R v Arnough
| Jurisdiction | Jamaica |
| Judge | Smith, J.A.,Hercules, JA. |
| Judgment Date | 15 June 1973 |
| Neutral Citation | JM 1973 CA 51 |
| Docket Number | R.M. Criminal Appeal No. 79 of 1972 |
| Court | Court of Appeal (Jamaica) |
| Date | 15 June 1973 |
Court of Appeal
Smith, J.A.; Hercules, JA.
R.M. Criminal Appeal No. 79 of 1972
Ian Ramsay for the appellant
Velma Hylton for the Crown
Evidence - Unlawful possession of marijuana
Criminal Law - Appeal against conviction — Unlawful possession of marijuana
Shortly after 9 ‘o'clock on the night of May 12, 1972, detective sergeant Dobson was in ambush at the parking lot of the Mahoe Bay Club in Saint James. He saw the appellant drive a Triumph motor car into the parking lot and parked it. The appellant came out of the car and spoke to persons standing in the parking lot. He then went to the boot of the Triumph and removed a grey suitcase from it, which he held in his hand. Sergeant Dobson held him. There was another suitcase in the boot. The grey suitcase was opened and a paper bag removed from it. In it was 2 lbs. 3 ozs. of vegetable matter, which was subsequently analysed by the Government analyst and certified to be ganja. The appellant was charged for being found in possession of ganja and for transporting ganja, offences under ss.7 (c) and 22 (1) (e), respectively, of the Dangerous Drugs Law (Cap. 90).
At his subsequent trial in the Resident Magistrate's Court for Saint James before His Honour Mr. Boyd Carey, the appellant disclaimed the suitcases and their contents. He said he had given a lift in his motor car to a white man on the night of his arrest. He saw the white man with the two suitcases at the Salt Spring and Montego Hill junction. He offered to take the white man and the suitcases to his destination, the Mahoe Bay Club. On his arrival there the white man left the car and said he would soon return. He (appellant) took the two suitcases from the car and put them on the ground behind the car. Soon after Sergeant Dobson and other policemen came and he was arrested. The appellant was convicted on both charges on June 20, 1972. For possession of ganja he was sentenced to imprisonment at hard labour for two years. For transporting he was sentenced to pay a fine of One Hundred dollars.
The evidence of Sergeant Dobson, if believed, was sufficient to support the convictions. There was, however, another witness called by the prosecution. This witness, Joseph Fortier, was, perhaps, called more in proof of the charge against Anthony Dillon, who was jointly charged and tried with the appellant for possession of ganja. Dillon was, however, acquitted. The evidence of Fortier was made the subject of all the complaints made by the appellant in his appeal against his convictions. That evidence was to this effect: Joseph Fortier was a special agent of the Bureau of Narcotics of the Department of Justice of the United States of America. In May of 1972 he and two other agents were in Jamaica working, in conjunction with the Jamaican police. On May 11 he and his agents were taken to the house of one Sydney Burke outside Montego Bay. There he met Dillon, who told him that he had a large quantity of marijuana (ganja) for sale. Burke said he had an associate with 100 lbs. of hashish for sale at $40.00 per pound. On the following day, May 12, Fortier went with Dillon to Burke's house. Burke went away and returned with the appellant. The appellant told him that he was the owner of the hashish and that he had 100 1bs. to sell. Later that day Fortier returned to Burke's house with two empty suitcases. Burke and the appellant left with the suitcases. They returned later with them. They contained what the appellant said was 100 lbs. of hashish. Fortier told them that the suitcases rattled too much and asked that they be repacked so that they did not rattle. The suitcases were emptied of their contents by Dillon, Burke and the appellant. All three and Fortier then repacked the contents with paper and cloth. Fortier said that after this he asked the appellant for some “grass” (ganja). The appellant left and returned in three or four minutes with a paper bag with marijuana, which was put into the grey suitcase. The appellant asked how and when Fortier wanted the suitcases delivered. Fortier told him they should be delivered at the parking lot at the Mahoe Bay Club at 9 p.m. No money was paid to the appellant. This is how the prosecution accounted for the appellant's presence with the suitcases at the parking lot where he was arrested. The appellants in his evidences denied that he had ever met Fortier as he said or had any dealings with him.
It was submitted that Fortier instigated, incited, encouraged and procured the commission of the offences for which the appellant was convicted and that his evidence should, therefore, have been excluded on the ground of public policy. It was said that “no one, whether law enforcement officer or otherwise, can be allowed to procure, and commit a crime in order to purport to solve the said crime to which he is particeps criminis”. This submission was based on the well known and oft cited passage in Brannan v Peek [1947] 2 All E.R. 572 where Lord Goddard, C.J. said that “it is wholly wrong for a police officer or any other person to be sent to commit an offence in order that an offence by another person may be detected.” Alternatively, it was submitted that if the evidence was strictly admissible under the rule in Kuruma v R., [1955] 1 All E.R. 237, then it ought not to have been admitted as it was obtained by means in the category of “trick, deception or fraud” under the principles in Callis v Gunn [1963] 3 All E.R. 677 and R. v. Payne [1953] 1 ALL E.R. 848. In the further alternative it was submitted that Fortier's evidence was that of an accomplice and ought to have been corroborated.
It was contended that if, as Lord Goddard said in Brannan v Peek (Supra), it is wholly wrong for a police officer to commit an offence in order to detect an offence by another then it must have a result - either the inadmissibility of the evidence or its exclusion by the court. Though this can perhaps, be said to be a logical deduction from Lord Goddard's statement, fact is that the court in Brannan v Peek did nut hold that the evidence in that case was either inadmissible or should have been excluded. No case has been cited to us, and we know of none, in which the evidence of a police or an agent provocateur has been held to be inadmissible or has been excluded applying the statement in Brannan v Peek. In 1967, in Sheddon v Stevenson, [1967] 2 All E.R. 1277, Brannan v Peek was referred to and certain comments were made in relation to Lord Goddard's statement which are opposite to the submissions made to us. After citing the passage from Lord Goddard's judgment and a statement from the judgment of Humphreys, J. in concurrence, Lord Parker, C.J. said, at p. 1280.
“Notwithstanding those strong remarks, the methods used by the police in that case were not a ground for quashing the conviction any more than they were in the later case of Browning v J.W.H. Watson Rochester), Ltd., [1953] 2 All E.R. 775. No doubt this court does frown on the practice of police officers being employed to commit offences themselves or indeed to encourage others to commit offences……….. In my judgment, the respondent did not commit an offence; in so far as it can be said that he did act so as to enable others to commit offences by making himself available if an offence was to be committed, it does seem to me that, provided a police officer is acting under the orders of his superior and the superior officer genuinely thinks that the circumstances in the locality necessitates action of this sorts then, in my judgment, there is nothing wrong in that practice being employed.”
Lord Parker then referred to R. v Murphy, [1965] N.I. 138 in which the matter with which he was then dealing was considered on a court-martial appeal. He quoted the head note of the case and then (at p. 1281) cited the following passage from the judgment of the court:
“We are, therefore of opinion that what Lord Goddard, C.J., said in Brannan v. Peek does not mean, and was not intended to mean, that...
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