Valdano Smith v R

• Jurisdiction: Jamaica
• Judge: Fraser JA
• Judgment Date: 29 September 2020
• Neutral Citation: JM 2020 CA 136
• Date: 29 September 2020
• Court: Court of Appeal (Jamaica)
• Docket Number: PARISH COURT CRIMINAL APPEAL NO COA2019PCCR00015

[2020] JMCA Crim 46

IN THE COURT OF APPEAL

Before:

THE HON Miss Justice P Williams JA

THE HON Miss Justice Straw JA

THE HON Mr Justice Fraser JA

PARISH COURT CRIMINAL APPEAL NO COA2019PCCR00015

Valdano Smith

and

R

Kemar Robinson for the appellant

Orett Brown and Daniel Kitson-Walters for the Crown

Fraser JA

Introduction

1 By this appeal the appellant, Valdano Smith, seeks to set aside his conviction and sentence for the offence of possession of cocaine contrary to section 8B(1) of the Dangerous Drugs Act. He stood trial for this offence together with his co-accused Anthony Robinson before the Parish Court for Kingston and Saint Andrew (Criminal Division). His co-accused was also tried for the offence of trafficking in cocaine. The trial commenced on 22 May 2018. On 12 April 2019 the appellant and his co-accused were both found guilty of the offence of possession of cocaine and his co-accused was additionally found guilty of trafficking in cocaine.

2 On 28 June 2019 the appellant was sentenced to pay a fine of $1,000,000.00 or imprisonment for nine months at hard labour. His co-accused was also sentenced to pay a fine of $1,000,000.00 or imprisonment for nine months at hard labour on the charge of possession of cocaine. In respect of the offence of trafficking in cocaine, his co-accused was sentenced to nine months' imprisonment at hard labour suspended for two years.

3 The appellant was initially also charged together with his co-accused for the offence of conspiracy to export cocaine contrary to common law. However, after they were sentenced as indicated on 28 June 2019, the Crown offered no evidence against them both for that offence. They were accordingly found not guilty of the offence of conspiracy to export cocaine by the learned Judge of the Parish Court (LJPC) and discharged for that offence.

The grounds of appeal

4 The appellant filed four grounds of appeal:

• a. “The learned [Judge of the Parish Court] erred when she did not uphold the no case submission on behalf of the Appellant therefore denying the Appellant a not guilty verdict;

• b. The learned [Judge of the Parish Court] erred when she relied on the evidence of the appellant's co accused as the basis to convict the Appellant;

• c. The evidence does not support a verdict of guilty. The learned [Judge of the Parish Court] failed to properly assess the evidence and arrive at a verdict based on the evidence adduced; and

• d. The learned [Judge of the Parish Court] failed to take into consideration the good character of the Appellant in determining her verdict and though brief mention was made this was insufficient in law.”

The trial

The Crown's case

5 On 22 January 2016, Detective Sergeant (Det/Sgt) Pencle of the Major Organized Crime and Anti-Corruption Branch (MOCA) received a briefing at MOCA from Detective/Superintendent Anderson, Director of Operations at MOCA, in relation to a possible narcotics operation. Det/Sgt Pencle then, in turn, briefed a team of three other police personnel comprising Detective/Corporal Denzil Willie, (Det/Sgt) Berry and (Det/Sgt) Barnett. After this briefing, Det/Sgt Pencle and the team left MOCA together in an unmarked service vehicle and travelled to Hampton Green, Saint Catherine. There, Det/Sgt Pencle observed the appellant who was not previously known to him, boarding a black Toyota Delta motor car. Det/Sgt Pencle did not see the appellant with anything when he saw him board the Toyota motor car. The appellant drove off. Det/Sgt Pencle followed the appellant to March Pen Road, Saint Catherine. The appellant stopped under a tree next to a blue Honda CRV motor car that was along the roadway. Det/Sgt Pencle lost sight of the appellant. However, he saw when the Honda CRV motor car drove off towards Kingston. Det/Sgt Pencle followed the Honda CRV to White Marl, Saint Catherine and then to the drop off area at the Norman Manley International Airport (NMIA).

6 Det/Sgt Pencle observed a uniformed police officer approach the Honda CRV motor car and speak and gesticulate to the occupants. Det/Sgt Pencle noticed that the appellant was seated in the front passenger seat and the appellant's eventual co-accused whom he, Det/Sgt Pencle, also did not know before, was seated in the driver's seat.

7 After four minutes of observation Det/Sgt Pencle and his team approached the Honda CRV motor car. Det/Sgt Pencle told the appellant and his co-accused that he had reason to believe they possessed drugs inside the vehicle. The appellant and his co-accused were asked to exit the vehicle. They complied and were searched. They were asked if there was anything illegal inside the vehicle. The appellant said he had nothing to declare and not that he was aware. The co-accused said go ahead and ‘do your thing’. The car was searched in the presence of both the appellant and the co-accused by Detective/Corporal Willie. A travel bag was found on the back seat of the car behind the driver's seat. The bag containing 20 parcels of cocaine weighing 21 pounds 15.51 ounces in total.

8 Detective/Corporal Willie asked the co-accused to whom the bag belonged and he responded he did not know. When the appellant was asked if the package belonged to him, he replied that the bag did not belong to him. The co-accused subsequently said they were coming from March Pen where the appellant had placed the bag into the car. The appellant, the co-accused and the officer Constable Dyke, who had come up to the Honda CRV and spoken to the appellant and the co-accused,...