R v Gibson

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Kerr and Henry, JJ. A.)
• Judgment Date: 19 April 1989
• Court: Court of Appeal (Cayman Islands)
• Date: 19 April 1989

Court of Appeal

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

R.

and

GIBSON

F.M.G. Phipps, Q.C. and K. Collins for the appellant;

A.S. Smellie, Principal Crown Counsel, for the Crown.

Cases cited:

(1) D.P.P. v. Brooks, [1974] A.C. 862; [1974] 2 All E.R. 840; (1974), 59 Cr. App. R. 185, dicta of Lord Diplock considered.

(2) D.P.P. v. Ping Lin, [1976] A.C. 574; [1975] 3 All E.R. 175; (1975), 62 Cr. App. R. 14, followed.

(3) Haw Tua Tau v. Public Prosecutor, [1982] A.C. 136; [1981] 3 All E.R. 14, dicta of Lord Diplock applied.

(4) R. v. Cavendish, [1961] 1 W.L.R. 1083; [1961] 2 All E.R. 856; (1961), 45 Cr. App. R. 374.

(5) R. v. LivingstonUNK(1952), 6 J.L.R. 95, distinguished.

Legislation construed:

Misuse of Drugs Law (Second Revision) (Law 13 of 1973, revised 1985), s.7(1)(b):

‘[W]here it is proved beyond reasonable doubt that a person had in his possession or custody or under his control anything containing a controlled drug, it shall be presumed, until the contrary is proved, that such person was in possession of such drug. . . . ’

Criminal Procedure-prosecution case-case to answer-credible evidence needed to establish each essential element in alleged offence to make out prima facie case

Criminal Law-drugs-unlawful possession-presumption concerning possession-presumption under Misuse of Drugs Law (Second Revision), s.7(1)(b) that accused in possession or control of drug to be borne in mind when considering whether case to answer but only applied at end of proceedings

Criminal Law-drugs-unlawful possession-evidence-accused claiming container at Customs not sufficient to establish prima facie case of possession of drug in container if insufficient evidence of prior connection with container

Criminal Procedure-prosecution case-case to answer-when ruling on no-case submission, court to refrain from commenting on possible guilt or credibility of accused because may give impression of prematurely deciding factual issues or of prejudice

The appellant was charged in the Magistrate”s Court, George Town with being in possession of cocaine with intent to supply contrary to the Misuse of Drugs Law (Second Revision), s.3(1)(m).

The appellant had gone to the Customs Office at the Grand Cayman airport to collect a box containing a car cover which he said had been sent to him. He identified the box and placed it on the examination bench. The box was searched by a Customs officer and found to contain a concealed package of cocaine. The appellant claimed that the box had been sent by a sister in Miami for his mother. On arrest, he said that he had been ‘set up’ by someone in Miami.

The appellant was charged with being in possession of cocaine with intent to supply contrary to the Misuse of Drugs Law (Second Revision) s.3(1)(m). At the trial the prosecution presented substantial evidence to show that the appellant had himself made the arrangements at Miami airport for a Cayman Airways passenger to take the box to Grand Cayman and had also asked another passenger (the main prosecution witness) to collect it on its arrival and take it to the appellant”s home. There was also evidence that the appellant had returned to the Cayman Islands from Miami the same night the arrangements were made. He admitted making the statement to the Customs officer about having

been ‘set up,’ but challenged its admissibility on the ground that it was an admission against interest.

The appellant made a no-case submission but the magistrate ruled that there was a case to answer, relying entirely on the evidence of what had transpired at the Customs Office as evidence capable of establishing possession in the appellant. He also referred to the presumption of possession raised by s.7(1)(b) of the Misuse of Drugs Law (Second Revision) and stated that if the court found that the appellant had lied about his sister having sent the box, it would be difficult ‘not to attribute this lie exclusively to guilty knowledge.’ Subsequently, in his summingup, he did not refer to the appellant”s connection with the box in Miami. The appellant was convicted and sentenced to 7 years” imprisonment with a fine of $1,000 or 18 months” imprisonment in default. His appeals to the Grand Court against conviction and sentence were dismissed.

On further appeal, the appellant submitted that (a) the magistrate had been wrong in holding that there was a case to answer after inappropriately applying the presumption of possession raised by s.7(1)(b) at this stage of the proceedings when it was only intended to be applied at the end of the proceedings after all the evidence had been considered; (b) having ignored or, alternatively, rejected the only evidence which could have established his prior connection with the box, the magistrate had had no basis for raising the presumption of possession of the drug anyway and should have found that he was merely a consignee collecting the box; and (c) in admitting the statement about the ‘set up’ to the Customs officer, the magistrate had misdirected himself since the statement-an admission against interest -had been made to a person in authority and, before it could be admitted, the Crown should have shown that he had not been induced to make it as a consequence of any threat or promise on the part of the Customs officer.

The Crown submitted in reply that (a) at the close of its case it had established a. prima facie case upon which the trial could proceed on the basis of the evidence concerning the appellant”s prior connection with the box together with that of the Customs officers and the magistrate was not required at that stage to say whether or not he accepted any particular evidence; (b) by the end of the trial other substantial evidence had been presented which strengthened the case against the appellant; and (c) with respect to the appellant”s statement to the Customs officer, it was only necessary for the Crown to show that the statement had been made voluntarily.

Held, quashing the conviction and ordering a retrial:

(1) In considering whether there was a case to answer, the magistrate had a duty to consider whether there was some credible evidence which, if accepted, would establish each essential element in the alleged offence. He should therefore have considered whether a prima facie case of possession, custody or control of the box had been established. In doing so he would have had to bear the Misuse of Drugs Law (Second

Revision), s.7(1)(b) in mind, without actually applying it at this stage, because it addressed a presumption of possession of the drug which was to be applied only at the end of the proceedings. His reference to s.7(1)(b) was therefore relevant but was not in itself an indication that he had relied upon it prematurely. However, he had erred in finding evidence that the appellant had been in possession of the box because although he had not rejected the evidence of the appellant”s prior connection with the box, he had given the impression that it was irrelevant and had made no positive assessment of its credibility. This evidence was essential to the prosecution”s case and the magistrate could not properly have found that there was a case to answer on the sole basis of the evidence of what had transpired at the Customs Office. The appellant had therefore no case to answer (page 346, line 29 – page 347, line 12; page 348, line 37 – page 349, line 4; page 350, lines 3–23, page 351, line 35 – page 352, line 9; page 354, lines 6–12).

(2) Moreover, in making the ruling, the magistrate”s choice of language and his supposition about the truth of the appellant”s evidence and his possible guilt could have been taken as indicating that he had already made up his mind as to the appellant”s guilt before hearing his defence. In ruling against a no-case submission, a magistrate should always refrain from expressing his views or commenting on the evidence in a way which could be interpreted as deciding issues of fact or as being prejudicial to the fair consideration of the defence (page 347, lines 17–30).

(3) The appellant”s admitted statement about a ‘set-up’ was clearly capable of an interpretation against his interests. The burden of proof was on the Crown to show not that the Customs officer had not intended to obtain a confession from the appellant but that the statement had not been made in consequence of anything said or done by him which amounted to a threat or promise to the appellant. Since the objection to the statement at the trial was not pursued with other witnesses, however, and the statement was apparently given little weight by the magistrate, no miscarriage of justice had been occasioned by its admission and the court would not now attribute to it a significance which it did not have at the trial (page 352, lines 24–41; page 353, lines 22–29).

KERR, J.A., delivering the judgment of the court: On
February 7th, 1988 in the Summary Court at George Town the
appellant was convicted of being in possession of cocaine with
intent to supply contrary to s.3(1)(m) of the Misuse of Drugs Law
(Second Revision) and sentenced to seven years” imprisonment
15	and a fine of $1,000 or 18 months in default. He had been jointly
tried with one Oral Masters, who was charged with being
concerned with the possession of the cocaine. On appeal to the
Grand Court, the appellant”s appeal was dismissed and his
conviction and sentence affirmed while the appeal of Masters was
20	allowed, his conviction quashed and sentence set aside.
The case against the appellant rested primarily on the evidence
of one Davis Lawrence, a warehouseman of George Town, and a
number of Customs officers. Lawrence said that on Friday,
November 9th, 1987 at 7.30 p.m. he was at Miami airport for the
25	purpose of checking in for the Cayman Airways” flight to Grand
Cayman. He saw the appellant and asked him if he was going on
the same

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