Supreme Court
May 4, 1981
Staine, CJ.

Mr. D.R. Lindo, S.C. for Vernon
Mr. G.C. Gandhi, for Prosecution

Criminal law - Submission of No case to answer - charge of receiving stolen goods - Accused Ernest Vernon inviting police officers into his house where the police officers identified 8 bales of clothing forming the basis of the charge - Accused Ernest Vernon alerting the police officers to the presence of Accused Gamboa who was trying to make good his escape and who had brought the clothing to Vernon's house - Charge of receiving stolen goods - Elements - Whether mere physical handling amounted to possession - Regina v Attlee (1973) 58 CAR 348, applied - Submission of No case to answer successful.

At the conclusion of the Prosecution's case, Counsel for the accused Ernest Vernon, Mr. D. R. Lindo, S. C., submitted on behalf of the accused Vernon that there was no case to answer on the charge of receiving. This is the only charge the accused faces on the indictment, whereas the other three accused face charges of housebreaking and aggravated theft. However, it appears from the evidence that the accused Vernon was at an earlier stage in the proceedings, himself also charged with housebreaking and aggravated theft, although the evidence surrounding this is none too clear. Nor is it clear at what stage the former charges were discontinued.

The submission is based on Regina v Attlee (1973) 58 CAR 348. This case is authority not only for the conditions which should be prudent before such a submission is made to the Court, but it is also instructive in detail as to the procedure the Court should adopt in dealing with such a submission.

The substance of Senior Counsel's arguments ran thus: In order to succeed on an indictment for receiving, the Prosecution has to prove that the accused had possession of the goods he was charged with having received, and that in order to prove possession it was necessary to proceed beyond proof of a mere handling of the goods named. Mr. Lindo then proceeded to deal with the Prosecution's evidence as it affected the accused Vernon. In the main, he submitted that in the words of Corporal Nicholas, a Prosecution witness, it was at the invitation of the accused Vernon that the Police entered his home around 3:00 a.m. - 4:00 a.m. on 30th September, 1980 and there Police saw 8 bales of cloth, later to be identified as stolen goods. And I use the identified, in a generalized sense, without intending to convey the impression that the import of that expression was met in entirety.

Mr. Lindo continued that apart from the accused's evidence that it was he who invited the Police to his house the accused drew the attention of the Police to a man (Gamboa) who at that moment was attempting to make good his escape. It was Mr. Lindo's submission that the accused Vernon in so doing was drawing attention to the person who had brought the 8 bales of cloth which were found in the accused's sitting room and later identified by Jose Awad. If it was argued that this was a self serving statement, there was the evidence of P.C. McFadzen and Corporal Nicholas whose evidence was to the effect that it was their impression the goods belonged to the man who was fleeing and that was quite apart from anything the accused Vernon might have stated. The accused Vernon seemed to admit that Gamboa was coming to arrange and to negotiate about the cloth found in his house, but the timely or untimely intervention of the Police had left matters in limbo, so that Vernon never reached the stage where he had possession of the goods. The most that could be said was that the accused Vernon was assisting the Police to apprehend the real culprit who was seeking to make good his escape. And it may or may not be of significance that Gamboa was not apprehended until 3rd January, 1981.

So argued Mr. Lindo, the Prosecution had failed to prove the most vital element in the offence of receiving, possession, so there was no case to answer.

In reply, Mr.Gandhi drew the Court's attention to a number of authorities and principles, some of them not altogether germane or relevant to the issues before the Court.

Mr. Gandhi relying on the case of R v Barker (1977) 65 CAR 287 argued that Falconer v Atlee had been over taken by this latter decision which showed how the Court was now thinking, but nothing in his arguments illustrated this. He submitted there could be joint possession, but this was not the fact in this case. The facts showed that physical handling alone did not amount to possession, and the law on this point has not changed.

Further, on the authority of R v Young (1964) 48 CAR the trial judge is entitled, in fact obliged, to stop the case where the evidence is so tenuous that no jury properly and correctly instructed would return a verdict of guilty on the evidence before it.
I am of the opinion that the submission of no case to answer is well founded and must succeed. If that failed I would have no hesitation in withdrawing the case from the jury on the grounds that on the evidence so far led no jury properly directed would return a verdict of guilty against the accused Vernon.

Accordingly, I shall direct the jury to return a verdict of not guilty against the accused Vernon.

I have deliberately refrained from going beyond the limits of criticism necessary for this ruling. But they are many, so it should come as no surprise if unanticipated action follows.

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