Nicoletta v R

• Jurisdiction: Cayman Islands
• Judge: (Harre, J.)
• Judgment Date: 20 November 1992
• Court: Grand Court (Cayman Islands)
• Date: 20 November 1992

Grand Court

(Harre, J.)

NICOLETTA

and

R.

G. Hampson for the appellant;

A. Roberts, Crown Counsel, for the Crown.

Cases cited:

(1) R. v. HughesUNK(1985), 81 Cr. App. R. 344, followed.

(2) R. v. PipeUNK(1967), 51 Cr. App. R. 17, distinguished.

(3) R. v. TurnerUNK(1975), 61 Cr. App. R. 67, dicta of Lawton, L.J. applied.

Legislation construed:

Criminal Procedure Code (Law 13 of 1975), s.172, as amended by Criminal Procedure Code (Amendment) Law, 1983 (Law 28 of 1983), s.3:

‘The court may adjourn the hearing of the appeal, and may upon the hearing thereof confirm, reverse, vary or modify the decision of the Summary Court or remit the matter to the Summary Court for retrial, or may make such other order in the matter as it may think just, and may by such order exercise any power which the Summary Court might have exercised, and such order shall have the same effect and may be enforced in the same manner as if it had been made by the Summary Court; 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.’

Criminal Law-drugs-being concerned in possession with intent to supply-proof of possession essential to offence-not enough to show that accused agreed to supply large quantity of cocaine after supplying small amount on request

Evidence-witnesses-accomplices-accomplice as witness for prosecution not necessarily irregular-court to consider seriousness of crime and if in public interest-irregular to admit evidence of accomplice awaiting trial or facing possibility of prosecution

Criminal Procedure-charges-multiple charges-trial of multiple charges-magistrate”s failing to evaluate separately and record conclusions on each charge not fatal if reviews related transactions giving rise to charges, convictions justified by evidence and no injustice

The appellant was charged in the Magistrate”s Court, George Town with possession of cocaine with intent to supply and being concerned in the possession of cocaine with intent to supply.

The offences allegedly committed by the appellant arose from a sequence of events which were part of an undercover police operation. A police officer operating as an agent provocateur prevailed upon a third party to supply him with cocaine. The third party allegedly made contact with the appellant from whom he acquired a small amount of cocaine which was then passed on to the officer. In response to a request for more cocaine, the appellant arrived at the meeting place and handed a package to the third party who then handed it over to the officer. He was paid with a marked bank note. An arrangement was then made for the appellant to supply a larger quantity of cocaine later the same day and at that stage both the appellant and the third party were arrested. The appellant was charged on two counts of being in possession of cocaine with intent to supply and one count of being concerned in the possession of cocaine with intent to supply. The third party, who was not charged, appeared at the trial as a witness for the prosecution. He apparently had no expectation of being charged with any offence involving the transactions. Evidence on the life-style of the appellant was also admitted from which the court concluded that he had been affecting a prosperous life-style for an extended period of time unsupported by any lawfully gainful employment. This conclusion was treated as yet another factor weighing against the appellant. He was convicted and sentenced on all three counts.

On appeal, he submitted, inter alia, that the convictions and sentences could not be sustained because (a) in relation to the charge of being concerned in the possession of cocaine with intent to supply, the prosecution had failed to establish the essential ingredient of possession, an omission which was fatal to the conviction; (b) the magistrate had failed to warn himself of the danger of acting on uncorroborated evidence and had wrongly admitted the evidence of the third party whom he believed to be an accomplice and who might have stood to benefit from giving evidence against the appellant; and (c) the proper procedures for a just trial had not been followed in that the magistrate omitted to evaluate expressly and separately the evidence on the separate counts of possession with intent to supply and had also taken into account prejudicial matter not relevant to the charges.

Held, allowing the appeal in part:

(1) Proof of possession was essential to establishing the offence of being concerned in the possession of cocaine with intent to supply. It was not enough to show that soon after supplying a small amount of cocaine upon request the appellant had agreed to supply a larger quantity at a specified time. Without proof that the appellant in fact possessed the drug that he agreed to supply, it could not be established beyond reasonable doubt that the transaction was genuine or that it was not merely a speculative offer made by the appellant in the hope of being able to acquire the required quantity in time. Accordingly the appellant”s conviction and sentence on this count would be quashed (page 228, line 27 – page 229, line 13).

(2) Although the magistrate did not specifically warn himself of the danger of acting on the uncorroborated evidence of the third party, it was clear that he was aware of the implications of accepting evidence from an accomplice. It was not the case in principle that calling a witness who might benefit from giving evidence would always be irregular. There were circumstances in which it would be appropriate for a judge to admit such evidence after taking into consideration all the factors, including the public interest, and by observing the principle that the more serious the crime, the greater would be the need for justice to be done. However, it would be irregular to admit the evidence of an accomplice who had been charged but not tried and who could still be influenced by continuing inducements to give evidence of his own offence in order to secure the conviction of another accused. Similarly, it would be undesirable to call as a witness an accomplice who, though not charged, still faced the possibility of being charged. It would be otherwise if a person were told that he would not be charged irrespective of whether or not he gave evidence. It was evident that the third party (the accomplice) who gave evidence against the appellant did not expect to be charged and although particular care was necessary in assessing his evidence, it was clear that the magistrate had properly exercised his discretion in admitting it (page 229, lines 24–33;page 230, lines 2–28;page 231, lines 19–26;page 231, line 37 – page 232, line 10).

(3) Even though the magistrate had not expressly and separately evaluated the evidence on the charges of possession of cocaine with intent to supply, he had come to and had recorded an express conclusion on each of the charges after having reviewed all the evidence on the closely related transactions on which those conclusions were based. Moreover, although he may have improperly taken account of irrelevant and prejudicial matter by admitting the evidence of the appellant”s life-style, his rejection of the appellant”s innocence in relation to those charges was inevitable on the evidence as a whole. As no substantial miscarriage of justice had been caused by his...