R v Myrie (Mark)
| Jurisdiction | Jamaica |
| Judge | K. HARRISON, J.A: |
| Judgment Date | 22 March 2006 |
| Neutral Citation | JM 2006 CA 10 |
| Judgment citation (vLex) | [2006] 3 JJC 2201 |
| Court | Court of Appeal (Jamaica) |
| Date | 22 March 2006 |
CRIMINAL LAW - Dangerous drugs - Cultivation and possession of ganja
This is an appeal by the appellant Mark Myrie, who on February 12, 2004 was convicted and sentenced in the Resident Magistrate's Court for the Corporate Area, St. Andrew, on informations charging him for possession of and cultivating ganja. For possession of ganja, contrary to section 7 (c) of the Dangerous Drugs Act, he was fined $3, 000 or 30 days imprisonment at hard labour. For cultivating ganja contrary to section 7(b) of the Dangerous Drugs Act, he was fined $6, 000 or 30 days imprisonment at hard labour. The Court ordered that the sentences should run concurrently if the fines were not paid. From these convictions and sentences the appellant now appeals.
The original grounds of appeal were abandoned. Leave was sought and granted to argue five supplementary grounds of appeal as set out hereunder:
"1. In light of the fact that (a) possession, as contemplated by the criminal law, was central to proof of both offences with which the appellant was charged, and (b) the prosecution had adduced no, or no sufficient, evidence, to ground possession, the learned Resident Magistrate erred in law in rejecting the submission, made at the close of the prosecution case, that there was no case for the appellant to answer.
2. Having wrongly rejected the submission of no case to answer, made on the appellant's behalf, the learned Resident Magistrate effectively shifted the onus of proof on to the appellant by relying, virtually entirely, on his defence evidence, in convicting him of the offences charged.
3. The conviction of the appellant for the offence of cultivating ganja was in any event, bad in law for that, in its totality, the evidence adduced before the learned Resident Magistrate (direct or inferential) was incapable of establishing cultivation of ganja, in fact or in law, by the appellant.
4. In all the circumstances of the case, the learned Resident Magistrate erred in law in convicting the appellant of both offences charged i.e, cultivating ganja and possession of ganja, "the possession being merely incident, a necessary incident to" the cultivation of ganja (R v Brickligge (1964) 8 JLR 496, at 497F).
5. The verdict is unreasonable having regard to the evidence."
The charges arose out of an incident on December 3, 2003, at about 7:30 pm, when a party of policemen who were on special duty in the Constant Spring area, in the parish of St. Andrew went to premises known as Gargamel Recording Studio situate at No. 10 Carlyle Avenue.
Detective Cpl. Phillip Dodd who was a member of the police party and the arresting officer, said he saw a group of men standing at the entrance of these premises. On the approach of the police, one man, who stood at the gate, looked in Dodd's direction and ran inside the compound. Cpl. Dodd immediately alerted the other policemen of his observation and drove up to the gate. Cpl. Dodd and other police officers entered the premises.
The appellant who is a well known recording artist in the music industry and who goes by the name of "Buju Banton", approached Cpl. Dodd and said to the men on the compound:
"what kinda idiot thing this unoo a gwaan wid? Whey so much police a do pon me property?"
The Corporal said he told him about the man who ran into the premises on the approach of the police.
The appellant, it is said, got aggressive and demanded the police to leave his premises. The Superintendent of Police, who was in charge of the team of policemen, disregarded what the appellant said and gave instructions for the premises to be searched.
Cpl. Dodd, other policemen, and the appellant went to the rear of the premises where there was a garden which had banana trees, sugar cane, and other plants. The Cpl. said that the garden was well tended and a garden hose was attached to a pipe.
Cpl. Dodd went into the garden and pointed out three plants resembling ganja to the appellant. The tallest of the three plants was about three (3) feet in height. Cpl. Dodd said he told the appellant that they were ganja plants. He cautioned him and he replied:
"yeh man go lock me up a station fi little weed a dat give me the inspiration fi write my music and enhance my meditation".
The three ganja plants were uprooted by the Corporal and taken to Constant Spring Police Station along with the appellant. He was charged with the offences of possession of ganja and cultivating ganja. After a further caution was administered, the appellant said: "Yes I am charged because I am black."
The exhibits were taken to the forensic laboratory and on a subsequent date, the paper package containing the ganja plants were retrieved from the laboratory as well as a forensic certificate. The exhibits and certificate were tendered and admitted in evidence at the trial.
The defence requested the Court to visit the locus in quo and this was granted. Two triangular gardens measuring approximately, 30' x 30' x 15' and 20' x 20' x 12' respectively were observed at the rear of the premises.
A no case submission was made on behalf of the appellant after the prosecution closed its case. It was submitted inter alia, that the Crown had not presented a sufficient case for the appellant to be called upon. Counsel also submitted that of the seventeen (17) police officers who entered the premises, not one was called to corroborate the evidence of Dodd. It was further submitted by Counsel for the appellant that apart from the statement ascribed to the appellant as to his ownership of the premises, the arresting officer did not make any further investigations to satisfy himself or the Court that the appellant was indeed the owner of the premises. The learned Resident Magistrate rejected the submission and ruled that there was a case for the appellant to answer.
The appellant gave evidence and called a witness on his behalf. He testified that he had recently returned to the Island and was at the recording studio working on an album. A number of his friends and employees were present at the studio and were relaxing after the day's work. He overheard someone say: "a bare police a come up the road".
The appellant said that a number of policemen entered his premises and asked him if he was the owner of the premises to which he replied in the affirmative. He left the verandah and went to the middle of the premises where a conversation took place between the police and himself.
The appellant testified that persons who were on the compound were searched by the police and his licensed firearm and rounds of ammunition were taken from him, He said he demanded that the police leave the premises. There was "a lot of commotion in the yard" and he went and sat under an almond tree.
Cpl. Dodd then came up to him with a large ganja plant in his hand and said to him, "me a charge yu for dis." The appellant said he did not know from where the Cpl. got the ganja plant. He said he was told by the Cpl. that he had found it in the back of the yard. He was taken to Constant Spring Police Station where he was processed and charged.
The appellant also testified that he did not look after the plants at the back of the premises and that the garden was attended to by his gardener whose name was Elder. He also said that several persons were employed by him at this premises and that members of the public had access to the compound. He said he was unaware of the ganja plants at the back of the studio.
Under cross-examination, the appellant said that access to the rear of the premises was "restricted somewhat". A tabernacle and two gardens amongst other things were at the back of the premises. He was unable to recall when was the last time before the 3 rd December that he went to the rear of the premises. He agreed that the garden was well tended but it was "set up" without his instructions. He admitted further under cross-examination that the two gardens at the rear of the premises belonged to him but he did not supervise what took place in them.
The appellant said that number 10 Carlyle Avenue, was not his principal place of business or abode. He disagreed with the suggestion that the back of the premises was private. He agreed that the ganja plant shown to him by Cpl. Dodd would have been easily seen by anyone who went to the back of the premises but he denied that that plant was taken from his garden.
The appellant disagreed that he had accompanied Cpl. Dodd to the rear of the premises. He said he did not see the ganja plants being uprooted and he denied that he told Dodd under caution that they were locking him up for little weed that gave him inspiration to write his music and to enhance his meditation.
The learned Resident Magistrate after hearing full submissions by Counsel, both for the appellant and the Crown, made a number of "findings of fact" on the important issues. He found that the...
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