R v De Acosta

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Taylor and Mottley, JJ.A.)
• Judgment Date: 11 August 2006
• Court: Court of Appeal (Cayman Islands)
• Date: 11 August 2006

Court of Appeal

(Zacca, P., Taylor and Mottley, JJ.A.)

R.

and

DE ACOSTA

T.N. Ward, Ag. Senior Crown Counsel, for the Crown;

N. Dixey for the respondent.

Cases cited:

(1) Gonzalez v. R., 1984–85 CILR 10; on appeal, 1984–85 CILR 197, applied.

(2) R. v. Darrell, Bermuda C.A., unreported, Cr. App. 14 & 15 of 2005, applied.

(3) R. v. Lambert, [2002] 2 A.C. 545; [2001] 3 All E.R. 577; [2001] UKHL 37, applied.

Legislation construed:

Criminal Procedure Code (1995 Revision), s.5(1): The relevant terms of this section are set out at para. 5.

Misuse of Drugs Law (2000 Revision), s.9(1)(a):

‘[W]here it is proved beyond reasonable doubt that a person imported anything containing a controlled drug, it shall be presumed, until the contrary is proved, that such person knew that such drug was contained in such thing. . .’

s.60(1): The relevant terms of this sub-section are set out at para. 5.

Criminal Law-drugs-importation-presumption under Misuse of Drugs Law (2000 Revision), s.9(1)(a) concerning knowledge of contents of container-if accused adduces sufficient evidence to question presumed knowledge, overall burden remains on Crown to show beyond reasonable doubt that defence not established

The respondent was charged in the Magistrate”s Court with possession of cocaine, importation of cocaine, and possession of cocaine with intent to supply.

The respondent claimed that she was not aware of the contents of a container she imported, which in fact contained the drugs which were the subject of the charges. She failed to prove her claim and under the Misuse of Drugs Law, s.9(1)(a) the court held that it was entitled to presume she had knowledge of the drugs. She was convicted of all three offences, and sentenced to 14 years” imprisonment on the importation charge, with no further sentences in respect of the other charges. She appealed to the Grand Court on the ground that importation of cocaine was a Category B offence under s.5(1) of the Criminal Procedure Code (1995 Revision), and was to be tried on indictment unless the prosecution and defence consented to a summary trial. As there was no such consent, the Magistrate”s Court had no jurisdiction and the trial was therefore a nullity. The Grand Court (Levers, J.) allowed the appeal and ordered a re-trial on all the charges.

On appeal by the Crown (with the respondent cross-appealing), an affidavit was admitted from the magistrate who had originally tried the case. She stated that, whilst it was the usual procedure that a plea would not be taken on a Category B offence in the Magistrate”s Court unless the accused agreed to be tried there-and she had no reason to believe that such procedure would have been departed from-there was no record of such an election taking place.

The Crown submitted that (a) the Criminal Procedure Code, s.5 only...