Rivas (Henry), Infante (Giovanni) v R

• Jurisdiction: Jamaica
• Judge: HARRISON, J.A :
• Judgment Date: 20 December 2002
• Judgment citation (vLex): [2002] 12 JJC 2007
• Date: 20 December 2002
• Court: Court of Appeal (Jamaica)

IN THE COURT OF APPEAL

BEFORE:

THE HON MR. JUSTICE BINGHAM, J.A THE HON MR. JUSTICE HARRISON, J.A THE HON MR. JUSTICE PANTON, J.A

R

v

HENRY RIVAS GIOVANNI INFANTE

Mrs Jacqueline Samuels-Brown for appellants instructed by George C. Thomas

Miss Paula Llewellyn and Miss Christine Morris for Crown

CRIMINAL LAW - Money - Unlawful possession of money - Meaning of "unlawful possession" under the Act - Fatal defect in information - Whether correct test of "reasonable suspicion" was applied - Unlawful Possession of Property Act

HARRISON, J.A :

1 The appellants Henry Rivas and Giovanni Infante were convicted on 14th May 2002, in the Resident Magistrate's Court for the parish of St James held at Montego Bay before the Honourable Resident Magistrate for the said parish of the offence of unlawful possession of money, United States currency, on 21 ^st March 2002, contrary to section 5 of the Unlawful Possession of Property Act. Each was sentenced to four months' imprisonment at hard labour.

2 We heard the arguments of counsel and on 5 ^th August 2002, we dismissed the appeals. We affirmed the conviction and sentence of each appellant and ordered that the sentences should commence as from 25th June 2002. These are our reasons in writing.

3 The facts are that on the 21 ^st March 2001, the two appellants entered the security check-point and passed through the x-ray machine at the Sangster International Airport in Montego Bay in the parish of St James. Cpl Teeshan Gordon, attached to the Narcotics office of the Jamaica Constabulary Force, having observed bulges in the area of the thighs of each appellant got up and walked towards them. The appellant Rivas looked in his direction and hurriedly took off his bag from the x-ray machine. He turned his side to him and spoke to the appellant Infante. The latter also looked in his direction, hurriedly pushed his bag off the x-ray machine and held the said bag in front of his thighs. Cpl. Gordon went up to them and identified himself as a police officer. While doing so, Cpl. Gordon noticed that the appellant Rivas was slowly putting his bag in front of his thighs, at which he was then looking. Being now suspicious, Cpl. Gordon cautioned both appellants and asked them if they had anything unlawful on their person. The appellant Rivas answered in the negative. Rivas said that the appellant Infante could not understand English. Cpl. Gordon told both appellants that he had noticed "... the bulges in their pants" and invited them to the search room.

4 In the room both appellants were searched. Each was wearing a pair of tights underneath his pants.

5 Rivas had in the tights, 21 packets of United States currency, of various denominations, totaling US$205,000.00.

6 Infante had, also in his tights 24 packets of United States currency, also of various denominations totaling US$221,980.00.

7 Asked where they got the money, Rivas said that a man brought it to their hotel room at Holiday Inn, Montego Bay. Rivas spoke to Infante, who responded and Rivas relayed the reply to Cpl Gordon. He took both appellants to the Airport Police Station.

8 At the police station, when questioned further, Rivas said that the money was for a friend of his named "KC" living in Venezuela and who had a house in Miami which house he sold and sent them to Jamaica to collect payment for the house. As each question was asked, Rivas spoke to Infante who replied, after which Rivas spoke to Cpl Gordon.

9 Cpl Gordon made a list of the serial numbers of the currency notes and placed the money in the respective bag which each appellant was carrying, and sealed each in a carton box. The packets of money found on Infante were marked exhibit 1 and those found on Rivas, exhibit 2, at the trial.

10 The appellant Rivas asked to speak to a lawyer. Both appellants and the money were taken to the Montego Bay Police Station. At 8:30 p.m. Mr. Shawn Reynolds, attorney-at-law, arrived and stated that he represented the appellants. He spoke to them in private for about 20 minutes, at the end of which Cpl Gordon advised the appellants that he wished to ask them further questions. Mr. Reynolds, in their presence, stated that he would reply "... on his clients' behalf." When asked, Mr. Reynolds stated, in the appellants' presence that the original owner of the house was one Sonia Mattis who lives in New York and works as a nurse in Venezuela, that the house was located at Cove District in the parish of Hanover (Jamaica), that the purchaser was a man, named Phillips of Queens, New York and that the money had been taken to them, the appellants, at the hotel by one Mr. Uriel Lyons of Green Island, Hanover.

11 On 22nd March 2002, Cpl Gordon went to the Casablanca and Holiday Inn Hotels, Montego Bay, making enquiries and received information.

12 On 22 ^nd March 2002, Cpl Gordon went to Green Island in the parish of Hanover and spoke to one Uriel Lyons who was identified to him by one Sgt McKenzie. Uriel Lyons gave Cpl Gordon certain information. At 2:00 p.m. on the said day, Cpl Gordon returned to the Montego Bay police Station, spoke to both appellants and told the appellant Rivas that he had "... checked into the story given to me and find it to be false." The appellant Rivas retorted:

"What story I did not give you any story. The story I (sic) have the lawyer gave it to you. I did not say that."

13 Cpl Gordon told the appellants that as a result of his investigations he suspected that the money was stolen or otherwise unlawfully obtained. He charged them both for the offence of unlawful possession of property, cautioned the appellant Rivas who responded: "When my lawyer gets here I will give you the real story." The appellant Rivas spoke to the appellant Infante, on Cpl Gordon's instructions.

14 Both appellants appeared before the Court on 25th March 2002, when they were remanded in custody. They appeared before the court on 27 ^th March 2002, 2 ^nd April 2002, 4 ^th February and 8 ^th April 2002.

15 On the latter date the Resident Magistrate heard the evidence of Cpl Teeshan Gordon of the circumstances which reasonably caused him to suspect that the appellants possessed property which had been stolen or unlawfully obtained. This evidence, including the cross-examination, continued on 11 ^th April 2002, and on 15 ^th April 2002 when both appellants were ordered to account to the said Resident Magistrate by what lawful means each came into possession of the monies found in the tights each was wearing.

16 On 26th April 2002, in giving his account, the appellant Rivas stated on oath, inter alia, that he is a mechanic and businessman living in Venezuela and came to Jamaica on 19 ^th March 2002, landing at the Sangster International Airport, Montego Bay. Both Infante and himself stayed in the Casablanca Hotel for one night. They then went to stay at the Holiday Inn Hotel. From there he, Rivas, telephoned in Venezuela, one Rahpael Calderoz, who instructed him to collect US$450,000.00 at the door of his hotel from one Casey, the proceeds of sale of a house "... sold in Florida." He, Rivas, met Casey at the door of the hotel. Another man with Casey handed over to him, in Infante's presence, a bag with money. Fearing that the money would be stolen from them and that they could be killed, the appellants left and stayed at another hotel, the Coyaba on the night of 21 ^st March 2002. He divided the money and placed US$223,000.00 "... inside the pants in the foot of the exercise pants." He and the appellant Infante went to the airport the following morning, in order to depart. With the money on his body, he reached the checkpoint. The female guard at the check-point examined the appellant Infante with a metal detector, both his and Infante's bag went through the x-ray machine. They were asked questions, taken to a room and searched. The money was found on both appellants and also in the suitcase which each man carried. Both appellants were taken to the airport police station, where he first saw Cpl Gordon. The appellant Rivas said that his friend Raphael Calderoz had offered him a free vacation to come to Jamaica to collect the money. He issued no receipt for the money, nor did he receive from Calderoz any document to collect it.

17 The defence called two witnesses Judith Jennings and Sylvia Young security officers at the said airport to give evidence seeking to challenge the credibility of Cpl Gordon. The defence maintained that he could not have had the requisite reasonable cause to suspect the appellants.

18 Judith Jennings stated that on 21 ^st March 2002, by the use of a metal detector, she was "checking passengers coming in." She touched the ankle of each appellant in turn, felt a bulge at the ankle and called her supervisor Sylvia Young who took away both appellants. She said:

"I really can't recall if there was police officer there. I face the passenger and my back turn to the police."

19 Sylvia Young, a supervisor, stated that at the request of the witness Jennings, she "did a body check" in the search room of each appellant and "felt something from the knee going down to the ankle." She asked each to remove his pants and tights, as a result of which she saw "US currency in transparent plastic" fall to the floor. Both appellants were then taken to the police station after which the witness was told by telephone of the amount of money. She made the entry, Exhibit 5:

"... passenger Mr H Rivas and Geovani Infante were detected by security officer Judith Jennings and checked by V/L Sylvia Young of the security check point and US$450,000.00 was found on their bodies."

20 The appellant Infante also gave evidence of being a businessman from Venezuela, who came to Jamaica on 19 ^th March 2002, with the appellant Rivas, as a party to the arrangement with Calderoz to collect the money for the sale of the house in Florida and a...