Patricia Henry v R

• Jurisdiction: Jamaica
• Judge: MORRISON JA
• Judgment Date: 01 April 2011
• Neutral Citation: JM 2011 CA 25
• Judgment citation (vLex): [2011] 4 JJC 0106
• Court: Court of Appeal (Jamaica)
• Docket Number: RESIDENT MAGISTRATE'S CRIMINAL APPEAL NO. 23/2009
• Date: 01 April 2011

[2011] JMCA Crim 16

JAMAICA

IN THE COURT OF APPEAL

BEFORE:

THE HON MR JUSTICE PANTON P

THE HON MR JUSTICE MORRISON JA

THE HON MISS JUSTICE PHILLIPS JA

RESIDENT MAGISTRATE'S CRIMINAL APPEAL NO. 23/2009

PATRICIA HENRY

v

R

CRIMINAL LAW - Dangerous drugs - Ganja - Possession - Dealing and attempt to export - Leave to appeal - Misdirection in law - Excessive sentence

MORRISON JA

1 On 16 January 2009, the appellant was convicted by Her Honour Miss Winsome Henry, Resident Magistrate for the parish of St James, of the offences of possession of ganja (information #18335/07), dealing in ganja (information #18336/07) and attempting to export ganja (information #183377/07), contrary to sections 7C, 7B and 7A repectively of the Dangerous Drugs Act. She was sentenced to a fine of $15,000.00 or six months imprisonment and two and a half years imprisonment at hard labour for possession of ganja, two and a half years imprisonment at hard labour for dealing in ganja and a fine of $500,000.00 or six months imprisonment and two and a half years imprisonment at hard labour for attempting to export ganja.

2 The appellant appealed against the conviction and sentence and when the matter came on for hearing on 22 September 2010, Mr. Oswest Senior-Smith, who appeared for her on the appeal, sought and was granted leave to argue five supplemental grounds of appeal (in substitution for the grounds originally filed by him on her behalf, which were abandoned). The hearing of the matter continued and was completed on 13 December 2010, when the court reserved its judgment, after having received extensive and very helpful submissions from Mr. Senior-Smith and Mrs. Caroline Hay, the acting senior Deputy Director of Public Prosecutions. These are the reasons for the decision of the court, which was announced on 4 March 2011 as follows:

‘The appeal is allowed in part. The appellant's conviction in respect of information #18336/07 (dealing in ganja) is set aside and the sentence quashed. The appeal against conviction in respect of information #18335/07 (possession of ganja) and information #18337/07 (attempting to export ganja) is dismissed; however, the appeal against sentence is allowed in part in that the sentences of mandatory imprisonment on both these informations are set aside. Finally, the sentences of payment of fines, with the alternative of imprisonment in default of payment, on information #18335/07 and information #18337/07 are affirmed.’

The evidence at trial

3 [3] Up to 12 July 2007, the appellant was employed to All Jamaica Air Services Ltd (“AJAS”) at the Donald Sangster International Airport in Montego Bay (“the airport”) as customer services coordinator. She had originally been employed to AJAS some 10 years previously (at age 21) as a part time customer agent and was promoted through the ranks, holding various positions of increasing seniority, before being appointed customer services coordinator. That position placed her next in line in the company to the deputy manager, who described her as hard working and willing to extend herself whenever the need arose.

4 On 12 July 2007, the appellant was on duty at the airport and was working as a supervisor, due to a shortage of staff. Mr. Mark Atherton, who was a corporal of police stationed at the Narcotics Division with offices at the Summit Police Station in the parish of St James, was also on duty at the AJAS check-in counter at the airport at about 3:00 p.m., carrying out narcotics checks on passengers checking in for Thompson flight no. 4244 bound for Manchester in England. While there, Corporal Atherton saw a group of three passengers (two men and one woman), carrying a suitcase each, approach the check in counter. The woman's name was Claire Bell. Corporal Atherton identified himself to these three persons and requested to be allowed to search their luggage, which was done and nothing illegal was found in any of the luggage. Corporal Atherton observed the three passengers being checked in at the counter by the appellant and saw when they were each given a boarding pass by her and then left the counter together in the direction of boarding gate number 15, where the Thompson flight no. 4244 was in the process of boarding.

5 At about 3:30 p.m., Corporal Atherton, acting pursuant to information which he had received, proceeded to gate number 15 and, having ascertained that she had already boarded the aircraft, he went on board and discovered that Claire Bell was in fact the same person whose luggage he had checked at the AJAS counter half an hour before. In answer to the officer's enquiry, Ms Bell confirmed that she had checked in one bag and produced a British passport in her name, her airline ticket and a luggage claim stub bearing her name, a security number 272 and the bag tag number 554675. At Corporal Atherton's request, airline security then proceeded to retrieve Ms Bell's luggage from the aircraft and produced three suitcases, each bearing Ms Bell's name on the security tags with the number 272 and baggage tags number 554674, 554675 and 554685. When asked if these suitcases belonged to her, Ms Bell indicated that one of them did and she was asked to open it, which she did by opening a padlock on the suitcase. This suitcase, which Corporal Atherton recognised as the same one that he had previously checked at the AJAS counter, was then searched by him in Ms Bell's presence and found to contain female clothing and personal items. Corporal Atherton then opened the other two suitcases, again in Ms Bell's presence, and found in each of them 10 rectangular packages containing vegetable matter resembling ganja, which was subsequently confirmed by the Government Analyst to be ganja. Ms Bell immediately denied knowledge of the two additional suitcases and their contents. Corporal Atherton then requested a passenger history report from one of the boarding agents at gate 15, which showed that there were three baggage tags generated in Ms Bell's name by an agent using the ‘sign in’ code ‘PH’. Recognising that code to be that of the appellant, Corporal Atherton immediately summoned her to boarding gate 15.

6 When the appellant joined the group at the gate, she initially said that she remembered checking in a single suitcase for Ms Bell but, when shown the passenger history report, she confirmed that three security tags had been generated in Ms Bell's name (whereupon she was cautioned by the corporal) and that the two additional tags had been placed on the two suitcases in which the vegetable matter resembling ganja had been found. The appellant and Ms Bell were then escorted to the Narcotics Office, where a statement was taken from Ms Bell and the two suitcases were again opened and their contents shown to the appellant. At this point, Corporal Atherton testified, the appellant told him that she would ‘level’ with him, saying ‘me want tell you how everything go’. Corporal Atherton then told the appellant that a written record would have to be made of whatever she had to say and proceeded to contact Mr. Norman Tomlinson, a justice of the peace for the parish of St James, who was also the security manager for the airport, and Mr. Fitzroy Reid, a detective corporal of police attached to the Summit Police Station, to make arrangements for the taking of her statement.

7 When Corporal Reid arrived at the airport later that afternoon, he went directly to the Narcotics Office, where he met Mr. Tomlinson and invited him to join him in the interview room. When he entered the room, Corporal Reid saw the appellant, who was previously known to him, sitting with Constable Shawn Johnson, another police officer attached to the airport. Corporal Reid advised the appellant that Mr. Tomlinson was a justice of the peace who was there to witness the proceedings and to ensure ‘that her rights were not abused’ as she gave her statement. He then cautioned her and also wrote out the words of the caution on a blank sheet of paper and invited her to sign it. The appellant was advised that she could, if she wished, write the statement herself, but she expressed a preference for Corporal Reid himself to write down what she had to say. He then proceeded to take a statement from her, which he recorded on the same sheet of paper on which he had written the caution. When the appellant had completed her statement, Corporal Reid invited her to read over what he had written and to add to, alter or correct it as she saw fit. Having read over the statement, the appellant signed it, as did Mr. Tomlinson. Both Corporal Reid and Mr. Tomlinson said in evidence that the appellant's statement was given voluntarily, and that no favours were held out to her, neither was she threatened nor forced in any way to give the statement. She was also advised, Corporal Reid said, that she had the right to have an attorney-at-law present. While Corporal Reid's recollection was that the appellant appeared to be ‘a bit uncomfortable’ during the taking of the statement (possibly ‘because of the situation she was in’), Mr. Tomlinson's impression of her demeanour that afternoon was that ‘she appeared quite relaxed’.

8 Corporal Reid's evidence was that when he first entered the interview room, Constable Johnson was ‘guarding the accused…so I allowed him to stay’. Mr. Tomlinson confirmed that Constable Johnson was in the room while the appellant's statement was being taken. He also recalled him saying something to the appellant at one point during the giving of her statement and being told by Corporai Reid ‘to desist’. By the time of the appellant's trial, Constable Johnson was no longer a member of the Jamaica Constabulary Force.

9 Although the actual notes of evidence do not disclose this, it appears from the learned Resident Magistrate's reasons for judgment that objection was taken at the trial to the admission of the statement under caution by counsel who then appeared for the appellant...