R v Tucker

• Jurisdiction: Jamaica
• Judge: Smith, J.A.
• Judgment Date: 12 March 1971
• Neutral Citation: JM 1971 CA 23
• Docket Number: Not Stated
• Court: Court of Appeal (Jamaica)
• Date: 12 March 1971

Court of Appeal

Luckhoo, J.A.; Smith, J.A.; Hercules, J.A.

Not Stated

R.

and

Tucker

Appearances:

F.M. Phipps, Q.C., and Miss B. Walters for the appellant.

J.S. Kerr, Q.C., D.P.P., and P. Robinson for the Crown.

Cases referred to:

• (1) R. v. Yee Loy (1941), 4 J.L.R. 53.

• (2) Edwards v. Jones, [1947] 1 All E.R. 830; [1947] E.B. 659; 111 J.P. 324; 45 L.G.R. 324, D.C.

• (3) R. v. Campbell, [1956] 2 All E.R. 272; [1956] 3 W.L.R. 219; [1956] 2 Q.B 432; 120 J.P. 359; 100 Sol. Jo. 454; 40 Cr. App. Rep. 95, C.C.A.

• (4) Brangwynne v. Evans, [1962] 1 All E.R. 446; [1962] 1 W.L.R. 267; 126 J.P. 173; 106 Sol. Jo. 197, D.C.

• (5) R. v. Motto, [1920] Clark's Repts. 69 [J.].

• (6) R. v. Ashbourne JJ., Ex parte Naden (1950), 94 Sol. Jo. 148; 48 L.G.R. 268, D.C.

• (7) Lawrence v. Same, [1968] 1 All E.R. 1191; [1968] 2 W.L.R. 1002; [1968] 2 Q.B. 93, D.C.

• (8) R. v. Salomon (1786), 1 Term Rep. 249; 99 E.R. 1077.

• (9) R. v. Chandler (1811), 14 East, 267; 104 E.R. 603.

• (10) R. v. Dunmow JJ., Ea parte Anderson, [1964] 2 All E.R. 943; [1964] 1 W.L.R. 1039; 128 J.P. 468; 108 Sol. Jo. 179, D.C.

• (11) R. v. George Green (1969), 14 W.I.R. 204.

• (12) R. v. Paneford Wilson (1970), p. 1, ante.

• (13) R. v. Armstrong and Smith (1970), p. 302, ante.

Criminal Law - Procedure — Trial of appellant at same time on two informations charging same offence — One information charging appellant alone with possession of ganja — Another information charging appellant and another accused jointly with possession of ganja — No prejudice occasioned appellant by trial of both informations at the same time — No legal objection to both informations being tried together — Dangerous Drugs Law — Possession of ganja — Nature of proof necessary to show that substance found in possession of accused is ganja within the contemplation of the Dangerous Drugs Law, Cap. 90 [J.].

1 Smith, J.A., delivered the judgment of the Court: The appellant was convicted on June 4, 1970, in the resident magistrate's Court for the parish of Clarendon, on an information which charged him with having ganja in his possession on February 2, 1970, contrary to s.7(c) of the Dangerous Drugs Law, Cap. 90 [J.]. He was sentenced to imprisonment with hard labour for three years. He has appealed against his conviction and sentence.

2 The appellant, who is a citizen of the United States of America, was charged and tried on two informations. On the first he was jointly charged with Dave Martin, also a citizen of the United States of America, with the offence of having ganja in his possession on February 2, 1970. On the second he was charged alone with a similar offence allegedly committed on the same date. There was a joint trial of these two informations with four others. One of these others charged Dave Martin jointly with seven Jamaican citizens with having ganja in their possession on February 2, 1970. The remaining three charged Martin and two of the Jamaican citizens separately with using a motor-car to transport ganja on the same date. The appellant was conviction the information on which he was charged alone. Martin and his co-defendants were each convicted on the information on which they were jointly charged. No verdict was recorded on the information which charged the appellant jointly with Martin. Of the other persons convicted, only Martin gave notice of appeal, but he has not pursued it.

3 On the night of February 1, 1970, a party of policemen led by Det. Superintendent Jez Marston, acting on information, went to Vernam Field in Clarendon and lay in ambush around a disused airfield there. At about 4.30 a.m. on February 2, a motorcade of four motor cars arrived at the airfield. Ten men came from the motor cars, unloaded ten crocus-bags from the boots of the four motor cars, and placed them under a tree nearby. The ten men included Martin and the seven Jamaicans charged with him. At about 6.15 a.m. a small am-plane landed. Martin went on to the runway and signalled with his arms. The aeroplane stopped beside him and near to the place where the crocus-bags were put. The appellant alighted from the aeroplane. The prosecution's case was that the appellant and Martin spoke together after the appellant alighted. Martin then “rushed” to the spot where the bags were. He took up two of the crocus bags and “rushed” back with them to the appellant, who took them and I threw them into the aeroplane. Martin “rushed” back for two more bags and took them to the appellant, who received them and put them also into the aeroplane. Martin went back for another bag. He and others were taking the remaining six bags towards the aeroplane when the police came out of ambush and rushed towards them. The appellant and the other defendants were held and subsequently charged as indicated above.

4 The four crocus-bags which it was alleged were put into the aeroplane by the appellant, were removed from it by the police. These and the other six bags were opened in the presence of the appellant and the other defendants. Each bag was found to contain a number of packages. Two of the tour bags removed from the aeroplane were returned to it. The other eight bags and their contents were subsequently taken to the Government chemist, Dr. Alton Ellington for examination and analysis. Dr. Ellington found that each of seven bags had four brown paper parcels and the eighth had three such parcels. Each parcel contained vegetable matter. The vegetable matter in each varied in weight from 10 ¹/₂lbs. to 9 ¹/₂ lbs. He took a sample from each parcel, and after examination and analysis, he was of the opinion that the vegetable matter he examined was ganja.

5 The appellant's first ground of appeal is as follows :

“The learned resident magistrate erred in law in ruling that informations Nos. 630/70 and 1264/70 should be tried together. It is submitted that the allegations of fact related to one act of possession and there ought not in the circumstances to be two informations for the same offence. It is further submitted that at common law, two informations, whether or not for the same offence, cannot be tried together, and the provisions of s.22(2) of the Criminal Justice (Administration) Law, Cap. 83, could not apply to this case as the defendant/appellant was not charged with two or more offences as provided for in the section.”

6 Information No. 630/70 charged the appellant jointly with Martin and on No. 1264/70 he was charged alone.

7 It is admitted by the Crown that both informations were in respect of the same act of possession. In other words the appellant was charged twice with the same offence. Objection to this was taken at the start of the trial by counsel for the appellant after counsel for the prosecution had opened the case and asked for joint trial of all the charges. The reason for the duplication of the charge was given by counsel for the prosecution at the end of the prosecution's case when counsel for the appellant asked that the prosecution be made to elect on which of the informations they were asking for a verdict. Counsel for the prosecution, as appears on the record, said that the prosecution's case was that the appellant and Martin were in joint possession of the four bags loaded on to the aeroplane; that Martin had also been charged with the others apart from the appellant, with possession of eight bags; and that the independent charge against the appellant was laid because there was some doubt “as to whether the prosecution could properly ask for ‘no verdict’ to be entered against Martin on the joint charge.” Later counsel said that the charges were preferred against Martin and the appellant in the alternative.

8 Before us, learned counsel for the appellant repeated the submissions made in the first ground of appeal and expanded on them. He submitted that at common law, two informations charging one or more individuals cannot be tried together even with the consent of the parties. Reference was made to R. v. Yee Loy (1); Edwards v. Jones (2); R. v. Campbell (3); and Brangwynne v. Evans (4). It was submitted that s.22 of the Criminal Justice (Administration) Law, Cap. 83 [J.], creates an exception to the common law rule, but that the exception does not cover the present situation in that the charges against the appellant are not for different offences. It was said that the situation can be rescued only if the case can be brought within s.22 and since it cannot, the conviction must be quashed.

9 On behalf of the Crown, it was contended that the joint trial of the two informations against the appellant was authorised by s.22(2)(b) of the Criminal Justice (Administration) Law. Subsection (2) of s.22 of that Law is in the following terms:

• (2) Where, in relation to offences triable summarily

• (a) a person is charged with two or more offences arising out of acts so connected as to form the same transaction; or

• (b) a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, and a person is charged with each or any of such offences,

10 such charges may be tried at the same time unless the Court is of the opinion that such person is likely to be prejudiced or embarrassed in his defence by reason of such joinder.

11 In our view, the case under consideration does not fall within the provisions of para. (b) of sub-s. (2). We think that para. (b) contemplates several different or separate offences arising from a single act or series of acts. We are concerned here with a single act of possession which has been made the subject of two charges for one and the same offence. The fact that the appellant was charged jointly with Martin for possession of ganja does not make this offence different from that with which he was charged singly. Where a person commits an offence jointly with another, he may be charged either...