De Witt v R

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Georges and Henry, JJ.A.)
• Judgment Date: 10 December 1987
• Court: Court of Appeal (Cayman Islands)
• Date: 10 December 1987

Court of Appeal

(Zacca, P., Georges and Henry, JJ.A.)

DE WITT

and

R.

N. Hill, Q.C. and C. Quin for the appellant;

B. F. Sharman, Crown Counsel, for the Crown.

Cases cited:

(1) Gonzalez v. R., 1984–85 CILR 10.

(2) R. v. EllisUNK(1973), 57 Cr. App. R. 571.

(3) R. v. Williams, [1978] Q.B. 373; [1977] 1 All E.R. 874; (1976), 64 Cr. App. R. 106, distinguished.

Legislation construed:

Criminal Procedure Code (Law 13 of 1975), s.62(1): The relevant terms of this sub-section are set out at page 423, lines 26–29.

Criminal Procedure-arraignment-essentials of arraignment-Criminal Procedure Code, s.62(1) not mandatory so as to require formal arraignment but accused must know charge and at least offer plea of not guilty either vicariously or tacitly before trial on that charge

Criminal Law-drugs-sentence-if trial court mistaken as to quantity of drugs imported, appeal court entitled to reduce sentence to reflect smaller quantity actually imported

The appellant and another were jointly charged in the Magistrate”s Court, George Town, with possession of ganja, the unlawful importation of the same drug, and possession of it with intent to supply.

The appellant and his crewman brought their yacht into Cayman waters. A police search initially revealed two small quantities of ganja, weighing about 10 oz., which the appellant said was for his personal use. A further search, however, revealed 215 lb. of the drug hidden in a sealed compartment in the vessel. The police evidence was conflicting but the appellant maintained that he knew nothing of its presence.

At their trial, the appellant pleaded not guilty to the charges of possession and importation but was not asked to plead to the charge of possession with intent to supply and his trial proceeded on the basis of the charges to which he had pleaded. His associate pleaded guilty to the charges of possession and possession with intent to supply. Allegedly prejudicial and irrelevant evidence was admitted by the magistrate, who also held, despite the conflicting evidence, that there was sufficient evidence that the drugs were in the joint possession of the accused. At the conclusion of the trial, the appellant was convicted of importation and possession with intent to supply and sentenced to concurrent terms of imprisonment.

His appeals to the Grand Court (Hull, J.) were dismissed. The court held inter alia that although no plea had apparently been taken from the appellant in respect of the charge of possession with intent to supply, the trial had continued on the basis that he had pleaded not guilty to that charge and since no prejudice had been caused by the failure to read the charge and ask him to plead to it-as laid down in the Criminal Procedure Code, s.62(1)-he would be taken to have waived the requirements of the sub-section. The court further held that the magistrate had not erred in law in admitting the allegedly prejudicial evidence and had not misdirected himself on the evidence of possession but had been correct in concluding that the appellant had admitted the joint ownership of all the ganja on the vessel.

On further appeal, the appellant submitted that since he had not been asked to plead to the charge of possession with intent to supply and had not waived the procedural requirements of s.62(1) (which were mandatory), he had not been formally arraigned on that charge and the failure to take his plea was fatal to his conviction. He further submitted that the two alleged errors of the magistrate in relation to the evidence justified quashing the conviction.

The Crown submitted in reply that the requirements of s.62(1) were directory only and the failure to ask the appellant to plead to one charge was only a formal matter: he had been heard fully in his own defence as if he had pleaded not guilty and no prejudice had been caused to him. It further submitted that the magistrate had made no errors in his treatment of the evidence.

Held, allowing the appeals in part:

(1) The conviction on the charge of possession with intent to supply would be quashed and the sentence set aside, since the record clearly showed that the charge had not been brought to the attention of the appellant and he had not pleaded to it. Whilst the Criminal Procedure Code, s.62(1) was not mandatory, in the sense that it necessarily required that there be a formal arraignment on each charge, there had nevertheless to be some evidence that a plea of not guilty was either vicariously offered or tacitly conveyed on behalf of an accused before he could be tried on that charge. There was no such indication by or on behalf of the appellant in the present case (page 426, lines 22–41).

(2) Two of the other matters raised on appeal also revealed questions of substance. One of the allegedly prejudicial pieces of evidence admitted by the magistrate clearly suggested that his decision was unfavourably influenced. Further, it was clear that the magistrate had not differentiated clearly in his judgment between the appellant”s statements concerning the large and the small quantities of ganja-and his findings were open to the interpretation that the appellant had admitted possession of all the ganja, which was not the case (page 427, line 13 – page 429, line 29).

(3) The conviction for importation by the appellant could therefore be

sustained in respect of the small quantities of ganja for his personal use and his appeal against that conviction would be dismissed. Since the sentence following that conviction had, however, been based on the magistrate”s belief that the large quantity of ganja was also involved, the sentence would be reduced from one of two years” imprisonment to one of six months” imprisonment, together with a fine of $500 (page 429, lines 17–29).

ZACCA, P., delivering the judgment of the court: On August
28th, 1987 we allowed the appeal on Information 1343/86, which
20	charged the appellant with being in possession of ganja with
intent to supply. We quashed the conviction and set aside the sen-
tence. We also dismissed the appeal against conviction on Infor-
mation 1109/86, which charged the appellant with having
unlawfully imported ganja into the Cayman Islands. However,
25	we allowed the appeal against sentence and substituted a sen-
tence of six months. We promised to put our reasons into writing.
This we now do.
The appellant was convicted in the Summary Court on both
these charges. Ganja weighing 10 oz. and 215 lb. was found
30	aboard a yacht which the appellant had sailed into the Islands
with one Aubrey Martinez, a crewman. Two small quantities of
ganja, weighing about 10 oz., were found in a windbreaker and
on a shelf respectively, on the yacht. The second lot of ganja
weighing some 215 lb. was found in a sealed compartment behind
35	a locker in the cockpit. On the charge of possession with intent to
supply, he was sentenced to five years” imprisonment and to a fine
of $10,000 (or one year”s imprisonment in default of payment).
On the charge of importation, he was sentenced to a term of two
years” imprisonment, concurrent with the five year term, and a
40	fine of $500 (or six months in default). The vessel was forfeited to
the Crown.

From these convictions, the appellant appealed to the Grand
Court against his convictions and sentence. His appeal was dis-
missed. He now appeals to this court. Several grounds of appeal,
numbering seven in all, were argued. These were set out in an
5	amended grounds of appeal which was filed on August 24th,
1987. In view of our findings which will be set out later, we think

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