Cole (Allan) v R

• Jurisdiction: Jamaica
• Judge: HARRISON, J.A. , HARRIS, J.A. , MCINTOSH, J.A.
• Judgment Date: 08 October 2010
• Judgment citation (vLex): [2010] 10 JJC 0805
• Court: Court of Appeal (Jamaica)
• Date: 08 October 2010

[2010] JMCA Crim 67

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR JUSTICE HARRISON, J.A THE HON. MRS JUSTICE HARRIS, J.A THE HON. MRS JUSTICE MCINTOSH, J.A. (Ag)

ALLAN COLE

v

R

Mrs Tracey Ann Johnson for the Crown

Patrick Atkinson, Q.C. and Robert Fletcher for the appellant

CRIMINAL LAW - Dangerous drugs - Possession of ganja - Taking steps to export ganja - Using premises to store ganja - Leave to appeal - Insufficient evidence

HARRISON, J.A.

ORDER

Appeal dismissed. Convictions in respect of possession of ganja and using the premises for the storage of ganja affirmed with the following sentences:

• (a) Possession of ganja — $15,000. 00 or 3 months imprisonment at hard labour.

• (b) Using premises for the storage of ganja — $300,000. 00 or 1 year imprisonment at hard labour.

Conviction for taking steps preparatory to export ganja quashed and the sentence of $500,000. 00 or 18 months imprisonment at hard labour and sentence of 18 months imprisonment set aside.

HARRISON, J.A.

1 Introduction

2 [1] This is an appeal from the decision of Her Honour Mrs Desiree C. Alleyene, Resident Magistrate for the Corporate Area Court, sitting at Half Way Tree. The appellant was charged with several offences under the Dangerous Drugs Act and was convicted on 2 July 2007, for possession of ganja, storage of ganja on his premises and taking steps preparatory to export ganja. He was sentenced as follows:

• (a) possession of ganja — $15,000. 00 or 3 months imprisonment at hard labour;

• (b) using premises for the storage of ganja — $500,000. 00 or 1 year imprisonment at hard labour;

• (c) taking steps preparatory to export ganja — $500,000. 00 or 18 months imprisonment at hard labour and a mandatory sentence of 18 months imprisonment.

3 The court further ordered that if the fines were not paid, the sentences were to run concurrently "but consecutive to the mandatory sentence". No verdict was arrived at on the dealing in ganja charge and no order was made in respect of the conspiracy to export ganja, which were the other offences for which he was charged.

4 The Case for the Prosecution

5 [2] On 6 February 2002, at about 1:15 in the afternoon, a party of about 12?14 police officers, including Detective Sergeant Uriel Smith and Detective Sergeant Radcliffe Levy of Narcotics Headquarters, 230 Spanish Town Road, Kingston went to premises No 14 Deanery Drive in Vineyard Town, Kingston 3 in search of drugs. On the arrival of the police, the appellant and five other men were seen on the verandah of a house on the premises. Sergeant Levy identified himself to the men, read a search warrant to them and the appellant replied, "Officer mi nah give you no trouble mi just have a little weed inside to show you." He was cautioned by Sergeant Levy and when asked if there were other occupants in the house, he replied that there was only his father who was bed-ridden.

6 [3] Both Sergeants Levy and Smith were taken into the house by the appellant and he showed them an antique stereo. Sergeant Levy took two plastic bags, the size of garbage bags, from beneath the stereo. The bags were opened in the presence of the appellant and the five other persons, and vegetable matter resembling ganja was found in them.

7 [4] The police officers were led by the appellant to a second room which was occupied by his father. They next went to the rear of the house and it was observed that the door for a room was locked. Sergeant Levy asked the men who was in charge of that room and the appellant replied, "I am the person." The appellant then took a key from his pocket which he used to open the door. This room appeared to be a kitchen. The cupboards were searched in the presence of the appellant and the other men and 11 cardboard boxes marked "JAMAICA PRODUCE" were taken from the cupboards. Four additional rectangular compressed packages wrapped in masking tape, were also taken from the cupboards. The boxes and packages were opened by Sergeants Levy and Smith in the presence of the men and they contained vegetable matter resembling ganja. Sergeant Levy pointed out the ganja to the men. When the appellant was cautioned, he said, "One man named Short man come left them yah so, a set them set me up."

8 [5] The cardboard boxes, the rectangular shaped packages, the two bags that were found beneath the stereo and the men were taken to the Narcotics Headquarters. The packages, boxes and bags were labelled and sealed by Sergeant Levy in the presence of the six men. They were charged with the offences of possession of ganja, dealing in ganja, taking steps preparatory to export ganja, conspiracy to export ganja and using premises for the storage of ganja.

9 [6] Five of the defendants were dismissed of the charges at the trial after the Crown offered no evidence against them. The case was proceeded with, however, against the appellant. During the course of the trial in 2007, the court was convened at the Narcotics Headquarters. The exhibits that were seized by the police were examined by the learned Resident Magistrate, the prosecutor and the defence. The packages which contained the ganja as well as the ganja itself had become badly deteriorated. The numbers 453/2002, which were placed on the packages, were still intact. Counsel for the appellant objected to admission into evidence of the deteriorated packages and their contents but the learned Resident Magistrate overruled the objection and admitted the ganja into evidence (exhibit A).

10 [7] The court resumed its sitting at Half Way Tree and Detective Sergeant Levy was cross-examined. He was asked inter alia, about the number of kitchens that were in the house. It was suggested to him that the premises had two kitchens but he replied that only one kitchen was there when he had gone to the premises in 2002. A photograph of premises was shown to him and he agreed that it looked like the premises in question. The photograph was admitted into evidence as exhibit 1. He agreed that as one enters the house there is a grilled verandah that to the right of the living room there is a corridor that leads to the back of the house. Another photograph was admitted into evidence as exhibit 2. The sergeant agreed that from that corridor to the right there were four rooms. He also agreed that the ganja was found in a kitchen on the right side. Further cross-examination of Sergeant Levy revealed the following:

"Ques: To the right of that corridor is another kitchen?

Ans. No sir, I did not see another kitchen.

Ques. The house is still in existence?

Ans. I am not sure.

Ques. Further down that corridor on the left past (sic) the bedroom is Mr. Cole's father bedroom

Ans: Not so.

Ques: That house on the left side has 2 bathrooms, 2 bedrooms and a kitchen and on the other side has 2 bathrooms, two bedrooms and a kitchen, it has 2 residences?

Ans: No sir.

Ques: I suggest to you that on the left side of the house was the side occupied by Mr. Cole?

Ans: I cannot speak of that, sir the day in question I was shown various areas occupied by Mr. Cole, three bedrooms, bathroom, kitchen.

Ques: Do you see a bedroom Mr. Cole told you was occupied by him?

Ans: Yes.

Ques: Was that on the left side of the house?

Ans: On the right side."

11 [8] Detective Sergeant Levy agreed with learned Queen's Counsel Mr. Patrick Atkinson that when the ganja was found the appellant did tell him that he was being "set up". The sergeant disagreed with learned Queen's Counsel that on 6 February 2002, a Mr Carl Mahadeo was living on the premises. He said he was not told that Mahadeo was a tenant. He had seen the appellant's father in the front bedroom which was on the left side of the house. He disagreed that the father had occupied a room to the back of the house. He said that he had gone into all of the rooms in the house and had not seen a kitchen on the left side of the house. He further disagreed with Queen's Counsel that Mahadeo had been living on the left side of the house.

12 [9] The sergeant was asked about the layout of the house and this is what is recorded:

"Ques: There are 4 bedrooms — 2 on the right, 2 on the left?

Ans: I saw 3 bedrooms

Ques: How many of those bedrooms on the right side of the house?

Ans: Two (2) on the right one to the left.

Ques: I am suggesting, two on the right two on the left?

Ans. I saw 3 bedrooms — two on the right, one on the left.

Ques: There were 2 bathrooms — one on the right one on the left?

Ans: Yes sir."

13 [10] Detective Sergeant Levy also testified, under cross-examination, that he had found documents pertaining to the appellant in a front bedroom to the right side of the house. He had also seen photographs of the appellant hung on a wall in that room. The appellant's father who was bed-ridden had occupied a front bedroom on the left side.

14 [11] When Detective Sergeant Levy was asked about the key for the door, he said it was a "yale lock like key" that was used by the appellant to open the door for the kitchen.

15 [12] During cross-examination of Sergeant Levy, the defence made a request for the court to visit the locus in quo. The record of appeal shows that the prosecutor had raised an objection in relation to the visit. A note which was recorded by the learned Resident Magistrate reads as follows:

"Any structural change, addition in them in terms of building, were any rooms added — location has to remain the same as the time the incident took place."

16 [13] The learned Resident Magistrate granted the request and on 27 June 2007, the magistrate, defence counsel, clerk of the courts and the police visited the locus in quo. A further note is recorded at page 39 of the notes of evidence and it states as follows:

"JUDICIAL NOTICE AT LOCUS IN QUO.

Marks seen to explain seal off of other kitchen from living room. The lock seemed like a regular kitchen lock...