1)(a) required possession alone.

Held, allowing the appeal in part:

(1) The charges of possessing unlicensed spear guns were defective, since s.14 of the Marine Conservation Law required that a person be licensed by the Marine Conservation Board before he could own or use a spear gun. This was clear from the licensing directive and the 1996 Regulations containing the form for obtaining a licence. Accordingly, the appellants had been charged with a non-existent offence. Whilst the court had power to amend the charge even at this stage, Crown Counsel had sought no such amendment either before the Magistrate (when the issue was first raised) or before the Grand Court, and the appellants had therefore been deprived of the opportunity to object to an amendment. In these cir-cumstances, the court would not amend the charges of its own volition, and the convictions would be set aside (page 239, line 42 – page 241, line 4).

(2) The appellants had been properly convicted of being engaged in the smuggling of spear guns, since the Crown had proved that the spear guns had been smuggled into the Cayman Islands and that the appellants had been found in possession of them. It was not necessary to prove by whom the goods had been brought here, and therefore the dismissal of the smuggling charges was not fatal to the other charges (page 241, lines 29–43).

(3) The credit card receipts had been admitted under s.23 of the Evidence Law as documents containing statements of fact of which oral evidence would have been admissible. They also satisfied the other criteria of s.23. They were admissible even though they did not identify the spear guns by their serial numbers, since they showed that the appellants had been involved in purchasing spear guns and components shortly before the guns were found at their premises (one still with a retail price-tag attached) (page 242, line 10 – page 243, line 7).

(4) The first appellant”s conviction for being engaged in the smuggling of spear gun parts would be set aside. Section 53(1)(a) provided that a person found in possession or control of smuggled goods was guilty of the offence unless he had no guilty knowledge, the proof of which was upon him. The first appellant, having claimed responsibility for the contents of the parcel at the Airport, had not disproved his guilty knowledge, but the Crown had not shown that he was in possession of it in the first place. Possession must include either physical handling or an unrestricted right to take delivery of the goods, together with some act of control over them and the requisite knowledge of the nature of the goods (subject in this case to the above-mentioned reversal of the burden of proof). The first appellant”s right to remove the goods from the Airport had been subject to the discretion of Customs to retain them, and he had exercised no control over the goods whilst in their possession. Accordingly, he had had neither actual nor constructive possession or control (page 243, line 44 – page 244, line 10; page 244, line 18 – page 245, line 10).

SANDERSON, J.: The appellants were convicted in the Summary
15	Court by the learned Magistrate as follows:
1. Both appellants, of being in possession of unlicensed spear guns,
contrary to s.14 of the Marine Conservation Law.
2. Both appellants, of being engaged in the smuggling of spear guns,
contrary to s.53(1)(a) of the Customs Law.
20	3. The

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