Molina (Freddy Leonel Galue), Monica Tapias Pena, Jean Carlos Molina Montalvo, Gloria Plaico Obregon v R

• Jurisdiction: Jamaica
• Judge: DUKHARAN, J.A. (Ag.)
• Judgment Date: 27 June 2008
• Neutral Citation: JM 2008 CA 48
• Judgment citation (vLex): [2008] 6 JJC 2703
• Court: Court of Appeal (Jamaica)
• Date: 27 June 2008

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE PANTON, P THE HON. MR. JUSTICE COOKE, J.A THE HON. MR. JUSTICE DUKHARAN, J.A. (Ag.)

FREDDY LEONEL GALUE MOLINA,

MONICA TAPIAS PENA,

JEAN CARLOS MOLINA MONTALVO,

GLORIA PLAICO OBREGON

V.

REGINA

Miss Jacqueline Cummings and Aon Stewart, instructed by Archer, Cummings & Company for the Appellants.

Dirk Harrison, Deputy Director of Public Prosecutions (Ag.) and Miss Dahlia Findlay, Assistant Crown Counsel for Crown.

UNLAWFUL POSSESSION OF MONEY - Onus of proof - Whether suspected persons - Unlawful Possession of Property Act

DUKHARAN, J.A. (Ag.)

1 The appellants were convicted on the 28 ^th July 2006 in the Resident Magistrate's Court for the Corporate Area held at Half Way Tree for the offence of unlawful possession of money, U.S. $802,200, contrary to Section 5 of the Unlawful Possession of Property Act. They were each fined Two Thousand Dollars ($2, 000) or 6 months imprisonment at hard labour.

2 After hearing arguments on the 9 ^th and 10 ^th October, 2007 we dismissed the appeals and promised to reduce our reasons in writing. This we now do.

3 The Prosecution's Case

4 In outline, the case presented by the prosecution was that on the 15 ^th May, 2006 the appellants and a minor, who are residents of Colombia, were traveling together and were preparing to board a flight en route to Colombia at the Norman Manley International Airport in Kingston. As they approached the security checkpoint they were under observation by Woman Special Corporal (W/Spl./Cpl.) Dionne Crossdale who was attached to the Narcotics Division and assigned to the airport. She said whilst observing them they looked uneasy, nervous and hesitant. The appellant Monica Tapias Pena (Monica) turned back and walked in the opposite direction. The appellant Freddy Leonel Galue Molina (Freddy) held on to her hand and pulled her back. This aroused the suspicion of W/Spl./Cpl. Crossdale who said she became suspicious that they might be carrying something illegal and that it might be in their luggage. The appellants each had one piece of luggage. W/Spl./Cpl. Crossdale moved to the x-ray machine at the checkpoint. She observed that the appellants were perspiring on their foreheads (despite being in an air-conditioned area) and the appellant Freddy used his thumbs to wipe perspiration from his forehead. All four appellants put their suitcases (hand luggage) on the x-ray machine. It was observed that in addition to clothing there was a dark dense area to the base of each suitcase.

5 W/Spl./Cpl. Crossdale said her state of mind was that she thought that they might be carrying something illegal which might be drugs. The appellant Freddy was asked what was in the suitcase and he said clothing. All four appellants were taken to the Narcotics Office nearby where the four suitcases were searched. Each bag contained clothing and personal items and all with false compartments. Cash totaling U.S. $802,200 was found concealed in the false compartments wrapped in transparent tape. The appellant Freddy had U.S. $226,700 in his suitcase as well as U.S. $2035 on his person. The appellant Monica had U.S. $222,050 in her suitcase plus U.S. $13,580 on her person. Gloria Obregon's (Gloria) suitcase contained U.S. $123,500 plus U.S. $9000 on her person with some packaged similarly to that in the suitcase. Jean Carlos Montalvo (Jean Carlos) suitcase had $230,000, plus U.S. $2851 on his person.

6 The appellant Freddy admitted that the money in the other three suitcases belonged to him and the other appellants knew nothing about it. When questioned he said the money was given to him by a man in his hotel room in Negril. He said he could not see the man's face because it was dark. All four appellants were arrested and charged for unlawful possession of money.

7 The Defence

8 The appellants were ordered to account by what lawful means they came into possession of U.S. currency found in their suitcases and on their person. The appellant Freddy gave sworn testimony to the following effect. He said he owns property in Colombia which includes cars, houses and a cattle farm. He sold the cattle farm because he was being threatened by extortionists who wanted money from him. Because of threats on his life he decided to leave Colombia. He came to Jamaica with his wife Monica and the other two appellants. He took over U.S. $800,000 with him from Colombia, packaged in the bottom of suitcases. He said the other appellants got their suitcases from him. He admitted telling the police that he got the money from a man in a hotel room but that was a lie.

9 The appellant Monica in an unsworn statement denied knowledge of money in her suitcase. The other appellants, Obregon and Montalvo also made unsworn statements and gave no explanation as to how they came into possession of the money.

10 Grounds of Appeal

11 The appellant sought and was given permission to argue supplemental grounds of appeal. They are as follows:

• "1. The learned Resident Magistrate erred when she held that the Defendants/Appellants were suspected persons under the provisions of Section 5 of the Unlawful Possession of Property Act.

• 2. The learned Resident Magistrate erred when she called upon the Defendants/Appellants to account to her satisfaction by what lawful means they came into possession of all the money found in their possession.

• 3. The learned Resident Magistrate erred when she held that the officer's suspicion was reasonable having regard to all the circumstances.

• 4. The learned Resident Magistrate erred when she held that the Appellant Freddy Galue maneuvered at the airport to keep his co-accused from communicating with Special Corporal Crossdale as there was no evidence of this.

• 5. The learned Resident Magistrate erred when she accepted the evidence of the investigating officer as credible when the information she laid against the Appellants on the 17 ^th May, 2006 were not supported by any evidence when first presented to the Court as she did not write her statement until the 22 ^nd May, 2006 after two mention dates of the case in Court and after being directed by the Clerk of Courts to have consultation with the office of the Director of Public Prosecutions prior to writing her statement.

• 6. The learned Resident Magistrate erred when she held that the Appellants were in unlawful possession of money found on their persons and in their wallets and handbags.

• 7. The learned Resident Magistrate failed to consider the evidence that due to the fact that the Appellants Monica Tapias Pena, Jean Carlos Molina Montalvo and Gloria Plaico Obregon did not have any knowledge of the money contained in the luggage that they were not in possession of same.

• 8. The learned Resident Magistrate erred when she failed to accept the account of the Appellant, Freddy Leonel Galue Molina on how he came into possession of the money as being satisfactory.

• 9. The learned Resident Magistrate failed to consider the fact that Special Corporal Crossdale...