Rockett v R
| Jurisdiction | Cayman Islands |
| Judge | (Smellie, J.) |
| Judgment Date | 24 September 1993 |
| Court | Grand Court (Cayman Islands) |
| Date | 24 September 1993 |
(Smellie, J.)
K. Collins for the appellants;
M. Clarke, Crown Counsel, for the Crown.
(1) Hollington v. F. Hewthorn & Co. Ltd., [1943] K.B. 587; [1943] 2 All E.R. 35.
(2) Hui Chi-ming v. R., [1991] 3 All E.R. 897; [1992] Crim. L.R. 446.
(3) Hunter v. Chief Constable (West Midlands), [1982] A.C. 529; [1981] 3 All E.R. 727, observations of Lord Diplock considered.
(4) Johnson v. R., 1990–91 CILR N–9, considered.
(5) R. v. Abbott, [1955] 2 Q.B. 497; [1955] 2 All E.R. 899; (1955), 39 Cr. App. R. 45.
(6) R. v. Cavendish, [1961] 2 All E.R. 856; (1961), 45 Cr. App. R. 374.
(7) R. v. D. Ebanks, 1992–93 CILR 263.
(8) R. v. Gibson, 1988–89 CILR 336.
(9) R. v. Kearley, [1992] 2 A.C. 228; [1992] 2 All E.R. 345; (1992), 95 Cr. App. R. 245, observations of Lord Oliver applied.
(10) Ratten v. R, [1972] A.C. 378; [1971] 3 All E.R. 801; (1971), 56 Cr. App. R. 18, dicta of Lord Wilberforce applied.
(11) Seymour v. R., 1988–89 CILR N–9, dicta of Collett, C.J. applied.
(12) Williams v. R.UNK(1970), 12 J.L.R. 116.
(13) Woodhouse v. HallUNK(1980), 72 Cr. App. R. 39.
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-if no case to answer but accused called upon to give evidence, inculpatory inferences drawn from circumstances of oppression justify exclusion
Evidence-previous convictions-weight given to previous convictions-previous convictions of witnesses improperly admitted as supporting involvement of accused in charge against him-judgment in personam inadmissible as evidence of truth of decision or reasoning as between party or party and stranger-improper admission not fatal if other evidence in support
Evidence-hearsay-words as relevant fact-calling out to occupier of house by name when apparently intending to purchase drugs may technically be inadmissible hearsay but nonetheless admissible as relevant fact in context of surrounding circumstances
Criminal Law-drugs-permitting use of premises-knowledge-may infer accused knew of or acquiesced in use of home for sale even when absent-consistent with finding that no custody or control of drugs sold and therefore no possession with intent to supply
The appellants were charged in the Magistrate”s Court, George Town with offences involving the supply of drugs.
The first appellant was the occupier of a house from which drugs were sold. The transactions were carried out while the appellant was away for the day by two other persons, his house help and gardener, who did not live with him. His girlfriend, the second appellant, who apparently had been staying at the house, was also away at the time.
During a surveillance operation mounted by the police, several persons were observed being supplied with ganja and subsequently arrested. One of them approached the house and called for the first appellant by name before he was met by the house help. Police officers found several packets of ganja already wrapped for distribution in a calabash hidden in a clothes basket in the bathroom. Similar wrappings were found elsewhere in the house and on some of the persons subsequently arrested.
The two relevant charges on which the first appellant was convicted were (a) permitting his premises to be used for the purposes of
supplying ganja, and (b) possession of ganja with intent to supply. At the trial the Crown was permitted to tender evidence that someone had called out his name and evidence of the convictions of other alleged customers who were apprehended that day.
The second appellant was convicted of possession of ganja with intent to supply, after giving sworn testimony that she had ceased to live in the house from the night before the police operation. Some parts of her testimony were found to be clearly contradictory.
On appeal, the first appellant submitted that (a) the evidence of the convictions ought not to have been admitted since a judgment in personam was not evidence of the truth of the facts supporting either the decision or its grounds between strangers, or a party and a stranger; (b) evidence should not have been admitted that a visitor to his house called out his name before exchanging something with his house help, since this was hearsay; and (c) even if the evidence that someone had called out his name was admissible, it was at best equivocal and he should have been given the benefit of the doubt in the circumstances.
The second appellant submitted that her no-case submission should not have been rejected as there was no evidence at all to connect her with the transactions.
Held, allowing the second appellant”s appeal and the first appellant”s appeal in part:
(1) There was no evidence upon which the second appellant could have been convicted as charged. Since it would have been proper to rule that there was no case to answer, she ought not to have been called upon to give evidence. In those circumstances, any inculpatory inferences which were drawn from her evidence should be regarded as arising out of circumstances of oppression justifying the quashing of her conviction. The appeal would therefore be allowed (page 562, line 40 – page 563, line 16).
(2) In respect of the first appellant, the evidence of the charges and convictions entered against the other persons involved in the series of transactions had been improperly admitted. It ought not to have been relied upon as proof of the offences with which he was charged since the principle applied that a judgment in personam was no evidence of the truth either of the facts supporting the decision or of its grounds, between strangers, or a party and a stranger. However, the admission of that evidence was not fatal to his conviction since there was ample other evidence upon which the magistrate could properly convict (page 564, lines 10–38).
(3) Although the evidence of the visitor calling for the appellant before making his purchase was hearsay in the testimonial sense-i.e. the words could not be relied upon to establish the accuracy or truth of, or any fact contained within, their meaning-it was nonetheless admissible as relevant fact, not to disclose the state of mind of the speaker (which was irrelevant) but because when taken with the actions
and events which followed, it gave rise to the inescapable inference that the transaction between the speaker and the person responding pointed to the established use of the premises as a venue for the supply of drugs. Moreover, the spontaneity of the utterance and the near contemporaneity of the transaction which followed made it admissible as part of the res gestae and thus an exception to the hearsay rule (page 565, line 33 – page 566, line 13; page 567, lines 7–18).
(4) However, the Crown had separately to establish the mental element of the offence of permitting the premises to be used for the purpose of supplying drugs. In this respect, the guilt of the appellant was properly inferred from all the evidence before the court. In particular, the recovery of the incriminating evidence (packages of ganja and wrappings) from within the house where the appellant as its daily and principal resident could well have come across them, refuted any inference that his non-resident domestic staff were acting entirely on their own and without his knowledge. Since the appellant offered no evidence to rebut these conclusions which prima facie were established at the close of the Crown”s case, his conviction for this offence was proper and his appeal against it would be dismissed (page 567, lines 19–31).
(5) His appeal against conviction for the possession of ganja with intent to supply would be allowed as there was insufficient evidence to support that charge. With respect to the application of the statutory presumption of possession under the Misuse of Drugs Law (Second Revision), s.7(1)(b), while the circumstances pointed to his knowledge of the presence of drugs at his home and his acquiescence in the use of those premises for their sale, it was not an irresistible inference that he must have had possession, custody or control of the container (the calabash) in which they were kept. Although there was authority for the proposition that the house might be regarded as the ‘thing’ containing the drug, the narrower construction of s.7(1)(b) was preferable, that the presumption of possession was intended to relate to chattels or movables which might be used as containers as such. Here, although the drugs were inside the house, they were directly contained in the calabash, the possession, custody and control of which had been attributed to someone else. On a strict interpretation of the evidence, there was no inherent inconsistency between the proper inferences that the appellant knew of or acquiesced in that person”s use of the premises and a finding that he had no custody or control of the drugs found there on the particular day, especially since he was absent throughout the period when the transactions took place. Further evidence would have been needed to support the conviction (page 567, line 39 – page 568, line 14; page 569, line 26 – page 570, line 16).
| 25 | SMELLIE, J.: These are appeals against convictions entered |
| and sentences imposed by the learned magistrate on March 31st, | |
| 1992 following on the joint trial of the appellants and a third | |
| defendant, Maureen Palmer. | |
| The appellant Rockett was convicted and sentenced on three | |
| 30 | separate charges as follows: |
| (i) Permitting premises to be used for the purpose of supplying | |
| a controlled drug for which he was |
To continue reading
Request your trial