Supreme Court
Inferior Court Appeal No. 13 of 1983
19th September, 1983
Moe, C.J.

Mr. G. Quallo, for the Appellant.
Mr. A. Pitts, for the Respondent.

Inferior Court Appeal - Burden of proof of prosecution and defence - Charge of possession of 200 pounds of Indian Hemp - Evidential value of an unsworn statement of a defendant - Decision of Magistrate - Unreasonable and not supported by evidence.

D E C I S I O N

The Respondent was charged with the offence of having in his possession 200 pounds of Indian Hemp. The evidence for the prosecution was that policemen were on a search mission for marijuana. They went to the defendant's premises. He was not at home. He was later found and brought to the premises where he was asked if he had any marijuana at his house. He said yes and took them to an outhouse which he said and which was about 20 yards away from the dwelling house. He took the policemen upstairs this outhouse and shoved them a number of sacks. Respondent was cautioned. Twenty-seven sacks were gathered up. On a further search five more sacks also containing what was suspected to be marijuana were found in a large wooden box under an old shed about 15 feet from the said outhouse. The defendant when cautioned said the marijuana was not his but for some friends whom he had granted permission to leave it there. As to who the friends were he only know them by face not by name. Matter was taken from 3 different bags and sent to a Chemist in Belize City who gave a certificate that that matter was Indian Hemp. When the Respondent was charged and cautioned he gave a statement in which be said the police found some weed in an old house in his yard. They asked him if the weed was his and he told them no.

At the close of the case for the prosecution Respondent's counsel made a submission that the Respondent had no case to answer. The magistrate ruled there was a case to answer and the Respondent made an unsworn statement from the dock.

In his unsworn statement from the dock the Respondent said some policemen came to where he was at Guinea Grass and told him they had searched his house and store-room and found marijuana in the store-room. He told them he saw his houses less than three days ago and nothing was there. He went to his premises with the police where he was told he had marijuana in his store-room. The police went upstairs of the store-room and there were some bags. The police said this is Indian Hemp. He said he knew nothing about this. He gave a statement at the Police Station. The magistrate dismissed the case.

This appeal against the magistrate's decision is on the ground (1) that the magistrate misdirected himself (a) as to the burden of proof and (b) the evidential value of an unsworn statement. (2) That the decision was unreasonable and could not be supported having regard to the evidence; and (3) the magistrate took extraneous matter into consideration.

5. With regard to the burden of proof the magistrate said as follows:

"The burden of proof is on the prosecution to prove that the defendant was in fact in possession of these dangerous drugs and that he had knowledge of these drugs. The police must produce evidence to show to the court that the defendant had these drugs in his possession and that he had knowledge of these being there. The defendant is not required to prove anything since the burden of proof is on the prosecution. However after the prosecution has proven its case, then the defendant has to show in his defence, he either had no knowledge, or he was not in possession of the articles (e.g. Dangerous Drugs - Indian Hemp)." The magistrate was clearly correct in his statement that the burden of proof is on the prosecution. He appeared however to have stated that there is a burden on the defendant which he does not have. As will appear later the question whether the defendant discharged the burden as stated to be on him did not arise and this stated error as to the burden of proof does not affect the decision.

The magistrate did not in his reasons make any reference to the unsworn statement of the Respondent. If he gave any evidential value to the unsworn statement he would have been in order. I refer to Reg. v. Campbell 69 Cr. App. R. 221

"A statement from the dock is not, of course, evidence. It is, as many think - the fact that a defendant is still at liberty to make a statement of fact from the dock, invite a jury to consider his version of the facts without taking the oath and without subjecting himself to cross-examination - an anomalous historical survival from the days before the Criminal Evidence Act 1898 when a person could not give evidence on his own behalf. There it is anomaly or not; the courts have to grapple with it and a statement from the dock unsworn now seems to have taken on in current practice a somewhat shadowy character half-way in value and weight between unsworn evidence and mere hearsay. A jury cannot be told to disregard it altogether. They must be told to give it such weight as they think fit, but it can be properly pointed out to them that it cannot have the same value as sworn evidence which has been tested by cross-examination."

The statement from the dock therefore added matter to the material which the magistrate could have considered. But I am unable to say whether he put the wrong value on the statement. The cause for complaint that the magistrate took extraneous matter into consideration was that the magistrate adverted to the fact that other persons occupied the defendant's premises and were at home when the police arrived but were not brought in for questioning or charged jointly with the Respondent. This was a charge of being in possession of Indian Hemp found as the evidence shows in certain premises. The fact that persons other than the owner of the premises occupied them is not irrelevant. It is clearly relevant to the question who was in possession of the Indian Hemp.

I turn now to look at the evidence which the magistrate had before him and determine whether his decision was unreasonable and can not be supported. The real issue for the magistrate was whether it was established that the Respondent was in possession of the dangerous drugs, that is, that he had them in his charge and control and knew that he had them. When at the close of the prosecution's case the magistrate ruled that the Respondent had a case to answer, he must have been satisfied that there was a prima facie case against the Respondent and the evidence was such that a reasonable tribunal might convict on it. The defendant's counsel had submitted that the prosecution's evidence was unreliable and he ruled against that submission. Thus at that stage he must have determined that the prosecution's evidence was not so discredited or so manifestly unreliable that no reasonable tribunal could convict on it.

Having then heard the Respondent's unsworn statement, the magistrate was entitled then to look at the matter as a whole and come to his decision. But no where in his reasons does it appear that this statement had any effect on the magistrates decision. The whole of his reasons was an exercise in showing the unreliability of the evidence of the prosecution. The aspects of the prosecution's case referred to by the magistrate as causing a dismissal after calling for a defence and getting an unsworn statement were as follows:

1. Each of the policemen gave some evidence which was inconsistent with the evidence of the other policemen.

2. The policeman cautioned the Respondent at his premises at Shipyard but did not take a cautioned statement.

3. The statement recorded from the Respondent at the police station was in English while the defendant only understood the German and Spanish languages.

4. Two of the three policemen were very unreliable.

5. Other persons occupied the Respondent's premises and were at home when the police arrived but were not questioned or charged jointly with the Respondent.

6. The Respondent was not present when the police first went to the premises where the drugs were found.

The magistrate concluded his reasons for decision by saying "the evidence of the police could not be accepted as factual enough to convict the defendant on it. Therefore giving the defendant the benefit of the doubt created by the prosecution witnesses inaccurate evidence, the court dismissed the case against the defendant."

What was this doubt created by the inaccurate evidence of the prosecution? Was this doubt fanciful or was it as to the real issue for the magistrate's determination? It could hardly have been as to the drugs being in the Respondent's premises. The Respondent's statement added to the prosecution evidence that they were there. The magistrate did not indicate in what way the inconsistencies in the prosecution evidence created a doubt as to whether the defendant had the drugs in his charge and control. Nor does he indicate how the discrepancies in the prosecution evidence alluded to have affected the issue whether the Respondent knew he had the drugs. One is tempted to think that the doubt he says he had was fanciful. By not stating the precise area of his doubt the magistrate has not assisted me as to whether he appreciated the real issue which he had to determine. I think on the evidence the verdict was unsatisfactory.

Having not seen and heard the witnesses I do not think that in this case I should simply substitute a verdict of mine on the basis of the record. I allow the appeal and order that the charge be heard anew by another magistrate. The Respondent to pay the costs of this appeal.

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