Whittaker v R

• Jurisdiction: Cayman Islands
• Judge: (Summerfield, C.J.)
• Judgment Date: 08 October 1984
• Court: Grand Court (Cayman Islands)
• Date: 08 October 1984

Grand Court

(Summerfield, C.J.)

WHITTAKER and WATLER

and

R.

N. Hill, Q. C, D.E. Ritch and S. McField for the appellants;

A.S. Smellie, Crown Counsel, for the Crown.

Cases cited:

(1) Douglas v. R., Grand Court, Case No. 266/81, May 13th, 1982, unreported.

(2) R. v. Liverpool City J J., ex p. Topping, [1983] 1 W.L.R. 119; [1983] 1 All E.R. 490; [1983] Crim. L.R. 181; (1982), 76 Cr. App. R. 170; 127 Sol. Jo. 51; 147 J.P. 154.

(3) R. v. Smith, [1975] Crim. L.R. 472; (1975), 61 Cr. App. R. 128; 119 Sol. Jo. 369.

Legislation construed:

Misuse of Drugs Law (Revised), s.3:

‘(1) Whoever without-

(i) lawful excuse . . .

. . .

(e) sells, buys or otherwise deals in,

. . .

(k) possesses, constructively or otherwise . . .

any controlled drug . . . or who . . . procures . . . any other person so to do is guilty of an offence.’

(3): The relevant terms of this sub-section are set out at page 157, lines 33–37.

Penal Code (Law 12 of 1975), s.8(1):

‘A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of a state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.’

Jurisprudence-justice-natural justice-tribunal must be disinterested-court giving impression to reasonable and fair-minded observer that accused”s guilt predetermined and fair trial impossible, justifies retrial

Criminal Law-drugs-‘lawful excuse’-definition of lawful excuse in Misuse of Drugs Law (Revised), s.3(3) only applicable to possession offences-common law definition for other offences may include honest and reasonable belief in facts supporting lawful excuse

Criminal Law-drugs-procuring offence-no conviction for procuring offence under Misuse of Drugs Law (Revised), s.3(1) if offence not committed-‘procuring’ offence means bringing it about by design or intentionally taking appropriate steps to produce it

The first appellant was charged in the Magistrate”s Court, George Town, with unlawful possession of cocaine hydrochloride contrary to s.3(1)(i)(k) and unlawful dealing in the same drug contrary to s.3(1)(i)(e) of the Misuse of Drugs Law (Revised). The second appellant was charged with unlawfully procuring dealing in the drug contrary to s.3(1)(i)(e).

During the trial, before the first witness for the Crown had completed

his evidence, the magistrate made a comment which implied that he believed that the appellants were guilty of the offences charged. When asked whether this was his belief, however, he denied that it was and refused to disqualify himself.

The first appellant defended the charges against him on the ground that he had had a ‘lawful excuse’ for his actions since he honestly believed that he was assisting the police.

The court held that even if the first appellant”s version of the facts were true, he would have been no more than a police informer and since he was not a ‘customs officer, constable or person officially taking part in an investigation’ he could not have had a ‘lawful excuse’ within s.3(3) for the purpose of the charge under s.3(1)(i)(k) and that the same reasoning applied to the charge under s.3(1)(i)(e). The appellants were convicted, sentenced to terms of imprisonment and fined.

On appeal they submitted that they had been deprived of a fair hearing since the magistrate had prematurely determined their guilt before the case for the Crown had been completed. The first appellant further submitted that the magistrate should not have rejected his defence as a matter of law and without reaching a conclusion as to whether or not it was true since (a) even if he were right in holding that there was no ‘lawful excuse’ within s.3(3), he should have determined whether the first appellant had had an honest and reasonable belief in the existence of the facts on which his defence was based, which could have constituted a defence under s.8 of the Penal Code, and (b) s.3(3) defined ‘lawful excuse’ only in relation to possession and it was therefore improper to rely upon that sub-section when rejecting the defence in relation to the charge of unlawful dealing.

The second appellant submitted that the errors made in relation to the first appellant”s defence affected the outcome of the case against himself since he could not have been convicted of procuring an offence by the first appellant if the latter had been acquitted.

The Crown conceded that the magistrate”s remarks in court were capable of conveying the impression that the guilt of the appellants had been prematurely determined.

Held, ordering a new trial before a different magistrate:

(1) The appellants” complaint about the magistrate”s remarks in court was well founded. The remarks were such that a reasonable and fairminded person sitting in court and knowing all the relevant facts would have had a reasonable suspicion that a fair trial of the appellants was not possible. It did not matter that the issues had not in fact been prejudged, since the impression given was that the appellants” guilt had been...