Court of Appeal
Criminal Appeal No. 4 of 1991
14th June, 1991
KENNETH ST. L. HENRY, P.
DR. NICHOLAS J. 0. LIVERPOOL, J.A.
SIR JAMES A. SMITH, J. A.

Mr. Denys Barrow, S.C. for the Appellant.
Mr. Suhada Gamalath, for the Respondent.

Criminal Appeal - Charge of possession of indian hemp - Evidence of identification of Appellant's voice through a telephone conversation - Prosecution witness testifying that he had known the Appellant for 20 odd years and recognized his voice over the phone - Whether evidence admissible - Appellant denying he had possession, control or custody of container with indian hemp - is that drugs should be in the custody and under control of Appellant - Object of the Dangerous Drugs Act - Sections 5(1) (b) and 6 creating absolute offence - Onus placed on Appellant to prove lack of knowledge on a balance of probabilities - Appeal dismissed because there was sufficient evidence on which Magistrate in court a quo could have arrived at a guilty verdict.

JUDGMENT

At the material time, the Appellant was the Manager of Traveller' Refinery on the Northern Road. The area of the actual refinery was fenced, but the remainder of the land seemed to be an open area where trailers were parked with the permission of the Appellant or his father. The Appellant together with Fred Fuller, a Customs Broker, and Domingo Cowo who was a watchman at the premises in question were charged jointly with the offence of conspiracy to export indian hemp. In addition, the Appellant and Cowo were also charged with possession of dangerous drugs. At the hearing before a Magistrate Cowo was acquitted on both charges, and Fred Fuller was acquitted on the charge of conspiracy. The Appellant was convicted on the charge of possession. He appealed to the High Court, and the matter was heard by the Chief Justice, who dismissed the appeal. He now appeals to this court.

The case for the Respondent is that on Friday 17th January, 1986, a man called Fred Fuller engaged the services of a driver, Hector Hilton who was employed by the firm of Lopez Equipment to collect an empty container from the Loyola Port and to deliver it to a location known as Traveller's Place. On arrival, Hector Hilton asked for the person in charge of the place where the container was to be left. He was taken to the Appellant. He told the Appellant that he had brought a container from Fred Fuller and wanted to know in what part of the yard the container should be deposited. The Appellant pointed out the position in which Hector Hilton was to leave the container. Hector Hilton maneuvered his truck into the position indicated by the Appellant and dropped the container. The Appellant asked Hector Hilton whether he would be returning for the container on the following Monday morning. Hector Hilton told the Appellant that the best thing to do was to telephone his employer's office and they would tell him (Hilton) when to collect the container.

Hector Hilton's evidence in so far as it implicated the Appellant is as follows:

Examination-in-chief-

"I left about 4:45 from gate taking it to Travellers place. I drove straight to back of the place and parked the container. I then asked a young man who was the boss. He took me inside to the boss. At moment the person was occupied with a gentleman. I know they call the boss Maieto, he is the defendant with glasses. (Witness points to defendant Perdomo). As soon as he was finished I told him that I brought the container that Fred Fuller told me to take there. He left and went with me in the yard and showed me where he wanted it placed. I got into truck and maneuvered truck into position indicated to me by Perdomo. After I released container he asked me if I was coming back Monday morning for it. I told him the best thing to do was to phone the office and they would tell me when to go for it. He said "O.K."

Cross-examination -

"As far as I can remember I told Mr. Perdomo that I brought the container that Mr. Fuller asked me to bring. It is possible I could have told Mr. Perdomo that I had brought a container. At that time I didn't know his name was Fred. I knew his name after it came out in the papers and over the radio. When I said Fred Fuller in my examination in chief it was a mistake. Reason I mention Fuller's name is because he told me to take container there. I don't know if Fuller had any dealings with Perdomo. I wasn't told to deliver container to a special person. I had to find out where to leave it, and who to receive it. I wanted permission from somebody to say it was OK to leave it there. I wasn't looking for anyone special to deliver it to or to receive it. I was looking for the person in charge to inform him that I had brought the container and to tell me where I could leave it. After I removed container and placed it somewhere else Mr. Perdomo asked me when I was coming back for it. He asked me if I was coming back Monday morning for it. I told Mr. Perdomo that if container was ready we could move it the following day. Perdomo didn't give me any job. Looking at the facts he wouldn't be able to tell me when to move it."

Just before 7 a.m. on Monday 20th January, 1986, Mr. Wilhem Lopez of the Lopez Equipment firm received a telephone call. The subject matter of that call as contained in Mr. Lopez' evidence is of such importance that I find it appropriate to quote it in full.

Examination -in-chief -

"On 20.1.86 some minutes before 7 a.m. I received a phone call from Maieto Perdomo i.e. Jaime Perdomo. He is defendant with glasses. (Witness points to defendant Perdomo). He stated that the container was loaded and ready to be returned to port. I told him as soon as drivers come we would go up there and take it to port. Drivers come at 7 a.m. I didn't send any driver up there that day. I have known Jaime Perdomo for some 20 odd years. I had spoken many times to him on the phone. I asked who was calling that morning and he said Maieto Perdomo. I recognized voice on phone as Maieto's.

XXnd. by Counsel Barrow:

I don't know if the person who placed the call to me was Whitey. I asked and the person said it was Maieto. It was possible voice could have been a person other than Maieto that is why I asked. I didn't recognize the voice at first. This occurred about 6:50 a.m. I didn't have a conversation with Whitey later on in the morning. I don't normally get telephone calls in my business. I don't get any phone calls per week."

Re-examination -

"People do call the office. I don't normally answer. About 6: 50 a.m. on 20.1.86 1 did receive a phone call from Maieto Perdomo."

The Appellant denied the account of the evidence as related by both Hector Hilton and Wilhem Lopez. He stated that a friend, Phillip Cooper, had asked him on the Friday whether he could leave a container on the refinery compound until the following day. Later that evening he directed the driver (Hector Hilton) where to park the container, and asked him if he would return to pick it up on the following day and that Hector Hilton said he would. He denied being told that Fred Fuller had sent the container, or asking Hector Hilton if he would return to collect it on Monday. He also denied having made any telephone call to Wilhem Lopez on the Monday morning.

The Magistrate believed the evidence of Hector Hilton and Wilhem Lopez. He rejected the Appellant's evidence wherever it conflicted with that of Hector Hilton and Wilhem Lopez and found that the Appellant, as the occupier of the premises in which the drugs were found had not discharged the burden of proving on the balance of probabilities that he was not in possession of the dangerous drugs. On appeal the learned Chief Justice held that there was in his view, sufficient evidence on which the Magistrate could have found the Appellant guilty of the offence of being in possession of dangerous drugs, and he dismissed the appeal.

Five grounds of appeal were argued before this Court. I hope I do no disservice to learned Counsel for the Appellant when I summarize them as follows:

The learned Chief Justice erred in law in that he misdirected himself that:

1. the empty container was under the custody and control of the Appellant, in that he wrongfully accepted and relied upon evidence of the identification of the Appellant by a voice over the telephone; and that he failed to give proper weight to the Appellant's evidence that his was not the voice identified as his;

2. the Appellant knew of the loading of the packages into the container; and

3. the Magistrate had a "discretion under the rules of prudence and discretion, which is an exception to the Hearsay Rule" to accept hearsay evidence.

Learned Counsel for the Appellant submitted in the third ground of appeal as set out above, that the learned Chief Justice attempted by the use of the words quoted to introduce a novel exception to the Hearsay rule. The passage complained of comes at the end of a paragraph in which the learned Chief Justice dealt with the identification of the Appellant's voice by Lopez and the circumstances surrounding that call, and was merely emphasing that in his view, in those circumstances, the Magistrate properly exercised his discretion in admitting the evidence as identifying the voice of the Appellant. So that while we agree that the point may have been inelegantly made, we do not consider it as introducing a novel exception to the Hearsay rule, or as having any determining impact on the disposition of this appeal.

The second ground of appeal focuses on the Appellant's knowledge of the loading of the packages into the container. Learned counsel pointed to the relevant passages which the Chief Justice used to point out that there was sufficient evidence from which the Magistrate could safely have drawn the inference that the Appellant was aware of the existence of the parcels which were loaded into the container, and submitted that the evidence was either inadmissible or did not establish proof beyond reasonable doubt.

In the relevant passages the Chief Justice relies on the telephone call allegedly made by the Appellant to Wilhem Lopez on the Monday morning; what he terms are the conflicting Phillip Cooper and conflicting John Zingle stories; the fact that the Appellant accepted the container when he was informed that it was Fuller who had sent it; the activities surrounding the loading of the 360 parcels and the affixing of the seals to the container; and the fact that the Appellant was the person who in law could have done what was necessary to promote the observance of the provisions of section 5 (1) (b) of the Dangerous Drugs Act.
The learned Magistrate had himself said that there was, in his view, sufficient evidence for him to be sure that the Appellant, as occupier of the premises had assumed custody and control of the container. This evidence he stated consisted of the fact that the Appellant, by his own evidence, agreed that he personally directed where the container should be parked, having agreed to keep it on his premises for a friend; that the Appellant had asked Hector Hilton whether he would return for the container on the following Monday morning; and that he had telephoned Wilhem Lopez on the following Monday morning to say that the container was ready to be collected.

We deal with the admissibility of some of this evidence in the first ground of appeal. It seems to us, however, that if the evidence was properly admissible and the Magistrate believed it, he was entitled to draw the inference that the Appellant knew of the loading of the packages into the container.

In arguing the first ground of appeal learned Counsel for the Appellant urged that the evidence of Wilhem Lopez was legally inadmissible; and that since the Magistrate had relied on this evidence to cast doubt on the truth of the remainder of the Appellant's evidence, proper weight should be given to the denial by the accused and the appeal dismissed for the reason that there was no evidence to prove that the empty container was under the custody and control of the Appellant. He cited the case of R. v. Ryan (1984) 55 A.L.R. 408.

Ryan's case is a decision of the New South Wales Court of Criminal Appeal where the Court upheld the Appellant's contention that evidence of telephone calls allegedly made by him, was not admissible as evidence of his identity. The Appellant was alleged to be a party to a conspiracy in that he telephoned certain employers to solicit from them false assertions about certain of their employees. The impugned evidence was given by the personnel manager of one of the employer companies, who had never before heard the voice of the Appellant, to the effect that someone identifying himself as the Appellant had telephoned him on two or three occasions requesting false letters about the employees.

It will be useful to quote from the judgment of Street C.J. in that case where, after quoting the relevant extracts from the evidence of Mr. Parkinson the relevant officer of the employer, he said ?

"As I have said, the trial judge took the view that the evidence of Mr. Parkinson was admissible and available to the jury to support a conclusion that the caller was indeed Mr. Ryan. In doing so his Honour stated carefully considered and formulated reasons, making reference to a number of authorities which establish the proposition that, where the identity of a caller over the telephone is in issue, it may be permissible, in appropriate cases, to determine that question of identity from the intrinsic contents of the telephone conversations itself.

It is, of course, a well?established principle of evidence that either extrinsic or intrinsic indicia may authenticate a document not otherwise susceptible of direct proof, or may authenticate the authorship of a document not otherwise susceptible of direct proof. I have no difficulty in recognizing that an analogous principle applies to a telephone conversation. What is asserted here is that the contents of the conversation between Mr. Parkinson and the telephone caller contained sufficient intrinsic indicia to identify the caller as the present Appellant. Those intrinsic indicia were identified by his Honour in his judgment in which he ruled that this conversation was admissible as evidence that it was the Appellant who made the call. They are mentioned again in the passage which has been quoted from the summing?up.

After carefully weighing those indicia, both individually and in their entirety, I am not able to reach a conclusion that there was sufficient in this telephone conversation to entitle the Crown to place it before a jury as material from which the jury, if they accepted Mr. Parkinson's evidence, could conclude that the caller was the Appellant. What was said in the conversation does not, to my mind, reach the point of amounting to evidence which, in the absence of any other material identifying the Appellant as the caller, would of itself support a conclusion to that effect. The terms of the conversation were not available to the Crown to be used in the way in which they were left to the jury in the summing?up.

The foregoing conclusion does not rule out the admissibility of the telephone conversation as an objective event within the overall web or circumstances tending to establish the conspiracy. It is the particular reliance placed upon it which is unwarranted, that is to say reliance on the conversation as evidence in itself that the caller was in fact the Appellant."

Roden J, who delivered a concurring judgment dealt with the matter rather more succinctly ?

"The evidence relating to the telephone calls to Mr. Parkinson is, in my view, in the same category. The fact that someone made such calls, had relevance to the proposition that there was a conspiracy to mislead in the manner alleged. For the reasons outlined by the Chief Justice, I am of the view that neither the caller's use of the Appellant's name, nor what he is alleged to have said, was capable of establishing that the Appellant was the caller."

There was not in that case, as there is in the instant case, evidence of familiarity with the Appellant's voice through previous conversations, and 20 years of knowledge of the Appellant; so that whereas we adopt the principle stated in the Ryan case, the facts are clearly distinguishable from those in this case. There was evidence, therefore, on which the Magistrate could have come to the conclusion that it was the Appellant who made the telephone call to Lopez on that Monday morning; and consequently the contents of that conversation were admissible evidence tending to show that the Appellant knew more than he was prepared to admit about the container.

Learned Counsel for the Appellant referred to the Magistrate's finding, and to the Chief Justice's comment on the evidence; he pointed out that the Appellant had specifically denied that he ever had possession, control or custody of the container, and that apart from giving permission for the container to be left in the yard of the refinery he had no other connection with it. He then submitted that there was no evidence of custody and control of the container in the Appellant, since there was no testimony that the Appellant received the container or that he agreed to keep the container; and that in relation to custody and control the container was, during that weekend, in the possession of either Fred Fuller or Phillip Cooper.

As this court has pointed out before (see e.g. Leslie vs. Archer, Criminal Appeal No. 6 of 1985) the object of the Dangerous Drugs Act is to prevent the spread of dangerous drugs which are injurious to health and to strike at the social evil of trafficking in those drugs; consequently it forbids the cultivation, manufacture, possession, sale, importation, export, or otherwise dealing in dangerous drugs. The two relevant sections of the Act for our purposes are sections 5 (1) (b) and 6, which provide as follows:

"5. (1) If any person?

(a) ......

(b) has in his possession any such substance; he is guilty of an offence."

"6. Where any drugs to which this part 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"

In the light of the policy of the Act as a whole, it has in clear terms created an absolute offence to which there is no defence except the onus which is passed to a Defendant by section 6, giving him an opportunity to prove lack of knowledge within that section on a balance of probabilities. The actus reus required to constitute the offence is that the dangerous drug should be physically in the custody and under the control of the accused (in this case the Appellant). He must therefore be shown to have the requisite degree of control over the premises to exclude from them those who might otherwise use them for the purposes forbidden by the Dangerous Drugs Act.

This court was referred to the case of Watt v. Thomas (1947) A.C. 484, and invited to use the third principle stated by Lord Thankerton to reverse the conclusions of the Magistrate and the Learned Chief Justice because the grounds given by them for those conclusions are unsatisfactory. This court is very mindful of the principles stated in that case, and in particular the third principle which was stated in the following words:? "The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will become at large for the appellate court."

In our view once it has been shown that the evidence of Wilhem Lopez was properly admissible, it then became a matter for the Magistrate, having seen and heard the witnesses to determine what further evidence he was minded to accept in order to satisfy himself that the offence was proved. There was ample evidence before him on which he could have arrived at the conclusion which he did.

We therefore dismiss the appeal and affirm the conviction.

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