Stewart (DO) v R

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Collett and Taylor, JJ.A.)
• Judgment Date: 20 April 2001
• Date: 20 April 2001
• Court: Court of Appeal (Cayman Islands)

Court of Appeal

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

D.O. STEWART

and

R.

Mrs. J. Samuels-Brown and P. Polack for the appellant;

S.W. Bulgin, Solicitor General, and Ms. C. Richards, Crown Counsel, for the Crown.

Cases cited:

(1) Bates v. JamesUNK(1964), 7 W.I.R. 203, dicta of Wooding, C.J. applied.

(2) Bissessar v. JordanUNK(1965), 8 W.I.R. 315, considered.

(3) Chiu Nang Hong v. Public Prosecutor, [1964] 1 W.L.R. 1279; (1964), 108 Sol. Jo. 818.

(4) Dilbert v. R., 1988–89 CILR N–9, considered.

(5) R. v. Simpson, [1993] 3 LRC 631, dicta of Downer J.A. applied.

Criminal Law-drugs-identification of drugs-no evidence needed of transport of drugs from police to laboratory for analysis if chain of custody otherwise unbroken and no evidence of tampering-chemist”s certificate may specify net weight of pure drug

Evidence-corroboration-accomplices-clear warning by magistrate of danger of convicting on accomplice”s uncorroborated evidence unneces-sary if convincing corroborative evidence found and awareness shown that corroboration desirable

Evidence-witnesses-credibility-no duty on prison authorities to dis-close to defence that prosecution witness recently disciplined for drug abuse in prison

The appellant was charged in the Magistrate”s Court with being con-cerned in the importation of cocaine.

The appellant was arrested on information received from other persons involved in the importation of cocaine from Jamaica. H, the courier, was apprehended on arrival, confessed to having swallowed a number of sealed pellets of cocaine, and was admitted to hospital, where a total of 56 pellets were retrieved under the supervision of customs officers. At the police station the pellets were heat-sealed, labelled and weighed by a customs officer in the presence of H, and sent to Miami for analysis.

H named an accomplice, B, who in turn named the appellant as the ultimate intended recipient and agreed to assist the police in appre-hending him. B made telephone calls to the appellant which were taped by the police, and the tapes were used in evidence at his trial, together with a transcript. The Crown alleged that references to a car in his telephone conversations with B were in fact references to the cocaine. B pleaded guilty to the charge against him and gave evidence for the Crown. During the trial, B, who was then in prison, was disciplined for use of ganja, but the prison authorities made no mention of this to the defence.

The appellant was convicted of being concerned in the importation of cocaine. The Grand Court (Douglas, Ag. J.) rejected all but one of his

grounds of appeal, holding that there was no discrepancy between the evidence of the customs officer who oversaw the packaging and labelling of the drugs, and the certificate of analysis, and that there was no significant break in the chain of custody. The Magistrate had properly admitted B”s evidence and demonstrated her awareness of the danger of convicting on the uncorroborated evidence of an accomplice. Further-more, the tape-recorded telephone conversations were admissible and corroborative, since their authenticity was undoubted and the Magistrate had been unconvinced by the appellant”s explanation of them. B”s use of ganja whilst in prison was not significant to his credibility as a witness in view of his participation in importing cocaine, and since the prison authorities were not a part of the prosecution, their failure to bring the matter to the court”s attention was not irregular. However, the Grand Court set aside the conviction on another ground. The proceedings are reported at 2000 CILR 213. The Court of Appeal restored the conviction in proceedings reported at 2001 CILR 189.

On further appeal, the appellant submitted that his conviction was unsafe since (a) the cocaine and its certificate of analysis should not have been admitted in evidence; (b) the Magistrate had failed to warn herself of the need for corroboration of B”s evidence; (c) the tape-recorded telephone conversations did not amount to corroboration in law; and (d) the fact that B, as one of the main prosecution witnesses, had been disciplined by the prison authorities for drug abuse was relevant to his character and should have been notified to the defence and the court.

Held, dismissing the appeal:

(1) The cocaine and certificate of analysis had been properly admitted into evidence, since there was no significant break in the chain of custody leading from H to the exhibits. Both H herself and the appellant had accepted the retrieval of 56 pellets as a fact. It had never been suggested that the pellets had been tampered with, and the appellant had not challenged the admissibility of the cocaine or the certificate by requiring the analyst to give oral evidence. The customs officer identified the package which she had sent for analysis, and the certificate clearly related to the same package, the only difference being the labelling of gross weight of the substance on the package and the net weight of the pure drug on the certificate. This ground of appeal failed (paras. 9–14).

(2) The Magistrate had not erred in admitting the evidence of the accomplice, B, since she had found that the tape-recorded telephone con-versations provided the necessary corroboration as independent evidence tending to confirm the appellant”s guilt. Her failure expressly to warn herself that it would be unsafe to convict on the basis of uncorroborated evidence did not vitiate the conviction, given the exist-ence of corroborative evidence which she found credible. In making this finding, she had clearly understood the need for corroboration of an accomplice”s evidence (paras. 19–22).

(3) The tape-recorded telephone conversations could...