Andrew Brown v R
| Jurisdiction | Jamaica |
| Judge | Straw JA |
| Judgment Date | 04 October 2019 |
| Neutral Citation | JM 2019 CA 77 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | PARISH COURT CRIMINAL APPEAL NO 12/2018 |
| Date | 04 October 2019 |
[2019] JMCA Crim 30
IN THE COURT OF APPEAL
THE HON Mrs Justice McDonald-Bishop JA
THE HON Miss Justice Straw JA
THE HON Mrs Justice Foster-Pusey JA
PARISH COURT CRIMINAL APPEAL NO 12/2018
Delano Harrison QC instructed by K Churchill Neita & Co for the appellant
Mrs Lenster Lewis-Meade for the Crown
Criminal Law - Possession of cocaine — Dealing in cocaine — Trafficking cocaine — Appeal against conviction — Whether court erred in relying significantly on the silence of the appellant — Whether the judge failed to adequately consider the appellant's defence — Good character direction — Whether trial judge erred in failing to direct herself with respect to the good character of the appellant.
On 25 March 2018, Mr Andrew Brown (‘the appellant’) was convicted in the Parish Court for Saint James, of the following offences: (i) possession of cocaine; (ii) dealing in cocaine; and (iii) trafficking cocaine. On 18 June 2018, in respect of the offence of possession of cocaine, he was fined $500,000.00 or three months' imprisonment, and in addition, ordered to serve (mandatory) three years and nine months' imprisonment at hard labour. The learned judge ordered that if the appellant failed to pay the fine imposed, then the sentence was to run concurrently. He was admonished and discharged in relation to the other offences.
The appellant filed a notice of appeal on 27 June 2018 against his conviction. On 1 May 2019, at the conclusion of the hearing of the appeal, this court made the following orders:
“1) The appeal is allowed.
2) The convictions are quashed.
3) The sentences are set aside and judgments and verdicts of acquittal entered.”
The court promised that reasons would follow in due course and this judgment is a fulfilment of that promise.
On 20 April 2013 at approximately 8:30 pm, the appellant, in the company of another man (his co-accused) was travelling in a Toyota Liteace motor vehicle, marked Guardsman (‘the Guardsman van’), along a main road in the Mount Carey area of Montpelier, in the parish of Saint James. The co-accused was the driver of the Guardsman van and an employee of Guardsman Security Limited. The Guardsman van was coming from the direction of Savanna-la-Mar, Westmoreland and heading towards Montego Bay, Saint James when it was intercepted by Detective Sergeant Byron Miller. The appellant was seated in the front passenger seat when the Guardsman van was stopped. A search of the appellant and the driver was done, as well as a search of the Guardsman van. Four white straw bags containing a solid substance resembling cocaine were found in the trunk of the Guardsman van.
Both men were handcuffed and cautioned individually by Detective Sergeant Miller in the presence of Superintendent Leon Clunis who had been subsequently called to the scene. They were asked what they were doing with cocaine. The driver responded by saying it was the appellant who employed him to carry the bags from the border of Saint Elizabeth and Westmoreland. The appellant, who was within arm's length of the driver, said nothing.
The driver was cautioned a second time by Inspector Maurice Pinnock of the Transnational Crime Narcotics Division who arrived on the scene at about 9:30 pm. When asked by Inspector Pinnock if he knew what was in the bag, the driver responded by saying “yes sir, a cocaine inna it, a Andrew Brown give mi fi carry”. When asked in the presence and view of the driver if he heard what the driver said, the appellant did not respond. The four bags, which were removed by Inspector Pinnock, contained 53 plastic parcels of a white solid substance which weighed a total of 66 kilograms. Both men were placed in custody pending further investigations. The analysis by the forensic laboratory later confirmed that the solid substance was indeed cocaine.
The following day, 21 April 2013, a caution statement was given by the driver in which he stated that he was asked by the appellant to use the Guardsman van to pick up cocaine for him in Whitehouse, Westmoreland. He stated that he met the appellant in Westmoreland and that the appellant and two men put some white plastic looking rice bags containing cocaine in the motor vehicle. He further stated that his role was to pick up the cocaine for the appellant and get some pay, and that he knew that he was picking up cocaine.
On 25 April 2013 the appellant was charged with the offences of possession of cocaine, dealing in cocaine, taking steps preparatory to exporting cocaine and conspiracy to export cocaine. He was cautioned and he made no statement.
The following week, on 3 May 2013, Inspector Pinnock accompanied Ms Marcia Dunbar and a team from the Forensic Institute of Jamaica to the Burke Military Barracks, located in Whitehouse Saint James. A Toyota Corolla (station wagon) motor vehicle owned by the appellant had been seized on 20 April 2013 and was being stored at the said location. Inspector Pinnock stated that the appellant had told him on the night of the incident that his car had been punctured somewhere along the road in Westmoreland and that he had asked the driver of the Toyota Liteace for a ride to get his tyre fixed. This vehicle was apparently retrieved by an unidentified police officer and driven to the scene that same night. Inspector Pinnock indicated that the appellant had confirmed that the vehicle was his. The ownership of the said Toyota Corolla motor vehicle was also confirmed again by the appellant in an interview as well as by reference to the documents found in the vehicle.
According to Inspector Pinnock, Superintendent Clunis and a team from MOCA (the Major Organised Crime and Anti-Corruption Agency) would have secured this vehicle after he left the scene. The keys for the said vehicle were kept at MOCA and Inspector Pinnock testified that he believed it is one Sergeant Williams who gave him the keys. However, no evidence was led by the Crown as to who drove the said vehicle to the scene or transported it to the Burke Military Barracks. After the said vehicle was examined by Ms Marcia Dunbar, a forensic certificate was subsequently given to Inspector Pinnock which revealed the presence of cocaine on the dashboard, steering wheel, console and doors. From the evidence, the quantity was stated to be traces, however the actual forensic certificate (containing the findings) appears to be missing from the list of exhibits placed before this court.
There was also a punctured tyre in the back of the Guardsman van which had been identified by the appellant as belonging to his motor vehicle.
The appellant himself stated in his unsworn statement that he was travelling from Westmoreland to Montego Bay and on reaching Waterworks, in the parish of Westmoreland, his car suffered a puncture. He saw the driver of the Guardsman van passing and he stopped him and obtained a ride. The appellant stated that on reaching Mount Carey, the police stopped the Guardsman van in which he was travelling and that he knew nothing of any cocaine in the said van. He further stated that he knew nothing of the traces of cocaine found in his own motor vehicle as he did not put them there and that he was not present when his motor vehicle was being tested.
Queen's Counsel, Mr Harrison, abandoned the original grounds of appeal and sought leave to rely on six supplementary grounds, which are as follows:
“ GROUND 1
The learned Parish Court Judge erred in law in that, in convicting the [appellant], she relied significantly on his silence (a) in the face of accusations by his co-accused and, further, (b) after being cautioned by the police.”
“ GROUND 2
The learned Parish Court Judge erroneously rejected the crux of the [appellant's] defence, namely, that his presence in the Guardsman van at the material time was that of an innocent passenger.”
“ GROUND 3
The learned Parish Court Judge erred in her reliance on evidence of cocaine found in the interior of that [appellant's] car as establishing his possession of cocaine found in the Guardsman van, thirteen days after its having been wholly in police custody.”
“ GROUND 4
The learned Parish Court Judge erred in law in her failure to direct herself with respect to the good-character aspect of the [appellant's] defence.”
“ GROUND 5
The learned Parish Court Judge erred in law in her failure to uphold the submission of no case to answer, made at the close of the prosecution case on behalf of the [appellant].”
“ GROUND 6
The verdict is unreasonable having regard to the evidence.”
Queen's Counsel indicated at the outset of the hearing that he would not be pursuing supplementary ground four and leave was granted to argue the remaining grounds.
Having heard submissions from both counsel for the appellant and for the Crown, this court made the orders set out at paragraph [2] as we found that there was merit in grounds 1 and 3, both of which will be discussed hereafter. The conclusion in relation to both these grounds was sufficient to dispose of the appeal. As such, it was deemed unnecessary to treat with the other grounds advanced.
In essence, Queen's Counsel contended that the appellant's conviction should not be allowed to stand as the appellant and the driver were not on even/equal terms when the accusations were levelled by the driver and, as such, the appellant's silence could not be used to infer guilt, as the learned judge did.
Mr Harrison provided the context for his submissions in support of this ground by referring the court to paragraph 90, sub-paragraph (3) of the...
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