Supreme Court
Appeal No. 6 of 1984
19th July, 1984
Moe, C.J.

Mr. G. Gandhi, Director of Public Prosecutions for the Appellant
Mr. Dean Lindo, S.C. for the First named Respondent
Mr. Dean Barrow for the Third named Respondent

Inferior Court Appeal - Dangerous Drugs Ordinance - No case submission - Whether accused were in custody or control of thing in question - Appeal against decision allowed - Decision set aside - Case remitted for rehearing.

J U D G M E N T

The Respondents were charged before the Magistrate that they on the 20th September, 1983 had in their possession Indian Hemp, contrary to section 5(1)(b) of the Dangerous Drugs Ordinance Chapter 85. At the close of the prosecution's case there was evidence that about 7:30 p.m. on the date in question the Respondent Wright; along with three females went to the Immigration Office at Santa Elena. He said he was going to Chetumal, and was attended to by Immigration Officer Flores and Alamilla and he left the office. The other Respondents Leslie, Vasquez and Brannon went to the Immigration Office about 5 - 10 minutes after the Respondent Wright left. They said they were travelling to Mexico and were given cards to fill by officer Flores. Vasquez went to officer Alamilla presented a permit, said he was going to Chetumal, was attended to and left the counter. Brannon next presented himself and passport to officer Alamilla. He said he was going to the U.S.A. and was sent over to Flores' counter, where he complained of being hassled at the border. He said he was travelling in a cab. Asked by officer Alamilla to point out the cab, he said it seemed as if his cab had left him. There was a van near to which was a man named Roberts and Brannon agreed that, that van was the vehicle he was travelling in. He said Roberts was the driver. Luggage was in the van. The Respondent Vasquez came by the van. He admitted he was travelling in that van and going further than he had earlier said. Officer Alamilla took custody of the keys to the vehicle. The vehicle was searched and nothing found.

Alamilla noticed a double paneling by the van's door and threatened to open it. Brannon said in the presence of Leslie, Vasquez and Roberts that he had three pounds of Marijuana somewhere in the vehicle. That three pounds was not profitable to take to the U.S.

Later carpeting and panelling were torn off from the sides of the van by Customs Officers and 167 packets found containing vegetable matter. Samples of that vegetable matter were tested and found to be Indian Hemp. There was also evidence that Respondent Wright was owner of the van and that Respondent Leslie was also travelling in the van.

The Magistrate upheld no-case submissions made on behalf of each Respondent and acquitted them. In his reasons for decision the Magistrate said he concluded inter alia:-

"24. That even when assuming that Defendants were occupants of the Van as passengers the question to ask is did they know that marijuana was concealed in the Van.

25. That the evidence was not sufficiently strong to support the charge of possession against any of the four Defendants when considering the necessary element of knowledge.

26. That in the absence of any direct evidence against the four Defendants the only other person that could be held responsible for the presence of the Van and its contents would be the driver who in this case appears to be no other than Roberts who is still at large.

After carefully taking all the above facts into account the Court arrived at the only possible decision in the circumstances that the responsibility could only fall upon the shoulders of one person that of the driver of the van (Roberts) and therefore the Court concurred with the submissions from the Defence and so ruled that the Defendants had no case to answer."

The appeal against the Magistrate's decision is on the grounds that:-

(1) The decision was erroneous in point of law in the following respects -

(a) The learned Magistrate misdirected himself as to the principles to be applied when considering a submission of no case in that he said inter alia that the evidence was not "sufficiently strong" to support the charge of possession.
(b) The learned Magistrate treated the "Open" Statement of the Defendant Rudolph Leslie as evidence of the facts stated therein, whereas the said statement, being not relied upon by the prosecution as an admission of the offence charged, could not have been so treated.

(c) The learned Magistrate misdirected himself as to the elements to be proved on a charge of possession of Indian Hemp.

(2) The decision was unreasonable in that inter alia the learned Magistrate failed to appreciate the circumstantial nature of the evidence.

(3) The decision could not be supported having regard to the evidence.

Turning first to the approach to be adopted on a no-case submission before a Magistrate, adequate guidance is still to be had from the Practice Direction reported in (1962) 1 W.L.R. at page 227 which is as follows:

A submission that there is no case to answer may properly be made and upheld:

(a) when there has been no evidence to prove an essential element in the alleged offence;

(b) when the evidence adduced by the prosecution has been so discredited --- or is so manifestly unreliable that no reasonable tribunal could safely convict on it.

Reference was made to Regina v. Galbraith (1981) 1 W.L.R. 1039 in which Lord Lane C.J. dealt with how a judge sitting with a jury should approach a submission of no case. In my view his statement in that case would have to be carefully adapted for application to a Magistrate who after all is both judge and the jury. In the instant case, the magistrate evidently was not saying that the evidence was manifestly unreliable or totally discredited but was considering whether the evidence proved the essential elements of the offence.

I therefore now turn to the question whether the Magistrate misdirected himself as to the elements to be proved on the charge. The learned Director submitted that paragraph 24 indicates the Magistrate asked the wrong question, and contended that it is not necessary to prove that the Defendant knew the thing in question was marijuana. He referred to Warner v the Metropolitan Police Commissioner 52 C.A.R. 373 in which was considered Section 1(1) of the U.K. Misuse of Drugs Act which he says is similar to the section under consideration. Section 5(1)(b) of the Dangerous Drugs Ordinance provides: -

"If any person has in his possession any such substance --- he shall be guilty of an offence against this Ordinance." Section 1(1) of the Drugs (Prevention of Misuse) Act 1964 U.K. is as follows: - " - it shall be not lawful for a person to have in his possession a substance - specified in the Schedule to this Act ---."

He contended that section 5(1)(b) of the Ordinance creates an offence of strict liability and that it is not necessary to prove that the Defendant knew that the substance was Indian Hemp.

Mr. Barrow submitted that the prosecution is required to prove that the accused had knowledge the thing in question was marijuana. He contended the position in Belize is similar to that in Jamaica where offences are charged under section 7(c) of the Dangerous Drugs Law of Jamaica which provides

"Every person who has in his possession any prepared opium or ganja shall be guilty of an offence against the law."

The question as to what knowledge the accused must have as to the identity of the substance as ganja in order to amount to possession of it for the purposes of that section 7(c) was considered in D.P.P. v. Brooks 21 W.I.R. 411. Lord Diplock said "The question of what are the mental elements required to constitute a criminal offence of having in one's possession a prohibited substance is a finely balanced one, as Warner's case itself shows. It turns on a consideration not only of the particular provision creating the offence but also of the policy of the Act disclosed by its provisions taken on a whole. The Jamaican legislation is not the same as that which was under consideration by the House of Lords in Warner's case."

That statement holds true also in relation to any comparison of the provisions of the Dangerous Drugs Ordinance with any other legislation. It has long been held in these courts that the Ordinance prohibits possession of Indian Hemp in the sense of knowingly having it in one's custody or under one's control. That such was the position is reinforced by the fact that the legislature has now enacted the following section:

"5A Where any drugs to which this part of this Ordinance applies are found upon any person or in premises occupied by any person, such person shall, unless he proves that the same was deposited there without his knowledge, be guilty of an offence against this Ordinance."

The effect being in certain circumstances where physical custody or control is established, the person is guilty unless he proves he had no knowledge i.e. a burden of proof is placed on the accused. There was not any argument from the point of view of the policy of the Ordinance as it stands nor as to whether the provisions of Section 5A are applicable to a case occupancy of a motor vehicle.

A clear question then for the Magistrate was whether there was evidence that the accused were in custody or control or the thing in question. The learned Director submitted that the prosecution's case was that the Respondents were sharing in a joint enterprise to have the marijuana together in a common pool, and the reasonable inference on the evidence is that all Respondents were jointly in possession. He referred to R. v. Haye & Hamilton 18 W.I.R. 365. In that case, the owner of a car was a passenger seated in the front of the car being driven by someone else. Three other passengers traveled in the rear. The car was stopped by the police. On the floor of the rear section and officer found a travelling bag in which was a partly opened paper parcel containing ganja. On being asked who owned the bag, each of the five occupants of the car remained silent. The Officer then opened the trunk and found a large crocus bag which contained Ganja. He asked the occupants who owned the bag and was met with complete silence. They were all arrested and charged with being jointly in possession of the two bags of ganja. The Magistrate held no prima facie case had been made out against the three passengers in the rear section of the car but called on the owner and driver to answer who were eventually convicted. At the appeal against their conviction the court said:

"--- the owner --- and the driver could properly be regarded as having joint physical control of the car. This in turn gave rise to a very strong inference of fact that they were also in joint control of everything in the car including the ganja ---. The police were presented with an entirely passive reaction on the part of the five occupants of the car. In this negative situation the only reasonable inference which is capable is that all five were in joint control of the ganja. --- It was a failure of the Magistrate to perceive that in the particular circumstances the proper inference of fact which arose with respect to the purely physical situation of control was that all five persons were prima facie jointly concerned and answerable. All five should therefore have been called upon for a defence ---." The Court of Appeal was pointing out what the Magistrate ought to have done in the particular circumstances of that case which included considering the entirely passive reaction of the five occupants of the car.

We must therefore look to see whether in that instant case the Magistrate properly considered the particular circumstances which he had before him as to whether a prima facie case against the Respondents had been raised. The case against each Respondent is to be considered separately. There is no indication that he considered whether the evidence showed that the Respondents were acting together (in a joint enterprise). If the evidence did so show, his finding that possession was established in one of the Respondents, the driver, may then have been found to be possession in all. There was evidence that the Respondent Brannon made a statement that there was marijuana in the van i.e. that he had marijuana in the van. This raised a prima facie case against that Respondent and the Magistrate appears to have overlooked this in arriving at his conclusion that the evidence did not support a charge of possession in any of the Respondents. In relation to the Respondents Leslie and Vasquez the evidence is that these persons who were occupants of the van having travelled in it with Brannon did not say anything when in their presence he said there was marijuana in the van. The Magistrate does not appear to have considered if any inference is to be drawn from such a passive reaction. And in the case of the Respondent Vasquez there is also evidence that he told one Immigration Officer he was going to Mexico and another that he was going to Chetumal. When the latter officer discovered that the Respondent had luggage in the van and raised the matter, Vasquez admitted he had lied. Further evidence is that he attempted to influence the Immigration Officer by the offer of money. As against the Respondent, the owner of the vehicle, travelling in the same direction around the same time as the other Respondents, there is to be considered also the evidence that on being told there is a warrant for his arrest for the possession of 334 pounds of Indian Hemp what he said was he heard all about it, he had nothing to do with it as he already sold the vehicle to a Mexican. Whether anything was to be inferred from such a response again was evidently not considered by the Magistrate.

In my view a proper consideration of the matters set out above raises a prima facie case against the Respondents and in the circumstances the Magistrate ought to have called on the Respondents. The appeal against the decision in respect of each Respondent is accordingly allowed. In normal circumstances I would remit the case for the Magistrate to call for a Defence, but I am aware that the person who heard this matter is no longer functioning as a Magistrate. Consequently I will set aside the decision of the Magistrate and remit the matter to be re-heard before another Magistrate.

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