Bernal et Al v Reginam

JurisdictionJamaica
CourtCourt of Appeal
JudgeForte, J.A.,Downer, J.A.,Wolfe, J.A.
Judgment Date26 January 1996
Neutral CitationJM 1996 CA 1
Docket NumberResident Magistrate's Criminal Appeal Nos. 31 & 31 of 1995
Date26 January 1996

Court of Appeal

Forte, J.A. Downer, J.A. Wolfe, J.A.

Resident Magistrate's Criminal Appeal Nos. 31 & 31 of 1995

Bernal et al
and
Reginam

Richard Small, Stephen Shelton & Norman Davis for Bernal

Ian Ramsay, Mrs. Jacqueline Samuels-Brown & Mrs. Valerie Neita-Robertson for Moore

Miss Paula Llewellyn & Miss Kathy-Ann Pyke for Crown

Criminal practice and procedure - Appeal against conviction and sentence for possession of ganja — Sentence of $15,000.00 or 6 months imprisonment or 12 months imprisonment was imposed — Taking steps preparatory to exporting ganja for which the sentence of $50,000.00 or 12 months imprisonment was imposed — Dealing in ganja for which the sentence was $50,000.00 or 12 months imprisonment was imposed — No case submission — Common design — Polygraph evidence — Finding that the grounds of appeal against conviction failed — Convictions affirmed — Appeal against sentence was also dismissed — Sections 3 and 10 of the Criminal Justice (Reform) Act.

Forte, J.A.
1

On the 6th April 1994, the appellant Brian Bernal and his brother Darren were departing the island, bound for Washington D.C., U.S.A. intending to travel by American Airlines. They had with them four boxes, taped up in two packages, two boxes to each package. As a result of observations made by the security personnel of the airlines, after the boxes had been put through the X-ray machine, the police were called to the Airport departure lounge. Inspector Rhone attended and opened one of the boxes and discovered therein 24 tins all labelled “Grace pineapple juice.” On opening one of the tins, however, he discovered a plastic bag, containing vegetable substance, which was later found by the Government Analyst to be ganja. After questioning the appellant Bernal, an area of the evidence which will be dealt with later, he took them into custody. Acting on information received from the appellant Bernal i.e. that it was the appellant Moore, who had asked him to take the boxes to Washington, he subsequently questioned Moore who had been brought to his office by his attorney Mrs. Valerie Neita- Robertson. In that conversation Moore admitted that he in fact, had asked the applicant Bernal to take four boxes of pineapple juice to his sister in Washington. Arising out of this, Inspector Rhone arrested and charged both appellants for the following offences:

  • 1. Possession of ganja

  • 2. Taking steps preparatory to exporting ganja, and

  • 3. Dealing in ganja,

2

Both appellants were subsequently tried, in a trial which extended over several days, culminating in their convictions on all three informations.

3

Both were sentenced as follows:

  • 1. Possession of Ganja - $15, 000 or 6 months imp. at H.L. in addition - 12 months imprisonment.

  • 2. Taking steps preparatory to exporting ganja - $50, 000 or 12 months at H.L.

  • 3. Dealing in ganja - $50, 000 or 12 months at H.L.

4

It is from these convictions they now appeal. Having heard the arguments of counsel for several days, we then reserved our judgment, and I now set out hereunder my opinion and conclusions on those arguments.

5

Counsel for both appellants firstly argued that their no case submissions advanced before the learned resident magistrate should have been accepted, and consequently the appellants should not have been called upon to answer the prosecution's case as the evidence did not disclose a prima facie case against them. It will therefore be necessary to set out the state of the evidence at the end of the prosecution's case, so as to determine whether there is any merit in this ground.

6

At the time Moore was interviewed by Inspector Rhone in the presence of his attorney, he produced a copy of an invoice indicating that he had purchased four boxes of pineapple juice from Sampars Cash ‘n' Carry on Marcus Garvey Drive. In this regard, the prosecution led evidence per Mr. Hugh Parsons which if accepted, could establish by virtue of the records at Sampars, that the appellant Moore bought four boxes of pineapple juice on the 5th April, 1994, the day before the appellant Bernal was found to be carrying the four boxes (Exhibit 6). The evidence for the Crown, also disclosed if accepted, that the ninety-six tins contained in the four boxes of pineapple juice found at the airport, though having genuine Grace labels, were not products which were manufactured by Grace, as the identification code on the tins were flat while on the genuine tins they were raised and also on the genuine tins the letters were more spaced. From this evidence, a tribunal of fact could draw the inference that the ninety-six tins found at the airport were not the same as were purchased from the shelves of Sampars, an apparently reputable wholesale store. On the Crown's case the boxes were first seen by the witness Franklyn Bernal, the first appellant's grandfather, and with whom he was staying while in Jamaica, The senior Bernal, was at home at Phadrian Avenue on the 5th April, 1994, when he saw both appellants, arrive at his home at about 12.30 p.m. with the four boxes. He thereafter saw Moore taping two of the boxes and it “appeared he wanted to make one package of the two boxes.”

7

He spoke with appellant Bernal in his (the witness') workroom, and asked him what were in the cartons. The appellant told him pineapple juice, and on his asking the appellant who they were going to, the appellant said they were going to Chris Moore's sister who lives in Washington D.C. The witness then remarked that it was a lot of juice going to one person and the appellant retorted “maybe she likes pineapple juice or is in some business”. Thereafter the witness told the appellant “Make sure it is pineapple juice.”

8

This witness then related the events of that afternoon. The packages (i.e. the four boxes now in two packages) were taken out and put in the appellant Moore's car for the journey to the airport, as both Darren and Brian Bernal were due to leave the island that afternoon. Darren travelled with the appellant Moore, while the appellant Bernal travelled with the witness in his car, in which also were the suitcases of both Bernal brothers. They arrived late for the flight, and despite efforts to depart with only hand luggage leaving the boxes and other luggage for grandfather Bernal to ship to them at a later date, they were unable to get onto the flight. On returning to Phadrian Avenue, the boxes were placed in the sitting room where they remained overnight. The witness saw the boxes the following morning in the same place where they had been left the night before. On the 6th April, 1994 (the following morning) Darren and Brian Bernal left the home for the airport taking the four boxes with them. The witness later received a telephone call, and as a result, he went to the airport police station where he saw the Bernal brothers as also the four boxes which were earlier put into his car and which Brian had driven to the Airport.

9

Inspector Rhone received a report on the same day which took him to the airport where he saw Darren and Brian Bernal standing beside “two brown carton boxes”. On asking whose luggage it was Brian said it was theirs. There were “Grace pineapple juice labels” on the boxes. Asked where he had purchased them, Brian said “Grace outlet on Marcus Garvey Drive.” It should be noted that the reference to Grace outlet was of no significance as Sampars had in fact been a Grace outlet, but had been taken over by Mr. Parsons and his partner and named “Sampars”. Both brothers agreed to Inspector Rhone's opening one of the tins. Before doing so however, Inspector Rhone asked Brian “where was the bill of purchase”, and Brian stated that he had none. Inspector Rhone then opened one of the tins and discovered therein a brown package containing vegetable matter which was later discovered to be ganja. Both brothers when told it was ganja, said nothing. On opening another tin, the same was discovered. The brothers were then taken to the airport police station with the boxes, where they were arrested and charged with the offences. On being cautioned, the appellant Bernal said it was given to him by a friend named Chris to take to the United States. The appellant on being asked, revealed that Moore's business place was on Hagley Park Road. In the four boxes, a total of ninety-six tins were found, each containing ganja. All the boxes were addressed “Bernal” with a Washington address. Both brothers were taken into custody and later to the office of the Narcotics Squad on Spanish Town Road.

10

On the following morning the appellant Moore with his attorney attended on Inspector Rhone and in an interview, admitted that he had given the boxes to the appellant Bernal to take to his sister. He handed over a bill showlng that he had purchased four cases of pineapple juice from Sampars. He was cautioned and asked if he knew ganja was in the tins, He said no, he was absolutely shocked, and he knew nothing about it. On arrest and being cautioned, he remained consistent saying “I am absolutely shocked. I know nothing about it.”

11

There was also evidence from Jennifer Scott, a travel agent who testified that she was requested by the appellant Moore to “work” a fare Washington to Kingston via Miami, so he could send two tickets to Washington for Darren and Brian Bernal to come to Jamaica on the 25th March 1994. She accordingly did so preparing a miscellaneous charge order (MCO) and crediting the appellant Moore's account.

Bernal - No Case Submission
12

Having summarized the evidence as it stood at the end of the Crown's case, I now turn to an examination of this ground of appeal as filed and argued by counsel for Bernal.

13

In determining this issue, it will be necessary to deal with each offence separately.

14

In so far as the offence of possession is concerned, it is my view that the law was settled in the case of D.P.P. v. Brooks [1974]...

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