Levers J
IN OPEN COURT IN THE GRAND COURT OF THE CAYMAN ISLANDS SCA NO: 6/04 CASE NO: 1786/02(1-3) BEFORE: The Honourable Madam Justice Levers BETWEEN: DONALD KNIGHT Appellant/Defendant AND: THE ATTORNEY GENERAL Respondent/Applicant APPEARANCE: Counsel for the Appellant: Mr. Lee Freeman of Broadhurst Barristers Counsel for the Respondent: Ms. Leslie Bates of the Legal Department HEARD: 11th November 2005 JUDGMENT Levers J. The Appellant in this matter Mr. Donald Knight was charged with:
Being concerned with possession of cocaine with intent to supply, contrary to section 3 of the Misuse of Drugs Law;
Being concerned in possession of cocaine, contrary to section 3(1)
Being concerned in the importation of cocaine, contrary to section 3(1) (a); and
Doing an act tending and intending to pervert the course of justice, contrary to the Common Law. The accused was convicted initially on 14th November 2002 and on an appeal a retrial was ordered. He was subsequently tried in 2004 and was convicted by a magistrate on the 11 March 2004. He now appeals on the following grounds: 1. That the Appellant was not offered the opportunity of a trial by Jury despite the offence falling within Category B and therefore being triable on indictment or with the consent of the Prosecution, and accused, triable summarily. 2. That the Summary Court had no jurisdiction to hear the case and the proceedings are a nullity. 3. That the credibility of Emily Scott, an alleged accomplice of Mr. Knight was the central issue in this case and that the magistrate failed to warn herself of the dangers of convicting under the uncorroborated testimony of an accomplice. Regrettably, the appeal grounds are more in the form of skeleton arguments and I have reproduced what I think are, in fact, the grounds of appeal. The Appellant also appeals against sentence. Although not much was said in that context, at the appeal I will give the sentence due consideration as well. Appeal Against Conviction The facts in this case are quite simple. One Ms. Scott was apparently approached in Jamaica to bring drugs on behalf of the Appellant. The Appellant is alleged to have sent money to Uriah Thomas who purchased Ms. Scott’s ticket and gave her the drugs to swallow, in order to bring it to Cayman for the Appellant. The Appellant went to meet Ms. Scott at the airport. He denies any knowledge of the drugs, he denies paying for her ticket, and he denies that he asked anybody to import the drugs for him. There is also an allegation that the Appellant interfered with the witness in the police cells and promised to look after her children if she denied any knowledge of his involvement in the importation. The Appellant is charged with being concerned together with the Ms. Scott. The charge reads: "being concerned in the importation". There is no doubt that importation standing on its own is a category B offence and cannot be tried summarily without the consent of the prosecution and the accused. (See section 60 of the Misuse of Drugs Law). It is apparently now quite common for a charge of "being concerned in importation" to be tried summarily, on the basis that specific reference is not made to the charge of "being concerned" in section 60. Mr. Freeman on behalf of the Appellant argues that this cannot be an accurate interpretation of the law. Section 60 (1) of the Misuse of Drugs Law states: "Notwithstanding any other section of this Law where a person is charged with any offence of selling, dealing in, distributing, supplying, dispensing, storing, issuing a prescription for, administering, importing, exporting, producing or attempting, contrary to section 3(1) which relates to a controlled drug that is a hard drug, then such offence shall be deemed, for the purpose of determining the mode of trial, a category B offence in accordance with section 5 of the Criminal Procedure Code (1995 Revision)." It is my view that the submissions made by Mr. Freeman in regards to this aspect of the appeal, is persuasive. The essence of joint responsibility for a criminal offence is that each defendant shares the intention to commit the offence and took some part in it, however great or small so as to achieve that aim. That must therefore mean that each one individually is guilty of importation and the words being concerned together added to a charge does not magically change the essence of the charge nor the elements that the Crown has to prove against an individual. This is further confirmed by the law itself, section 60 (1) of Misuse of Drugs Law states, "that any offence of importation" and it is my view that the accused in this matter should have been given an election as it is a Category B offence. The election not having been given, the trial is a nullity. As far as the charge for which he was convicted, contrary to 105 (b) of the Penal Code, namely interfering with the witness, that too is a Category B offence under the First Schedule of the Criminal Procedure Code (1995 Revision) and the accused should have been given a chance to elect on this. Therefore, that trial too is a nullity. What is left is the possession of cocaine with intent to supply and possession simpliciter. The Crown in response to the Grounds of Appeal has not responded on the question of the election. What they do however say is that that learned Magistrate warned herself as to the dangers of convicting on the uncorroborated testimony of the accomplice. That maybe so, but on a careful review of her judgment, it is clear that the charges of which she found him guilty are the importation charge and the being concerned in the possession with intent to supply. She also found him guilty of interfering with the witness. The charge of being concerned with the possession of cocaine simpliciter was subsumed in 3. I have already held that on the charge of being concerned in the importation of cocaine, and the charge of interfering with a witness, the accused should have been given the right of election and therefore the trial was a nullity. This now leaves the charges of possession with intent to supply and possession simpliciter. On a perusal of the judgment it appears that the learned Magistrate addressed her mind to the elements of importation and not possession independently. This would be a case of constructive possession and it would be necessary for the Crown on this charge to prove/and establish control. In those circumstances, the learned Magistrate would need to reduce her findings to writing, on the elements the Crown needs to establish. The Judgment indicates a finding of importation and consequently a finding of possession. If the Appellant was acquitted of importation, possession could not stand. Therefore, I am of the opinion that the appeal on these charges should be allowed. I now have to consider the question of a retrial. I bear in mind that the accused in this case has already done some three years and that this is the third trial that he will face. However, it is my view that the seriousness of the charges and the public interest demands that a retrial be ordered. I therefore order a retrial on all of the charges in which I have allowed the appeals. The charges on which I have declared the trial a nullity are left to the Prosecution to make whatever decision they deem appropriate, if I have the power, to order a retrial. Dated this 24th day of November 2005 1 2 Judge of the Grand Court 3