Powery v R

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Georges and Kerr, JJ.A.)
• Judgment Date: 20 April 1995
• Court: Court of Appeal (Cayman Islands)
• Date: 20 April 1995

Court of Appeal

(Zacca, P., Georges and Kerr, JJ.A.)

DENTON POWERY

and

R.

Mrs. P. Levers and G. Hampson for the appellant;

I.F. Archie, Senior Crown Counsel, for the Crown.

Cases cited:

(1) Att.-Gen (Hong Kong) v. Wong Muk Ping, [1987] 1 A.C. 501; [1987] 2 All E.R. 488, followed.

(2) D.P.P. v. Hester, [1973] A.C. 296; [1972] 3 All E.R. 1056, dicta of Lord Morris of Borth-y-Gest considered.

(3) R. v. BaskervilleUNK(1916), 12 Cr. App. R. 81, applied.

(4) R. v. Cavendish, [1961] 1 W.L.R. 1083; [1961] 2 All E.R. 856, applied.

(5) R. v. Dickens, [1990] 2 Q.B. 102; [1990] 2 All E.R. 626, dicta of Lord Lane, C.J. applied.

(6) Reid v. R., [1980] A.C. 343; [1979] 2 All E.R. 904, dictum of Lord Diplock applied.

Legislation construed:

Misuse of Drugs Law (Second Revision) (Law 13 of 1973, revised 1985), s.16A, as added by Misuse of Drugs (Amendment) Law, 1988 (Law 8 of 1988), s.6: The relevant terms of this section are set out at page 386, lines 16–35.

s.16C(1), as added by Misuse of Drugs (Amendment) Law, 1988 (Law 8 of 1988), s.6: The relevant terms of this section are set out at page 386, lines 38–43.

s.16C(2), as amended by Misuse of Drugs (Amendment) Law, 1989 (Law 3 of 1989), s.3: The relevant terms of this section are set out at page 387, lines 1–19.

s.16D, as added by Misuse of Drugs (Amendment) Law, 1988 (Law 8 of 1988), s.6: The relevant terms of this section are set out at page 387, line 43 – page 388, line 6.

s.16E, as added by Misuse of Drugs (Amendment) Law, 1988 (Law 8 of 1988), s.6: The relevant terms of this section are set out at page 387, lines 21–32.

Evidence-corroboration-accomplices-evidence of one accomplice cannot corroborate that of another-may rely on uncorroborated evidence of accomplice if suitable warning given-common sense approach necessary in assessing value and may accept or reject part of evidence

Criminal Law-drugs-possession-constructive possession-co-owner of boat in which ganja carried in constructive possession of it if sufficient evidence that arranged for carriage

Criminal Law-drugs-investigation into drug trafficking-confiscation of assets-three-stage procedure to be followed when deciding whether to make confiscation order-court to determine whether defendant has benefited from drug trafficking, extent of benefit and amount to be confiscated-to be determined by criminal standard of proof

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

The appellant was one of several persons arrested and charged with possession of ganja and possession with intent to supply after the search of a boat containing traces of ganja led to the discovery of several pounds of ganja on shore. Three of the persons arrested pleaded guilty as charged, were sentenced and subsequently became Crown witnesses in the present proceedings.

The appellant was a co-owner of the boat which he loaned to others ostensibly for a fishing trip. In fact, they went to Jamaica, where they collected ganja which they brought back to the Cayman Islands. The appellant had obtained the services of a licensed pilot for the vessel and was allegedly present to witness its departure and return and the unloading and weighing of the bags of ganja.

At the trial, the magistrate held that although the evidence of one accomplice could not corroborate that of another, the stories of the accomplices who appeared as Crown witnesses supported each other in all material details, which added credibility to the testimony of each. He also held that there was a strong presumption that the appellant had benefited from drug trafficking. The appellant was convicted and sentenced to three years” imprisonment and a fine of $5,000, the boat was forfeited and a confiscation order made in respect of his assets.

The appellant”s appeals against conviction and sentence were dismissed, the court (Harre, C.J.) holding that (a) it was entirely proper for

the magistrate to have relied on the uncorroborated evidence of a witness if, having exercised extreme caution, he believed that it was truthful; (b) although the appellant was not in possession of the ganja while it was on the boat merely by virtue of his co-ownership of the boat, he was none the less in joint possession of it when he was present at the weighing of the ganja; and (c) once the prosecution had made out a prima facie case that the appellant had benefited from drug trafficking, it was for the appellant to rebut such evidence on the balance of probabilities, which he had failed to do. The proceedings in the Grand Court are reported at 1992–93 CILR 394.

On further appeal, the appellant submitted, inter alia, that (a) the magistrate had incorrectly applied the law relating to the evidence of accomplices because (i) corroborative evidence could not give validity to evidence which, like the accomplices”, was suspect; and (ii) the only evidence directly implicating the appellant was his presence at the weighing of the ganja and the discrepancy between the accomplices” testimony on the point was such that it should be considered unreliable; (b) there was insufficient circumstantial evidence to establish his possession of the ganja and the evidence was equally consistent with his innocence; and (c) since the magistrate had failed to observe the correct procedure in making the confiscation order, it should in any case be set aside.

In reply, the Crown submitted, inter alia, that (a) the evidence, when considered as a whole, was sufficient to establish constructive possession of the ganja on the part of the appellant; and (b) although the magistrate had failed to observe the correct procedure in making the confiscation order, the court nevertheless had sufficient evidence before it to uphold the confiscation order.

Held, dismissing the appeal against conviction but allowing that against the confiscation order:

(1) The magistrate had adopted the correct approach to the testimony of the accomplices. It was precisely because the evidence of some witnesses was suspect that corroboration of it was valuable. For evidence to constitute corroboration it had to (a) be from a source independent of that of the evidence to be corroborated; (b) go to the commission of the offence; and (c) directly implicate the accused in the commission of the offence. However, in this case the accomplices” testimony was not the only evidence as the police had found traces of ganja on the vessel and large quantities hidden on shore. Moreover, the magistrate was entitled to choose which parts of each accomplice”s testimony to accept or reject and he was entitled to conclude from the evidence as a whole that the accomplice”s testimony was credible in its essential particulars as to the appellant”s presence when the ganja was weighed (page 381, line 37 – page 382, line 8; page 382, line 40 – page 383, line 5; page 383, lines 25–39).

(2) The evidence had to be considered as a whole to determine whether the inferences to be drawn from it established the appellant”s guilt beyond

reasonable doubt. It was open to the magistrate to find the facts that he did, and since the appellant witnessed the departure of the boat, met it on its return and was present at the weighing of the ganja, there was sufficient evidence from which to infer that he had arranged for the ganja to be carried in his boat to justify a finding of constructive possession. The conviction would therefore be upheld (page 379, lines 7–11;page 380, lines 22–44).

(3) Where the court had to decide whether to make a confiscation order against a defendant convicted of a drug trafficking offence, the correct procedure to be followed had three stages, namely, that the court had to determine (a) whether he had benefited from drug trafficking; (b) the extent to which he had benefited; and (c) the amount he should be ordered to pay under a confiscation order. The correct standard of proof with regard to these inquiries was the criminal standard of proof beyond reasonable doubt. The magistrate had failed to determine the latter two issues and, in holding that there was a ‘strong presumption’ that the appellant had benefited, had applied the wrong standard of proof. Since to uphold the confiscation order in these circumstances would involve dealing with issues never raised before the magistrate and finding facts, such as the value of the ganja, for which there was no evidence, the confiscation order would be set aside (page 388, line 27 – page 389, line 30; page 390, lines 18–27).

KERR, J.A., delivering the judgment of the court: The appellant was
convicted in the Summary Court at George Town on September 29th,
1992, of the offence of possession of ganja with intent to supply contrary
to s.3(1)(i)(m) of the Misuse of Drugs Law (Second Revision) and
15	sentenced to three years” imprisonment and, in addition, fined $5,000 or
six months” imprisonment in default of payment. The motor vessel
‘Hustler,’ used in the transportation of the ganja, was forfeited and a
confiscation order made against the appellant pursuant to s.16A of the said
Law. His appeal to the Grand Court against conviction and sentence
20	having been dismissed, he brought a further appeal to this court. His
appeal against conviction was dismissed on December 12th, 1994 and the
conviction affirmed. His appeal against sentence was allowed in part-the
confiscation order being set aside and the sentence in all other respects
affirmed. Herein are the reasons for our decision.
25	The appellant was part-owner of the motor vessel ‘Hustler.’ On January
11th, 1992, at about 9 p.m., the ‘Hustler’ set out from Governor”s
Harbour, Grand Cayman, ostensibly on a fishing trip in the seas around
Grand Cayman. However, at about midnight, the fishing was abandoned
for a trip to Jamaica. The boat arrived there the

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