Haye et Al

JurisdictionJamaica
CourtCourt of Appeal (Jamaica)
JudgeFox, J.A.
Judgment Date10 March 1972
Neutral CitationJM 1972 CA 20
Docket NumberR.M. Criminal Appeal No. 14 of 1971
Date10 March 1972

Court of Appeal

Fox, J.A.; Edun, J.A.; Hercules, J.A.

R.M. Criminal Appeal No. 14 of 1971

R.
and
Haye et al
Appearances:

Horace Edwards Q.C. for appellant.

Courtney Orr for Crown.

Criminal Law - Appeal against conviction — Unlawful possession of marijuana

Fox, J.A.
1

On the night of Friday 19th March, 1971 a number of policemen, including Detective Corporal Esric Grant and Sergeant Samuel Green were on duty at a road block on the main road at Gutters in the parish of Saint Elizabeth. At about 1.30 a.m. a motor car driven by Haye was stopped at the road block. Seated in the front seat with Haye was Hamilton, the admitted owner of the car. Seated in the back were Nation, Thompson, and Ashley. Detective Grant identified himself and informed the occupants of the car that a search was being made for illegal firearms and in respect of breaches of the dangerous drugs law. The occupants were ordered from the car and placed facing the vehicle. On the floor of the back section of the car, Detective Grant found a travelling bag in which was a partially opened paper parcel containing vegetable matter resembling ganja. He asked the occupants who was the owner of the bag. No one answered. He pointed out the vegetable matter and told them it was ganja. No one spoke. He attempted to open the trunk of the car. It was locked. He asked and Haye gave him keys. He opened the trunk with one of these keys. In the trunk was a large crocus bag, the mouth of which was open, revealing vegetable matter resembling ganja. Detective Grant asked the occupants of the car who was the owner of the bag. No one answered. He pointed out the vegetable matter and told them it was ganja. Again, all remained silent. He asked Haye who was the owner of the car. Haye said Hamilton. Hamilton admitted this. Detective Grant then arrested all five occupants of the car for possession of ganja. Upon caution, each accused said nothing. Sergeant Green corroborated Detective Grant in all essential respects.

2

At the trial, all the vegetable matter found in the car was proven to be ganja; weighing 4 1/2 lbs in the crocus bag and 3 3/4 lbs in the travelling bag. At the end of the Crown's case, the magistrate ruled that there was no case against Nation, Thompson, and Ashley. They were discharged. Called upon to answer, Hamilton gave evidence on oath. He said he was an electrician living at Black River and working at Revere. At about 10.30 p.m. on 19th March, 1971, he was at Junction with Ashley, Nation and Haye. They were having a drink. Thompson asked for a drive to Tombstone. He was coming from Milk River and had the travelling bag and the crocus bag with him. Hamilton claimed that he did not know Thompson, but that Nation said that he did. Hamilton agreed to give Thompson a drive in the car. With his permission, Thompson put the crocus bag in the trunk and came into the back seat of the car with the travelling bag. They left the Junction at about 11.15 p.m. He did not know what was in the bags until their contents were pointed out to him by the police at Gutters. Under cross-examination, Hamilton admitted that he had seen the bags when they were brought to his car by Thompson. He had seen ganja before. He was frightened and that was the reason why he had said nothing when the contents of the bags were pointed out to him. He had spent 15 minutes at Gutters. During this time he did not get a chance to say who owned the bags. He had spent 15 minutes in the Guard room at Santa Cruz. During this period he was not too frightened to speak, and had told Detective Grant that the bags belonged to Thompson. In his defence, Haye made an unsworn statement. He said that he had driven the car from Black River to Junction with Hamilton, Ashley and Nation. They had drinks there. Whilst they were on the Alpert road coming back, he saw a hand wave. Hamilton told him to stop. He asked Hamilton if he knew the man. Hamilton said no. Nation said he knew him. Haye said he asked Hamilton and Hamilton agreed to give the man a lift. Hamilton told the man to put the crocus bag in the trunk. The man came into the car with the travelling bag. Haye said that he did not know what was in the bags. By implication, the magistrate was left to understand that the man in Haye's statement was Thompson.

3

On appeal it was contended that the Crown had not discharged the burden of proving that the appellants were in possession of the ganja found in the car because it had not been established that the appellants, either singly or jointly, were in control of the bags or that they knew that they contained ganja. This contention is based upon the accepted law in this jurisdiction. In R.M. Criminal appeal 162 of 1970 Reg. v. Daniel Connell of 22nd October, 1971, (unreported) this was said at p. 6:

“In relation to offences under the Dangerous Drugs Law, numerous decisions of this court and the former Court of Appeal have affirmed that possession is a complex concept involving control and knowledge. To convict on a charge alleging possession of court must be satisfied that the accused was exercising control over the incriminating matter and ‘had knowledge not only that he had the thing, but had knowledge also that the thing possessed was ganja.’ (vide O'Connor, C.J. in R. v. Cyrus Livingston (1952) 6 J.L.R. p.95 at p.98). In that case control was described as the ‘fact of possession’ – that is, the factual element in the complex concept of possession - and knowledge as the essential mental element in the commission of the offence which was not absolutely prohibited by the legislature so as to exclude mens rea as a constituent part of the crime. Since 1952 this basic position in which knowledge is an essential element of the offence, has been restated in case after case. It can be altered only by legislation or the pronouncement of a higher judicial authority.”

4

The first question therefore is whether the appellants had control of the ganja in the car. Hamilton as the owner, and Haye as the driver, could properly be regarded as having joint physical control of the car. This in turn gave rise to a very strong inference of fact that they were also in joint control of everything in the car including the ganja. The fact that three other persons were in the car with Hamilton and Haye did not weaken this inference. That fact enlarged the inference. For at the time of the police investigations at Gutters no one said or did anything from which an inference individual responsibility could have arisen. The police were presented with an entirely passive reaction on the part of the five occupants of the car. In this negative situation the only reasonable inference which is capable is that all five were in joint control of the ganja. For this reason, we agree with the contention of Mr. Edwards that the magistrate should not have discharged Nation, Thompson and Ashley at the close of the Crown's case. Mr. Edwards described this as a tactical error. We think the mistake more fundamental. It was a failure in the magistrate to perceive that in the particular circumstances, the proper inference of fact which arose with...

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