Roberts v R

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Georges and Collett, JJ.A.)
• Judgment Date: 23 February 2001
• Date: 23 February 2001
• Court: Court of Appeal (Cayman Islands)

Court of Appeal

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

C.R. ROBERTS

and

R.

R. Small and P. Polack for the appellant;

S.W. Bulgin, Solicitor General, for the Crown.

Cases cited:

(1) Hydes v. R., 1980–83 CILR 335, applied.

(2) Nicoletta (G.A.) v. R., 1990–91 CILR 152, followed.

(3) R. v. HillUNK(1992), 96 Cr. App. R. 456, applied.

(4) R. v. Hunt, [1987] A.C. 352; [1987] 1 All E.R. 1, followed.

Legislation construed:

Criminal Procedure Code (1995 Revision) (Law 13 of 1975, revised 1995), s.177: The relevant terms of this section are set out at para. 26.

Misuse of Drugs Law (1999 Revision) (Law 13 of 1973, revised 1999), s.7(2):

‘. . . [A] certificate purporting to be under the hand of the C.M.O., a qualified chemist, a qualified medical laboratory technician or any other person appointed by the Governor in that behalf . . . shall be proof of the statements contained therein as to the foregoing matters and any other matter specified therein concerning the substance analysed or examined or the analyst or examiner thereof, and no evidence shall be required by the court as to the signature or quali-fications of the person purporting to have signed the certificate.’

s.7(3): The relevant terms of this sub-section are set out at para. 6.

Criminal Law-drugs-identification-certificate of analysis admissible only if compliance with Misuse of Drugs Law, s.7(3) shown-proof of notifying intention to produce certificate and service of copy on accused is strict requirement

Criminal Law-drugs-identification-if certificate of analysis shows substance not named as controlled drug in Schedule to Misuse of Drugs Law, further Crown evidence required to show substance is, e.g. salt of controlled drug

The appellant was charged in the Magistrate”s Court with possessing cocaine with intent to supply.

At the appellant”s trial, a certificate of analysis was tendered, stating that the drug seized from his premises was cocaine hydrochloride. The chemist”s signature on the certificate was illegible and the chemist had not completed the section of the certificate relating to his qualifications. The appellant gave evidence, which was unchallenged, that he had received no documents in connection with his case, and the police officer in charge of the case was not asked whether the appellant had been given three days” notice and served with a copy of the certificate in accordance with s.7(3) of the Misuse of Drugs Law (1999 Revision). The appellant was convicted and sentenced to 11 years” imprisonment.

On appeal to the Grand Court, affidavit evidence for the Crown was admitted to the effect that cocaine hydrochloride was a salt of cocaine. The court (Graham, J.) ruled that this was a purely technical admission which did not prejudice the appellant, and dismissed the appeal. It held that com-pliance with the Misuse of Drugs Law (1999 Revision), s.7(2), relating to the chemist”s qualifications, and s.7(3), requiring notification of the Crown”s intention to produce the certificate before it could be admitted, need only be proved if it was disputed at the trial. It refused to set aside the conviction simply because no ruling on admissibility had been made at the trial. The proceedings before the Grand Court are noted at 2000 CILR N–9.

On further appeal, the appellant submitted that (a) the certificate of analysis was inadmissible unless compliance with the statutory require-ments of s.7(2) and (3) was shown, since it was inadmissible at common law as hearsay; (b) accordingly, there was no proof that an offence had been

committed; (c) the Magistrate had erred in convicting him on the basis of the certificate stating that the drug was cocaine hydrochloride, since that substance was not listed in Part 1 of the Schedule to the Misuse of Drugs Law, and the Crown had therefore failed to prove that it was a controlled drug; and (d) the Grand Court had wrongly admitted evidence that cocaine hydrochloride was a salt of cocaine, since this was not a technical admission but rather a second opportunity for the Crown to prove its case.

The Crown submitted in reply that (a) non-compliance with the purely procedural requirements of s.7 could not vitiate the appellant”s con-viction, particularly as these matters were not raised at the trial; (b) the Magistrate had been entitled to take judicial notice of the fact that cocaine hydrochloride was a salt of cocaine; and (c) even if the evidence admitted by the Grand Court were not a technical admission, s.177 of the Criminal Procedure Code (1995 Revision) allowed the court to admit it.

Held, setting aside the conviction and sentence:

(1) Section 7(3) of the Misuse of Drugs Law required strict proof that the appellant had been notified and served with a copy of the certificate to be produced before it could be admitted in evidence. Since there was no evidence on the record that any notice had been prepared or served on the appellant, and his statement at the trial that he had received no documents had gone unchallenged, the certificate should not have been admitted. The appeal succeeded on this ground without more...