R v Outar (Roy), Jonathan Outar, Ralph Outar, Trevor Outar and Randal Titus

• Jurisdiction: Jamaica
• Judge: RATTRAY, P. (Dissenting): , HARRISON, J.A. , LANGRIN, J.A. , RATTRAY, P.
• Judgment Date: 30 July 1999
• Neutral Citation: JM 1999 CA 53
• Judgment citation (vLex): [1999] 7 JJC 3004
• Court: Court of Appeal (Jamaica)
• Date: 30 July 1999

IN THE COURT OF APPEAL

COR:

THE HON. MR. JUSTICE RATTRAY, P THE HON. MR. JUSTICE HARRISON, J.A THE HON. MR. JUSTICE LANGRIN, J.A. (AG.)

R.

v.

ROY OUTAR JONATHAN OUTAR RALPH OUTAR TREVOR OUTAR RANDAL TITUS

Deborah Martin & Carolyn Reid

Ian Ramsay, Q.C.

Jacqueline Samuels-Brown

Delano Harrison & Robin Smith

Kent Pantry, Q.C. & Sonya Wint

CRIMINAL LAW - Dangerous drugs - Trafficking - Joint operation - Mutual Assistance (Criminal Matters) Act

RATTRAY, P. (Dissenting):

1 The issues raised in this appeal range over a wide area of facts as well as of law. By the time of the hearing of the appeal, the appellant Trevor Outar had died. Reference to him therefore is for the purpose only of providing a full narrative of the events.

2 The evidence given before the Resident Magistrate, was to the effect that one Robert Erickson, a citizen and resident of the United States of America visited Jamaica in April 1991 and met with Ralph Outar o/c "Washy," Jonathan Outar and Roy Outar o/c "Buna." The Outars are brothers. It is apparent that he sought out the brothers. They made an arrangement whereby the Outars would supply ganja and Erickson would arrange transportation, that is an aeroplane and pilot, for the movement of a minimum of 1000 lbs of ganja from Jamaica to the United States of America. The ganja was to be flown from an airstrip in South Manchester. Within a day or two Erickson returned to the United States of America and spoke to agent John Burns of the Drug Enforcement Agency of the United States Government reporting to him what had transpired. Acting on specific instructions from agent Burns, Erickson telephoned Jonathan Outar from the United States and they agreed that in order to make up the 1000 pounds Jonathan could supplement the cargo with 30 pounds of marijuana oil, a by-product of ganja.

3 There were subsequent telephone conversations between Jonathan Outar and Erickson and sometimes the phone would be answered by Ralph or Roy Outar. After each conversation Erickson would report to D.E.A. agent Burns.

4 In June 1991 Erickson returned to Jamaica and spoke to the brothers Outar at a garage near Mandeville. In reference to the only conversation with Jonathan, he stated - "We spoke about the load specifically the problems of getting it together." On returning to the United States of America, Erickson reported to D.E.A. agent Burns.

5 On the 11th September, 1991 Erickson returned to Jamaica and met the Outar brothers. Jonathan told him "that they were having trouble getting the airstrip ready and that the airstrip was quite hot." The reference was to the South Manchester airstrip originally proposed. Jonathan said "that he had made arrangements with the "Big Man" to use Vernamfield, another location, as the airfield from which to stage the load of ganja to export it to the United States of America." They further made arrangements for Erickson's pilot to come to Jamaica to inspect that airstrip. Erickson reported to agent Burns as usual, and agent Paul Pitts of the D.E.A. an airplane pilot based in Tampa Florida came to Jamaica. Along with Roy Outar and Erickson, Pitts went to Vernamfield and inspected the airstrip there. Pitts approved the airstrip. Roy Outar said that the load would be ready in ten days or two weeks.

6 As nothing further happened, about a month later Erickson spoke on the phone to Jonathan Outar who told him "that the 'Big Man' has been having some problems with the airstrip." This was duly reported by Erickson to Agent Burns. Erickson returned to Jamaica the first week of November 1991. He then met with the three Outar brothers.

7 Early next morning on the 11th November about 4.00 a.m. in the company with another Outar brother, introduced as Trevor, they travelled in a car to Vernamfield. At the trial Trevor was pointed out in a dock identification. By arrangement Jonathan and Ralph along with Erickson went to a cow pen adjoining the airstrip. Roy and Trevor were supposed to be on the airstrip assisting in the loading of the plane. At various times they would drive into the cow pen and say a few words and on those occasions Erickson said he saw them. In the cow pen Erickson was introduced by Jonathan to a person in a dark Toyota pick-up, identified as the appellant Randal Titus, who was referred to as the "Big Man" or "Titus". Titus said to Jonathan - "Jonathan, you know this man good?" referring to Erickson. Jonathan replied "Yes man dem boy know him long time." Then Titus said "because man a go dead if things no right." Titus had a radio which he used for monitoring. He told Erickson that there were soldiers on the airstrip and under no circumstances could the plane land and that he should order the plane to turn back. Erickson complied with his request. Erickson spoke with pilot Pitts on a hand radio. The venture was thus aborted.

8 Erickson returned to Kingston where he spoke with agent Burns by telephone. Erickson told Jonathan to re-schedule the trip for two days later but Jonathan said it would be a big problem because they had made arrangements for the soldiers to be taken care of the very next day, Erickson insisted that it would have to be done two days later.

9 On the 13th November, 1991, the Outar brothers and Erickson met and Jonathan said that the problem of the soldiers had been taken care of and that the soldiers would even load the plane at about 4.00 a.m. in the morning if necessary.

10 On that morning Jonathan, Titus and Erickson went to the cow pen. Titus said everything was fine. At about 5.45 a.m. the plane arrived and landed. It took off in about five minutes after Erickson spoke to the Pilot on the radio.

11 All the relevant parties then went to the house of the Outars' sister where Jonathan told Erickson that the final count of the load was in 28 bales weighing 1200 plus pounds. It was arranged that if everything was alright Roy would go to Miami with Jonathan that night and would be in contact with people in the United States of America to take delivery of the Outars' share. Erickson returned to Kingston and spoke to agent Burns later that day. He then called Jonathan and told him everything was alright and that "they had gotten to the U.S.A."

12 Roy and Erickson travelled up to the United States of America. In Miami they spoke about effecting delivery in the U.S.A. Erickson told him to be ready with transport to pick up their share of the load and to meet him in Panama City, Florida on the following day. They parted company. Next day Agent Burns and Erickson waited in a hotel for Roy in Panama City but he did not turn up.

13 Erickson telephoned Roy who told him that he was having a problem with transportation and asked if he could effect delivery in Miami. Erickson said he could not do that, but for $10,000 Roy could use one of Erickson's vans and bring it down himself. Roy said he would make alternative arrangements and that he would come to Panama City. Erickson told him that the transfer was taking far too long and gave him the telephone number of Burns, also that when he was ready he could call the number and "Burnsey would effect the transfer". Erickson left and went to New York.

14 After this, Erickson spoke to Jonathan who told him Roy was having problems effecting the delivery in the United States of America and asked him if he could do it. He told Roy that he could not handle it. Jonathan subsequently told Erickson that Roy "has become scared" and had left the area and asked if he could possibly sell the product up there and just give him the money. After consultation with Bums, he told Jonathan that he would. He agreed to give him US$375,000 and instructed Jonathan to make arrangements for a man to pick up the down payment of US$200,000 within a couple of weeks in Jacksonville, Florida. A couple weeks later Erickson spoke with agent Burns. Consequent on this, Erickson told Jonathan to have his people meet him at Jacksonville Airport to pick up the US$200,000 "that has been promised as the down payment." He met with Jonathan at the Avis Rent-A-Car counter at Jacksonville Airport and gave him a combination locked briefcase which contained a couple of heavy phone books. Erickson subsequently gave a statement to the Jamaican Police. This was the state of the evidence after Erickson had completed his evidence in chief.

15 Under cross-examination it emerged that Erickson was an informant for the Drug Enforcement Agency of the United States at the time of the relevant occurrences. A University graduate he claimed to be a part-time teacher. He maintained - 1 am sincere and truthful to the Court. Everytime I lied it was for the furtherance of justice and law." At the time he came to Jamaica in April, 1991 he was on bail in the United States of America having pleaded guilty to, and awaiting sentence on charges of smuggling marijuana and cocaine from Colombia. By the time of the trial of the instant case in Jamaica he was serving a sentence of seven (7) years imprisonment in the United States of America for the offences for which he had been charged. After the plane load of ganja had left Jamaica and arrived in the United States of America he made a report in the United States of America to the Jamaican Police. His expenses after the fact were paid by the Drug Enforcement Agency.

16 After several days of hearing and whilst under cross-examination the following further facts emerged:

• 1. That Robert Erickson was a fictitious name and he was in fact one Robert Moore.

• 2. That he was a Jamaican who had become a naturalized citizen of the United States of America.

• 3. That he was an international drug smuggler who practiced deception. Between 1989 and 1993 his drug smuggling activities had taken him to the Bahamas, Sara Uevo in Yugoslavia, the United Kingdom, Jamaica, Sydney in Australia Brisbane in Australia, Kenya and Zimbabwe in Africa, Fiji and Hawai in the...