R v Dakin

• Jurisdiction: Jamaica
• Judgment Date: 26 May 1978
• Date: 26 May 1978
• Court: Court of Appeal (Jamaica)

Jamaica, Court of Appeal.

(Kerr, Robotham and Carberry JJ.A.)

R.

and

Dakin and Others

State territory Parts of Territorial waters Innocent passage Foreign ships Arrest for alleged possession of narcotic drugs Whether a breach of principle of innocent passage Exceptions thereto Geneva Convention on the Territorial Sea and the Contiguous Zone, 1958 Article 19 Territorial Sea Act 1971 The law of Jamaica

Summary: The facts:The appellants were on board two ships registered in the Cayman Islands when they were intercepted by the coast guard in Jamaican territorial waters. It was alleged that they had possessed narcotic drugs. The appellants contended that they had been arrested in breach of the Territorial Sea Act, incorporating the Convention on the Territorial Sea and the Contiguous Zone, 1958, which granted the right of innocent passage in the territorial waters to foreign ships. They appealed against their conviction for possession of drugs.

Held:The appeal of Dakin was dismissed and the appeals of the other appellants allowed. There was evidence from which it could be inferred that the ships were engaged in illicit traffic in narcotics and were therefore covered by the exception to the principle of innocent passage provided by Article 19(1)(d) of the Convention and the Schedule to the Act.

The following is the text of the judgment of the Court:

Kerr, J.A.: On June 23, 1976, the appellants were convicted in the resident magistrate's court for the parish of St. Thomas of the offence of possession of ganja contrary to s. 7(c) of the Dangerous Drugs Act.

On April 9, 1976, Captain John McFarlane of the Jamaica Defence Force on board Her Majesty's Jamaican ship, Holland Bay, on patrol in the territorial waters 1¹/₂ miles off Rocky Point, St. Thomas, said that at about 4 p.m. there was on the radar a contact 4 to 8 miles south east of his position travelling in opposite direction. He altered course to intercept and at 5.30 p.m. observed that the contact was of two boatsthe Peters towing the Zion, and they were then 8 miles from the coast of Jamaica. When 20 to 25 feet away the Holland Bay hailed the Petersinforming that they were of the coast guard and required them to stop. The crew of the Holland Bay were in uniform. The reply from the Peters was to the effect that they were not stopping as the coast guard had no right to stop them. Despite manoeuvres by the Holland Bay to intercept and stop the Peters that ship continued and eventually only stopped after three bursts of machine gun fire from the Holland Bay across the bows. The Peters was eventually boarded on instructions and directed to follow the Holland Bay. En route to the port of Bowden in St. Thomas, at the request of the Captain of the Peters the Zion was pulled up and the appellant Dakin went on the Zion ostensibly to check to see if it was leaking. While on board the Zion he threw overboard about four to six parcels. A. B. Chuck from the Holland Bay recovered one parcel, the others broke up and sank in the heavy seas. The contents of the parcel recovered, according to the Government analyst, contained about two ounces of ganja. Chuck said some of the parcels were of the size of twenty pound bags and the contents of those that burst of green vegetable matter similar to the contents of the one he rescued. On arriving at Bowden McFarlane boarded the Peters on which were then all seven appellantshe told them they were being held for possession of ganja and warned they might be prosecuted. Appellant Eldo introduced himself as the Captain of the Peters and so did Dakin as the Captain of the Zion. According to Mr. McFarlane, Eldo, in the course of the conversation, told him that the Zion had a fuel problem, that it was used as a life boat and was being used to carry cargo plying between America and Jamaica but that the present voyage was from Puerto Rico to Cayman; Dakin supported Eldo as to the voyage and that the Zion had a mechanical fault. Searches of both ships were carried out but neither contraband nor illicit cargo was found. Franklyn Henry, Lloyd Chung and Milton Morris of the Holland Bay corroborated McFarlane. Henry said he inspected the Zion and found neither leak nor mechanical fault. Detective Corporal Bailey to whom the parcel was handed over at Port Royal on April 19, 1976, dried out the parcel before submitting it to the analyst. On information given him in the presence of the appellant Dakin he then and there arrested him for possession of ganja. The other appellants were arrested by him on warrants on April 15. Bailey said he had seen the Peters in Morgan's harbour in April and July, 1975, with Dakin on board.

Both ships are owned by the Coptic Containers Co., Ltd., of George Town, Grand Cayman, and were of Cayman registration.

The appellants by the nature and conduct of the defence including their unsworn statements challenged the case for the prosecution stating:

• (1) That no ganja was found as alleged.

• (2) That they were not in territorial waters at the time they were stopped.

In particular, Thomas Dakin stated that he lived in Miami and that the fuel...