Oscar Lee Watler Stephen Wayne Hurlston v R

• Jurisdiction: Cayman Islands
• Judge: Roger Chappie
• Judgment Date: 29 May 2019
• Date: 29 May 2019
• Docket Number: SCA #: 14/2018 (Case #00678/2016) (SWH) PWITS (Cocaine) SCA #: 16/2018 (Case #00680/2016 (SWH + OLW) PWITS (Cocaine) + Possession of an item used in the preparation or consumption of a controlled drug
• Year: 2019
• Court: Grand Court (Cayman Islands)

Oscar Lee Watler Stephen Wayne Hurlston

and

Regina

Before:

Justice Roger Chappie (Actg.)

SCA #: 14/2018 (Case #00678/2016) (SWH) PWITS (Cocaine)

SCA #: 15/2018 (Case #00679/2016) (OLW) PWITS (Cocaine)

SCA #: 16/2018 (Case #00680/2016 (SWH + OLW) PWITS

(Cocaine) + Possession of an item used in the preparation or consumption of a controlled drug

IN THE GRAND COURT OF THE CAYMAN ISLANDS

CRIMINAL SIDE

HEADNOTE

Criminal Law — Appeals (against Convictions) from the Summary Court to the Grand Court — Possession of Cocaine with intent to supply — Points argued: Failure to hold voir dire, rule on submissions after ‘no-case’ heard instead of in Verdict Judgment, direct on good character.

Appearances:

Mr. Norman Hill Q.C. instructed by Mr. Steve McField of ASM Chambers for the Appellants

Mr. Scott Wainwright of the ODPP for the Respondent/Crown

ON APPEALS AGAINST CONVICTION

Introduction

1 On 30 ^th May 2018, following a trial in the Summary Court before Magistrate Kirsty-Ann Gunn, Oscar Lee Watler and Stephen Wayne Hurlston (the Appellants) were convicted of a number of offences, as follows:

• a. Steven Hurlston:

  • i. Possession with intent to supply 1.6 lbs of cocaine (jointly with Mr Watler);

  • ii. Possession with intent to supply 6.01 grams of cocaine;

  • iii. Possession of items used in the preparation or consumption of a controlled drug (half a razor blade, 3 small self-locking bags and a small plastic bag) (jointly with Mr Watler).

• b. Oscar Lee Watler:

  • i. Possession with intent to supply 1.6 lbs of cocaine (jointly with Mr Hurlston);

  • ii. Possession of items used in the preparation or consumption of a controlled drug (half a razor blade, 3 small self-locking bags and a small plastic bag) (jointly with Mr Hurlston);

  • iii. Possession with intent to supply 1.8 grams of cocaine;

    • Mr. Watler had entered a limited plea of guilty to simple possession of cocaine which was not acceptable to the prosecution. The learned Magistrate found the offence proved as charged.

  • iv. Possession of items used in the preparation or consumption of a controlled drug (a plastic wrapper, 10 small self-locking plastic bags and a digital weighing scale;

    • Mr. Watler had entered a limited plea of guilty to possession of digital scales only which was not acceptable to the prosecution. The learned Magistrate found the offence proved as charged.

  • v. Consumption of ganja;

    • Prior to trial Mr. Watler pleaded guilty to this charge.

  • vi. Consumption of cocaine;

    • Prior to trial Mr. Watler pleaded guilty to this charge.

2 On 22 ^nd August 2018, the Magistrate sentenced both defendants to a term of 12 ¹/₂ years' imprisonment upon the charge of possession with intent to supply 1.6 lbs of cocaine, passing concurrent terms in respect of all other offences.

3 Both Appellants now appeal against both their convictions and sentence.

The evidence at trial

4 The prosecution case at trial relied, for the most-part, upon the evidence of one police officer, Police Constable #117 Ishmale 1 Leslie (PC Leslie) of the Royal Cayman Islands Police Service (RCIPS). He gave evidence that on 3 ^rd October 2015. He was on patrol alone in the Patrick's Island area. As he drove along Reverie Road, he noticed a car parked in the bushes in an open lot and two men (the Appellants) standing at the rear of the car. PC Leslie stopped and walked over to the Appellants who moved to the front of the car. PC Leslie said that he saw Mr Hurlston throw something towards the passenger door. PC Leslie later retrieved that item — a plastic bag containing a white powder which subsequent analysis

revealed to be 6.01 grams cocaine 2. According to PC Leslie, both Appellants appeared nervous

5 The officer moved to the rear of the car and saw a set of keys and a half razor blade (on which traces of cocaine were later found) on the trunk. On the ground near Mr Watler, the officer noticed 3 small plastic bags — one of which was found to contain a small amount of cocaine. As he reached down to pick up these bags, PC Leslie saw a yellow package, partially under the car. Inside the package were what he described as two rocks — subsequent analysis found this to be 1.6 lbs of cocaine hydrochloride. PC Leslie told both Appellants they were being arrested for possession of illegal drugs and utensils.

6 According to PC Leslie, as he was administering the caution but before he was able to compete it, Mr Watler said: “Officer, I can't lose my job right now. I can't go to jail now. Do something for me.” Mr Hurlston, said something similar, adding that he had worked for the Immigration Department for 7 years and had a step-daughter to support. Mr Hurlston is said to have concluded by saying, “I found it on the beach. I should have dash it away, yo.” Mr Watler added, “ I know you can make this go behind us. I don't even want to see you again. I feel like pinching myself to see if I am awake.”

7 In cross examination, PC Leslie told the court that, in reply, he said this: “If this were ganja, it would be easier for me to give you a break, but this is cocaine. It destroys lives.” When he was able, the officer said he completed the words of the caution.

8 When PC Leslie asked Mr Watler to empty his pockets, he removed, amongst other things, a small number of self-locking bags containing cocaine and a small digital scale. PC Leslie requested assistance, which eventually arrived. The Appellants were taken to the police station.

9 Searches of the Appellants' homes were later carried out and nothing of any evidential significance was recovered.

10 The various items seized at the scene were sent for analysis. No DNA or other scientific evidence established a link between these items and either Appellant.

11 Both Appellants were interviewed at the police station. Mr Hurlston made no comment to all questions asked of him. Mr Watler adopted a broadly similar stance although expressly denied that he produced any bags or scales from his pockets, contending that the officer had found these on the ground.

12 Submissions were made on behalf of both Appellants at the close of the prosecution case that there was no case to answer. The Magistrate rejected those submissions. It is said by Mr Hill QC, who now appears for both Appellants, although did not appear at first instance, that the Magistrate gave no reasons for her decision immediately following those submissions, although she did give full details explaining her “no case” reasoning in the course of her verdict judgment (paragraphs 20 to 48), delivered after all the evidence had been heard. The transcript obtained records the evidence given before the Summary Court but does not assist as to whether any reasons were given at the time for rejecting the “no case” submissions. The “no case submissions” are not recorded at all. Mr Wainwright, now appearing for the Respondent, did not appear below and thus could not assist.

13 The Appellants, both of good character and long-term employees of the Immigration Department, gave evidence to the Magistrate.

14 In summary, Mr Hurlston said that he had, earlier that day, accepted Mr Watler's invitation to go lobster fishing. They drove to the lot where they were later arrested. Garbage was strewn around the lot, including, he noticed, little plastic bags. PC Leslie arrived there only minutes after the Appellants. He said the officer recovered a razor blade from the ground rather than the trunk. He denied having thrown anything to the ground. He accepted that the officer had retrieved the package from underneath the car, but said that he was unaware of its presence until the officer did so. Mr Watler did produce some little packages and a digital scale from his pocket, of which Mr Hurlston had not, until that moment, been aware. Mr Hurlston recalled the officer saying, when arresting him, that “had it been weed or even a pound of weed he could chance it and let them go.” He denied making any request of or suggestion to the officer that he turn a blind eye, saying that he did not speak to PC Leslie at all at the lot. He remained silent at interview on the advice of his attorney.

15 Mr Watler also told the court that they had driven to the lot, which backs on to a canal, to fish for lobster. He noticed items on the ground — particularly some bags, one of which contained a white substance. He picked them up to see what they were, and also the digital scale which he found under some twigs. It was then that PC Leslie approached. Mr. Watler said he was nervous and so put the items in his pocket. Like Mr Hurlston, he was not aware of the package under the car until it was retrieved by the officer.

16 Mr. Watler said he may have mentioned that he worked for the Immigration Department and may have asked PC Leslie to turn a blind eye. He did recall the officer saying that if it had been ganja, he would have let him go. He made no comment to most questions during the course of his interview, following legal advice, although denied then that he produced anything from his pocket to PC Leslie because the items did not “originate” from him.

The appeals against convictions — Grounds of appeal against conviction

17 The grounds of appeal against conviction relied upon by both Appellants are broadly similar.

18 Complaint is made firstly about the Magistrate's approach to PC Leslie's evidence as to what passed between him and the Appellants, beginning as he administered or attempted to administer the caution. Mr Hill contends that the Magistrate should have, but did not, hold a voir dire to determine the admissibility of PC Leslie's evidence of what was said by the Appellants, particularly the request to turn a blind eye. A voir dire, Mr Hill argues, should have been held to determine whether or not the statements alleged to have been made by the Appellants were admissible notwithstanding (a) the fact that they denied making the statements, (b)...