Skoog v R

• Jurisdiction: Cayman Islands
• Judge: (Sanderson, J.)
• Judgment Date: 27 September 2002
• Court: Grand Court (Cayman Islands)
• Date: 27 September 2002

Grand Court

(Sanderson, J.)

SKOOG

and

R.

L. Aiolfi for the appellant;

A. Roberts, Senior Crown Counsel, for the Crown.

Cases cited:

(1) Hughes v. Guild, 1990 S.L.T. 715; 1990 S.C.C.R. 527, applied.

(2) Merren (R.L.) v. R., 2000 CILR 234; on appeal, sub nom.Att. Gen. v. Merren (R.L.), 2001 CILR 181, followed.

(3) R. v. AshdownUNK(1974), 59 Cr. App. R. 193, considered.

(4) R. v. Bland, [1988] Crim. L.R. 41; (1987), 151 J.P. 857, applied.

(5) R. v. Brock, [2001] 1 W.L.R. 1159; [2001] 2 Cr. App. R. 3; [2001] Crim. L.R. 320, referred to.

(6) R. v. Campbell, [1982] Crim. L.R. 595; [1982] C.L.Y. 643, referred to.

(7) R. v. Coid, [1998] Crim. L.R. 199, applied.

(8) R. v. Conway, [1994] Crim. L.R. 826, applied.

(9) R. v. McNamara, [1998] Crim. L.R. 278, considered.

(10) R. v. Searle, [1971] Crim. L.R. 592; (1971), 115 Sol. Jo. 739, applied.

(11) R. v. Souter, [1971] 1 W.L.R. 1187; [1971] 2 All E.R. 1151; (1971), 55 Cr. App. R. 403, referred to.

(12) R. v. Tao, [1977] Q.B. 141; [1976] 3 All E.R. 65; (1976), 63 Cr. App. R. 163, applied.

(13) R. v. ThomasUNK(1976), 63 Cr. App. R. 65; [1976] Crim. L.R. 517, referred to.

(14) Read v. D.P.P., English Q.B.D., 1997, unreported, referred to.

Legislation construed:

Misuse of Drugs Law (2000 Revision) (Law 13 of 1973, revised 2000), s.3(1):

‘Whoever, without lawful excuse or without being authorized in that behalf-

. . .

(m) has in his possession, whether lawfully or not, with intent that it be supplied . . . to another person in contravention of this subsection,

any controlled drug . . . or who attempts, assists or is concerned in any of such matters is guilty of an offence.’

s.3(2): ‘A person is guilty of an offence if, without lawful excuse or without being authorized in that behalf-

(a) being the occupier or concerned in the management of any premises, he permits or suffers any of the following activities to take place on those premises, that is to say . . . distributing . . . or attempting to do any of such things in contravention of subsection (1) . . .’

Criminal Law-drugs-possession-possession requires (i) control over drugs, or (ii) knowledge of presence of drugs and positive assistance or encouragement of another”s possession-no control if accused denied access to drugs in locked room and unable to exclude person in possession from premises-failure to report, or passive acquiescence insufficient unless knowingly encourages person in possession

Criminal Law-drugs-permitting use of premises-resident is ‘occupier,’ for purposes of Misuse of Drugs Law (2000 Revision), s.3(2), although not legal tenant, if has power to exclude offender from premises-not ‘occupier’ if offender is tenant who cannot be excluded

The appellant was charged in the Magistrate”s Court with possession of ganja with intent to supply and permitting premises to be used for the distribution of controlled drugs.

The appellant shared an apartment, in which she and her boyfriend, who was a legal tenant, occupied an upstairs room and others lived downstairs from time to time. The cost of rent and utilities was shared by all. Some time after she moved in she learned that her boyfriend was storing large quantities of ganja in a locked storeroom adjacent to their bedroom. Later she found two large bags of ganja in their wardrobe. In her absence, these were taken to the Airport by her boyfriend as part of a consignment of approximately 250 lb. for transportation to the United States. On the same day the police found around 1,000 lb. of ganja in the apartment, together with scales, cling-wrap and other packaging. The appellant did not have a personal key to the storeroom, but one was found in the bedroom.

The appellant pleaded not guilty to charges of possession of the 1,000 lb. of ganja found on the premises and permitting the premises to be used for the distribution of drugs. She gave evidence, which the Crown accepted, that all the ganja had been in the storeroom in the morning before she left for work on the day the premises were searched, and her boyfriend had removed some of it before she returned. She stated that she had asked him to get rid of the drugs when she found them in the wardrobe but he had not, and that she had never asked him why the scales and packaging material were in the room. She considered the premises to be her home, and believed she had the right to exclude persons other than her boyfriend from their part of the apartment.

The Magistrate concluded that the couple were in fact co-tenants, that the appellant had known of the presence of drugs on the premises for some time and had an element of control over them. Furthermore, she had, in law, by permitting her boyfriend to keep drugs for supply to others, encouraged him and thereby aided and abetted him in the activity. Indeed, she could not have been unaware of the purpose for which he was storing the drugs. Accordingly, the appellant was convicted of possession with intent to supply contrary to s.3(1) of the Misuse of Drugs Law (2000 Revision), and sentenced to three years” imprisonment. The Magistrate also found that as a tenant, the appellant was an occupier, who had permitted her co-tenant to use the premises for the distribution of drugs, and was guilty of the second offence, as would be the case had she allowed a visitor to do so. She was sentenced to two years on this charge to run concurrently.

On appeal, the appellant submitted that (a) without having practical control over the drugs, her knowledge of their presence on the premises was insufficient to prove actual or constructive possession of the drugs, and she had not exercised control merely because she might have called the police or the landlord or threatened to vacate the premises herself; (b) to prove possession with intent to supply on the alternative basis that she had aided and abetted her boyfriend, the Crown had to show that she had positively encouraged his possession rather than merely acquiesced in it, and encouragement by inactivity could be proved only if it had in fact encouraged the offence and she had been aware that it did; and (c) she was not, in law, a co-tenant of the premises or an occupier, since she had no rights in relation to the landlord and no right to exclude her boyfriend (who was a tenant) from the premises, so as to prevent him from using them for distributing drugs.

Held, allowing the appeals:

(1) The Magistrate had erred in concluding that the appellant herself had sufficient practical control over the drugs to be in constructive possession of them, since they had been kept in a locked room to which only her boyfriend had access. She was not a co-tenant with her boyfriend, and had no right to deny him access to the apartment or their part of it. She did not exercise the requisite control by virtue only of the

fact that she failed to report his possession to the authorities and have the drugs removed (para. 9; paras. 27–30).

(2) Nor was the appellant guilty of the offence by aiding and abetting her boyfriend”s possession with intent to supply. In the absence of proof of control over the drugs, it was necessary to show positive assistance or encouragement of another person”s offence. Where inactivity was alleged to constitute encouragement, the Crown had to show that it had in fact encouraged the offence and that the appellant had been aware that it did. There was no evidence that she had intended to encourage her boyfriend by doing nothing when it must have been clear to her that he kept drugs for supply to others, or that she in fact had. On the contrary, she had asked him to remove the drugs. The conviction would be set aside (para. 26; paras. 31–35).

(3) To prove that the appellant had permitted the use of the premises for the distribution of controlled drugs, the Crown had first to prove that she was an occupier within the meaning of s.3(2)(a) of the Misuse of Drugs Law. An occupier need not be a tenant but had to have power to exclude the offender. The Magistrate had not stated on what basis the appellant could have excluded her boyfriend (who was the tenant) from the apartment. Having no legal remedy against him, no tenant”s rights, and no physical ability to remove the drugs herself, she lacked the necessary degree of control to exclude him or prevent his use of the premises for drug distribution. She was therefore not an occupier, and this conviction, too, would be set aside (para. 36; paras. 39–40; paras. 42–45).

1 SANDERSON, J.: Anna Skoog is 26 years old and she worked as a waitress at the Lobster Pot Restaurant at the edge of George Town. She came to Grand Cayman from Sweden in 1998 and has lived with her boyfriend, Clarence Buchanan since January 2001. He became involved in exporting ganja, which he kept locked in a storeroom in his rented apartment. She knew it contained ganja but did not know how much. After the drugs were found by the police she was convicted and sentenced to three years” imprisonment. She appeals against both her conviction and sentence.

2 She was convicted of the following:

1. Possession of approximately 1,000 lb. of ganja with intent to supply, contrary to s.3(1) of the Misuse of Drugs Law (2000 Revision).

2. Permitting premises to be used for the distribution of controlled drugs, contrary to s.3(2)(a) of the Misuse of Drugs Law (2000 Revision).

She was sentenced by the learned Magistrate to three years”...