R v Andre Junior Russell
| Jurisdiction | Cayman Islands |
| Judge | Marva McDonald-Bishop |
| Judgment Date | 10 September 2019 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | INDICTMENT NO: 0054/19 |
Justice Marva McDonald-Bishop (Actg.)
INDICTMENT NO: 0054/19
IN THE GRAND COURT OF THE CAYMAN ISLANDS
CRIMINAL SIDE
Criminal Law — Illicit Trafficking — Misuse of Drugs Law — No local authorities in respect of offences under s.19(2) of the Misuse of Drugs Law — Some local authorities pertaining to the sentencing of offenders, mainly, in the Summary Court, for offences committed under s.3(1) of the Misuse of Drugs Law — Mitigation in these types of offences.
Mr. Kenneth Ferguson for the Crown
Mr. Rupert Wheeler of Samson Law for the Defendants
The four defendants are Jamaican nationals. They are charged together on an indictment containing a single count for the offence of Illicit Trafficking, contrary to s.19(2)(a) of the Misuse of Drugs Law (2017 Revision).
The particulars of the offence are that the four defendants “on the 6th day of September 2018, on a ship not registered in any country or territory, located 27 nautical miles southeast of Grand Cayman, Cayman Islands, had in their possession a controlled drug, namely 454.41 pounds of ganja, knowing or having reasonable grounds to suspect that the drug was intended to be imported into the Cayman Islands”.
The defendants pleaded guilty to this indictment in the Grand Court on the 16 th August 2019, following pleas of guilty in the Summary Court that were subsequently set aside as being null and void.
The undisputed facts on which the guilty pleas are based may be outlined as follows. On the 6 th September 2018, the four defendants were intercepted about 27 miles outside the territorial waters of Grand Cayman. They were intercepted after the Air Operation Unit (AOU) of the Royal Cayman Islands Police Service (RCIPS) spotted a suspicious-looking vessel, with four persons on board, and dispatched the Joint Marine Unit (JMU) to the area. The AOU used the thermal imaging infrared camera to identify the vessel with the four defendants on board. The vessel contained several large packages and fuel drums.
The JMU and AOU pursued the boat, and during the pursuit, the defendants were observed on the infrared camera system off-loading several large packages into the sea.
The vessel was eventually intercepted and identified as a 25-foot Jamaican-type canoe with no registration information displayed on it or documentation on board. The four defendants who were then identified to be Jamaican nationals were arrested.
A total of 22 packages were recovered and examined by drug officers. They were found to contain ganja, weighing. 454.41 pounds.
The police found a receipt for the purchase of various items of food and beverage from a supermarket in Petersfield, Westmoreland, Jamaica, among the personal effects of one of the defendants. This receipt was dated the 5 th September 2018. No fishing equipment or any evidence of any lawful means of making a living was observed on the vessel. The defendant, Basil Smith, was recorded to have said on caution:
“Mi just a come a Cayman fi look for work cause Jamaica hard. I don't know nothing about anything on the boat, the bald head man and the plait head man was who steering the boat.”
On Saturday, the 8 th September 2018, the defendants were interviewed under caution in the presence of their attorneys-at-law. They all remained mute throughout their interviews.
The procedural history of this case is critical to the sentencing process, hence its inclusion to provide a relevant background to the case brought by the defendants at the sentencing hearing. The chronology of events provided by the prosecution and augmented by the court's own checks of the record of the Summary Court (with the concurrence of counsel on both sides) has proven useful in establishing the relevant procedural history that led to the arraignment of the defendants in this court.
The four defendants were initially charged with the offence of Importation of Ganja, contrary to s.19(2)(a) of the Misuse of Drugs Law (2017 Revision) (Charge #02009/2018).
The first hearing date in the Summary Court was on the 10 th September 2018, when the prosecution were required to serve the relevant papers on the defence.
On the 25 th September 2018: The defendants were represented by counsel, and the prosecution elected that the charge should be dealt with in the Grand Court. The matter was listed for a Long Form Preliminary Inquiry (LFPI) on the 10 th October 2018. On that day fixed for the LFPI to commence, a discussion took place between the parties after the defence had pointed out that the charge of importation was not sustainable because the defendants were intercepted outside the territorial waters of the Cayman Islands. The matter was then adjourned to the 17 th October 2018.
On the 15 th October 2018: On this date, two days prior to the date fixed for the LFPI, another charge was laid against the defendants (Charge #02327/2018).
On the 17 th October 2018: The matter was listed for hearing before Magistrate Donalds. The prosecution withdrew the initial charge of Importation of Ganja, pursuant to s.19(2)(a) of the Misuse of Drugs Law (2017 Revision), and laid a new charge of Possession of Ganja, contrary to s.19(2)(a) of the Misuse of Drugs Law (2017 Revision). The four defendants pleaded guilty to that offence. No charge of Possession of Ganja, contrary to s.3(1) (k) of the Misuse of Drugs Law (2017 Revision), was ever put to the defendants in the Summary Court. At the time of the guilty pleas, counsel on both sides, as well as the Magistrate, were not aware that the offence under s.19(2)(a) of the Misuse of Drugs Law was a category B offence and, therefore, required an election to be made as to the mode of trial. Neither the prosecution nor the defendants indicated any election to the Court.
On the 5 th December 2018: The case was before Magistrate Foldats, and he observed this irregularity in the proceedings. Crown Counsel, appearing at the time, then indicated that the prosecution were electing trial in the Grand Court.
In response, defence counsel, Miss Fosuhene, indicated to the court that there had been an election on the 14 th November 2018, for the case to be dealt with in the Summary Court and, therefore, the defendants had a legitimate expectation of being sentenced in the Summary Court. Magistrate Foldats adjourned the case for the resolution of the issue of whether an election had already been made. There were several mention dates before different Magistrates between the 12 th December 2018, and the 4 th June 2019, to, among other things, resolve the question.
On the 4 th June 2019: The case was listed for hearing before Magistrate Gunn. She indicated that the court record had revealed that there was no election in the matter and drew counsel's attention to the decision of the Cayman Islands Court of Appeal (CICA) in R v De Acosta 1. This indication, reportedly, led to a concession from the defence and the guilty pleas to Charge #02327/2018 were declared by Magistrate Gunn to have been null and void.
The Crown then elected trial in the Grand Court, and the case was committed to the Grand Court after a Short Form Preliminary Inquiry (SFPI) was conducted.
On the 12 th August 2019: The defendants, in this court, raised a plea in bar of autrefois acquit on the basis that the Summary Court had already dismissed the charge on the indictment. Alternatively, they contended that the prosecution should either be barred from proceeding in the Grand Court or that the indictment should be stayed on the ground of abuse of process because:
The defendants also asserted, through their counsel as a preliminary point, that the charge alleged on the indictment is not before the Grand Court as it was never sent by the Summary Court.
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i. the charge to which it relates has already been dismissed by the Summary Court; and
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ii. they have been given a legitimate expectation that they will not be prosecuted for that offence [on the indictment]”.
The prosecution strongly contested the position taken by the defence. Crown Counsel contended that the plea of autrefois acquit could not succeed because the withdrawal of the case in the Summary Court for a different offence could not properly ground such a plea in bar. He also contended that there was no abuse of process.
After considering the submissions of counsel on both sides, the court ruled that the defendants were not correct in their contention, both in fact and in law, that the prosecution should be barred from proceeding with the indictment in the Grand Court. Accordingly, the application for a stay of the proceedings in the Grand Court failed for reasons detailed in the Ruling below, which was delivered on the 16 th August 2019.
For the sake of completeness of these proceedings as they transpired on the 16 th and 30 th of August 2109 and the 10 th September 2019, this Ruling is herein recorded.
“This is an application brought by the four defendants by which they are asking this court to make a preliminary ruling that they not be called upon to be arraigned on the indictment, preferred in this court, in relation to a charge number 02327 of 2018.
The submissions on their behalf have been put in writing, quite helpfully and usefully by counsel, Mr. Wheeler, and the court has had sight of those submissions and has studied them thoroughly. The bases for the application, as set out in the written submissions, are that the plea of autrefois acquit is available to the defendants on the basis that the charge on this indictment has already been dismissed by the Summary Court. The plea should, therefore, be sustained and the...
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