Stephen Dawkins v R v Joseph Dawkins v R

JurisdictionJamaica
JudgeMacgregor, CJ.
Judgment Date10 April 1961
Neutral CitationJM 1961 CA 5
CourtCourt of Appeal (Jamaica)
Date10 April 1961

Court of Appeal

MacGregor, C.J., Semper, J.A.; Duffus, J.A.

Stephen Dawkins
and
R
Joseph Dawkins
and
R
Appearance:

David Coore QC for the appellant Stephen Dawkins

Dudley Thompson for the appellant Joseph Dawkins

FG Smith for the Crown

Criminal Law - Dangerous drugs — Possession of ganja

Evidence - Possession of ganja — Claim of privilege — Non-disclosure of name of police informer.

Macgregor, CJ.
1

read the reasons for the judgment of the court: The appellants Stephen Dawkins and Joseph Dawkins together with three other persons were convicted by the Resident Magistrate, Clarendon, on informations charging each with being in possession of ganja. After hearing counsel for the appellants the court dismissed the appeals, promising to put its reasons in writing.

2

On 15 November 1960, the police at May Pen, Clarendon, having received information, set out in two motor cars for Breadnut Bottom. The first car which contained Constables Pugh and Edwards, was driven by the informer. The second car which followed the first, contained among others Sgt Duncan. At Breadnut Bottom the first car stopped and picked up three men, including Gladstone Brown. The car was directed by Brown to proceed and shortly after came to where a van was parked by the side of the road with the appellant Stephen Dawkins sitting on the right front fender and another man at the steering wheel. The police cars passed the van, turned, and parked 15 yards behind it. The time was about 7 pm

3

The informer, Brown and the other two men who were picked up on the way, went to meet the appellant Stephen Dawkins, the informer taking a grip with him which he placed on the bonnet of the van. It was opened and examined by means of a flashlight whereupon the appellant Stephen Dawkins said: “All right, you go for the stuff.” Brown and other left along a side road, which incidentally leads to the home of the Dawkins' family, and half an hour later the various accused persons were seen to return, carrying bags of ganja. The bags were placed on the road, whereupon the appellant Stephen Dawkins lifted three of them as if testing their weights. The informer said: “I hope you give me good stuff, “to which Stephen Dawkins replied: “Yes, this is good stuff.“Joseph Dawkins, who apparently was one of those who helped to bring out the bags, lifted one and carried it to the police car. The lights of the police car were turned on and all the accused persons were held, except Stephen Dawkins, who fled and escaped.

4

The appellant Stephen Dawkins denied that he had taken any part in the ganja transaction or that he was there at the relevant time. He admitted that he had been in the van but said that he had gone there on his way to look at a sick cow. Before he left the van he saw two cars approach, one of which he knew. They passed, turned, and stopped. But by that time he had left, or was on the point of leaving to go to his place to see the cow. He went eight chains, turned into a yard and saw the cow. After half an hour he heard people talking about police and they told him that the police had carried out a raid. He returned to the road but everybody had left.

5

Constable Pugh was the first witness. In cross-examination he was asked:

6

‘Who was the driver of your car?” to which he replied: “I claim privilege.’

7

In answer to the court he stated – “I claim privilege on ground that he was an informant.”

8

The Resident Magistrate then upheld the claim of privilege and the witness was not required to answer.

9

On appeal two points were taken:

  • (i) that the learned Resident Magistrate wrongly excluded the evidence which would have disclosed the identity of the informer; and

  • (ii) that the appellant Joseph Dawkins was a servant of the owner of the ganja and as such was not in legal possession of it.

10

We will deal first with the question of privilege. In Archbold 34th Edn, para 1346, appears the following statement: - ‘It is the usual practice not to press a police witness for the names of persons on whose information he has acted in the detection of crime, unless the evidence is directly material or necessary in the interests of the prisoner.’

11

In Marks v Beyfus (1), Lord Esher MR, stated ( 25 QBD at p 498):

‘What, then, is the rule as to the disclosure of the names of informants, and the information given by them in the case of a public prosecution? In the case of A G v Briant (2), Pollock CB, discussing the case of R v Hardy (3), says that on all hands it was agreed in that case that the informer, in the case of a public prosecution, should not be disclosed; and later on in his judgment, Pollock CB, says: ‘The rule clearly established and acted on is this, that in a public prosecution a witness cannot be asked such questions as will disclose the informer, if he be a third person … and we think the principle of the rule applies to the case where a witness is asked if he himself is the informer.’ Now, this rule as to public prosecutions was founded on ground of public policy, and if this prosecution was public prosecution the rule attaches; I think it was a public prosecution, and that the rule applies. I do not say it is a rule which can never be departed from; if upon the trial of a prisoner the judge should be of opinion that the disclosure of the name of the informant is necessary or right in order to show the prisoner's innocence, then one public policy is in conflict with another public policy, and that which says that an innocent man is not to be condemned when his innocence can be proved is the policy that must prevail. But except in that case, this rule of public policy is not a matter of discretion; it is a rule of law, and as such should be applied by the judge at the trial, who should not treat it as a matter of discretion whether he should tell the witness to answer or not.’

Bowen LJ, said (ibid, at pp 499, 500):

‘The only question which remains for our decision is, whether the Director of Public Prosecutions was right in objecting to answer the questions put to him, and whether the judge was right in saying that on grounds of public policy he ought not to be asked to disclose the name of his informant. That depends upon whether this was a public prosecution; if so, then neither upon the criminal trial nor upon any subsequent civil proceedings arising out of it, ought the Director of Public Prosecutions, upon grounds of general policy, to be asked to disclose the name of his informant. The only exception to such a rule would be upon a criminal trial, when the judge if he saw that the strict enforcement of the rule would be likely to cause a miscarriage of justice, might relax it in favorem innocentiae; if he did not do so, there would be a risk of innocent people being convicted.’

And lastly, before parting from the case we...

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