Serratos (Oscar) v R

• Jurisdiction: Jamaica
• Judge: PANTON, J.A.
• Judgment Date: 28 July 2006
• Neutral Citation: JM 2006 CA 34
• Judgment citation (vLex): [2006] 7 JJC 2802
• Court: Court of Appeal (Jamaica)
• Date: 28 July 2006

JAMAICA

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE PANTON, J.A THE HON. MR. JUSTICE K. HARRISON, J.A THE HON. MRS. JUSTICE McCALLA, J.A. (Ag.)

OSCAR SERRATOS

v.

R

Mrs. Jacqueline Samuels-Brown instructed by Tom Tavares-Finson, for the appellant.

Herbert McKenzie, Asst. Director of Public Prosecutions and Jeremy Taylor, for the Crown.

DANGEROUS DRUGS - Possession

PANTON, J.A.

1 1. After hearing submissions in this matter on April 13 and 14, 2005, we allowed the appeal, quashed the convictions and set aside the sentences. We also entered a judgment and verdict of acquittal in respect of each charge. At the time of the announcement of our decision, we gave our reasons for judgment orally, with a promise to reduce them into writing. This we now do.

2 2. The appellant was convicted by Her Hon. Miss Carolyn Tie sitting in the Resident Magistrate's Court at Montego Bay, St. James, of the following offences:

• (i) unlawful possession of cocaine;

• (ii) unlawful dealing in cocaine; and

• (iii) unlawfully importing cocaine into Jamaica.

3 In respect of each offence, he was fined $500,000 or six months imprisonment, and in addition ordered to serve a "mandatory sentence" of four years imprisonment. The sentence imposed for importing was however, ordered to run consecutive to that for possession. Her Hon. ordered that if the appellant failed to pay the fine imposed for dealing in cocaine, the alternative sentence as well as the "mandatory sentence" of four years were to run concurrently with the sentences for possession and importing.

4 3. On October 14, 2003, the appellant was the pilot of a private aircraft, an Air Commando jet, that landed at the Sangster International Airport, Montego Bay, at approximately 10:50 a.m. With him on the flight were three other men (his co-pilot and two passengers). After the pilot and copilot had had a conversation with a female employee of one of the agencies at the airport, a truck drove beside the aircraft and the latter was re-fuelled. At about 12:45 p.m. when the appellant and his companions were about to re-embark, Det. Sgt. Dennis McKenzie and other police officers who had been observing the occurrences accosted and told them that the police had information that the aircraft had dangerous drugs aboard. The appellant was the only English- speaking person in the party, and acted as interpreter during the subsequent conversations and events. Under caution from Det. Sgt. McKenzie, the appellant said that they were en route from Venezuela to Honduras and then to Mexico City, and had stopped to refuel. The appellant, in respect of the suspicion that drugs were on board, told the officer to "go ahead and search".

5 4. Det. Sgt. McKenzie, assisted by a sniffer dog, conducted a thorough search of the aircraft. Nothing of interest was found on the inside. The baggage section on the outside was searched after the appellant produced a key which opened a small door to it. The suitcases of the appellant and his companions were searched, but nothing was found. Sgt. McKenzie noticed that in the forward section of the luggage area was "a piece of panel" that "had screws and appeared to be tampered with". He noticed also that "there were marks on it around the screws and they looked freshly screwed". The appellant, when asked what was behind the panel, said, "nothing". He assisted in the search by retrieving a screwdriver from inside the aircraft, and used it to pull the screws from the panel. There were two other pieces of panel below the one referred to earlier. On the third one was a piece of paper on which were the words, "Fuel High Pressure". The appellant was reluctant to remove the paper, saying that it meant danger. He also pointed to the fact that it was getting dark and said that he wanted to leave because he did not wish to be caught by bad weather. Det. Sgt. McKenzie thereupon used the screwdriver to remove the panel. He found two hundred and ninety-four packages of cocaine secured with brown masking tape. The men denied knowledge of the contents. By this time, the search had lasted for four and a quarter hours. They were all arrested and, at the trial, the appellant was convicted while the others were acquitted.

6 5. In answering the charge, the appellant made an unsworn statement. He said he lived in Mexico City, and was employed by Starflight Management as a pilot. He said that he was given the plane to fly after it had been parked without supervision for one day at the airport at Marquetia, and five days at the airport in Caracas, Venezuela. The cocaine, he said, was found in a section of the aircraft that is exclusively accessible to the mechanic. He also said that he had noted that when the learned Resident Magistrate was ruling on the no case submission, she had said that he had guilty knowledge. However, he insisted that he was innocent.

7 6. The learned Resident Magistrate gave reasons for her decision. This is a desirable practice. A mere statement of the Court's findings of facts may appear attractive, as that is all that is required by the Judicature (Resident Magistrates) Jurisdiction Act. However, an accused person is entitled to know the reasons for the recording of a conviction against him, unless the circumstances are so obvious that he ought to know. The Resident Magistrate identified the issue for determination thus:

"The issue for the Court was whether the prosecution had proved its case. There is no dispute that the cocaine was found on the aircraft. The issue is whether Mr. Serratos had knowledge of the presence of the substance."

8 She then proceeded to indicate that in arriving at her verdict no reliance was being placed on the "question and answer documents" that were admitted into evidence. The decision was based strictly on the evidence of what had transpired at the Sangster International Airport. The learned Resident Magistrate then went on to state that she was satisfied that the...