Waldron v R

• Jurisdiction: Cayman Islands
• Judge: (Chadwick, P., Mottley and Campbell, JJ.A.)
• Judgment Date: 23 November 2011
• Court: Court of Appeal (Cayman Islands)
• Date: 23 November 2011

Court of Appeal

(Chadwick, P., Mottley and Campbell, JJ.A.)

WALDRON

and

R.

Ms. L. Organ for the appellant;

Ms. T. Hutchinson, Crown Counsel, for the Crown.

Cases cited:

(1) R. v. Bovell-Swanson, 2011 (1) CILR 347, referred to.

(2) R. v. Galbraith, [1981] 1 W.L.R. 1039; [1981] 2 All E.R. 1060; [1981] Crim. L.R. 648; (1981), 73 Cr. App. R. 124; 125 Sol. Jo. 442, followed.

(3) Smith v. R., [2000] 1 W.L.R. 1644, applied.

(4) Webster (T.) v. R., 2009 CILR N–20, referred to.

Legislation construed:

Court of Appeal Law (2011 Revision), s.29(1): The relevant terms of this sub-section are set out at para. 23.

Criminal Procedure Code (2010 Revision), s.70: The relevant terms of this section are set out at para. 14.

Criminal Law-drugs-possession with intent to supply-court may infer prima facie case that accused intending to supply drugs from quantity of drugs, e.g. 0.41 oz. of cocaine in two plastic twists-having regard to judicial experience when inferring intent to supply not an assumption or judicial notice of intention, which would be impermissible

Criminal Procedure-prosecution case-case to answer-standard of proof-demonstrating prima facie case means offering provisional proof of guilt beyond reasonable doubt, subject to what might be revealed if defence were offered

The appellant was charged in the Summary Court with possessing cocaine with intent to supply, contrary to the Misuse of Drugs Law (2000 Revision), s.4(1)(m), and with failing to provide a specimen of urine for testing, contrary to s.5(2) of the Law.

The appellant had been arrested after a police search discovered two plastic twists containing a total of 0.41 oz. of cocaine in his pocket. He was charged with possessing cocaine with intent to supply, and with failure to provide a specimen of urine. No other relevant evidence was put before the court, the appellant”s police interview was not adduced, and there was no evidence that the appellant had substantial cash in his possession or a lifestyle that suggested drug dealing. The appellant”s case

was that the drugs were for personal use and he sought to explain the amount of cocaine in his possession by reference to the cost advantages of buying larger quantities.

At trial, the appellant”s submission of no case to answer at the close of the prosecution”s case was rejected by the Chief Magistrate on the ground that the quantity of drugs was too large to be compatible with possession for personal use and established a prima facie case against him of possession with intent to supply. The appellant was convicted and sentenced to 12 years” imprisonment for that offence and 6 months” imprisonment for failure to provide a specimen of urine for testing, to run concurrently.

On appeal to the Grand Court (Smellie, C.J.) against sentence and conviction, the appellant”s conviction for possession with intent to supply was upheld on the basis that the Chief Magistrate had not erred in inferring an intent to supply from the quantity of cocaine in the appellant”s possession. The sentence was reduced to 8 years” imprisonment, to reflect the range for a low-level retailer.

On further appeal against conviction, the appellant submitted that the Grand Court had erred in upholding his conviction by the Chief Magistrate because (a) the quantity of drugs found had not been sufficient for the Summary Court to infer that the appellant had intended to supply; (b) accordingly, the Summary Court had not been entitled, at the close of the Crown”s case, to take the view that the quantity of drugs alone had established a prima facie case against him, and should have upheld his submission of no case to answer; and (c) the Chief Magistrate had erred in taking into account her own experience and taking judicial notice of intent from the quantity of drugs found.

The Crown submitted in reply that (a) the quantity of drugs found had been sufficient for the Grand Court to uphold the Chief Magistrate”s inference that the appellant intended to supply; (b) accordingly, it had been entitled to find that a prima facie case against the appellant had been established, and uphold the Summary Court”s rejection of his submission of no case to answer; and (c) the Chief Magistrate had not taken judicial notice, but properly drawn from her own judicial experience in inferring the intent to supply from the Crown”s evidence.

Held, dismissing the appeal:

(1) The Grand Court had not erred in upholding the conviction. It had correctly concluded that the quantity of drugs found had been sufficient for the Summary Court to infer, as beyond reasonable doubt, that the appellant intended to supply the drugs to others. Accordingly, the Summary Court had been entitled to find that a prima facie case against the appellant had been established, pursuant to the Criminal Procedure Code (2010 Revision), s.70, and therefore reject the appellant”s submission of no case to answer. In so holding, and subsequently convicting the appellant, the Chief Magistrate had not taken judicial notice, but had

properly drawn from her own judicial experience when reasonably inferring the intent to supply from the Crown”s evidence (paras. 28–32).

(2) Section 70 did not abrogate the principle that guilt must be proved beyond reasonable doubt. The court should convict if, at the close of the prosecution case, it had established a prima facie case and no defence was then offered. The court should acquit if a prima facie case had not been established and the accused submitted either no defence or no case to answer. ‘Prima facie case’ meant a case which provisionally satisfied the court beyond reasonable doubt that, subject to some fresh matter which might be revealed in the conduct of the defence (if a defence were offered), the accused was guilty. The legal burden of proof remained, at all times, on the prosecution (paras. 17–19).

1 CHADWICK, P., delivering the judgment of the court: On November 17th, 2010, the appellant, Xavier Quincy Waldron, was convicted in the Summary Court before Chief Magistrate Ramsay-Hale on a charge of possession of with intent to supply a controlled drug (cocaine) contrary to s.4(1)(m) of the Misuse of Drugs Law (2000 Revision). A charge of the lesser offence of possession, simpliciter, was subsumed by the greater. He was also convicted of the offence of failing to provide a specimen of urine for a laboratory test contrary to s.5(2) of the Law. He was sentenced to a term of 12 years” imprisonment for possession with intent to supply; and to 6 months” imprisonment, to run concurrently, for failure to provide a specimen of urine.

2 The evidence against the appellant on the charges of possession and possession with intent was that, on...