Supreme Court
Action No. 27 of 1983
7th March 1984
Moe, CJ.

Mr. G. Gandhi for the Plaintiff
Mr. N. Dujon and Mr. E. Flowers for the Respondent

Criminal Law - Appeal from Inferior Court's ruling - Evidence of identity - Defence of Alibi - Confiscation of vessel used to commit an offence under the Dangerous Drugs Act - Whether vessel could be confiscated without a conviction.

J U D G M E N T

The Respondent Jacobo Cordova was charged before the magistrate for having in his possession 900 lbs. of Indian Hemp at the Richmond Hill area on the 19th day of May, 1983. The case for the prosecution was that on that date at about 10:30 a.m. the Respondent was one of about 8 persons loading an aircraft with Indian Hemp on an airstrip in the Richmond Hill area. As the magistrate indicated in his reasons for decision on the evidence before him the crucial question was whether it was proved that the Respondent was in fact one of the persons concerned.

It would be appropriate to set out here the relevant evidence adduced before the magistrate.

The police having received certain information, three of them went to an airstrip in the Richmond Hill area in a police pick-up. P.C. Moody drove, Cpl. Webster was seated next to him and Sgt. Nicholas was on the other side of Cpl. Webster. Each of these said they saw 8 men around an aircraft loading packages into it. P.C. Moody said when he was about 100 yards away from them, the Respondent looked in his direction. He drove faster and he saw that the Respondent ran off to the right side of the airstrip with a large American fellow. He had known the Respondent for about 11 months and a blue pickup owned by the Respondent was at the scene. Cpl. Webster said that as they approached the aircraft and men, the Respondent and another white man ran into the bushes to the right side of the airstrip while the other persons fled in a pickup. When they reached the plane Sgt. Nicholas got out of the Pickup and ran behind the Respondent shouting his name. He also said that when he first saw the Respondent his back was turned to him and when he and other policemen were about 25 yards from the plane the Respondent and the other man fled. Sgt. Nicholas' evidence was that when they were about 100 yards from the plane and men, he recognized the Respondent, his back was then to them. When they were about 25 yards from the aircraft, the Respondent and a white man ran into the bushes. When the Respondent turned and moved off, he was sure it was him. He jumped out of the pickup and ran after the two men shouting to the Respondent to stop. He did not catch the men. The following day the Respondent went to the Police Station and he Sgt. Nicholas showed him articles he found at the scene and informed him that he saw him fleeing from the scene where the articles were found. He cautioned him and the Respondent denied knowing anything about the articles.

There was evidence from Constable Moody, Cpl. Webster and Sgt. Nicholas that the Respondent was wearing an orange coloured shirt and a blue pants. He was wearing those clothes on the next day when he visited the Police Station.

The Respondent gave evidence that on the date in question he rented a white man his pickup at about 6:00 a.m. At about 8:00 a.m. he became ill and went to Dr. Johnson who gave him a prescription for medicines which he could not obtain. He returned to the doctor who gave him another prescription which he was able to have filled. He returned to the doctor, was given injections and he finally left the doctor's office about 11:00 a.m. Dr. Johnson gave evidence that his records show that on the date, the Respondent went to his clinic. He recollected that he went there sometime between 8:30 a.m. and 9:00 a.m. He was examined and treated and was there for about 2 hours.

The magistrate acquitted the Respondent and the Appellant appeals against that decision on the grounds that:-

(a) the decision was such that the magistrate viewing the circumstances reasonably could not properly have so decided;
(b) the decision was unreasonable or could not be supported having regard to the evidence;
(c) the magistrate took extraneous matters into consideration.

On the issue of identification the magistrate said that he bore in mind the guidelines recommended by the Court of Appeal in England in Turnbull's case (1976) 63 Criminal Appeal Reports 1939. He said, "It seemed clear to me that the time within which the identification of the Defendant was made must have been very brief indeed. In the circumstances all that the policemen could have had was a brief glance at the person whom they alleged was the Defendant. Nowhere in the entire evidence is the court told of the condition of the day. Was it a clear day? Was it raining? Was it dark or bleaky? The question of visibility was never raised, except that two prosecution witnesses testified that there was no object between them and the plane to obstruct their vision as they approached."

It was submitted on behalf of the Appellant that these findings of the magistrate were unfounded and he inappropriately applied the Turnbull guidelines. A careful study of the evidence reveals that the magistrate was in order to advert to these matters. Now, firstly, the magistrate having called on the Respondent to answer, it is to be inferred that the state of the evidence as to identification was such that there could be a conviction on it. The Respondent by his evidence alleged that the identification by the three policemen was mistaken and stated where he was at the time concerned. On the state of the evidence at the close of the case the magistrate was right to warn himself as he did and to examine the circumstances in which the identification was made.

Constable Moody said he was about 100 yards from the aircraft when he saw the person concerned look in the direction of the vehicle he (Moody) was driving. One could infer that at that distance he looked at the person's face. It was at that point he was sure who the person was. There is no evidence that he saw the person's face thereafter. He drove faster and saw the person run. The inference is away from or with his back to him. There is no evidence that Corporal Webster saw the person's face but when he first saw the person the person's back was to him and at a distance of 25 yards the person fled. It was at that distance he says he positively identified the person. Sergeant Nicholas said he recognised the person at a distance of 100 yards and the person's back was to him. At a distance about 25 yards the person ran off and he pursued him for about 200 yards. In looking at the circumstances, it was not unreasonable for the magistrate to look to see whether there was evidence as to it being a clear, bleak or dark day when the three policemen say they recognized the Respondent as set out above.

In considering his verdict, the magistrate also adverted to the Respondent's allegation that he was somewhere else at the time concerned. The magistrate stated, "Most important however was the question of the Defendant's alibi. The Defendant's testimony was quite reasonable and withstood quite well the test of cross-examination. The Defendant's demeanour as a witness was quite normal and I had no reason to doubt his testimony under oath. Witness Lizama's testimony confirmed a small but important part of the Defendant's evidence and I had no reason not to believe him. The doctor's testimony was even more important in adding credence to the Defendant's alibi. Doctor Walton Johnson was also called as a witness for the Defence. He confirmed that he knew defendant and had seen and treated him as a patient on the morning in question, and that defendant left his office about 11:00 a.m. that morning. The doctor produced in court a record of the Defendant's visit which confirmed his testimony."

It is clear that the magistrate referred to and used in his deliberations the Doctor's record which was not in evidence. This matter not in evidence the magistrate said confirmed an important matter before him. The Respondent has urged that if the Doctor's evidence can stand on its own, reference to his record should not vitiate all of his evidence. What it is important to note is that the Doctor's evidence in chief is that the Respondent went to his office sometime between 8:30 a.m. and 9:00 a.m. The Respondent had been there for two hours. That is until 11:00 a.m. The real question then was whether the Respondent was at the Doctor's office about 10:30 a.m. and therefore not at the airstrip at Richmond Hill. I cannot say whether the magistrate used the record (not in evidence) to confirm that the Respondent was at his office about 10:30 a.m. or simply that he visited at 8:45 a.m. The doctor's evidence in cross-examination reinforces this point. He admitted "All doctors keep records of patients they see not necessarily the time they see them." The manner of referring to the doctor's record and the use of it was most irregular.

The question which arose then is how did this error affect the magistrate's decision. The magistrate said "Bearing in mind the warning issued by the English Court of Appeal in R v Turnbull concerning cases against accused persons which depended wholly or substantially on the correctness of one of more identification of the accused and considering the evidence in its entirety I could not say I was sure that the Defendant was guilty of this offence. The Defendant was therefore acquitted and the charge against him dismissed."

In that evidence the magistrate had the evidence of the Respondent which he apparently accepted. That evidence accepted even without the doctor's testimony could have caused the reasonable doubt in the magistrate's mind. It is not for me as an appellate tribunal to say that I would have come to a different conclusion and so substitute it for that of the magistrate. The magistrate had the advantage of seeing the various witnesses and deciding on their credibility, he appreciated the issues before him and the conclusion he reached on the evidence he accepted was not unreasonable.

The Appellant has not satisfied me the decision on the evidence before the magistrate was wrong and the appeal must fail. The magistrate's decision is confirmed.

There was also appeal against the magistrate's order that a motor vehicle licence O.W. C.1187 parked beside the aircraft and proved to be owned by the Respondent, be returned to him. The Appellant submitted that while on an acquittal there is authority to order return, it is for the owner to apply. The Respondent submitted that this vehicle was dealt with like exhibits in other cases.

There was a further appeal against the magistrate's order that the aircraft be returned to its owner. This order was made after the magistrate held an enquiry at a date subsequent to the conclusion of the trial by purporting to function under section 19A(2) of the Dangerous Drugs Ordinance, Chapter 85. Counsel are agreed that the magistrate followed the wrong procedure in holding the enquiry. The Respondent contended, however, that on the acquittal of the Respondent Cordova, there could be no forfeiture of the aircraft.

I turn first to section 19A of the Dangerous Drugs Ordinance, Chapter 85 under which provision is made for forfeiture of an aircraft, vessel or vehicle. Subsection (1) thereof provides:-

"Where any person is convicted of an offence or of an attempt to commit an offence or of soliciting or inciting the commission of an offence under this Ordinance and the Court by which such person is convicted finds that any aircraft, vessel or vehicle was used or employed by such person in the commission or to facilitate the commission of the offence of which he is convicted, such aircraft, vessel or vehicle shall be forfeited."

For there to be forfeiture, one condition relevant to this appeal which must be present is that a person is convicted. I need not refer to other conditions to be satisfied. In this case no person was convicted and there could not have been forfeiture under that subsection.

In the circumstances, the orders that the motor vehicle and the aircraft be returned to their owners will stand. Both Respondents have their costs.

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