Audley Coleman v R
| Jurisdiction | Jamaica |
| Judge | P Williams JA |
| Judgment Date | 26 February 2016 |
| Neutral Citation | JM 2016 CA 24 |
| Docket Number | RESIDENT MAGISTRATE CRIMINAL APPEAL NO 8/2015 |
| Court | Court of Appeal (Jamaica) |
| Date | 26 February 2016 |
[2016] JMCA Crim 9
JAMAICA
IN THE COURT OF APPEAL
The Hon Mr Justice Morrison P
The Hon Mrs Justice Sinclair-Haynes JA
The Hon Miss Justice P Williams JA (AG)
RESIDENT MAGISTRATE CRIMINAL APPEAL NO 8/2015
Zavia Mayne instructed by Zavia Mayne & Co for the appellant
Miss Paula Llewellyn QC and Mrs Melony Taylor-Domville for the Crown
P Williams JA (AG)
On 4 April 2014, the appellant, Audley Coleman, was convicted in the Corporate Area Resident Magistrate's Court for breaches of sections 7B and 7C of the Dangerous Drugs Act. Under section 7B, he was charged with dealing in ganja and under section 7C, he was charged with possession of ganja. He was sentenced to a fine of $15,000.00 or three months imprisonment at hard labour for possession of ganja, and $44,000.00 or six months imprisonment at hard labour, plus six months imprisonment at hard labour, for dealing in ganja.
At the hearing of his appeal, counsel for the appellant sought and was granted leave to argue the amended grounds of appeal filed, and further, to abandon two of those grounds. Thus the amended grounds of appeal are:
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‘1. The Learned Resident Magistrate erred in law in rejecting the Appellant's no case submission, thus depriving the Appellant of a decision of acquittal in his favour.
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2. The Learned Resident Magistrate erred in law and/or wrongly exercised her discretion in permitting the Prosecution to re-open its case to tender evidence which had not arisen ex improviso.
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3. The Learned Resident Magistrate erred in law in finding that the Appellant was under an obligation to react differently to statements made by Joshua Shirley, after the Appellant had already been arrested and cautioned, thereby casting an obligation on the Appellant to disclose a defence before Trial, which is invasive of the Appellant's constitutional right to silence and to be presumed innocent.
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4. The verdict is unreasonable and cannot be supported by the evidence.’
The appellant was arrested and charged arising out of the finding of ganja in the trunk of a motor vehicle that he was driving on 15 January 2011. He denied knowledge of the ganja and how it came to be in the motor vehicle.
The evidence as to the finding of the ganja came from Deputy Superintendent Andrew Hill. On Saturday 15 January he led a team of Anti-Corruption Branch personnel to Lower Elletson Road for an operation. The aim of this operation was to intercept and search a grey Honda Fit motor vehicle with registration number 6623 FM, and to search its occupants for anything illegal.
At about 2:59 pm the grey Honda Fit motor car was spotted, intercepted and stopped along Lower Elletson Road in the vicinity of the entrance to the Elletson Road Police Station. The driver of the motor vehicle was the appellant, who identified himself as Constable Audley Coleman of the Motorized Patrol Division. After the appellant was searched, the car was then searched in his presence.
The appellant was requested to open the trunk of the motor car which he did. DSP Hill then conducted a search of the trunk and found what he described as ‘a hidden compartment in the floor’. On opening this compartment, a lug tool, a jack and a spare tyre were seen. DSP Hill lifted up the spare tyre and saw a black plastic bag. This bag was opened in the presence and view of the appellant by DSP Hill, who found a zip lock transparent plastic bag inside. DSP Hill opened the transparent plastic bag and gave evidence that there was ‘the definite smell or stench of ganja’ coming from it.
The zip lock plastic bag was found to contain cylindrical pellets and DSP Hill saw vegetable matter resembling ganja in them. He also saw one large cylindrical parcel which he said felt and smelt like ganja.
DSP Hill described the black plastic bag as ‘worn, well-used and heavily crushed’. He observed that there was dust in the wheel well but that there ‘wasn't any dust per say on the bag’ but he ‘couldn't say the bag was squeaky clean’. He further explained that one ‘couldn't see it just by looking unless you were searching diligently’. The bag was at the bottom of the wheel well with the tyre over it.
The bag and its contents were shown to the appellant by DSP Hill and he was asked what he was doing with ganja in his possession. The appellant responded that he knew nothing about it and ‘his cousin Joshua Shirley would have to account for it’.
The appellant, the car, and the items found in it were then taken to the Kingston Central Police Station. There, a comprehensive search was made of the vehicle in the presence of the appellant. Two payslips from the police department in the name of the appellant for May and June 2010, a booklist for the Denbigh High School 2010/2011, as also an accompanying letter from Shirann Coleman were found in the glove compartment of the car. Shirann Coleman was the daughter of the appellant.
The appellant was then taken to the Criminal Investigation Branch Office, Kingston Central Police Station and, in his presence, DSP Hill opened the black plastic bag and counted the items. There were what DSP Hill described as 65 cylindrical pellets and one large cylindrical parcel. These items were replaced in the black plastic bag, placed in an envelope which was labelled and sealed. This envelope was secured in a safe.
DSP Hill said that during all this time, the appellant was adamant that Mr Shirley would have to account for the findings. As a result, DSP Hill sent for Mr Shirley. Upon Mr Shirley being brought to the station, an interview was done with him by DSP Hill, who then caused a statement to be recorded from him.
All this had taken place in a room separate from where the appellant was and upon completing his interview of Mr Shirley, DSP Hill returned to where the appellant was. The appellant was arrested on reasonable suspicion of possession, dealing in, and taking steps preparatory to the export ganja. DSP Hill again cautioned the appellant who said nothing.
DSP Hill then offered the appellant his mandatory telephone call and then heard the appellant telling the party on the other end of the line that Joshua Shirley had put ganja in his car. When the appellant hung up from his call, DSP Hill took the appellant to the room where Mr Shirley was giving his statement. DSP Hill described how he ‘confronted both men’ and asked the appellant, while pointing at Mr Shirley, if this was the said man whom he had just told the person on the other end of the line had put ganja in his car. The appellant replied that it was the same Joshua Shirley whom he had loaned the car the day before. DSP Hill told the appellant that that was not the question he had asked. At this point, the appellant replied that it is the same Joshua Shirley who had put ganja in his car.
Immediately Mr Shirley accused the appellant that he was lying and said that he, Shirley, would never have done anything to jeopardize the appellant's job. The appellant said nothing in response. DSP Hill said he had expected the appellant to say ‘very strong words’ to Mr Shirley.
On Monday 17 January, DSP Hill retrieved the envelope he had labelled and sealed, containing the items he had recovered from the trunk of the motor vehicle from the safe and took them to the Government Forensic Laboratory. He was given a receipt with Folio No 139/2001. Samples were taken from the envelope and retained by the lab technician and the envelope returned to DSP Hill.
On Wednesday 19 January, DSP Hill conducted a question and answer session with the appellant who was then represented by attorney-at-law Mr Christopher Townsend. The appellant was asked and responded to some 191 questions. The record of the questions and answers was admitted into evidence with no objection from the defence.
In giving evidence about the question and answer session, DSP Hill made reference to the appellant explaining the route he took to attend work that Saturday as being along Marcus Garvey Drive. He asked the appellant if there had been any stops made whilst en-route to work to which the answer had been ‘not to my knowledge’. When asked specifically whether he had stopped at Tinson Pen Aerodrome, the appellant explained that he had stopped there to collect a bottle of rum from ‘a Chris who worked there’, but who was not seen.
DSP Hill eventually collected the samples and a certificate from the Forensic Laboratory. The black plastic bag and its contents were admitted into evidence. The samples that had been taken from the contents of the black plastic bag were also admitted into evidence. The items found in the glove compartment of the motor vehicle were also admitted as exhibits.
Although speaking about collecting a forensic certificate relative to his matter, DSP Hill completed his evidence and the Crown eventually closed its case without the certificate being tendered as an exhibit. This failure was relied on by Mr Townsend in making a no case submission that there was no proof that the items recovered were in fact ganja. The Resident Magistrate then permitted the Crown to re-open the case and the certificate was admitted as an exhibit. The certificate showed that examination and tests carried out on the vegetable matter revealed that it was ganja weighing 300.40g (10.60 oz).
Mr Joshua Shirley gave evidence of his dealings with the Honda Fit motor car. He acknowledged that he did in fact drive it on occasions when he was visiting Jamaica. He had left Jamaica in 1990 and now resided in Canada. He said he and the appellant were related, as the appellant's granddad is a cousin of his granddad, thus he and the appellant were ‘fourth (4 th ) generation cousins’.
When he visited Jamaica, Mr Shirley stayed at the residence that the...
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...if that discretion is judicially exercised, the Court of Appeal will not interfere.” 43 In the recent decision of Audley Coleman v R [2016] JMCA Crim 9, in applying the principles in R v Francis, this court refused to interfere with the trial judge's discretion wherein she had allowed the p......