Yannick Pelage v PC 785 Mario Chicquot

THE EASTERN CARIBBEAN SUPREME COURT IN THE COURT OF APPEAL SAINT LUCIA SLUMCRAP2023/0002 BETWEEN: YANNICK PELAGE Appellant and PC 785 MARIO CHICQUOT Respondent Before: The Hon. Mde. Vicki Ann Ellis Justice of Appeal The Hon. Mr. Trevor M. Ward Justice of Appeal The Hon. Mr. Eddy D. Ventose Justice of Appeal Appearances: Mr. Horace Fraser for the Appellant Ms. Kelly Thomson, Deputy Director of Public Prosecutions, for the Respondent _______________________________ 2025: January 16 May 8. _______________________________ Magisterial Criminal Appeal – Appeal against conviction and sentence by the learned magistrate – Appellant found guilty of Offences contrary to the Customs (Control and Management) Act, Cap. 15.05 of the Revised Laws of Saint Lucia 2023 and the Fisheries Regulations under the Fisheries Act, Cap. 7.15 of the Revised Laws of Saint Lucia 2023 - Departing Saint Lucia without valid clearance - Fraudulent possession of restricted goods (conch, lobsters, sea urchins) - Failure to declare goods for export - Possession of sea urchins without permission - Arriving in Saint Lucia at a non-customs port - Possession of undersized and egg-bearing lobsters – Procedural irregularity - Whether the learned magistrate failed to consider the appellant’s written no-case submission before delivering her decision - Strict liability offences - Whether the learned magistrate erroneously treated the offences as strict liability offences –– Sufficiency of evidence - Whether there was sufficient evidence to support the convictions - – Sentencing irregularity - Whether the learned magistrate erred in sentencing the appellant without inviting a plea in mitigation On 29th November 2017, Mr. Yannick Pelage, the appellant, was the captain of the vessel "Be Yourself" seen in Saint Lucia waters near the Rodney Bay Marina. The vessel was stopped by Marine Police Officers, and, after questioning, the appellant was arrested along with a female occupant, Ms. Duplessis. The appellant was charged with the following offences under the Customs (Control and Management) Act and Fisheries Regulations: (1) Departing Saint Lucia without valid clearance (SLUCRD2018/0034); (2) Fraudulent possession of restricted goods (conch, lobsters, sea urchins) (SLUCRD2018/0034A); (3) Failure to declare goods for export (SLUCRD2018/0034B); (4) Possession of sea urchins without permission (SLUCRD2018/0034C); (5) Arriving in Saint Lucia at a non-customs port (SLUCRD2018/0035); and (6) Possession of undersized and egg-bearing lobsters (SLUCRD2018/0035A). The prosecution’s evidence was that on 29th November 2017, the Police Marine Unit was on patrol near the Rodney Bay Marina. On board were Police Officers Cpl. Milton Antoine, Police Constable Leonnard Lionel and Police Constable Mario Chicquot. They observed two vessels exiting the marina. One was a tender conveying cruise ship passengers to a cruise ship; the other was a gray and black vessel named "Be Yourself" with French registration FF697024, which was being piloted by the appellant. The officers decided to conduct a routine boarding of the appellant’s vessel. According to the evidence of PC Lionel, routine boarding entails ensuring that the vessel was equipped with safety equipment, ensuring that there were no irregularities with the vessel, ascertaining the reason for the vessel’s journey and the contents of the vessel. PC Milton Antoine brought the police vessel alongside the appellant’s vessel and signalled it to stop. The officers boarded and observed that there was another person on board. Upon request, the appellant identified himself as Yannick Pelage and stated that he was from Fort-de-France, Martinique. The other person was Ms. Sansha Poleon- Duplessis, a Saint Lucian National. The officers observed that there were several white polythene bags on board. Ms. Poleon-Duplessis had a black luggage bag in her possession. PC Chicquot asked the appellant where he was headed. The appellant replied that he had come from Martinique to collect some items and was returning. PC Chicquot asked him for his Customs Declaration Form, and, in response, the appellant produced a Customs Declaration Form for Martinique. PC Chicquot asked for his Customs Declaration Form for Saint Lucia, but the appellant stated that he did not have one for Saint Lucia. At that point PC Chicquot advised him that it was an offence to enter the country and collect goods without clearing Customs and cautioned him. The appellant replied, “Officer, give me a chance”. PC Chicquot asked him about the contents of the white bags and the appellant said they contained conchs. He was asked about his passenger and said he was giving her a ride to Martinique. Ms. Duplessis was asked whether she had cleared Customs, and she said she had not. PC Chicquot told the appellant that it was an offence to embark a passenger with the intention of leaving the country without having the requisite clearance. PC Chicquot further informed him that he had broken several laws and would be taken to the Castries Marine Unit for further investigation. The Marine Unit escorted the appellant’s vessel to the Police Marine Unit for investigation. At the Marine Unit, the officers unloaded 39 polythene bags from the appellant’s vessel. On hand to examine their contents were Customs Officer Eudoxie and Deputy Chief Fisheries Officer Thomas Nelson. DCFO Nelson, who was qualified as a fisheries biologist, determined that 33 of those bags contained conch. The other six bags contained 94 Caribbean Spiny lobsters. DCFO Nelson proceeded to measure each lobster to ascertain whether they were of the legal size of 9.5 cm, pursuant to the Fisheries Regulations. He found that only one was of legal size. During this process he also discovered that one of the lobsters was moulting or carrying eggs. The appellant and Ms. Poleon-Duplessis were released but instructed to return to the Marine Unit at 8:00 a.m. for further processing. The appellant duly reported. In the presence of an interpreter a written statement under caution was recorded from him. This was subsequently ruled inadmissible on 14th April 2022, after a voir dire and no more need be said about it. At the conclusion of his trial on 31st August 2023, the learned magistrate convicted the appellant of all charges and immediately sentenced him without hearing any plea in mitigation on his behalf. Dissatisfied with the decision of the learned magistrate, the appellant filed four grounds of appeal. They complain that (i) the learned magistrate failed to consider the appellant’s written no-case submission before delivering her decision; (ii) the learned magistrate erroneously treated the offences as strict liability offences; (iii) there was insufficient evidence to support the convictions; (iv) the learned magistrate erred in sentencing the appellant without inviting a plea in mitigation. Held: quashing the appellant’s conviction on charge No. 0034C/2018, affirming the appellant’s convictions in relation to Charge Nos. 34/2018, 34B/2018, 35/2018 and 35A/2018, upholding the appeal against sentence in relation to charge Nos. 34/2018, 34B/2018, 35/2018 and 35A/2018 and varying the sentences imposed by the learned magistrate by substituting a fine of $3,000.00 in relation to each Charge, directing that these fines must be paid within 30 days of the delivery of this judgement or in default the appellant will serve a term of imprisonment of six months, that: 1. The learned magistrate did consider the no-case submission but failed to address some specific points raised in the appellant’s written submissions before delivering her written decision. Nonetheless, when the Court of Appeal is considering the question whether a no-case submission should have been upheld, the Court of Appeal should not focus on the manner in which the learned magistrate has expressed herself, but must examine the evidence itself to see whether there was a case to answer. R v Galbraith [1981] 2 All ER 1060 applied, Edwin Gomez v The Queen ANUHCRAP2014/0012 (delivered 17th August 2022, unreported) applied, R v McLeod and Others [2017] EWCA Crim 800 applied, Section 753 of the Criminal Code of Saint Lucia Cap. 3.01 of the Revised Laws of Saint Lucia applied, Section 77 of the Evidence Act Chap. 4.15 of the Revised Laws of Saint Lucia applied. 2. The magistrate did not misapprehend the substance of Mr. Fraser’s oral submissions, whether described as a no-case submission or as evidential objections. While the learned magistrate did not state clearly whether she considered the evidence of the oral admissions admissible or not, the way in which she treated with the submission was to say that this was not a case that depended wholly on the oral admissions. It is clear from the learned magistrate’s ruling that her finding of guilt did not hinge upon her reliance on any of the oral utterances made by the appellant, whether pre-caution or post-caution, which were not factored into her decision. The appellant’s post-caution admission that he knew that the bags on the vessel contained conch was, even without that admission, the irresistible inference to be drawn in circumstances in which he was the captain of the vessel on which some 39 bags were found in plain view. As the captain of the vessel, the physical custody and control of the vessel and its cargo was vested in him. There was therefore no unfairness in admitting the admission that the bags contained conch, which was made after caution. As to his admission that he was giving Ms. Poleon-Duplessis a ride to Martinique, that fact was self-evident as she was a passenger on board and he had told the police, at a time when he was not suspected of committing an offence, that he was headed to Martinique. The submission that the oral admissions made by the appellant should have been excluded therefore lacks merit. Section 72 of the Evidence Act Cap. 4.15 of the Revised Laws of Saint Lucia applied., Michel Dufour et al v Helenair Corporation Ltd. et al (1996) 52 WIR 188, Jose Miranda Ortiz et al v The Police Magisterial Criminal Appeal No. 27 of 1992 3. In relation to the issue of the sufficiency of the evidence to sustain the charges, the evidence adduced by the prosecution justified the clear inference that the appellant (i) arrived in Saint Lucia at a non-customs port; (ii) was departing Saint Lucia without valid clearance; (iii) was in fraudulent possession of restricted goods, namely conch and lobsters; (iv) had failed to declare said goods for export; and (v) was in possession of undersized and egg-bearing lobsters. However, there was no evidence to support the conviction for Charge No 34/C/2018, as there was no evidence of sea urchins being in the appellant’s possession. Section 37 of the Customs (Control and Management) Act, Cap. 15.05 of the Revised Laws of Saint Lucia 2023 applied, Section 3 of the Maritime Areas Act Cap 1.16 of the Revised Laws of Saint Lucia, 2015 applied; Section 116 of the Customs (Control and Management) Act, Cap. 15.05 of the Revised Laws of Saint Lucia 2023 applied; Schedule 3, Part 3 of the Customs (Control and Management) Act, Cap. 15.05 of the Revised Laws of Saint Lucia 2023 applied; Regulation 47 of the Fisheries Regulations under the Fisheries Act, Cap. 7.15 of the Revised Laws of Saint Lucia 2023 applied; Section 34 of the Customs (Control and Management) Act, Cap. 15.05 of the Revised Laws of Saint Lucia 2023 applied. Regulation 36(a) of the Fisheries Regulations under the Fisheries Act, Cap. 7.15 of the Revised Laws of Saint Lucia 2023 applied, Section 16 of the Maritime Areas Act Cap 1.16 of the Revised Laws of Saint Lucia, 2015 applied Section 21 of the Customs (Control and Management) Act, Cap. 15.05 of the Revised Laws of Saint Lucia 2023 applied. Director of Public Prosecutions v Brooks 1974) 2 AER 840 applied, R v Lambert [2002] 2 AC 545 applied, Regulation 32.2(d) of the Fisheries Regulations under the Fisheries Act, Cap. 7.15 of the Revised Laws of Saint Lucia 2023 applied, Section 16 of the Maritime Areas Act Cap 1.16 of the Revised Laws of Saint Lucia, 2015 applied 4. The contention that the learned magistrate automatically convicted the appellant because she erroneously regarded the offences to be strict liability and without engaging with the evidence because she regarded conviction as flowing automatically from the fact that they were (in her view) offences of strict liabilityis not made out, having regard to the fact that she expressly directed herself that “it is not that there is no mental element required” and further found that “this defendant committed the requisite elements of each count of these CUSTOMS OFFENCES OF STRICT LIABILITY”; and also said that the appellant was “seised of both mental and physical elements of the customs offences.” Even though the learned magistrate erroneously mischaracterized all of the customs offences as strict liability offences, she nonetheless expressly addressed her mind to the need to satisfy herself that the elements of each offence was made out and identified the evidence on which she relied. The flaw lies in her failure to more fulsomely articulate why she found each element of each offence made out. Notwithstanding this, however, this ground of appeal is rejected because, as I have found, save for Charge No. 34C/2018, the elements of each offence were clearly established. Gammon (Hong Kong ) Limited v Attorney-General of Hong Kong [1985] A.C. 1, PC. followed, Nurse v Republic of Trinidad and Tobago; Canserve Ltd v Republic of Trinidad and Tobago [2019] UKPC 43 followed, Levar Devere Brown v The Chief of Police SKBMCRAP2021/0003 (delivered 5th July 2023, unreported) applied. 5. In relation to the appeal against sentence, the magistrate erred in failing to invite a plea in mitigation on behalf of the appellant and then proceeding to impose the maximum fine of $5000 prescribed for all the offences, save for Charge No. 34A/2018. The maximum sentence is ordinarily reserved for the most egregious offending at the top end of the scale. It is a cardinal principle that a sentence should be fashioned to meet the justice of the case having regard to the facts and the individual circumstances of the offender. A plea in mitigation serves the useful purpose of furnishing the court with information of the personal circumstances of the offender or features or circumstances surrounding the offending conduct which might mitigate the sentence. The evidence suggests that the appellant played a leading role in the commission of the offences, being the captain of the vessel. He must have taken a conscious decision to ignore and breach the Customs and Fisheries laws of Saint Lucia. Given the large quantity of sea food in his possession, it is likely that it was intended for commercial sale and not personal consumption. This suggests that the appellant was motivated to commit these offences for profit. These factors lead to the assignment of a high degree of culpability to the appellant. There are no further aggravating factors in relation to the offence, neither are there any other aggravating factors in relation to the appellant. In considering whether there are any personal mitigating circumstances which might reduce the sentence, in the absence of evidence of previous convictions, the appellant must be treated as a person of good character. On this account, the fines are reduced to $3,000 on Charge Nos. 34/2018, 34B/2018, 35/2018 and 35A/2018. In relation to charge No. 34A/2018 for which he was fined $5,000 instead of the maximum $10,000.000, the appellant received from the learned magistrate a generous discount of 50%. That sentence has not been challenged by the respondents as unduly lenient and no adjustment is made to it. JUDGMENT

[1]WARD JA: This is an appeal against the conviction and sentence of the appellant, Yannick Pelage, by the learned Magistrate on 31st August 2023, wherein he was found guilty of six offences under the Customs (Control and Management) Act, Cap. 15.05 of the Revised Laws of Saint Lucia 2023 (the Customs Act) and the Fisheries Regulations under the Fisheries Act, Cap. 7.15 of the Revised Laws of Saint Lucia 2023 (the Fisheries Act). He was sentenced to fines of $5,000.00 for each offence.

Background facts

[2]On 29th November 2017, Mr. Yannick Pelage, the appellant, was the captain of the vessel "Be Yourself" seen in Saint Lucia waters near the Rodney Bay Marina. The vessel was stopped by Marine Police Officers, and, after questioning, the appellant was arrested along with a female occupant, Ms. Duplessis. The appellant was charged with the following offences under the Customs (Control and Management) Act and Fisheries Regulations: (1) Departing Saint Lucia without valid clearance (SLUCRD2018/0034); (2) Fraudulent possession of restricted goods (conch, lobsters, sea urchins) (SLUCRD2018/0034A); (3) Failure to declare goods for export (SLUCRD2018/0034B); (4) Possession of sea urchins without permission (SLUCRD2018/0034C); (5) Arriving in Saint Lucia at a non-customs port (SLUCRD2018/0035); and (6) Possession of undersized and egg-bearing lobsters (SLUCRD2018/0035A). During the course of addressing the specific grounds of appeal, I will set out the particulars of these charges later in this judgment.

The prosecution’s case

[3]The prosecution’s evidence was that on 29th November 2017, the Police Marine Unit was on patrol near the Rodney Bay Marina. On board were Police Officers Cpl. Milton Antoine, Police Constable Leonnard Lionel and Police Constable Mario Chicquot. They observed two vessels exiting the marina. One was a tender conveying cruise ship passengers to a cruise ship; the other was a gray and black vessel named "Be Yourself" with French registration FF697024, which was being piloted by the appellant. The officers decided to conduct a routine boarding of the appellant’s vessel. According to the evidence of PC Lionel, routine boarding entails ensuring that the vessel was equipped with safety equipment, ensuring that there were no irregularities with the vessel, ascertaining the reason for the vessel’s journey and the contents of the vessel.

[4]PC Milton Antoine brought the police vessel alongside the appellant’s vessel and signalled it to stop. The officers boarded and observed that there was another person on board. Upon request, the appellant identified himself as Yannick Pelage and stated that he was from Fort-de-France, Martinique. The other person was Ms. Sansha Poleon-Duplessis, a Saint Lucian National. The officers observed that there were several white polythene bags on board. Ms. Poleon-Duplessis had a black luggage bag in her possession.

[5]PC Chicquot asked the appellant where he was headed. The appellant replied that he had come from Martinique to collect some items and was returning. PC Chicquot asked him for his Customs Declaration Form, and, in response, the appellant produced a Customs Declaration Form for Martinique. PC Chicquot asked for his Customs Declaration Form for Saint Lucia, but the appellant stated that he did not have one for Saint Lucia. At that point PC Chicquot advised him that it was an offence to enter the country and collect goods without clearing Customs and cautioned him. The appellant replied, “Officer, give me a chance”. PC Chicquot asked him about the contents of the white bags and the appellant said they contained conchs. He was asked about his passenger and said he was giving her a ride to Martinique. Ms. Duplessis was asked whether she had cleared Customs, and she said she had not. PC Chicquot told the appellant was told that it was offence to embark a passenger with the intention of leaving the country without having the requisite clearance. PC Chicquot further informed him that he had broken several laws and would be taken to the Castries Marine Unit for further investigation.

[6]The Marine Unit escorted the appellant’s vessel to the Police Marine Unit for investigation. At the Marine Unit, the officers unloaded 39 polythene bags from the appellant’s vessel. On hand to examine their contents were Customs Officer Eudoxie and Deputy Chief Fisheries Officer Thomas Nelson. DCFO Nelson, who was qualified as a fisheries biologist, determined that 33 of those bags contained conch. The other six bags contained 94 Caribbean Spiny lobsters. DCFO Nelson proceeded to measure each lobster to ascertain whether they were of the legal size of 9.5 cm, pursuant to the Fisheries Regulations. He found that only one was of legal size. During this process he also discovered that one of the lobsters was moulting or carrying eggs.

[7]The appellant and Ms. Poleon-Duplessis were released but instructed to return to the Marine Unit at 8:00 a.m. for further processing. The appellant duly reported. In the presence of an interpreter a written statement under caution was recorded from him. This was subsequently ruled inadmissible on 14th April 2022, after a voir dire1 and no more need be said about it. The seized items were photographed by Scenes of Crime Officer Kaysha Mitchell-Isaac.

[8]At the conclusion of his trial on 31st August 2023, the learned magistrate convicted the appellant of all charges and immediately sentenced him without hearing any plea in mitigation on his behalf.

The appeal

[9]By notice of appeal filed on 14th September 2023, the appellant filed four grounds of appeal. In broad terms they complain that (i) the learned magistrate failed to consider the appellant’s written no-case submission before delivering her decision; (ii) the learned magistrate erroneously treated the offences as strict liability offences; (iii) there was insufficient evidence to support the convictions; (iv) the learned magistrate erred in sentencing the appellant without inviting a plea in mitigation. I will deal with each ground in turn. Ground 1: A material irregularity took place in the trial process resulting in an injustice when the learned magistrate wrote her decision in relation to the written no-case submission (as ordered by the Court) made on behalf of the appellant without seeing, considering or taking cognizance of the written no-case submission.

[10]Learned counsel for the appellant, Mr. Horace Fraser, submitted that a procedural irregularity occurred when the learned magistrate appeared on 31st August 2023 with a written decision which she proceeded to give without seeing the written no-case submission. Mr. Fraser submitted that this is evident from the alleged failure of the learned magistrate’s decision to address any of the matters raised in the written no-case submission. While she stated in her ruling that the no-case submission was overruled, she failed to provide any reasons for so doing. It was further submitted that the learned magistrate confused the written no-case submission with the section 72 evidential objection he had taken on 22nd June 2023 in relation to the oral statements made by the appellant and had also failed to give a ruling on that evidential objection.

[11]On behalf of the respondent, the learned Deputy Director of Public Prosecutions, Ms. Kelly Thomson accepted that the oral submissions made on 22nd June 2023 were in relation to an evidential objection as opposed to a no-case submission. However, Ms. Thomson submitted that the Record of Appeal reflects that the learned magistrate did receive and peruse the written no-case submission and seems to have regarded the section 72 objection as a verbal no-case submission. However, she submitted that it was evident that nothing in the written no-case submission caused the learned magistrate to deviate from the conclusions reached in her written ruling because had she cause to do so, she would have done so.

[12]Ms. Thomson further submitted that in paragraphs 5 and 6 of the written ruling, the learned magistrate addressed her mind to all the offences, although her reasons were somewhat brief.

Discussion – Ground 1

[13]The main issue here is whether the learned magistrate failed to consider the written no-case submission filed on behalf of the appellant before rendering her decision. If this Court finds that she failed to do so, it will fall to us to consider the submissions and to determine whether the convictions are unsafe. Secondly, an issue arises as to whether the learned magistrate ruled on the admissibility of the appellant’s oral admissions; if not, what if any impact does that have on the safety of any of the convictions.

[14]At the outset, I should note that a document titled “ADDENDUM with MEMORANDUM OF REASONS” is at page 53 of the Record of Appeal. It is not known when this document was authored and neither counsel for the appellant nor counsel for the respondent referred to it or the reasons contained in it. I have therefore not treated it as forming any part of the learned magistrate’s reasons for either dismissing the no-case submission or convicting the appellant and confine my analysis to the ruling delivered on 31st August 2023.

[15]A no-case submission may be predicated on one of two limbs: (i) that the prosecution has failed to establish an essential element of the offence; or (ii) that the evidence adduced by the prosecution has been so discredited or is so manifestly unreliable that no reasonable tribunal could safely convict. Within the jurisdiction of the Eastern Caribbean Supreme Court, R v Galbraith,2 is regarded as the seminal authority on the approach that a trial judge should take when met with a no-case submission. The guidance provided in this case is well known and does not require repeating here. Suffice it to say, that the appellant’s written no-case submission was hinged on the first limb.

[16]In approaching this ground of appeal, however, it is important to keep in mind that when the Court of Appeal is considering the question whether a no-case submission should have been upheld, the Court of Appeal should not focus on the manner in which the learned magistrate has expressed herself, but must examine the evidence itself to see whether there was a case to answer. The principle was stated by Baptiste JA in Edwin Gomez v The Queen3 , applying R v McLeod and Others4: “[12] On an appeal against conviction on the ground that there is no case to answer, this Court will focus on whether there was in fact a case to answer… [14] Importantly, the real question in considering the judge's ruling that there was a case to answer is not whether his statement of the legal principles as understood by him were correct but whether his assessment of thesufficiency of evidence was correct.”

[17]In other words, the Court of Appeal’s task is to examine the evidence to determine whether it supports the verdict. This posture is hardly surprising, and conforms with the mandate of section 753 of the Criminal Code of Saint Lucia Cap. 3.01 of the Revised Laws of Saint Lucia (“the Criminal Code”), which provides: “(1) No conviction or order made in pursuance of any proceedings for a summary conviction shall be quashed for any defect or want of form. (2) Every appeal shall be decided on its merits, and in all cases where it appears that the merits of the case have been tried and there is evidence to support the decision by the magistrate, the Court shall confirm the decision and no conviction, order, warrant process or proceeding in connection with the decision, shall be quashed, notwithstanding any objection concerning the improper admission or rejection of any evidence. (3) The Court may, in any case where there was improper admission or rejection of evidence, amend the conviction, order warrant, process or proceeding if necessary, or give such judgment or make such order as it considers the magistrate should have given or made in the circumstances.” (emphasis added)

[18]That is the approach I propose to take. To resolve the issue of whether the learned magistrate failed to address the appellant’s written no-case submission before rendering her decision, it is however, important to set this ground of appeal in its factual context.

[19]During the testimony of PC Lionel on 21st June 20185, learned counsel for the appellant, Mr. Horace Fraser, objected to PC Lionel adducing evidence that the appellant had given his name and stated that he was from Fort de France, Martinique and had come to Saint Lucia to pick up some items. The objection was stated to be based on section 77 of the Evidence Act Cap. 4.15 of the Revised Laws of Saint Lucia (“the Evidence Act”). The section provides: “In criminal proceedings, where evidence of confession is adduced by the prosecution and, having regard to the circumstances in which the confession was made, it would be unfair to a defendant to use the evidence, the court may- (a) refuse to admit the evidence; or (b) refuse to admit the evidence to prove a particular fact.”

[20]Counsel developed the objection by submitting that the evidence could not be adduced unless (a) a written record was made of the questions and answers asked of and given by the appellant; (b) he was told of his rights and cautioned; and (3) the questions and answers were read over to him and he affixed his signature to the record; and (4) at the time the statement was made a JP and (sic) attorney-at-law were present. Though not specifically stated at this juncture in the proceedings, these submissions appear to be grounded in section 72 of the Evidence Act, which deals with admissions by defendants (the section 72 requirements). Section 72 provides: (1) This section applies only— (a) in criminal proceedings; (b) in relation to evidence of an admission made by a defendant who, at the time when the admission was made, was or ought reasonably to have been suspected by an investigating official of having committed an offence; and (c) where the admission was made in the course of official questioning. (2) Subject to subsections (5) and (6), evidence of an admission is not admissible unless— “(a) the questioning of the person and any thing said by the person during the questioning was tape recorded; or (b) the questioning of the person was conducted in the presence of a person, not being an investigating official, who was— (i) a justice of the peace; or (ii) an attorney-at-law acting for the person; and a document prepared by or on behalf of the investigating official to prove the contents of the question, representation or response has been signed, initialed or otherwise marked by the person making the admission, and by the justice of the peace or the attorney-at-law, acknowledging that the document is a true record of the question, representation or response; or (c) in any other case— (i) at the time of the interview of the person or as soon as practicable afterwards, a record in writing was made, either in English or in another language used by the person in the interview, of the things said by or to the person in the course of the interview, and (ii) as soon as practicable after the record was made, it was read to the person in the language used by him or her in the interview and a copy of the record was made available to the person, (iii) the person was given the opportunity to interrupt the reading referred to in subparagraph (ii) at any time for the purpose of drawing attention to any error or omission that he or she claimed had been made in or from the record and, at the end of the reading, the person was given the opportunity to state whether he or she claimed that there were any errors in or omissions from the record in addition to any to which he or she had drawn attention in the course of the reading…”

[21]The Evidence Act defines an admission at section 2” “admission” means— (a) a previous representation made by a person who is or becomes a party to proceedings, being a representation that is adverse to the person’s interest in the outcome of the proceedings; or (b) a confession;

[22]The learned magistrate overruled the objection on the basis that the evidence sought to be adduced was not an admission within the meaning of the Evidence Act. However, when PC Lionel later sought to adduce evidence of the appellant’s response after he was cautioned, counsel’s objection to this evidence was sustained.6

[23]On 7th November 2019, PC Chicquot commenced his testimony.7 At the point when he was about to give his evidence about his initial conversation with the appellant on boarding the appellant’s vessel, counsel renewed his objection, asserting section 72 of the Evidence Act and contended that since this was official questioning, compliance with the provisions of section 72 was required but had not been observed. Counsel submitted that the learned magistrate should not even hear the questions asked of the appellant.

[24]The learned magistrate agreed that the questions put to the appellant would constitute official questioning. According to the Evidence Act, “official questioning” means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence. The learned magistrate nonetheless invoked section 72(5) to overrule the objection. Sub section (5) is in the following terms: “ (5) A court may admit evidence to which this section applies even if the requirements of this section have not been complied with, or there is insufficient evidence of compliance with those requirements, if, having regard to the nature of and the reasons for the non-compliance or insufficiency of evidence and any other relevant matters, the court is satisfied that, in the special circumstances of the case, admission of the evidence would not be contrary to the interests of justice.”

[25]The learned magistrate’s stated reason for disagreeing with the submission that she should not hear the questions posed to the appellant was that: “I have no means of knowing: their relevance, their prejudicial versus their probative value; their connection to (or otherwise) of any of the six counts WITHOUT HEARING THE QUESTION.”8 (original emphasis).

[26]The evidence of the oral statements made by the appellant was then given in evidence.

[27]At the close of the prosecution’s case on 22nd June 20239, the appellant, when put to his election, opted to remain silent. Counsel then made oral submissions (recorded as “Defence Objection) again raising objection to the admissibility of the evidence previously given by PC Chicquot on 7th November 2019 and 15th October 2021. Counsel reminded the learned magistrate that he had previously objected to PC Chicquot giving evidence of oral statements made by the appellant. He submitted that under cross-examination on 15th October 2021 PC Chicquot had admitted that: (i) he had put the questions to the appellant in English; (ii) he had spoken to the appellant in Patois; (iii) he was aware the appellant was a foreign national; (iv) the official language of Saint Lucia was English; (vi) he had not made a contemporaneous record of the questions and answers of the appellant; (vii) it had dawned on him that the appellant needed a translator to be present; (viii) he had not made a recording of the questions and answers because he was out at sea; and (ix) he had not contemplated recording them.

[28]Counsel then submitted that section 72 required that any official questioning be recorded or that Justice of the Peace or a lawyer be present. The record must be signed by the JP or the lawyer. Counsel further submitted to the learned magistrate that according to the Act, “no police officer could come to court and give evidence of an oral admission without a recording.” Accordingly, counsel asked for PC Chicquot’s evidence given on 7th November 2019 be struck off the record for non-compliance with section 72 of the Evidence Act. He submitted that it should also be struck because “it did not comply with requirement to have an interpreter of his own language present.”

[29]I pause here to note that these objections, made on the basis of section 72 of the Evidence Act, are in substance the same as the objections previously taken by Mr. Fraser on 7th November 2019 but overruled by the learned magistrate. What was new were the submissions in relation to the failure to have an interpreter present during the questioning.

[30]After hearing submissions from the prosecutor, the learned magistrate stated10: “I will not rule now but I see as KEY my categorizing the WORDS (offending defence) as ADMISSIONS, expressed orally of THE ELEMENTS of these offences – and not surrounding circumstances; each counts has its ELEMENTS. 14/JULY/2023 Defence to file and serve No Case Submissions.” (emphasis added)

[31]The matter was then adjourned to 31st August 2023 for decision.

[32]At the very outset of the hearing on 31st August 2023, Mr. Fraser indicated to the learned magistrate that he had filed the no-case submission three days after the last hearing.11 The no-case submission, which appears at page 78 of the Record of Appeal however, bears the stamp of the First District Court dated 26th July 2023.

[33]From the record, it is obvious that the learned magistrate had not previously seen it, as confirmed by the following important endorsement appearing at the bottom of page 49 of the Record of Appeal: “COURT: NCS sent by e-mail NOW RECEIVED AND PERUSED. TYPEWITTEN DECISION NOW READ” (original capitalization and emphasis).

[34]The first observation I make is that it appears that the learned magistrate regarded the oral submissions made on 22nd June 2023 as a no-case submission. I come to this conclusion based on her endorsement on the record immediately before giving her ruling. That endorsement reads12: “RULING OF: Magistrate Bertlyn Reynolds On the The Verbal No-Case Submission of Defence Counsel Expressed on 22nd/June/2023.” (emphasis added)

[35]The reason why the learned magistrate viewed the oral submissions as a no- case submission, as opposed to what Mr. Fraser calls an “evidential objection” is explained in her ruling at paragraph (4)13: “On the last hearing date Defence Counsel presented No-Case Submissions, based primarily on the Investigating Officer’s (IO) failure to record, this defendant’s Oral Admission(s) in keeping with section 72 of the Evidence Act and for the IO Chicquot’s neglect to have a French Translator present, during his official questioning of this defendant. Clearly, the gravamen of the submission is that if the Oral Admission fails, so must the entire case. The latter premise is similar to that raised during the Voir Dire in which I excluded the purported Written Admission or Confession, sought to be tendered by Customs Officer, Samuel Eudoxie. While this is perpetually good law where the case depends wholly on such a confession or admission; it DOES NOT APPLY where there is other evidence - separate, apart and distinct from any confession or admission – which “satisfies the court, so that it could feel sure” that the defendant is guilty.”

[36]In my view, the learned magistrate did not misapprehend the substance of Mr. Fraser’s oral submissions, whether described as a no-case submission or as evidential objections, because, as will be seen when the other grounds of appeal are considered, that is exactly the position Mr. Fraser invites this court to take. There is no evidence to establish the elements of any of the customs offences with which the appellant was charged in the absence of his oral admissions that he had come from Martinique to pick up some items and was on his way to Martinique. Indeed, during the course of his oral submissions to this Court, Mr. Fraser submitted that the only evidence which implicates the appellant is that of PC Chicquot, which he says the learned magistrate did not address in her ruling.

[37]I agree with Mr. Fraser that in her ruling delivered on 31st August 2023 the learned magistrate did not state clearly whether she considered the evidence of the oral admissions admissible or not. Rather, the way in which she treated with the submission was to say that this was not a case that depended wholly on the oral admissions. This is gleaned from paragraph (4) of her ruling quoted above.

[38]This was an unsatisfactory approach. When a legal submission is deployed during the course of a criminal trial, the learned magistrate is obliged to deal with it frontally and rule definitively. Reasons, however brief or succinct, must be furnished. There may be nothing wrong in deferring the ruling, provided that the learned magistrate returns to the issue and rules upon it one way or the other.

[39]Ms. Thomson invited this Court to find that because the magistrate had previously admitted the evidence of the oral admissions, that must mean that her decision was that they were admissible. I am unable to accept this argument because when the submission was renewed on 22nd June 2023, the learned magistrate did not affirm her previous rulings; she specifically stated: “I will not rule now.” She purported to rule on it in her written decision delivered on 31st August 2023 but instead dealt with it in the manner described at paragraph (4) of her decision and as developed further below.

[40]It is clear from the learned magistrate’s ruling that her finding of guilty did not hinge upon her reliance on any of the oral utterances made by the appellant, whether pre-caution or post-caution, which were not factored into her decision. This much is clear from paragraphs (5) and (6) of her ruling14 where she states: “This case is replete with other facts and circumstances which are both cogent and compelling – that this defendant committed the requisite elements of each count of these CUSTOMS OFFENCES OF STRICT LIABILITY, in which ignorance of the law is no excuse. The case of Glendon de Gale v Unted Hatcheries Mag. App No 155 of 1986 provides clarification of the meaning of Strict Liability in customs offences. It is not that there is no mental element required but that however innocent the error, that ignorance of the law is no excuse (ignorantia lex non excusat). Mr. Pelage first comes not contact or conflict with the St. Lucian authorities when he is seen on board his marine vessel, pulling out or departing from the Gros Islet Port, without communication with the authorities. Without his need to say anything or do anything else – in French, English or Patois he is seised of both mental and physical elements of the Customs Offenses (sic) thereby. The offenses (sic) are four customs offenses (sic) and two fisheries offenses (sic) [The magistrate lists them and continues] The last two are the fisheries offences (sic) and the first four are the customs offences (sic). No customs officer could upon their encounter with Mr. pillage on board his vessel, say whether he had come from Martinique with the sea food later retrieved from on board or had fished for them in St. Lucian waters. However, the law says that insofar as he was at the Gros Islet port without submitting to them any landing documents, reports, entries for Customs Proper (sic) Officers to address, the customs offenses (sic) had already been completed.” (6) When Mr. Pelage goes further upon being signalled by the port authorities to pull alongside, so that they could board his vessel and upon compliance he is found to have on board a quantity of seafood restricted by St. Lucia law (s.36 (a)) – the offernse (sic) creating subsection does not exclude the date 29/November, 2017) then he perpetrates the two fisheries offenses (sic), likewise the fact that after his pulling back in the examination of the seafood releasing of the undersized back into the ocean and other processing is done WITHOUT THE PRESENCE OF A FRENCH TRANSLATOR, does not affect that these offenses (sic) had been completed. All of this is prior to any possible admission or confession on the basis of which defense counsel seeks to forestall a conviction.”

[41]It seems clear to me that what the learned magistrate was doing in those passages was considering what evidence there was against the appellant, leaving aside any oral admissions which he may have made. Having done so, she concluded that the case against the appellant was made out without the need to rely on any of the oral admissions, “whether in French, English, or Patois” as she put it, having regard to the circumstantial evidence in the case. Whether she was right in her conclusion will be considered when I turn to examine the grounds of the written no-case submission that assert that the evidence adduced by the prosecution did not establish the elements of any of the offences.

Did the learned magistrate fail to consider the written no-case submission

[42]Turning to the nub of ground 1, Mr. Fraser’s submission that the learned magistrate had given her decision without seeing the written no-case submission is flatly contradicted by the endorsement: “COURT: NCS sent by email NOW RECEIVED AND PERUSED. TYPEWITTEN DECISION NOW READ” (original capitalization and emphasis).

[43]Whether the learned magistrate addressed any of the points raised therein in coming to her decision requires some consideration of the content of the written no-case submissions. This is the issue to which I now turn.

[44]The written no-case submission is found at page 78 of the Record of Appeal. Paragraph 2.1 of the written submissions reduce into writing the oral submissions previously made by Mr. Fraser in relation to the evidence of PC Chicquot, which he had sought to have struck from the court’s record. Those submissions run to paragraph 2.10.

[45]This submission in relation to the evidential objection was recited in the learned magistrate’s ruling handed down on 31st August 2023 and dealt with in the manner previously described in this judgment. While the learned magistrate did not specifically state whether it was admissible or not, for my part, Mr. Fraser’s section 72 objections were entirely untenable and unsustainable in my view.

[46]The oral admissions made by the appellant may be classified as comprising pre- caution admissions and post caution admissions. The pre-caution admissions are that he had come from Martinique to collect some items and was returning to Martinique; and that he did not have a Saint Lucia Customs Declaration Form. It was at this point that PC Chicquot suspected or had reasonable cause to believe that an offence may have been committed as he then told the appellant that it was an offence to enter the country and collect goods without clearing Customs and cautioned him.

[47]Section 72 (2), on which Mr. Fraser grounded his submission before the learned magistrate and this court, has to be read with sub section (1) (b) and (c). That subsection provides that section 72 applies in criminal proceedings “in relation to evidence of an admission made by a defendant who, at the time when the admission was made, was or ought reasonably to have been suspected by an investigating official of having committed an offence; and where the admission was made in the course of official questioning.” (emphasis added.)

[48]In other words, section 72(2) is only engaged where a defendant has made an admission at a time when the investigating official suspected or ought reasonably to have suspected that he had committed an offence. In the absence of such reasonable suspicion that the appellant had committed an offence, section 72(2) was not engaged. Secondly, the admission must have been made during the course of official questioning.

[49]In this regard, the evidence was that the initial boarding and questioning was routine, which was explained as meaning that the boarding was intended to ensure that the vessel was equipped with safety equipment, that there were no irregularities with the vessel, to ascertain the reason for the vessel’s journey and the contents of the vessel. Furthermore, PC Chicquot was specifically asked whether at the initial stage of the dialogue with the appellant he had suspected that he had committed any offence. He replied: “No YH. It was just a routine boarding.”15 The evidence discloses that it was after the appellant said that he did not have a Saint Lucia Customs Declaration Form that PC Chicquot cautioned him. The reasonable inference from this sequence of events is that it is that response that caused PC Chicquot to form a reasonable suspicion that the appellant had committed an offence.

[50]After being cautioned, the post-caution oral admissions made by the appellant were that he had begged PC Chicquot to give him a chance (implying consciousness of guilt); he had admitted knowledge that the bags contained conchs; and had said that he was giving Ms. Poleon-Duplesis a ride to Martinique. Clearly, once reasonable suspicion was formed and the caution administered, PC Chicquot was obliged to comply with the requirements of section 72(2). However, failure to do so does not inevitably result in the evidence being inadmissible. Section 72(5) gives the court the discretion to admit it notwithstanding non-compliance, having regard to such matters as the nature of and the reasons for the non-compliance or insufficiency of evidence and any other relevant matters. The court must be satisfied that, in the special circumstances of the case, admission of the evidence would not be contrary to the interests of justice.

[51]It is not disputed that PC Chicquot did not comply with section 72(2) by causing the subsequent questions and answers to be written down after he had reasonably suspected that the appellant had committed an offence. His reason for not doing so at the time was that the questioning was taking place at sea. However, it is to be recalled that when this objection was taken on 7th November 2019, the learned magistrate had invoked her discretion under section 72(5) to admit the oral admissions made by the appellant.

[52]The exercise of that discretion may not be lightly interfered with by an appellate Court.16

[53]The appellant’s post-caution admission that he knew that the bags on the vessel contained conch was, even without that admission, the irresistible inference to be drawn in circumstances in which he was the captain of the vessel on which some 39 bags were found in plain view. As the captain of the vessel, the physical custody and control of the vessel and its cargo was vested in him17. There was therefore no unfairness in admitting the admission that the bags contained conch which was made after caution. As to his admission that he was giving Ms. Poleon-Duplessis a ride to Martinique, that fact was self-evident as she was a passenger on board and he had told the police, at a time when he was not suspected of committing an offence, that he was headed to Martinique.

[54]I would therefore hold that the submission that the oral admissions made by the appellant should have been excluded lacks merit.

No-case submission – Charge 34/2018

[55]This ground of the no-case submission is at paragraph 3.1 and is directed at charge No. 34 of 2018. The particulars of this charge read so far as material: “You are charged for that you at a time and place unknown prior to 9:20 PM on Wednesday 29th November 2017 being the captain of a vessel… registration number FF 697024... being a vessel required to be cleared under section 37(1)(a) of the (Customs Control and Management) Act... did depart from a place in Saint Lucia for a destination outside Saint Lucia without a valid clearance, said departure not caused by accident stress of weather or other unavoidable cause, contrary to section 37(5) of the Customs (Control and Management) Act.”

[56]The no-case submission lists five points in support of the appellant’s contention that the ingredients of this offence were not established on the evidence: “ (i)The boat was intercepted at the Marina, Rodney Bay in Saint Lucia's internal waters; (ii) There is no evidence that the boat departed from a place in Saint Lucia; (iii) The boat never departed the waters of Saint Lucia to prove that the boat was heading for a destination outside of Saint Lucia. The boat had to go beyond the 12 nautical miles which is identified as Saint Lucia's territorial sea in accordance with Section 3 of the Maritime Area Act Cap 1.16 of the Revised Laws of Saint Lucia 2015; (iv) There is no evidence to suggest the intention of the [appellant] who was the captain of the boat; (v) The Defendants boat had a right of innocent passage in accordance with section 16 of the Maritime Areas Act. There was no evidence led to negative the right to innocent passage in order to establish that there was no valid clearance regarding the departure of the vessel and that the vessel was not in an accident, or experienced stress or other unavoidable cause.”

[57]These assertions were repeated by Mr. Fraser on the hearing of the appeal save that he added that there was no evidence that anyone saw the vessel docked at the Rodney Bay Marina or anywhere and so could not establish a departure.

[58]To ascertain the ingredients of this offence, it is necessary to have regard to the provisions of section 37(1)(a) of the Customs Act, pursuant to which this charge was laid. It provides so far as material: “37. Clearance (1) Save as the Comptroller may otherwise permit – (a) The master of any vessel intending to depart from any port or other place in Saint Lucia; and (b) … to a destination outside Saint Lucia, shall obtain clearance from the proper officer. (2) any person applying for clearance under subsection one shall (a) deliver to the proper officer on account of all cargo and stores taken on or remaining on board the vessel or aircraft in Saint Lucia; (b) produce all such books and documents in his or her custody or control relating to the vessel its cargo, stores, baggage, crew, passengers, voyage as the proper officer may require; and (c) answer all such questions relating to the vessel…, it's cargo, stores, baggage, crew, passengers, voyage, as may be put to him or her by the proper officer… (5) If any vessel or aircraft required to be cleared under this section departs from any port, airport or other place in Saint Lucia for a destination outside Saint Lucia without a valid clearance, or after clearance calls at any port airport or other place in Saint Lucia without the permission of the proper officer, the master or commander, except where the departure or call was caused by accident, stress of weather or other unavoidable cause, commits an offence and is liable to a fine of $5000.”

[59]To succeed on this charge the prosecution was required to prove the following elements: (i) that the appellant was the master or command of a vessel; (ii) that the vessel departed a port or other place in Saint Lucia; (iii) that its intended destination was a place outside of Saint Lucia; and (iv) that the vessel departed without valid clearance.

[60]The appellant has not argued that the first element was not made out as the appellant accepts that he was the captain of the vessel. The no-case submission posits however, that there is no evidence that the boat departed from Saint Lucia because it was intercepted in Saint Lucian internal waters.

[61]This argument is misconceived, illogical and does not accord with the plain language of the section. If this argument is correct, it would mean, for example, that a vessel can depart from a port or place in Saint Lucia without clearance, and although the proper officer witnesses the vessel departing without valid clearance, the authorities would be powerless to intercept it until it has journeyed beyond 12 nautical miles and thereby left Saint Lucia’s internal waters because, only then, says Mr. Fraser, would the vessel have departed a port or place in Saint Lucia. Similarly, it cannot make sense to argue that one cannot prove that a vessel departed from a place in Saint Lucia unless it was first seen docked at a particular place. Take a scenario where a vessel is intercepted in Saint Lucia’s territorial waters as it headed away from the shoreline. A number of Saint Lucian nationals are discovered on board, each carrying luggage. It cannot rationally be said that because nobody saw the vessel previously docked somewhere that it cannot be reasonably inferred that the vessel departed from a place in Saint Lucia.

[62]In my view, the interpretation of section 37(5) urged by Mr. Fraser would yield an absurdity and would render the provision nonsensical and totally unworkable and might raise questions of jurisdiction. It does not accord with the plain language of the section, which simply requires that the vessel departs from any port or place in Saint Lucia; not that it must have departed the territorial sea of Saint Lucia, as defined by section 3 of the Maritime Areas Act18 (‘the Maritime Areas Act”). Furthermore, it must have departed from such port or other place without valid clearance.

[63]I am fortified in this view, when regard is had to section 37 (4) which provides: “(4) where it appears to any officer that a vessel or aircraft intends or is likely to depart for a destination outside St. Lucia without clearance, he or she may give such instructions and take such steps by way of the detention of that vessel or aircraft as appear to him or her necessary to prevent that departure.” (emphasis added)

[64]Undoubtedly, the power of interception may be exercised by a Customs Officer while a vessel is in Saint Lucian waters where it appears that the vessel intends or is likely to depart for a destination outside Saint Lucia. Clearly, the vessel can only be intercepted in Saint Lucia for it to intend or be likely to depart for a destination outside Saint Lucia. If the vessel is no longer in Saint Lucia then section 37(4) would plainly not apply. There is no logical or legal reason why officers of the Police Marine Unit, who form reasonable suspicion that the captain of a vessel in Saint Lucia’s territorial waters has committed an offence, should not similarly have the power to detain that vessel while it is in Saint Lucia’s territorial waters.

[65]On the evidence before the learned magistrate, the police officers testified that they witnessed the appellant’s vessel departing the Rodney Bay Marina. Mr. Fraser makes much of the fact that the officers did not see the vessel docked at the Marina and as such cannot say that it departed from there. Given the fact that the movement of the vessel was away from the Rodney Bay Marina, and at the same time a tender was also seen travelling away from the marina towards a cruise ship, it was a reasonable inference to draw that that was the place from which the appellant’s vessel departed, but as I have said the section does not require proof of the specific port or other place in Saint Lucia from which the vessel departed, provided that there is evidence on which to find that it departed without clearance.

[66]Furthermore, for the reasons discussed earlier in this judgment there was an admissible admission from the appellant when intercepted that he was headed to Martinique. The only Customs document that he had in his possession was from Martinique. The absence of a Saint Lucia Customs Declaration Form gives rise to the inference that he never landed lawfully in Saint Lucia, and, further, never had valid clearance to leave. It is illogical to think that having landed in Saint Lucia unlawfully, the appellant would seek valid clearance to depart, bearing in mind that the process of obtaining valid clearance entails: (a) delivering to the proper officer an account of all cargo and stores taken on or remaining on board the vessel in Saint Lucia; (b) producing all such documents in his custody or control relating to the vessel, its cargo stores baggage, crew, passengers, voyage or flight as the proper officer may require and (c) answering all such questions relating to the vessel or aircraft, its cargo, stores, baggage, crew members, passengers, voyage or flight, as may be put to him by the proper officer”.19

[67]In all the circumstances, the evidence provided a sound evidential foundation for finding that the elements of charge No. 34 of 2018 were established. This ground of the no-case submission is hopeless and, on the evidence, was bound to fail.

No-case submission - charge 34A/2018

[68]The particulars of charge No 34A/2018 are: “You are arrested and charged for that you at a time and place unknown prior to 9:20 PM on Wednesday 29th November 2017 being the captain of... vessel registration number FF 697024... with fraudulent intent, knowingly acquired possession of the following goods, viz, a quantity of conch... 94 lobsters... and a quantity of sea urchins... with respect to the exportation or carriage coastwise of which there is a restriction in force, pursuant to schedule 3, Part 3 of the Customs (Control and Management) Act... Contrary to section 116 of the Customs (Control and Management) Act…”

[69]The written no-case submission asserts at paragraph 3.2.1 that the elements of this offence are: (i) the goods must be goods chargeable with a duty which was not paid; (ii) the goods are prohibited or restricted; (iii) such goods must be carried harboured or concealed; and (iv) the defendant was dealing with such goods with fraudulent intent.

[70]The submission continues that there was no evidence by the prosecution to prove that: (a) the goods were chargeable with duty which was not paid; (b) the goods were prohibited or restricted; and (c) the appellant had the intent to defraud the revenue. Further, there was no evidence that the goods came from Saint Lucian waters and was being exported, as it was not shown that the boat entered a port in Saint Lucia, thus a departure therefrom could not be established in the absence of evidence of it having previously entered a port. It is further said that the boat had to go beyond the 12 nautical miles which is identified as Saint Lucia's territorial sea in accordance with Section 3 of the Maritime Areas Act. Furthermore, the appellant was in possession of a customs declaration from Martinique, which he showed to PC Chicquot. It was argued that this raises two inferences: (i) the boat was loaded in Saint Lucia and was departing when it was intercepted; or (ii) the appellant entered St. Lucia with the goods and turned around to leave. The learned magistrate was required by law to draw the inference that is most favorable to the appellant.

[71]Yet further, it was submitted that schedule3, Part 3 of the Customs Act does not list the goods as restricted goods.

Discussion

[72]Charge No. 34A/2018, was laid pursuant to section 116 of the Customs Act, which provides: “(1) Without prejudice to any other provision of any other any customs enactment, if any person – (a) Knowingly acquires possession of any of the following goods, that is to say (i) goods which have been unlawfully removed from a warehouse or a customs warehouse, or (ii) goods which are chargeable with a duty which has not been paid, or (iii) goods with respect to the importation exportation or carriage coastwise of which there is any prohibition or restriction in force; (b) is in any way knowingly concerned in carrying, removing, depositing, landing, harbouring, keeping or concealing or in any manner dealing with in any such goods,… and does so with fraudulent intent, he or she commits an offence and is liable to a fine of $10,000, or three times the value of the goods, whichever is the greater, or to imprisonment for five years, or to both, and may be arrested, and the goods in respect of which the offence was committed are liable to forfeiture.”

[73]Evidently, this offence can be committed in any one of a number of ways having regard to the nature of the goods. Based on the way the charge was particularized, the charge against the appellant was laid specifically pursuant to section 116(a)(iii). The prosecution was therefore required to prove that (i) that the appellant knowingly acquired possession of goods;(ii) in respect of those goods, there was a restriction in force in relation to the exportation of said goods (since the charge makes specific reference to Schedule 3, Part 3 of the Customs Act which deals with prohibited and restricted exports); and (iii) the appellant knowingly acquired possession of those goods with fraudulent intent to evade the prohibition on export.

[74]Addressing the specific submissions made in the written no-case submission in relation to this charge, the appellant’s submission that the prosecution was required to prove that the goods were chargeable with a duty which was not paid and were carried, harboured or concealed is misconceived. The particulars of the charge made no averments that the goods were chargeable with a duty that had not been paid, contrary to section 116(1)(a)(ii), or that the appellant was in any way knowingly concerned in carrying, removing, or depositing, landing, harbouring, keeping or concealing or in any manner dealing with any such goods, contrary to section 116(1)b) of the Customs Act. The particulars of the charge reflect that the provision contravened was section 116 (a)(iii).

[75]In so far as it is said that there was no evidence that the goods were prohibited or restricted and that schedule 3, Part 3 of the Customs Act does not list the goods as restricted goods, one must examine Schedule 3.

[76]Part 3 of the Schedule relates to prohibited exports and restricted exports. Prohibited exports are defined as “Goods the exportation of which is prohibited by any other enactment.” This clearly contemplates that the prohibition on exportation can be imposed by an Act other than the Customs Act and yet be caught by section 116. The definition of restricted exports includes, “Rare or threatened species of animals” and also “Goods the exportation of which is regulated by any other enactment except in accordance with such enactment.”

[77]Since neither conch, lobster nor sea urchins are described as rare or threatened species of animals, nor are they listed as prohibited or restricted exports under the Customs Act, they could only fall into that category if their export was prohibited or restricted by some other enactment.

[78]The Fisheries Act at Regulation 47 provides that a person shall not import fish or export fish caught in the fishery waters of Saint Lucia except with the written permission of the Chief Fisheries Officer and in accordance with the conditions as he or she may specify. This is a fact of which a court would be entitled to take judicial notice.

[79]“Fishery waters” is defined in the Fisheries Act as meaning the waters of the exclusive economic zone, territorial sea, and internal waters as defined in the Maritime Areas Act and any other waters over which Saint Lucia claims fisheries jurisdiction.20 “Fish” means any aquatic animal, whether piscine or not and includes shellfish, turtles, mollusc, crustacean, coral, sponge, echinoderms, their young and their eggs.”21 This definition would cover lobsters which DCFO Nelson testified were crustacean. Conchs are included in the definition of mollusc.

[80]I therefore conclude that Regulation 47 of the Fisheries Act contains a restriction on the exportation of lobsters and conch and therefore caught within the prohibition in section 116 of the Customs Act.

[81]However, the no-case submission further contends that there was no evidence that the goods came from Saint Lucian waters and were being exported because it was not shown that the boat entered a port in Saint Lucia which was necessary in order to prove a departure therefrom and that the boat had to go beyond the 12 nautical miles.

[82]In relation to the origins of the goods, as Mr. Fraser recognizes, this is a matter of inference from proved facts. The no-case submission argued that the fact that the appellant was in possession of a customs declaration from Martinique raised two inferences: (i) the boat was loaded in Saint Lucia and was departing when it was intercepted; or (ii) the appellant entered Saint Lucia with the goods and turned around to leave. The learned magistrate was required by law to draw the inference that is most favorable to the appellant. The latter inference is seemingly regarded by the appellant as the one more favourable one.

[83]More accurately stated, however, the principle with respect to the drawing of inferences is that where two or more inferences are of equal weight, the court must draw the one most favourable to the defendant. In my view, it is somewhat improbable that the appellant would haul his perishable cargo, packaged only in bags, from Martinique to Saint Lucia, only to take them back to Martinique. A more reasonable inference is that these goods were obtained in Saint Lucian waters and were to be taken to Martinique. This inference is strengthened when one considers his admission that he had come from Martinique to collect some items and was returning to Martinique. It was reasonable to infer that the goods were the items for which he had come to Martinique. That being so, the inference that he knowingly acquired them was also irresistible, and the appellant never disclaimed knowledge or ownership of the bags and their contents.

[84]In so far as it is argued that the boat had to go beyond the 12 nautical miles to amount to exporting, the simple answer is that the section does not require the goods to have been exported; all that is required to be proven is that the appellant knowingly acquired goods whose exportation is regulated by any other enactment.

[85]Finally, as it relates to the assertion that the prosecution failed to establish that the appellant had the intent to “defraud the revenue”, this argument too is misconceived. Under section 116 of the Customs Act, the fraudulent, meaning dishonest intent, may be either in relation to the evasion or attempted evasion of any duty chargeable on goods; or in relation to the evasion or attempted evasion of any prohibition or restriction with respect to the importation or exportation or carriage coastwise of those goods under or by virtue of any enactment.

[86]On a proper reading of the charge as particularized, the fraudulent intention required to be proved was to evade the restriction/prohibition on the export of the goods. Such an inference was to be readily inferred given that the only document the appellant produced was a Customs Declaration for Martinique but no document from Saint Lucia. It stands to reason that he had no written authorization from the Chief Fisheries Officer to export the lobster and conch, otherwise he would have produced it as was his burden pursuant to section 35 of the Fisheries Act, which provides: “35. ONUS OF PROOF In any legal proceed proceedings under this act where the defendant is charged with having committed an offence under which a license, authority or the permission of any person is required for the doing of any act, the onus shall be on the defendant to prove that at the time to which the charge related, the requisite license, authority or permission was duly held.”

[87]The appellant plainly failed to discharge this burden.

[88]Furthermore, when the fact that the appellant departed Rodney Bay Marina heading for Martinique without valid clearance is added to the evidential foundation, the only reasonable inference is that he possessed a fraudulent intention to evade the restriction on the export of said items without the written permission of the Chief Fisheries Officer.

[89]This ground of the no-case submission was bound to fail.

No-case submission – Charge No. 34B/2018

[90]The particulars of Charge 34B/2018 are as follows: “You are arrested and charged for that you ... on Wednesday 29th November 2017 being the captain of a… vessel... and the exporter of certain goods to wit: conch, lobsters and sea eggs after causing the said goods to be loaded on the said vessel for exportation before entry in respect of them has been made, did with fraudulent intent fail to deliver to the proper officer on entry of those goods, pursuant to section 34(1) of the Customs (Control and Management) Act.” Section 34 of the Customs Act provides: “(1) Subject to subsection (2), the exporter of any goods, other than passenger’s accompanied baggage, shall deliver to the proper officer an entry of those goods in such form and manner and containing such particulars as the Comptroller may direct….” (5) If any goods for which entry is required under subsection (1) are put on board any vessel or aircraft for exportation… before entry in respect of them has been made, those goods are liable to forfeiture, and where the placing on board… was done with fraudulent intent any person concerned in that act with knowledge of that intent commits an offence and is liable to a fine of $5000 or three times the value of the goods whichever is the greater or to imprisonment for two years, or to both, and may be arrested.”

[91]The prosecution was therefore required to prove that the appellant, as captain of the vessel, caused the goods to be put onto his vessel for exportation before entering and delivering them to the proper officer and that he did so with fraudulent intent.

[92]In relation to this charge, the appellant relied on the identical submissions deployed in relation to charge No. 34A/2018. For the reasons discussed above this submission is also unsustainable. Quite clearly, given the circumstances in which the appellant was departing Saint Lucia without clearance, the only reasonable inference is that he did not enter or deliver the goods to the proper officer and that he failed to do so with fraudulent intent.

No-case submission – Charge No. 34C/2018

[93]The particulars of charge No. 34C/2018 are so far as material: “You are arrested and charged for that you on Wednesday 29th November 2017 about 9:20 p.m. in the territorial seas at Rodney Bay … being the captain of marine vessel registration NO. FF69704…did have in your possession a quantity of sea urchins... without the written permission the Chief Fisheries Officer contrary to section 36(a) of the Fisheries Regulations...”

[94]Regulation 36(a) provides: “A person shall not disturb, damage, take from the fishery waters, have in his or her possession, purchase, expose for sale, or sell any sea urchins— (a) except with the written permission of the Chief Fisheries Officer, and in accordance with any such conditions as the Chief Fisheries Officer may specify;”

[95]The prosecution was required to prove that the appellant was (i) in possession of the sea urchins (ii) without the written permission of the Chief Fisheries Officer.

[96]The written no-case submission at paragraphs 3.4.1 contends that there was no evidence elicited from the Deputy Chief Fisheries Officer that the appellant had no written permission from the Chief Fisheries Officer to be in possession of the urchins. It is further said that there was no evidence that the urchins were obtained from Saint Lucian waters and that they could have come from Martinique and declared to customs there. Further, that the appellant had a right of innocent passage in accordance with section 16 of the Maritime aAeas Act it was submitted that these matters were not negatived by the evidence led by the prosecution.

[97]Ms. Thomson conceded this ground but only on the basis that there was no evidence that sea urchins were among the contents of the bags. She was right to do so. None of the witnesses spoke to sea urchins and especially so the expert witness who examined the contents of all 39 bags but did not identify any sea urchins among them.

[98]On this basis alone, the no-case submission on charge No. 34C/2018 is upheld.

No-case submission – Charge No.35/2018

[99]The particulars of charge No. 35/2018 are: “You are arrested and charged for that you at a time and place unknown prior to 9:20 p.m. on Wednesday 29th November 2017 being the captain of a... marine vessel registration number FF697024... having arrived in the territorial sea of Saint Lucia... from a place outside Saint Lucia did cause or permit that vessel to arrive at a place other than a customs post, namely Gros Islet fisheries complex contrary to section 21(2) of the Customs (Control and Management) Act.

[100]Section 21 of the Customs Act provides: “(1) Subject to the provisions of this section and save as the Comptroller may otherwise permit - (a) the master of any vessel arriving in the territorial sea of Saint Lucia from a place outside of Saint Lucia shall not cause or permit that vessel to arrive at any time at any place other than a customs port; and… (b) … (2) A master or other person who contravenes or fails to comply with any requirement of subsection (1) commits an offence and is liable to a fine of $5000, or three times the value of the goods whichever is the greater, and any goods imported in contravention of that subsection are liable to forfeiture.”

[101]Proof of this charge required the prosecution to establish that the appellant piloted his vessel from a place outside St. Lucia and caused it to arrive in the territorial sea of Saint Lucia at a place other than at a customs port.

[102]The no-case submission asserted at paragraph 3.5.1 that the appellant’s vessel was intercepted and stopped at the Marina in the Rodney Bay area, and that the evidence established that that was the first time the boat was seen. It was submitted that there was no evidence adduced that the boat arrived at any port in Saint Lucia, let alone at the Gros Islet Fisheries Complex.

[103]There is no substance to this complaint. The evidence established that the appellant’s vessel at some point must have entered Saint Lucia's territorial waters. The failure of the appellant to produce customs documentation from the Saint Lucian authorities gives rise to the inference that he arrived at a port other than a customs port. It is true, however, that no evidence was led that his vessel had arrived at the Gros Islet Fisheries Complex, as particularised. However, this is not fatal as the essence of the offence is in the act of arriving in Saint Lucia at a place that is not a customs port. In practice, the arrival of a vessel in Saint Lucia’s territorial waters may sometimes be discovered only after the fact. The appellant’s inability to produce customs documentation for Saint Lucia, grounds an irresistible inference that the vessel did not arrive at a customs port and suffices to establish that the vessel arrived at a place other than a customs port, whatever that place may have been.

[104]In my view, identifying the precise place where the vessel arrived is not an essential element of the offence, provided that there is evidence to establish that the vessel did not arrive at a customs port. In this case, as I have found, there was such evidence.

[105]Accordingly, I hold that this ground of the no-case submission was also bound to fail.

No-case submission – Charge No. 35A/2018

[106]The particulars of charge No. 35A/2018 are that: ‘You are arrested and charged for that you… in the territorial seas at Rodney Bay Marina... being the captain of a... vessel... registration number capital FF697024... did you have in your possession ninety-two (92) lobsters that were undersized and one lobster carrying eggs, contrary to section 32(1)(a) and (b) of the fisheries regulations.”

[107]Regulation 32.1, so far as relevant, provides: “(1) A person shall not harm, give, receive from anyone, or at any time have in his or her possession, expose for sale, sell or purchase— (a) any lobster that is undersized; (b) any lobster carrying eggs…”

[108]The written no-case submission stated that it adopted the previous submission that an inference could be drawn that the appellant brought the goods from Martinique and that would therefore make his possession of them lawful because it could not be established that they were fished from Saint Lucian fishery waters. It was further submitted that in any event, the appellant’s presence in Saint Lucian waters was “protected by his right of innocent passage.” In oral submissions before this Court Mr. Fraser further posited that the prosecution was required to prove that the appellant had knowledge that the bag contained lobsters and there was no evidence to establish this.

Discussion

[109]Mr. Fraser conceded that the appellant was in possession of the bags on board during the course of oral arguments. By this concession, counsel must be taken to admit that the appellant had knowledge, custody and control of the bags, for that is what possession entails. However, he posited that the prosecution was required to prove that the appellant had knowledge that the bag contained lobsters and there was no evidence to establish this.

[110]The case of Director of Public Prosecutions v Brooks22 is well known for its simple definition of the concept of possession, which it held should be given its ordinary meaning. Lord Diplock’s definition was that: “In the ordinary use of the word “possession” one has in one's possession whatever is, to one's own knowledge, physically in one's custody or under one's physical control.”

[111]The appellant’s admitted possession of the bags gave rise to the strong inference that he was in possession of its contents.23 Furthermore, after being cautioned, the appellant was asked about the contents of the bags and told PC Chicquot that they contained conchs. This was evidence that he had knowledge that the bags contained at least conchs. While he did not specifically say they contained lobster, even if it could be argued that he mistakenly thought the bags all contained conch, it would make no difference since the export of conch is also restricted without written permission and thus mere mistake as to the nature of the thing under his control would not negate possession in him. For example, a person charged with possession of controlled drugs, namely cocaine, but who thought the bag in his possession contained marijuana would still be guilty of possession of cocaine.24

[112]The prosecution having proved the appellant’s possession of the 39 bags on the vessel, it was open to the learned magistrate, even without his statement saying that the bags contained conchs, to draw the strong inference that he had knowledge of their contents. As Lord Steyn explained in R v Lambert in the context of possession of drugs: “First, the relevant facts are usually peculiarly within the knowledge of the possessor of the container and that possession presumptively suggests, in the absence of exculpatory evidence, that the person in possession of it in fact knew what was in the container. This is simply a species of circumstantial evidence. It will usually be a complete answer to a no-case submission. It is also a factor which a judge may squarely place before the jury. After all, it is simple common sense that possession of a package containing drugs will generally as a matter of simple common sense demand a full and adequate explanation.”

[113]This reasoning is applicable here mutatis mutandis. The appellant as captain of the vessel had comprehensive physical custody and control of its cargo including the 39 bags and in the absence of exculpatory evidence it was a reasonable inference that he knew the contents of the bags.

[114]In the circumstances, any submission at the close of the prosecution’s case that the prosecution had not proven that the appellant knew the bags contained lobster was bound to fail and a conviction was inevitable.

[115]I address now Mr. Fraser’s submission in relation to the failure to prove that the lobsters were fished from the fishery waters of Saint Lucia. Mr. Fraser seems to be labouring under the misapprehension that regulations 32(1)(a) and (b) impose a requirement to prove that the lobsters were removed from the fishery waters of Saint Lucia. They do no such thing. This erroneous submission seems to derive from the chapeau to section 32, which reads: “Prohibition against removing from the fishery waters or being in possession of lobsters.”

[116]The prohibition against removing fish from the fishery waters is contained in regulation 32.2(d), which provides: “(2) A person shall not – … (d) remove from the fishing waters, give, or at any time have in his or her possession, expose for sale, sell or purchase any lobster between 30 April to 1 September in every year, or as otherwise stated by the Minister by notice published in the Gazette and in a newspaper which is printed or circulated in the State.”

[117]The simple point is that the appellant was not charged under this regulation, which creates an offence which is distinct from the offences of being in possession of undersized lobsters and lobsters carrying eggs created by regulation 32(1) (a) and (b), which do not require proof that the lobsters were removed from the fishery waters.

[118]Secondly, I have already rejected the argument in relation to the inference to be drawn about the origins of the goods being Martinique and will not repeat my reasons for so doing here.

[119]Finally, in relation to the argument that the prosecution did not negative innocent passage, it is important to understand what that concept means in law. Section 16 of the Maritime Areas Act, provides in material parts: “(1)A foreign vessel may, subject to and in accordance with this section and international law, exercise the right under international law of innocent passage, that is to say, the right of passage by navigating through the territorial sea for the purpose of (a) Traversing the territorial sea without entering internal waters or calling at a roadstead or port facility outside internal waters: or (b) proceeding to or from internal waters or a call at any such roadstead or port facility, where the passage is innocent. (2) The passage of a foreign vessel - (a) Is innocent so long as it is not prejudicial to the peace, good order or security of Saint Lucia: and (b) is deemed to be prejudicial to the peace, good order or security of Saint Lucia if the vessel, in the territorial sea engages in any proscribed activity. (1) In exercising the right of innocent passage a vessel shall comply with – (a) Generally accepted international regulations, procedures, and practices for safety at sea which have effect in the territorial sea or any part thereof; and (b) the provisions of the Regulations and any enactment, order or direction which have effect in the territorial sea, or any part thereof, for or with respect to – (i) … (ii) … (iii) … (iv) … (v) Fishing and fisheries, (vi) … (vii) … (viii) Controls or prohibitions in relation to customs, excise, immigration or sanitation.”

[120]In summary, foreign vessels have the right to navigate through Saint Lucia's territorial sea for the purpose of: (i)traversing the sea without entering internal waters or calling at ports outside internal waters; (ii) proceeding to or from internal waters or a port facility, provided the passage is innocent. Passage is considered innocent as long as it is not prejudicial to the peace, good order, or security of Saint Lucia. Engaging in any "proscribed activity" (as defined in Section 15) automatically renders the passage non-innocent. Proscribed activity includes engaging in any fishing activities. Additionally, there must be compliance with Saint Lucia's laws and regulations regarding navigation, marine traffic, environmental protection, customs, and other specified matters. By its provisions, section 16 ensures that the right of innocent passage for foreign vessels through Saint Lucia's territorial waters must be harmless and complies with local and international laws.

[121]The appellant did not assert innocent passage at the trial, and if innocent passage is proferred as some sort of defence, the appellant gave no evidence to establish or support it. On the contrary, the factual circumstances in which he was attempting to depart completely negate innocent passage. He was in possession of a large quantity of fish in breach of prohibitions on export contained in the Customs and Fisheries Acts, and also prohibitions on possession of them, contrary to the Fisheries Regulations. He was also transporting a passenger who was departing Saint Lucia without clearing with the Customs or Immigration authorities. The appellant’s passage was anything but innocent as it was in plain breach of the provisions of section 16 of the Maritime Areas Act.

[122]For all these reasons, this ground of the no-case submission can fare no better than those that preceded it. It too was bound to fail.

Conclusions on written no-case submission

[123]Having carefully considered the learned magistrate’s ruling delivered on 31st August 3023 and the appellant’s written no-case submissions, I find that the learned magistrate did address the evidential objection to PC Chicquot’s evidence but did not rule whether it was admissible or not, having deferred her ruling on the issue on 22nd June 2023. She also addressed the issue whether the prosecution was required to prove that the lobsters were fished from the fishery waters of Saint Lucia; and whether the vessel departed from a port or place in Saint Lucia without customs clearance.

[124]It is also tolerably clear that the learned magistrate did not engage in a point-by- point consideration of some of the other discreet submissions raised in the appellant’s written no-case submission in her ruling. To be specific, she failed to address the submission that there was no evidence: (i) that the goods were prohibited or that the appellant acted with fraudulent intent; (ii) that the appellant lacked written permission to possess the goods; (iii) that the vessel arrived at a port in Saint Lucia other than a customs port; and (iv) that the appellant had knowledge of the contents of the bags.

[125]The foregoing notwithstanding, the question for this court is whether her ultimate decision to dismiss the no-case submission and convict the appellant was supported by the evidence. For the reasons given earlier in this judgment, save for charge No. 34C/2018, I would hold that the evidence supports her decision to convict.

[126]The appellant having stood on his no-case submission by calling no evidence in his defence, the learned magistrate was then required to consider whether the evidence adduced by the prosecution made her sure that the offences, or any of them, had been proved to the requisite standard such that she was sure of the guilt of the accused.

[127]Having overruled the no-case submission, the learned magistrate directed herself in the following way: “Going beyond the submissions of No-Case to Answer and having determined that these charges concerned cases of strict liability, I am satisfied so that I could feel sure that this defendant is GUILTY as charged on all six counts.”25

[128]That statement may be interpreted as saying that all the offences were of strict liability. Indeed, that is the interpretation urged by the appellant and which forms the basis of his second ground of appeal, to which I now turn. “Ground 2 - A procedural material irregularity took place in the trial process when the learned magistrate erroneously found as a matter of law that the charges laid against the appellant are strict liability offences and thus pointed to no evidence upon the upon which the guilty verdicts could rest, in the premises giving the impression that despite the absence of material evidence pointing to the guilt of the appellant his condition conviction was nevertheless automatic.”

[129]Mr. Fraser made the bold submission that the learned magistrate did not identify the evidence she relied on to convict the appellant but convicted him automatically on the basis that all the offences were strict liability offences.

[130]Ms. Thomson conceded that not all the offences were strict liability offences. She stated that charge numbers 34A/2018 and 34B/2018 required proof of fraudulent intent and knowledge. She submitted that although in one breath the learned magistrate described all the offences as strict liability offences, in the next breath she said the six offences were mainly strict liability offenses and later said “these customs offences of strict liability. It was suggested that this indicates that the learned magistrate appreciated the distinction. Although she misspoke on occasions, she did not regard all the customs offences as strict liability offences submitted Ms. Thomson.

Discussion

[131]A strict liability offence is one in which normally no fault element is required in relation to some aspect of the actus reus but mens rea or a mental element is required in relation to other aspects. Determining whether a statutory offence is an offence of strict liability or whether it is an offence requiring proof of mens rea as to its essential facts requires the court to begin its analysis with the presumption that mens rea is required before a person can be convicted of a criminal offence. Where the offence can be described as being ‘truly criminal’ in character then the presumption is particularly strong.26 Further, the presumption applies to statutory offences and may only be displaced where if it is clearly the effect of the statute that the presumption be displaced. This requires that the statutory language of the provisions, as well as the structure of the sections be carefully construed; some of which may expressly require mens rea as signalled by the use words such as ‘knowingly’. Additionally, factors such as the severity of the penalties, the public policy considerations underpinning the offence such as the seriousness of the mischief intended to be addressed and whether the creation of strict liability will be effective to promote the objects of the statute and deter commission of the prohibited act are also relevant in determining whether an offence is one of strict liability: Nurse v Republic of Trinidad and Tobago; Canserve Ltd v Republic of Trinidad and Tobago;27 Levar Devere Brown v The Chief of Police28.

[132]The appellant does not argue that none of the six offences was an offence of strict liability. His case is that the learned magistrate regarded them all as such when some of the customs offences clearly were not, as signified by words such as ‘fraudulent intent’ and ‘knowingly’, which indicate the need for the prosecution to establish mens rea.

[133]The respondent concedes that that charge numbers 34A/2018 and 34B/2018 required proof of fraudulent intent and knowledge and were not offences of strict liability. That is a proper concession. The real issue in relation to this ground of appeal is whether the learned magistrate’s mischaracterization of all the offences as strict liability offences led to her automatically convicting the appellant without considering the element of each offence.

[134]If the appellant’s contention on this ground is to be interpreted as saying that the learned magistrate convicted the appellant on the basis that the offences were strict liability offences without engaging with the evidence but regarded conviction as flowing automatically from the fact that they were (in her view) offences of strict liability, it misrepresents the true position.

[135]At paragraph (5) of the ruling the learned magistrate directed herself on how to approach strict liability offences in relation to customs cases: “The case of Glendon de Gale v Unted Hatcheries Mag. App No 155 of 1986 provides clarification of the meaning of Strict Liability in customs offences. It is not that there is no mental element required but that however innocent the error, that ignorance of the law is no excuse (ignorantia lex non excusat). …, “This case is replete with other facts and circumstances which are both cogent and compelling – that this defendant committed the requisite elements of each count of these CUSTOMS OFFENCES OF STRICT LIABILITY, in which ignorance of the law is no excuse.”

[136]It seems to me that in this passage the learned magistrate demonstrates awareness that the fact that an offence was one of strict liability did not obviate the need to satisfy herself that the elements of each offence were established.

[137]The learned magistrate then held at paragraph (5) that she was satisfied that the elements of each offence was made out. She proceeded thereafter to rehearse the evidence on which she relied. The facts which the learned magistrate expressly relied on in her ruling are that the appellant was seen leaving the marina and was subsequently found not to have had customs clearance from Saint Lucia. She found that this was established without his need to say anything or do anything else – in French, English or Patois and that he was “seised of both mental and physical elements of the customs offences.”

[138]The learned magistrate further stated that “no customs officer could upon their encounter with Mr. Pillage on board his vessel, say whether he had come from Martinique with the sea food later retrieved from on board or had fished for them in St. Lucian waters. However, the law says that insofar as he was at the Gros Islet port without submitting to them any landing documents, reports, entries for Customs Proper (sic) Officers to address, the customs offenses (sic) had already been completed.” This passage seems to be addressing the submission in relation to the requirement to prove the origins of the lobster and conch from the fishery waters of Saint Lucia. Her view seems to be that that was not something which the prosecution could prove, and furthermore the appellant’s failure to clear customs, itself established the customs offences.

[139]The learned magistrate then addressed what she called the fisheries offences. The evidence she considered to ground conviction is described at paragraph (6) of her ruling: “6) When Mr. Pelage goes further upon being signalled by the port authorities to pull alongside, so that they could board his vessel and upon compliance he is found to have on board a quantity of seafood restricted by St. Lucia law (s.36 (a)) – the offense creating subsection does not exclude the date 29/November, 2017) then he perpetrates the two fisheries offenses (sic)… All of this is prior to any possible admission or confession on the basis of which Defence Counsel seeks to forestall a conviction.”

[140]Here the learned magistrate is saying that the finding of the 39 bags on board the appellant’s vessel, which, on examination, were proved to contain lobster and conch, established that the appellant was in possession of them contrary to the Customs Act and the Fisheries Regulations. The learned magistrate is also here saying that proof of these offences did not depend on any admission the appellant had made.

[141]It has to be said that the learned magistrate did not express her reasons in the most structured way or in any forensic detail by articulating the actus reus and mens rea required to establish each offence; her reasoning was expressed in a rather summary way. However, the contention that she automatically convicted the appellant because she erroneously regarded the offences to be strict liability is not made out, having regard to the fact that she expressly directed herself that “it is not that there is no mental element required” and further found that “this defendant committed the requisite elements of each count of these CUSTOMS OFFENCES OF STRICT LIABILITY”; and also said that the appellant was “seised of both mental and physical elements of the customs offences.” (emphasis added)

[142]It seems to me, that even though the learned magistrate erroneously mischaracterized all of the customs offences as strict liability offences, she nonetheless expressly addressed her mind to the need to satisfy herself that the elements of each offence was made out and identified the evidence on which she relied. The flaw lies in her failure to more fulsomely articulate why she found each element of each offence made out. Notwithstanding this, however, I would reject this ground of appeal because, as I have found, save for Charge No. 34C/2018, the elements of each offence were clearly established. Ground 3 - The convictions entered against the appellant go against the weight of the evidence and were in fact entered in the absence of cogent evidence pointing to the guilt of the appellant.

[143]This ground in substance echoes the submissions contained in the appellant’s written no-case submission, which formed the subject of ground 1. It must ineluctably suffer the same fate as ground 1 and is dismissed. Ground 4 – A material irregularity took place in the trial process thus rendering the trial unfair when the learned magistrate entered the convictions against the appellant and proceeded to sentence him on the various charges without inviting counsel to enter a plea in mitigation on the appellant's behalf.

[144]It is clear from the record of appeal that having pronounced the guilt of the appellant the learned magistrate proceeded immediately to sentence him without entertaining a plea in mitigation.

[145]The maximum sentence for 34/2018 is a fine of $5000.00. The maximum sentence for 34A/2014 is a fine of $10,000 or three times the value of the goods, whichever is the greater, or to imprisonment for five years, or to both. The maximum sentence for Charge No.34B/2018 is a fine of $5000.00 or three times the value of the goods whichever is the greater or to imprisonment for two years, or to both. The maximum sentence for Charge No. 35/2018 is a fine of $5,000.00 or three times the value of the goods whichever is the greater. The maximum sentence for Charge No. 35B/2018 is a fine of $5,000.00.

[146]The learned magistrate imposed the maximum fine of $5000 prescribed for all the offences, save for Charge No. 34A/2018.

[147]The maximum sentence is ordinarily reserved for the most egregious offending at the top end of the scale. It is a cardinal principle that a sentence should be fashioned to meet the justice of the case having regard to the facts and the individual circumstances of the offender. A plea in mitigation serves the useful purpose of furnishing the court with information of the personal circumstances of the offender or features or circumstances surrounding the offending conduct which might mitigate the sentence.

[148]Compounding the fact that the learned magistrate did not entertain a plea in mitigation is the fact that she provided no reasons whatsoever for determining that the maximum sentences were appropriate in the circumstances of this case. There can be a justifiable sense that the sentences were imposed somewhat arbitrarily. Undoubtedly, these deficiencies constitute an error of principle in the approach to the sentencing exercise such this court is empowered to intervene.

[149]This court was not assisted by counsel for the appellant or counsel for the respondent with any details of the personal circumstances of the appellant. Neither could tell us his age or even whether he had any previous convictions or was a person of previously good character. Nor were we furnished with any guideline or precedent cases where offenders were sentenced for similar offences. Neither counsel could offer any insight into the approximate value of the sea food on board the appellant’s vessel. This lack of preparedness is perplexing, considering that the sentence was appealed. Ms. Thomson seems to have taken the position that it was for the appellant to establish that the sentence should not be disturbed. With respect, that is a misguided position to adopt.

[150]On an appeal against sentence, where the appellant is seeking to have the Court set aside or vary the sentence, and the respondent is seeking to have the Court uphold the sentence, both parties must contemplate the possibility that the appeal might be upheld and that the question of re-sentencing will therefore arise. In that event, they both have a duty to fully assist the court by furnishing authorities or cogent argument to guide the court in determining an appropriate range of sentence in the circumstances of the case.

[151]We were invited to order the preparation of a pre-sentence report and remit the case to the learned magistrate for sentencing. That suggestion is not feasible for a few reasons. First, the learned magistrate is no longer on the bench. Secondly, the appellant is from Martinique and the logistics and legality involved in the Saint Lucian authorities obtaining a pre-sentence report in relation to him might present issues. Thirdly, the matter is almost 8 years old and needs to be completed without further delay. In these circumstances, this Court will have to do the best it can.

[152]An appropriate place to start is to determine the starting point for the sentence. I therefore consider the appellant’s culpability in the commission of these offences. The evidence suggests that he played a leading role, being the captain of the vessel. He must have taken a conscious decision to ignore and breach the Customs and Fisheries laws of Saint Lucia. Given the large quantity of sea food in his possession, it is likely that it was intended for commercial sale and not personal consumption. This suggests that the appellant was motivated to commit these offences for profit. In my view these factors lead me to assign a high degree of culpability to the appellant.

[153]The maximum sentence being a fine of $5,000 for all offences except 34A/2018, on account of the high level of the appellant’s culpability, the starting point I adopt is a fine of $3,500 for each offence.

[154]I next consider whether there are any further aggravating factors in relation to the offence, not already considered when setting the starting point. I find there are none. Neither are there any other aggravating factors in relation to the appellant.

[155]I consider next whether there are any personal mitigating circumstances which might reduce the sentence. In the absence of evidence of previous convictions, the appellant must be treated as a person of good character. On this account, I reduce the fines to $3,000 on Charge Nos. 34/2018, 34B/2018, 35/2018 and 35A/2018. In relation to charge No. 34A/2018 for which he was fined $5,000 instead of the maximum $10,000.000, the appellant received from the learned magistrate a generous discount of 50%. That sentence has not been challenged by the respondents as unduly lenient and I make no adjustment to it.

Disposition

[156]The appellant’s conviction on charge No. 0034C/2018 is quashed. His convictions in relation to Charge Nos. 34/2018, 34B/2018, 35/2018 and 35A/2018 are affirmed.

[157]The appeal against sentence in relation to charge Nos. 34/2018, 34B/2018, 35/2018 and 35A/2018 is upheld and the sentences imposed by the learned magistrate are varied by substituting a fine of $3,000.00 in relation to each Charge. These fines must be paid within 30 days of the delivery of this judgement or in default the appellant will serve a term of imprisonment of six months.

I concur

Vicki-Ann Ellis

Justice of Appeal

I concur

Eddy D. Ventose

Justice of Appeal

By the Court

Chief Registrar

THE EASTERN CARIBBEAN SUPREME COURT IN THE COURT OF APPEAL SAINT LUCIA SLUMCRAP2023/0002 BETWEEN: YANNICK PELAGE Appellant and PC 785 MARIO CHICQUOT Respondent Before: The Hon. Mde. Vicki Ann Ellis Justice of Appeal The Hon. Mr. Trevor M. Ward Justice of Appeal The Hon. Mr. Eddy D. Ventose Justice of Appeal Appearances: Mr. Horace Fraser for the Appellant Ms. Kelly Thomson, Deputy Director of Public Prosecutions, for the Respondent _______________________________ 2025: January 16 May 8. _______________________________ Magisterial Criminal Appeal – Appeal against conviction and sentence by the learned magistrate – Appellant found guilty of Offences contrary to the Customs (Control and Management) Act, Cap. 15.05 of the Revised Laws of Saint Lucia 2023 and the Fisheries Regulations under the Fisheries Act, Cap. 7.15 of the Revised Laws of Saint Lucia 2023 – Departing Saint Lucia without valid clearance – Fraudulent possession of restricted goods (conch, lobsters, sea urchins) – Failure to declare goods for export – Possession of sea urchins without permission – Arriving in Saint Lucia at a non-customs port – Possession of undersized and egg-bearing lobsters – Procedural irregularity – Whether the learned magistrate failed to consider the appellant’s written no-case submission before delivering her decision – Strict liability offences – Whether the learned magistrate erroneously treated the offences as strict liability offences –– Sufficiency of evidence – Whether there was sufficient evidence to support the convictions – – Sentencing irregularity – Whether the learned magistrate erred in sentencing the appellant without inviting a plea in mitigation On 29th November 2017, Mr. Yannick Pelage, the appellant, was the captain of the vessel “Be Yourself” seen in Saint Lucia waters near the Rodney Bay Marina. The vessel was stopped by Marine Police Officers, and, after questioning, the appellant was arrested along with a female occupant, Ms. Duplessis. The appellant was charged with the following offences under the Customs (Control and Management) Act and Fisheries Regulations: (1) Departing Saint Lucia without valid clearance (SLUCRD2018/0034); (2) Fraudulent possession of restricted goods (conch, lobsters, sea urchins) (SLUCRD2018/0034A); (3) Failure to declare goods for export (SLUCRD2018/0034B); (4) Possession of sea urchins without permission (SLUCRD2018/0034C); (5) Arriving in Saint Lucia at a non-customs port (SLUCRD2018/0035); and (6) Possession of undersized and egg-bearing lobsters (SLUCRD2018/0035A). The prosecution’s evidence was that on 29th November 2017, the Police Marine Unit was on patrol near the Rodney Bay Marina. On board were Police Officers Cpl. Milton Antoine, Police Constable Leonnard Lionel and Police Constable Mario Chicquot. They observed two vessels exiting the marina. One was a tender conveying cruise ship passengers to a cruise ship; the other was a gray and black vessel named “Be Yourself” with French registration FF697024, which was being piloted by the appellant. The officers decided to conduct a routine boarding of the appellant’s vessel. According to the evidence of PC Lionel, routine boarding entails ensuring that the vessel was equipped with safety equipment, ensuring that there were no irregularities with the vessel, ascertaining the reason for the vessel’s journey and the contents of the vessel. PC Milton Antoine brought the police vessel alongside the appellant’s vessel and signalled it to stop. The officers boarded and observed that there was another person on board. Upon request, the appellant identified himself as Yannick Pelage and stated that he was from Fort-de-France, Martinique. The other person was Ms. Sansha Poleon-Duplessis, a Saint Lucian National. The officers observed that there were several white polythene bags on board. Ms. Poleon-Duplessis had a black luggage bag in her possession. PC Chicquot asked the appellant where he was headed. The appellant replied that he had come from Martinique to collect some items and was returning. PC Chicquot asked him for his Customs Declaration Form, and, in response, the appellant produced a Customs Declaration Form for Martinique. PC Chicquot asked for his Customs Declaration Form for Saint Lucia, but the appellant stated that he did not have one for Saint Lucia. At that point PC Chicquot advised him that it was an offence to enter the country and collect goods without clearing Customs and cautioned him. The appellant replied, “Officer, give me a chance”. PC Chicquot asked him about the contents of the white bags and the appellant said they contained conchs. He was asked about his passenger and said he was giving her a ride to Martinique. Ms. Duplessis was asked whether she had cleared Customs, and she said she had not. PC Chicquot told the appellant that it was an offence to embark a passenger with the intention of leaving the country without having the requisite clearance. PC Chicquot further informed him that he had broken several laws and would be taken to the Castries Marine Unit for further investigation. The Marine Unit escorted the appellant’s vessel to the Police Marine Unit for investigation. At the Marine Unit, the officers unloaded 39 polythene bags from the appellant’s vessel. On hand to examine their contents were Customs Officer Eudoxie and Deputy Chief Fisheries Officer Thomas Nelson. DCFO Nelson, who was qualified as a fisheries biologist, determined that 33 of those bags contained conch. The other six bags contained 94 Caribbean Spiny lobsters. DCFO Nelson proceeded to measure each lobster to ascertain whether they were of the legal size of 9.5 cm, pursuant to the Fisheries Regulations. He found that only one was of legal size. During this process he also discovered that one of the lobsters was moulting or carrying eggs. The appellant and Ms. Poleon-Duplessis were released but instructed to return to the Marine Unit at 8:00 a.m. for further processing. The appellant duly reported. In the presence of an interpreter a written statement under caution was recorded from him. This was subsequently ruled inadmissible on 14th April 2022, after a voir dire and no more need be said about it. At the conclusion of his trial on 31st August 2023, the learned magistrate convicted the appellant of all charges and immediately sentenced him without hearing any plea in mitigation on his behalf. Dissatisfied with the decision of the learned magistrate, the appellant filed four grounds of appeal. They complain that (i) the learned magistrate failed to consider the appellant’s written no-case submission before delivering her decision; (ii) the learned magistrate erroneously treated the offences as strict liability offences; (iii) there was insufficient evidence to support the convictions; (iv) the learned magistrate erred in sentencing the appellant without inviting a plea in mitigation. Held: quashing the appellant’s conviction on charge No. 0034C/2018, affirming the appellant’s convictions in relation to Charge Nos. 34/2018, 34B/2018, 35/2018 and 35A/2018, upholding the appeal against sentence in relation to charge Nos. 34/2018, 34B/2018, 35/2018 and 35A/2018 and varying the sentences imposed by the learned magistrate by substituting a fine of $3,000.00 in relation to each Charge, directing that these fines must be paid within 30 days of the delivery of this judgement or in default the appellant will serve a term of imprisonment of six months, that:

[1]WARD JA: This is an appeal against the conviction and sentence of the appellant, Yannick Pelage, by the learned Magistrate on 31st August 2023, wherein he was found guilty of six offences under the Customs (Control and Management) Act, Cap. 15.05 of the Revised Laws of Saint Lucia 2023 (the Customs Act) and the Fisheries Regulations under the Fisheries Act, Cap. 7.15 of the Revised Laws of Saint Lucia 2023 (the Fisheries Act). He was sentenced to fines of $5,000.00 for each offence. Background facts

2.The magistrate did not misapprehend the substance of Mr. Fraser’s oral submissions, whether described as a no-case submission or as evidential objections. While the learned magistrate did not state clearly whether she considered the evidence of the oral admissions admissible or not, the way in which she treated with the submission was to say that this was not a case that depended wholly on the oral admissions. It is clear from the learned magistrate’s ruling that her finding of guilt did not hinge upon her reliance on any of the oral utterances made by the appellant, whether pre-caution or post-caution, which were not factored into her decision. The appellant’s post-caution admission that he knew that the bags on the vessel contained conch was, even without that admission, the irresistible inference to be drawn in circumstances in which he was the captain of the vessel on which some 39 bags were found in plain view. As the captain of the vessel, the physical custody and control of the vessel and its cargo was vested in him. There was therefore no unfairness in admitting the admission that the bags contained conch, which was made after caution. As to his admission that he was giving Ms. Poleon-Duplessis a ride to Martinique, that fact was self-evident as she was a passenger on board and he had told the police, at a time when he was not suspected of committing an offence, that he was headed to Martinique. The submission that the oral admissions made by the appellant should have been excluded therefore lacks merit. Section 72 of the Evidence Act Cap. 4.15 of the Revised Laws of Saint Lucia applied., Michel Dufour et al v Helenair Corporation Ltd. et al (1996) 52 WIR 188, Jose Miranda Ortiz et al v The Police Magisterial Criminal Appeal No. 27 of 1992

[2]On 29th November 2017, Mr. Yannick Pelage, the appellant, was the captain of the vessel "Be Yourself" seen in Saint Lucia waters near the Rodney Bay Marina. The vessel was stopped by Marine Police Officers, and, after questioning, the appellant was arrested along with a female occupant, Ms. Duplessis. The appellant was charged with the following offences under the Customs (Control and Management) Act and Fisheries Regulations: (1) Departing Saint Lucia without valid clearance (SLUCRD2018/0034); (2) Fraudulent possession of restricted goods (conch, lobsters, sea urchins) (SLUCRD2018/0034A); (3) Failure to declare goods for export (SLUCRD2018/0034B); (4) Possession of sea urchins without permission (SLUCRD2018/0034C); (5) Arriving in Saint Lucia at a non-customs port (SLUCRD2018/0035); and (6) Possession of undersized and egg-bearing lobsters (SLUCRD2018/0035A). During the course of addressing the specific grounds of appeal, I will set out the particulars of these charges later in this judgment. The prosecution’s case

4.The contention that the learned magistrate automatically convicted the appellant because she erroneously regarded the offences to be strict liability and without engaging with the evidence because she regarded conviction as flowing automatically from the fact that they were (in her view) offences of strict liabilityis not made out, having regard to the fact that she expressly directed herself that “it is not that there is no mental element required” and further found that “this defendant committed the requisite elements of each count of these CUSTOMS OFFENCES OF STRICT LIABILITY”; and also said that the appellant was “seised of both mental and physical elements of the customs offences.” Even though the learned magistrate erroneously mischaracterized all of the customs offences as strict liability offences, she nonetheless expressly addressed her mind to the need to satisfy herself that the elements of each offence was made out and identified the evidence on which she relied. The flaw lies in her failure to more fulsomely articulate why she found each element of each offence made out. Notwithstanding this, however, this ground of appeal is rejected because, as I have found, save for Charge No. 34C/2018, the elements of each offence were clearly established. Gammon (Hong Kong ) Limited v Attorney-General of Hong Kong [1985] A.C. 1, PC. followed, Nurse v Republic of Trinidad and Tobago; Canserve Ltd v Republic of Trinidad and Tobago [2019] UKPC 43 followed, Levar Devere Brown v The Chief of Police SKBMCRAP2021/0003 (delivered 5th July 2023, unreported) applied.

[3]The prosecution’s evidence was that on 29th November 2017, the Police Marine Unit was on patrol near the Rodney Bay Marina. On board were Police Officers Cpl. Milton Antoine, Police Constable Leonnard Lionel and Police Constable Mario Chicquot. They observed two vessels exiting the marina. One was a tender conveying cruise ship passengers to a cruise ship; the other was a gray and black vessel named "Be Yourself" with French registration FF697024, which was being piloted by the appellant. The officers decided to conduct a routine boarding of the appellant’s vessel. According to the evidence of PC Lionel, routine boarding entails ensuring that the vessel was equipped with safety equipment, ensuring that there were no irregularities with the vessel, ascertaining the reason for the vessel’s journey and the contents of the vessel.

[4]PC Milton Antoine brought the police vessel alongside the appellant’s vessel and signalled it to stop. The officers boarded and observed that there was another person on board. Upon request, the appellant identified himself as Yannick Pelage and stated that he was from Fort-de-France, Martinique. The other person was Ms. Sansha Poleon-Duplessis, a Saint Lucian National. The officers observed that there were several white polythene bags on board. Ms. Poleon-Duplessis had a black luggage bag in her possession.

[5]PC Chicquot asked the appellant where he was headed. The appellant replied that he had come from Martinique to collect some items and was returning. PC Chicquot asked him for his Customs Declaration Form, and, in response, the appellant produced a Customs Declaration Form for Martinique. PC Chicquot asked for his Customs Declaration Form for Saint Lucia, but the appellant stated that he did not have one for Saint Lucia. At that point PC Chicquot advised him that it was an offence to enter the country and collect goods without clearing Customs and cautioned him. The appellant replied, “Officer, give me a chance”. PC Chicquot asked him about the contents of the white bags and the appellant said they contained conchs. He was asked about his passenger and said he was giving her a ride to Martinique. Ms. Duplessis was asked whether she had cleared Customs, and she said she had not. PC Chicquot told the appellant was told that it was offence to embark a passenger with the intention of leaving the country without having the requisite clearance. PC Chicquot further informed him that he had broken several laws and would be taken to the Castries Marine Unit for further investigation.

[6]The Marine Unit escorted the appellant’s vessel to the Police Marine Unit for investigation. At the Marine Unit, the officers unloaded 39 polythene bags from the appellant’s vessel. On hand to examine their contents were Customs Officer Eudoxie and Deputy Chief Fisheries Officer Thomas Nelson. DCFO Nelson, who was qualified as a fisheries biologist, determined that 33 of those bags contained conch. The other six bags contained 94 Caribbean Spiny lobsters. DCFO Nelson proceeded to measure each lobster to ascertain whether they were of the legal size of 9.5 cm, pursuant to the Fisheries Regulations. He found that only one was of legal size. During this process he also discovered that one of the lobsters was moulting or carrying eggs.

[7]The appellant and Ms. Poleon-Duplessis were released but instructed to return to the Marine Unit at 8:00 a.m. for further processing. The appellant duly reported. In the presence of an interpreter a written statement under caution was recorded from him. This was subsequently ruled inadmissible on 14th April 2022, after a voir dire and no more need be said about it. The seized items were photographed by Scenes of Crime Officer Kaysha Mitchell-Isaac.

[8]At the conclusion of his trial on 31st August 2023, the learned magistrate convicted the appellant of all charges and immediately sentenced him without hearing any plea in mitigation on his behalf. The appeal

[9]By notice of appeal filed on 14th September 2023, the appellant filed four grounds of appeal. In broad terms they complain that (i) the learned magistrate failed to consider the appellant’s written no-case submission before delivering her decision; (ii) the learned magistrate erroneously treated the offences as strict liability offences; (iii) there was insufficient evidence to support the convictions; (iv) the learned magistrate erred in sentencing the appellant without inviting a plea in mitigation. I will deal with each ground in turn. Ground 1: A material irregularity took place in the trial process resulting in an injustice when the learned magistrate wrote her decision in relation to the written no-case submission (as ordered by the Court) made on behalf of the appellant without seeing, considering or taking cognizance of the written no-case submission.

[10]Learned counsel for the appellant, Mr. Horace Fraser, submitted that a procedural irregularity occurred when the learned magistrate appeared on 31st August 2023 with a written decision which she proceeded to give without seeing the written no-case submission. Mr. Fraser submitted that this is evident from the alleged failure of the learned magistrate’s decision to address any of the matters raised in the written no-case submission. While she stated in her ruling that the no-case submission was overruled, she failed to provide any reasons for so doing. It was further submitted that the learned magistrate confused the written no-case submission with the section 72 evidential objection he had taken on 22nd June 2023 in relation to the oral statements made by the appellant and had also failed to give a ruling on that evidential objection.

[11]On behalf of the respondent, the learned Deputy Director of Public Prosecutions, Ms. Kelly Thomson accepted that the oral submissions made on 22nd June 2023 were in relation to an evidential objection as opposed to a no-case submission. However, Ms. Thomson submitted that the Record of Appeal reflects that the learned magistrate did receive and peruse the written no-case submission and seems to have regarded the section 72 objection as a verbal no-case submission. However, she submitted that it was evident that nothing in the written no-case submission caused the learned magistrate to deviate from the conclusions reached in her written ruling because had she cause to do so, she would have done so.

[12]Ms. Thomson further submitted that in paragraphs 5 and 6 of the written ruling, the learned magistrate addressed her mind to all the offences, although her reasons were somewhat brief. Discussion – Ground 1

[13]The main issue here is whether the learned magistrate failed to consider the written no-case submission filed on behalf of the appellant before rendering her decision. If this Court finds that she failed to do so, it will fall to us to consider the submissions and to determine whether the convictions are unsafe. Secondly, an issue arises as to whether the learned magistrate ruled on the admissibility of the appellant’s oral admissions; if not, what if any impact does that have on the safety of any of the convictions.

[14]At the outset, I should note that a document titled “ADDENDUM with MEMORANDUM OF REASONS” is at page 53 of the Record of Appeal. It is not known when this document was authored and neither counsel for the appellant nor counsel for the respondent referred to it or the reasons contained in it. I have therefore not treated it as forming any part of the learned magistrate’s reasons for either dismissing the no-case submission or convicting the appellant and confine my analysis to the ruling delivered on 31st August 2023.

[15]A no-case submission may be predicated on one of two limbs: (i) that the prosecution has failed to establish an essential element of the offence; or (ii) that the evidence adduced by the prosecution has been so discredited or is so manifestly unreliable that no reasonable tribunal could safely convict. Within the jurisdiction of the Eastern Caribbean Supreme Court, R v Galbraith, is regarded as the seminal authority on the approach that a trial judge should take when met with a no-case submission. The guidance provided in this case is well known and does not require repeating here. Suffice it to say, that the appellant’s written no-case submission was hinged on the first limb.

[16]In approaching this ground of appeal, however, it is important to keep in mind that when the Court of Appeal is considering the question whether a no-case submission should have been upheld, the Court of Appeal should not focus on the manner in which the learned magistrate has expressed herself, but must examine the evidence itself to see whether there was a case to answer. The principle was stated by Baptiste JA in Edwin Gomez v The Queen , applying R v McLeod and Others : “[12] On an appeal against conviction on the ground that there is no case to answer, this Court will focus on whether there was in fact a case to answer…

[17]In other words, the Court of Appeal’s task is to examine the evidence to determine whether it supports the verdict. This posture is hardly surprising, and conforms with the mandate of section 753 of the Criminal Code of Saint Lucia Cap. 3.01 of the Revised Laws of Saint Lucia (“the Criminal Code”), which provides: “(1) No conviction or order made in pursuance of any proceedings for a summary conviction shall be quashed for any defect or want of form. (2) Every appeal shall be decided on its merits, and in all cases where it appears that the merits of the case have been tried and there is evidence to support the decision by the magistrate, the Court shall confirm the decision and no conviction, order, warrant process or proceeding in connection with the decision, shall be quashed, notwithstanding any objection concerning the improper admission or rejection of any evidence. (3) The Court may, in any case where there was improper admission or rejection of evidence, amend the conviction, order warrant, process or proceeding if necessary, or give such judgment or make such order as it considers the magistrate should have given or made in the circumstances.” (emphasis added)

[18]That is the approach I propose to take. To resolve the issue of whether the learned magistrate failed to address the appellant’s written no-case submission before rendering her decision, it is however, important to set this ground of appeal in its factual context.

[19]During the testimony of PC Lionel on 21st June 2018 , learned counsel for the appellant, Mr. Horace Fraser, objected to PC Lionel adducing evidence that the appellant had given his name and stated that he was from Fort de France, Martinique and had come to Saint Lucia to pick up some items. The objection was stated to be based on section 77 of the Evidence Act Cap. 4.15 of the Revised Laws of Saint Lucia (“the Evidence Act”). The section provides: “In criminal proceedings, where evidence of confession is adduced by the prosecution and, having regard to the circumstances in which the confession was made, it would be unfair to a defendant to use the evidence, the court may- (a) refuse to admit the evidence; or (b) refuse to admit the evidence to prove a particular fact.”

[20]Counsel developed the objection by submitting that the evidence could not be adduced unless (a) a written record was made of the questions and answers asked of and given by the appellant; (b) he was told of his rights and cautioned; and (3) the questions and answers were read over to him and he affixed his signature to the record; and (4) at the time the statement was made a JP and (sic) attorney-at-law were present. Though not specifically stated at this juncture in the proceedings, these submissions appear to be grounded in section 72 of the Evidence Act, which deals with admissions by defendants (the section 72 requirements). Section 72 provides: (1) This section applies only— (a) in criminal proceedings; (b) in relation to evidence of an admission made by a defendant who, at the time when the admission was made, was or ought reasonably to have been suspected by an investigating official of having committed an offence; and (c) where the admission was made in the course of official questioning. (2) Subject to subsections (5) and (6), evidence of an admission is not admissible unless— “(a) the questioning of the person and any thing said by the person during the questioning was tape recorded; or (b) the questioning of the person was conducted in the presence of a person, not being an investigating official, who was— (i) a justice of the peace; or (ii) an attorney-at-law acting for the person; and a document prepared by or on behalf of the investigating official to prove the contents of the question, representation or response has been signed, initialed or otherwise marked by the person making the admission, and by the justice of the peace or the attorney-at-law, acknowledging that the document is a true record of the question, representation or response; or (c) in any other case— (i) at the time of the interview of the person or as soon as practicable afterwards, a record in writing was made, either in English or in another language used by the person in the interview, of the things said by or to the person in the course of the interview, and (ii) as soon as practicable after the record was made, it was read to the person in the language used by him or her in the interview and a copy of the record was made available to the person, (iii) the person was given the opportunity to interrupt the reading referred to in subparagraph (ii) at any time for the purpose of drawing attention to any error or omission that he or she claimed had been made in or from the record and, at the end of the reading, the person was given the opportunity to state whether he or she claimed that there were any errors in or omissions from the record in addition to any to which he or she had drawn attention in the course of the reading…”

[21]The Evidence Act defines an admission at section 2” “admission” means— (a) a previous representation made by a person who is or becomes a party to proceedings, being a representation that is adverse to the person’s interest in the outcome of the proceedings; or (b) a confession;

[22]The learned magistrate overruled the objection on the basis that the evidence sought to be adduced was not an admission within the meaning of the Evidence Act. However, when PC Lionel later sought to adduce evidence of the appellant’s response after he was cautioned, counsel’s objection to this evidence was sustained.

[23]On 7th November 2019, PC Chicquot commenced his testimony. At the point when he was about to give his evidence about his initial conversation with the appellant on boarding the appellant’s vessel, counsel renewed his objection, asserting section 72 of the Evidence Act and contended that since this was official questioning, compliance with the provisions of section 72 was required but had not been observed. Counsel submitted that the learned magistrate should not even hear the questions asked of the appellant.

[24]The learned magistrate agreed that the questions put to the appellant would constitute official questioning. According to the Evidence Act, “official questioning” means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence. The learned magistrate nonetheless invoked section 72(5) to overrule the objection. Sub section (5) is in the following terms: “ (5) A court may admit evidence to which this section applies even if the requirements of this section have not been complied with, or there is insufficient evidence of compliance with those requirements, if, having regard to the nature of and the reasons for the non-compliance or insufficiency of evidence and any other relevant matters, the court is satisfied that, in the special circumstances of the case, admission of the evidence would not be contrary to the interests of justice.”

[25]The learned magistrate’s stated reason for disagreeing with the submission that she should not hear the questions posed to the appellant was that: “I have no means of knowing: their relevance, their prejudicial versus their probative value; their connection to (or otherwise) of any of the six counts WITHOUT HEARING THE QUESTION.” (original emphasis).

[26]The evidence of the oral statements made by the appellant was then given in evidence.

[27]At the close of the prosecution’s case on 22nd June 2023 , the appellant, when put to his election, opted to remain silent. Counsel then made oral submissions (recorded as “Defence Objection) again raising objection to the admissibility of the evidence previously given by PC Chicquot on 7th November 2019 and 15th October 2021. Counsel reminded the learned magistrate that he had previously objected to PC Chicquot giving evidence of oral statements made by the appellant. He submitted that under cross-examination on 15th October 2021 PC Chicquot had admitted that: (i) he had put the questions to the appellant in English; (ii) he had spoken to the appellant in Patois; (iii) he was aware the appellant was a foreign national; (iv) the official language of Saint Lucia was English; (vi) he had not made a contemporaneous record of the questions and answers of the appellant; (vii) it had dawned on him that the appellant needed a translator to be present; (viii) he had not made a recording of the questions and answers because he was out at sea; and (ix) he had not contemplated recording them.

[28]Counsel then submitted that section 72 required that any official questioning be recorded or that Justice of the Peace or a lawyer be present. The record must be signed by the JP or the lawyer. Counsel further submitted to the learned magistrate that according to the Act, “no police officer could come to court and give evidence of an oral admission without a recording.” Accordingly, counsel asked for PC Chicquot’s evidence given on 7th November 2019 be struck off the record for non-compliance with section 72 of the Evidence Act. He submitted that it should also be struck because “it did not comply with requirement to have an interpreter of his own language present.”

[29]I pause here to note that these objections, made on the basis of section 72 of the Evidence Act, are in substance the same as the objections previously taken by Mr. Fraser on 7th November 2019 but overruled by the learned magistrate. What was new were the submissions in relation to the failure to have an interpreter present during the questioning.

[30]After hearing submissions from the prosecutor, the learned magistrate stated : “I will not rule now but I see as KEY my categorizing the WORDS (offending defence) as ADMISSIONS, expressed orally of THE ELEMENTS of these offences – and not surrounding circumstances; each counts has its ELEMENTS. 14/JULY/2023 Defence to file and serve No Case Submissions.” (emphasis added)

[31]The matter was then adjourned to 31st August 2023 for decision.

[32]At the very outset of the hearing on 31st August 2023, Mr. Fraser indicated to the learned magistrate that he had filed the no-case submission three days after the last hearing. The no-case submission, which appears at page 78 of the Record of Appeal however, bears the stamp of the First District Court dated 26th July 2023.

[33]From the record, it is obvious that the learned magistrate had not previously seen it, as confirmed by the following important endorsement appearing at the bottom of page 49 of the Record of Appeal: “COURT: NCS sent by e-mail NOW RECEIVED AND PERUSED. TYPEWITTEN DECISION NOW READ” (original capitalization and emphasis).

[34]The first observation I make is that it appears that the learned magistrate regarded the oral submissions made on 22nd June 2023 as a no-case submission. I come to this conclusion based on her endorsement on the record immediately before giving her ruling. That endorsement reads : “RULING OF: Magistrate Bertlyn Reynolds On the The Verbal No-Case Submission of Defence Counsel Expressed on 22nd/June/2023.” (emphasis added)

[35]The reason why the learned magistrate viewed the oral submissions as a no-case submission, as opposed to what Mr. Fraser calls an “evidential objection” is explained in her ruling at paragraph (4) : “On the last hearing date Defence Counsel presented No-Case Submissions, based primarily on the Investigating Officer’s (IO) failure to record, this defendant’s Oral Admission(s) in keeping with section 72 of the Evidence Act and for the IO Chicquot’s neglect to have a French Translator present, during his official questioning of this defendant. Clearly, the gravamen of the submission is that if the Oral Admission fails, so must the entire case. The latter premise is similar to that raised during the Voir Dire in which I excluded the purported Written Admission or Confession, sought to be tendered by Customs Officer, Samuel Eudoxie. While this is perpetually good law where the case depends wholly on such a confession or admission; it DOES NOT APPLY where there is other evidence – separate, apart and distinct from any confession or admission – which “satisfies the court, so that it could feel sure” that the defendant is guilty.”

[36]In my view, the learned magistrate did not misapprehend the substance of Mr. Fraser’s oral submissions, whether described as a no-case submission or as evidential objections, because, as will be seen when the other grounds of appeal are considered, that is exactly the position Mr. Fraser invites this court to take. There is no evidence to establish the elements of any of the customs offences with which the appellant was charged in the absence of his oral admissions that he had come from Martinique to pick up some items and was on his way to Martinique. Indeed, during the course of his oral submissions to this Court, Mr. Fraser submitted that the only evidence which implicates the appellant is that of PC Chicquot, which he says the learned magistrate did not address in her ruling.

[37]I agree with Mr. Fraser that in her ruling delivered on 31st August 2023 the learned magistrate did not state clearly whether she considered the evidence of the oral admissions admissible or not. Rather, the way in which she treated with the submission was to say that this was not a case that depended wholly on the oral admissions. This is gleaned from paragraph (4) of her ruling quoted above.

[38]This was an unsatisfactory approach. When a legal submission is deployed during the course of a criminal trial, the learned magistrate is obliged to deal with it frontally and rule definitively. Reasons, however brief or succinct, must be furnished. There may be nothing wrong in deferring the ruling, provided that the learned magistrate returns to the issue and rules upon it one way or the other.

[39]Ms. Thomson invited this Court to find that because the magistrate had previously admitted the evidence of the oral admissions, that must mean that her decision was that they were admissible. I am unable to accept this argument because when the submission was renewed on 22nd June 2023, the learned magistrate did not affirm her previous rulings; she specifically stated: “I will not rule now.” She purported to rule on it in her written decision delivered on 31st August 2023 but instead dealt with it in the manner described at paragraph (4) of her decision and as developed further below.

[40]It is clear from the learned magistrate’s ruling that her finding of guilty did not hinge upon her reliance on any of the oral utterances made by the appellant, whether pre-caution or post-caution, which were not factored into her decision. This much is clear from paragraphs (5) and (6) of her ruling where she states: “This case is replete with other facts and circumstances which are both cogent and compelling – that this defendant committed the requisite elements of each count of these CUSTOMS OFFENCES OF STRICT LIABILITY, in which ignorance of the law is no excuse. The case of Glendon de Gale v Unted Hatcheries Mag. App No 155 of 1986 provides clarification of the meaning of Strict Liability in customs offences. It is not that there is no mental element required but that however innocent the error, that ignorance of the law is no excuse (ignorantia lex non excusat). Mr. Pelage first comes not contact or conflict with the St. Lucian authorities when he is seen on board his marine vessel, pulling out or departing from the Gros Islet Port, without communication with the authorities. Without his need to say anything or do anything else – in French, English or Patois he is seised of both mental and physical elements of the Customs Offenses (sic) thereby. The offenses (sic) are four customs offenses (sic) and two fisheries offenses (sic) [The magistrate lists them and continues] The last two are the fisheries offences (sic) and the first four are the customs offences (sic). No customs officer could upon their encounter with Mr. pillage on board his vessel, say whether he had come from Martinique with the sea food later retrieved from on board or had fished for them in St. Lucian waters. However, the law says that insofar as he was at the Gros Islet port without submitting to them any landing documents, reports, entries for Customs Proper (sic) Officers to address, the customs offenses (sic) had already been completed.” (6) When Mr. Pelage goes further upon being signalled by the port authorities to pull alongside, so that they could board his vessel and upon compliance he is found to have on board a quantity of seafood restricted by St. Lucia law (s.36 (a)) – the offernse (sic) creating subsection does not exclude the date 29/November, 2017) then he perpetrates the two fisheries offenses (sic), likewise the fact that after his pulling back in the examination of the seafood releasing of the undersized back into the ocean and other processing is done WITHOUT THE PRESENCE OF A FRENCH TRANSLATOR, does not affect that these offenses (sic) had been completed. All of this is prior to any possible admission or confession on the basis of which defense counsel seeks to forestall a conviction.”

[41]It seems clear to me that what the learned magistrate was doing in those passages was considering what evidence there was against the appellant, leaving aside any oral admissions which he may have made. Having done so, she concluded that the case against the appellant was made out without the need to rely on any of the oral admissions, “whether in French, English, or Patois” as she put it, having regard to the circumstantial evidence in the case. Whether she was right in her conclusion will be considered when I turn to examine the grounds of the written no-case submission that assert that the evidence adduced by the prosecution did not establish the elements of any of the offences. Did the learned magistrate fail to consider the written no-case submission

[42]Turning to the nub of ground 1, Mr. Fraser’s submission that the learned magistrate had given her decision without seeing the written no-case submission is flatly contradicted by the endorsement: “COURT: NCS sent by email NOW RECEIVED AND PERUSED. TYPEWITTEN DECISION NOW READ” (original capitalization and emphasis).

[43]Whether the learned magistrate addressed any of the points raised therein in coming to her decision requires some consideration of the content of the written no-case submissions. This is the issue to which I now turn.

[44]The written no-case submission is found at page 78 of the Record of Appeal. Paragraph 2.1 of the written submissions reduce into writing the oral submissions previously made by Mr. Fraser in relation to the evidence of PC Chicquot, which he had sought to have struck from the court’s record. Those submissions run to paragraph 2.10.

[45]This submission in relation to the evidential objection was recited in the learned magistrate’s ruling handed down on 31st August 2023 and dealt with in the manner previously described in this judgment. While the learned magistrate did not specifically state whether it was admissible or not, for my part, Mr. Fraser’s section 72 objections were entirely untenable and unsustainable in my view.

[46]The oral admissions made by the appellant may be classified as comprising pre-caution admissions and post caution admissions. The pre-caution admissions are that he had come from Martinique to collect some items and was returning to Martinique; and that he did not have a Saint Lucia Customs Declaration Form. It was at this point that PC Chicquot suspected or had reasonable cause to believe that an offence may have been committed as he then told the appellant that it was an offence to enter the country and collect goods without clearing Customs and cautioned him.

[47]Section 72 (2), on which Mr. Fraser grounded his submission before the learned magistrate and this court, has to be read with sub section (1) (b) and (c). That subsection provides that section 72 applies in criminal proceedings “in relation to evidence of an admission made by a defendant who, at the time when the admission was made, was or ought reasonably to have been suspected by an investigating official of having committed an offence; and where the admission was made in the course of official questioning.” (emphasis added.)

[48]In other words, section 72(2) is only engaged where a defendant has made an admission at a time when the investigating official suspected or ought reasonably to have suspected that he had committed an offence. In the absence of such reasonable suspicion that the appellant had committed an offence, section 72(2) was not engaged. Secondly, the admission must have been made during the course of official questioning.

[49]In this regard, the evidence was that the initial boarding and questioning was routine, which was explained as meaning that the boarding was intended to ensure that the vessel was equipped with safety equipment, that there were no irregularities with the vessel, to ascertain the reason for the vessel’s journey and the contents of the vessel. Furthermore, PC Chicquot was specifically asked whether at the initial stage of the dialogue with the appellant he had suspected that he had committed any offence. He replied: “No YH. It was just a routine boarding.” The evidence discloses that it was after the appellant said that he did not have a Saint Lucia Customs Declaration Form that PC Chicquot cautioned him. The reasonable inference from this sequence of events is that it is that response that caused PC Chicquot to form a reasonable suspicion that the appellant had committed an offence.

[50]After being cautioned, the post-caution oral admissions made by the appellant were that he had begged PC Chicquot to give him a chance (implying consciousness of guilt); he had admitted knowledge that the bags contained conchs; and had said that he was giving Ms. Poleon-Duplesis a ride to Martinique. Clearly, once reasonable suspicion was formed and the caution administered, PC Chicquot was obliged to comply with the requirements of section 72(2). However, failure to do so does not inevitably result in the evidence being inadmissible. Section 72(5) gives the court the discretion to admit it notwithstanding non-compliance, having regard to such matters as the nature of and the reasons for the non-compliance or insufficiency of evidence and any other relevant matters. The court must be satisfied that, in the special circumstances of the case, admission of the evidence would not be contrary to the interests of justice.

[51]It is not disputed that PC Chicquot did not comply with section 72(2) by causing the subsequent questions and answers to be written down after he had reasonably suspected that the appellant had committed an offence. His reason for not doing so at the time was that the questioning was taking place at sea. However, it is to be recalled that when this objection was taken on 7th November 2019, the learned magistrate had invoked her discretion under section 72(5) to admit the oral admissions made by the appellant.

[52]The exercise of that discretion may not be lightly interfered with by an appellate Court.

[53]The appellant’s post-caution admission that he knew that the bags on the vessel contained conch was, even without that admission, the irresistible inference to be drawn in circumstances in which he was the captain of the vessel on which some 39 bags were found in plain view. As the captain of the vessel, the physical custody and control of the vessel and its cargo was vested in him . There was therefore no unfairness in admitting the admission that the bags contained conch which was made after caution. As to his admission that he was giving Ms. Poleon-Duplessis a ride to Martinique, that fact was self-evident as she was a passenger on board and he had told the police, at a time when he was not suspected of committing an offence, that he was headed to Martinique.

[54]I would therefore hold that the submission that the oral admissions made by the appellant should have been excluded lacks merit. No-case submission – Charge 34/2018

[55]This ground of the no-case submission is at paragraph 3.1 and is directed at charge No. 34 of 2018. The particulars of this charge read so far as material: “You are charged for that you at a time and place unknown prior to 9:20 PM on Wednesday 29th November 2017 being the captain of a vessel… registration number FF 697024... being a vessel required to be cleared under section 37(1)(a) of the (Customs Control and Management) Act... did depart from a place in Saint Lucia for a destination outside Saint Lucia without a valid clearance, said departure not caused by accident stress of weather or other unavoidable cause, contrary to section 37(5) of the Customs (Control and Management) Act.”

[56]The no-case submission lists five points in support of the appellant’s contention that the ingredients of this offence were not established on the evidence: “ (i)The boat was intercepted at the Marina, Rodney Bay in Saint Lucia’s internal waters; (ii) There is no evidence that the boat departed from a place in Saint Lucia; (iii) The boat never departed the waters of Saint Lucia to prove that the boat was heading for a destination outside of Saint Lucia. The boat had to go beyond the 12 nautical miles which is identified as Saint Lucia’s territorial sea in accordance with Section 3 of the Maritime Area Act Cap 1.16 of the Revised Laws of Saint Lucia 2015; (iv) There is no evidence to suggest the intention of the [appellant] who was the captain of the boat; (v) The Defendants boat had a right of innocent passage in accordance with section 16 of the Maritime Areas Act. There was no evidence led to negative the right to innocent passage in order to establish that there was no valid clearance regarding the departure of the vessel and that the vessel was not in an accident, or experienced stress or other unavoidable cause.”

[57]These assertions were repeated by Mr. Fraser on the hearing of the appeal save that he added that there was no evidence that anyone saw the vessel docked at the Rodney Bay Marina or anywhere and so could not establish a departure.

[58]To ascertain the ingredients of this offence, it is necessary to have regard to the provisions of section 37(1)(a) of the Customs Act, pursuant to which this charge was laid. It provides so far as material: “37. Clearance (1) Save as the Comptroller may otherwise permit – (a) The master of any vessel intending to depart from any port or other place in Saint Lucia; and (b) … to a destination outside Saint Lucia, shall obtain clearance from the proper officer. (2) any person applying for clearance under subsection one shall (a) deliver to the proper officer on account of all cargo and stores taken on or remaining on board the vessel or aircraft in Saint Lucia; (b) produce all such books and documents in his or her custody or control relating to the vessel its cargo, stores, baggage, crew, passengers, voyage as the proper officer may require; and (c) answer all such questions relating to the vessel…, it’s cargo, stores, baggage, crew, passengers, voyage, as may be put to him or her by the proper officer… (5) If any vessel or aircraft required to be cleared under this section departs from any port, airport or other place in Saint Lucia for a destination outside Saint Lucia without a valid clearance, or after clearance calls at any port airport or other place in Saint Lucia without the permission of the proper officer, the master or commander, except where the departure or call was caused by accident, stress of weather or other unavoidable cause, commits an offence and is liable to a fine of $5000.”

[59]To succeed on this charge the prosecution was required to prove the following elements: (i) that the appellant was the master or command of a vessel; (ii) that the vessel departed a port or other place in Saint Lucia; (iii) that its intended destination was a place outside of Saint Lucia; and (iv) that the vessel departed without valid clearance.

[60]The appellant has not argued that the first element was not made out as the appellant accepts that he was the captain of the vessel. The no-case submission posits however, that there is no evidence that the boat departed from Saint Lucia because it was intercepted in Saint Lucian internal waters.

[61]This argument is misconceived, illogical and does not accord with the plain language of the section. If this argument is correct, it would mean, for example, that a vessel can depart from a port or place in Saint Lucia without clearance, and although the proper officer witnesses the vessel departing without valid clearance, the authorities would be powerless to intercept it until it has journeyed beyond 12 nautical miles and thereby left Saint Lucia’s internal waters because, only then, says Mr. Fraser, would the vessel have departed a port or place in Saint Lucia. Similarly, it cannot make sense to argue that one cannot prove that a vessel departed from a place in Saint Lucia unless it was first seen docked at a particular place. Take a scenario where a vessel is intercepted in Saint Lucia’s territorial waters as it headed away from the shoreline. A number of Saint Lucian nationals are discovered on board, each carrying luggage. It cannot rationally be said that because nobody saw the vessel previously docked somewhere that it cannot be reasonably inferred that the vessel departed from a place in Saint Lucia.

[62]In my view, the interpretation of section 37(5) urged by Mr. Fraser would yield an absurdity and would render the provision nonsensical and totally unworkable and might raise questions of jurisdiction. It does not accord with the plain language of the section, which simply requires that the vessel departs from any port or place in Saint Lucia; not that it must have departed the territorial sea of Saint Lucia, as defined by section 3 of the Maritime Areas Act (‘the Maritime Areas Act”). Furthermore, it must have departed from such port or other place without valid clearance.

[63]I am fortified in this view, when regard is had to section 37 (4) which provides: “(4) where it appears to any officer that a vessel or aircraft intends or is likely to depart for a destination outside St. Lucia without clearance, he or she may give such instructions and take such steps by way of the detention of that vessel or aircraft as appear to him or her necessary to prevent that departure.” (emphasis added)

[64]Undoubtedly, the power of interception may be exercised by a Customs Officer while a vessel is in Saint Lucian waters where it appears that the vessel intends or is likely to depart for a destination outside Saint Lucia. Clearly, the vessel can only be intercepted in Saint Lucia for it to intend or be likely to depart for a destination outside Saint Lucia. If the vessel is no longer in Saint Lucia then section 37(4) would plainly not apply. There is no logical or legal reason why officers of the Police Marine Unit, who form reasonable suspicion that the captain of a vessel in Saint Lucia’s territorial waters has committed an offence, should not similarly have the power to detain that vessel while it is in Saint Lucia’s territorial waters.

[65]On the evidence before the learned magistrate, the police officers testified that they witnessed the appellant’s vessel departing the Rodney Bay Marina. Mr. Fraser makes much of the fact that the officers did not see the vessel docked at the Marina and as such cannot say that it departed from there. Given the fact that the movement of the vessel was away from the Rodney Bay Marina, and at the same time a tender was also seen travelling away from the marina towards a cruise ship, it was a reasonable inference to draw that that was the place from which the appellant’s vessel departed, but as I have said the section does not require proof of the specific port or other place in Saint Lucia from which the vessel departed, provided that there is evidence on which to find that it departed without clearance.

[66]Furthermore, for the reasons discussed earlier in this judgment there was an admissible admission from the appellant when intercepted that he was headed to Martinique. The only Customs document that he had in his possession was from Martinique. The absence of a Saint Lucia Customs Declaration Form gives rise to the inference that he never landed lawfully in Saint Lucia, and, further, never had valid clearance to leave. It is illogical to think that having landed in Saint Lucia unlawfully, the appellant would seek valid clearance to depart, bearing in mind that the process of obtaining valid clearance entails: (a) delivering to the proper officer an account of all cargo and stores taken on or remaining on board the vessel in Saint Lucia; (b) producing all such documents in his custody or control relating to the vessel, its cargo stores baggage, crew, passengers, voyage or flight as the proper officer may require and (c) answering all such questions relating to the vessel or aircraft, its cargo, stores, baggage, crew members, passengers, voyage or flight, as may be put to him by the proper officer”.

[67]In all the circumstances, the evidence provided a sound evidential foundation for finding that the elements of charge No. 34 of 2018 were established. This ground of the no-case submission is hopeless and, on the evidence, was bound to fail. No-case submission – charge 34A/2018

[68]The particulars of charge No 34A/2018 are: “You are arrested and charged for that you at a time and place unknown prior to 9:20 PM on Wednesday 29th November 2017 being the captain of… vessel registration number FF 697024… with fraudulent intent, knowingly acquired possession of the following goods, viz, a quantity of conch… 94 lobsters… and a quantity of sea urchins… with respect to the exportation or carriage coastwise of which there is a restriction in force, pursuant to schedule 3, Part 3 of the Customs (Control and Management) Act… Contrary to section 116 of the Customs (Control and Management) Act…”

[69]The written no-case submission asserts at paragraph 3.2.1 that the elements of this offence are: (i) the goods must be goods chargeable with a duty which was not paid; (ii) the goods are prohibited or restricted; (iii) such goods must be carried harboured or concealed; and (iv) the defendant was dealing with such goods with fraudulent intent.

[70]The submission continues that there was no evidence by the prosecution to prove that: (a) the goods were chargeable with duty which was not paid; (b) the goods were prohibited or restricted; and (c) the appellant had the intent to defraud the revenue. Further, there was no evidence that the goods came from Saint Lucian waters and was being exported, as it was not shown that the boat entered a port in Saint Lucia, thus a departure therefrom could not be established in the absence of evidence of it having previously entered a port. It is further said that the boat had to go beyond the 12 nautical miles which is identified as Saint Lucia’s territorial sea in accordance with Section 3 of the Maritime Areas Act. Furthermore, the appellant was in possession of a customs declaration from Martinique, which he showed to PC Chicquot. It was argued that this raises two inferences: (i) the boat was loaded in Saint Lucia and was departing when it was intercepted; or (ii) the appellant entered St. Lucia with the goods and turned around to leave. The learned magistrate was required by law to draw the inference that is most favorable to the appellant.

[71]Yet further, it was submitted that schedule3, Part 3 of the Customs Act does not list the goods as restricted goods. Discussion

[73]Evidently, this offence can be committed in any one of a number of ways having regard to the nature of the goods. Based on the way the charge was particularized, the charge against the appellant was laid specifically pursuant to section 116(a)(iii). The prosecution was therefore required to prove that (i) that the appellant knowingly acquired possession of goods;(ii) in respect of those goods, there was a restriction in force in relation to the exportation of said goods (since the charge makes specific reference to Schedule 3, Part 3 of the Customs Act which deals with prohibited and restricted exports); and (iii) the appellant knowingly acquired possession of those goods with fraudulent intent to evade the prohibition on export.

[72]Charge No. 34A/2018, was laid pursuant to section 116 of the Customs Act, which provides: “(1) Without prejudice to any other provision of any other any customs enactment, if any person – (a) Knowingly acquires possession of any of the following goods, that is to say (i) goods which have been unlawfully removed from a warehouse or a customs warehouse, or (ii) goods which are chargeable with a duty which has not been paid, or (iii) goods with respect to the importation exportation or carriage coastwise of which there is any prohibition or restriction in force; (b) is in any way knowingly concerned in carrying, removing, depositing, landing, harbouring, keeping or concealing or in any manner dealing with in any such goods,… and does so with fraudulent intent, he or she commits an offence and is liable to a fine of $10,000, or three times the value of the goods, whichever is the greater, or to imprisonment for five years, or to both, and may be arrested, and the goods in respect of which the offence was committed are liable to forfeiture.”

[74]Addressing the specific submissions made in the written no-case submission in relation to this charge, the appellant’s submission that the prosecution was required to prove that the goods were chargeable with a duty which was not paid and were carried, harboured or concealed is misconceived. The particulars of the charge made no averments that the goods were chargeable with a duty that had not been paid, contrary to section 116(1)(a)(ii), or that the appellant was in any way knowingly concerned in carrying, removing, or depositing, landing, harbouring, keeping or concealing or in any manner dealing with any such goods, contrary to section 116(1)b) of the Customs Act. The particulars of the charge reflect that the provision contravened was section 116 (a)(iii).

[75]In so far as it is said that there was no evidence that the goods were prohibited or restricted and that schedule 3, Part 3 of the Customs Act does not list the goods as restricted goods, one must examine Schedule 3.

[76]Part 3 of the Schedule relates to prohibited exports and restricted exports. Prohibited exports are defined as “Goods the exportation of which is prohibited by any other enactment.” This clearly contemplates that the prohibition on exportation can be imposed by an Act other than the Customs Act and yet be caught by section 116. The definition of restricted exports includes, “Rare or threatened species of animals” and also “Goods the exportation of which is regulated by any other enactment except in accordance with such enactment.”

[77]Since neither conch, lobster nor sea urchins are described as rare or threatened species of animals, nor are they listed as prohibited or restricted exports under the Customs Act, they could only fall into that category if their export was prohibited or restricted by some other enactment.

[78]The Fisheries Act at Regulation 47 provides that a person shall not import fish or export fish caught in the fishery waters of Saint Lucia except with the written permission of the Chief Fisheries Officer and in accordance with the conditions as he or she may specify. This is a fact of which a court would be entitled to take judicial notice.

[79]“Fishery waters” is defined in the Fisheries Act as meaning the waters of the exclusive economic zone, territorial sea, and internal waters as defined in the Maritime Areas Act and any other waters over which Saint Lucia claims fisheries jurisdiction. “Fish” means any aquatic animal, whether piscine or not and includes shellfish, turtles, mollusc, crustacean, coral, sponge, echinoderms, their young and their eggs.” This definition would cover lobsters which DCFO Nelson testified were crustacean. Conchs are included in the definition of mollusc.

[80]I therefore conclude that Regulation 47 of the Fisheries Act contains a restriction on the exportation of lobsters and conch and therefore caught within the prohibition in section 116 of the Customs Act.

[81]However, the no-case submission further contends that there was no evidence that the goods came from Saint Lucian waters and were being exported because it was not shown that the boat entered a port in Saint Lucia which was necessary in order to prove a departure therefrom and that the boat had to go beyond the 12 nautical miles.

[82]In relation to the origins of the goods, as Mr. Fraser recognizes, this is a matter of inference from proved facts. The no-case submission argued that the fact that the appellant was in possession of a customs declaration from Martinique raised two inferences: (i) the boat was loaded in Saint Lucia and was departing when it was intercepted; or (ii) the appellant entered Saint Lucia with the goods and turned around to leave. The learned magistrate was required by law to draw the inference that is most favorable to the appellant. The latter inference is seemingly regarded by the appellant as the one more favourable one.

[83]More accurately stated, however, the principle with respect to the drawing of inferences is that where two or more inferences are of equal weight, the court must draw the one most favourable to the defendant. In my view, it is somewhat improbable that the appellant would haul his perishable cargo, packaged only in bags, from Martinique to Saint Lucia, only to take them back to Martinique. A more reasonable inference is that these goods were obtained in Saint Lucian waters and were to be taken to Martinique. This inference is strengthened when one considers his admission that he had come from Martinique to collect some items and was returning to Martinique. It was reasonable to infer that the goods were the items for which he had come to Martinique. That being so, the inference that he knowingly acquired them was also irresistible, and the appellant never disclaimed knowledge or ownership of the bags and their contents.

[84]In so far as it is argued that the boat had to go beyond the 12 nautical miles to amount to exporting, the simple answer is that the section does not require the goods to have been exported; all that is required to be proven is that the appellant knowingly acquired goods whose exportation is regulated by any other enactment.

[85]Finally, as it relates to the assertion that the prosecution failed to establish that the appellant had the intent to “defraud the revenue”, this argument too is misconceived. Under section 116 of the Customs Act, the fraudulent, meaning dishonest intent, may be either in relation to the evasion or attempted evasion of any duty chargeable on goods; or in relation to the evasion or attempted evasion of any prohibition or restriction with respect to the importation or exportation or carriage coastwise of those goods under or by virtue of any enactment.

[86]On a proper reading of the charge as particularized, the fraudulent intention required to be proved was to evade the restriction/prohibition on the export of the goods. Such an inference was to be readily inferred given that the only document the appellant produced was a Customs Declaration for Martinique but no document from Saint Lucia. It stands to reason that he had no written authorization from the Chief Fisheries Officer to export the lobster and conch, otherwise he would have produced it as was his burden pursuant to section 35 of the Fisheries Act, which provides: “35. ONUS OF PROOF In any legal proceed proceedings under this act where the defendant is charged with having committed an offence under which a license, authority or the permission of any person is required for the doing of any act, the onus shall be on the defendant to prove that at the time to which the charge related, the requisite license, authority or permission was duly held.”

[87]The appellant plainly failed to discharge this burden.

[88]Furthermore, when the fact that the appellant departed Rodney Bay Marina heading for Martinique without valid clearance is added to the evidential foundation, the only reasonable inference is that he possessed a fraudulent intention to evade the restriction on the export of said items without the written permission of the Chief Fisheries Officer.

[89]This ground of the no-case submission was bound to fail. No-case submission – Charge No. 34B/2018

[92]In relation to this charge, the appellant relied on the identical submissions deployed in relation to charge No. 34A/2018. For the reasons discussed above this submission is also unsustainable. Quite clearly, given the circumstances in which the appellant was departing Saint Lucia without clearance, the only reasonable inference is that he did not enter or deliver the goods to the proper officer and that he failed to do so with fraudulent intent. No-case submission – Charge No. 34C/2018

[90]The particulars of Charge 34B/2018 are as follows: “You are arrested and charged for that you … on Wednesday 29th November 2017 being the captain of a… vessel... and the exporter of certain goods to wit: conch, lobsters and sea eggs after causing the said goods to be loaded on the said vessel for exportation before entry in respect of them has been made, did with fraudulent intent fail to deliver to the proper officer on entry of those goods, pursuant to section 34(1) of the Customs (Control and Management) Act.” Section 34 of the Customs Act provides: “(1) Subject to subsection (2), the exporter of any goods, other than passenger’s accompanied baggage, shall deliver to the proper officer an entry of those goods in such form and manner and containing such particulars as the Comptroller may direct….” (5) If any goods for which entry is required under subsection (1) are put on board any vessel or aircraft for exportation… before entry in respect of them has been made, those goods are liable to forfeiture, and where the placing on board… was done with fraudulent intent any person concerned in that act with knowledge of that intent commits an offence and is liable to a fine of $5000 or three times the value of the goods whichever is the greater or to imprisonment for two years, or to both, and may be arrested.”

[91]The prosecution was therefore required to prove that the appellant, as captain of the vessel, caused the goods to be put onto his vessel for exportation before entering and delivering them to the proper officer and that he did so with fraudulent intent.

[96]The written No-case submission at paragraphs 3.4.1 contends that there was No. evidence elicited from the Deputy Chief Fisheries Officer that the appellant had no written permission from the Chief Fisheries Officer to be in possession of the urchins. It is further said that there was no evidence that the urchins were obtained from Saint Lucian waters and that they could have come from Martinique and declared to customs there. Further, that the appellant had a right of innocent passage in accordance with section 16 of the Maritime aAeas Act it was submitted that these matters were not negatived by the evidence led by the prosecution.

[93]The particulars of charge No. 34C/2018 are so far as material: “You are arrested and charged for that you on Wednesday 29th November 2017 about 9:20 p.m. in the territorial seas at Rodney Bay … being the captain of marine vessel registration NO. FF69704…did have in your possession a quantity of sea urchins... without the written permission the Chief Fisheries Officer contrary to section 36(a) of the Fisheries Regulations...”

[94]Regulation 36(a) provides: “A person shall not disturb, damage, take from the fishery waters, have in his or her possession, purchase, expose for sale, or sell any sea urchins— (a) except with the written permission of the Chief Fisheries Officer, and in accordance with any such conditions as the Chief Fisheries Officer may specify;”

[95]The prosecution was required to prove that the appellant was (i) in possession of the sea urchins (ii) without the written permission of the Chief Fisheries Officer.

[97]Ms. Thomson conceded this ground but only on the basis that there was no evidence that sea urchins were among the contents of the bags. She was right to do so. None of the witnesses spoke to sea urchins and especially so the expert witness who examined the contents of all 39 bags but did not identify any sea urchins among them.

[98]On this basis alone, the no-case submission on charge No. 34C/2018 is upheld. No-case submission – Charge No.35/2018

[103]There is no substance to this complaint. The evidence established that the appellant’s vessel at some point must have entered Saint Lucia’s territorial waters. The failure of the appellant to produce customs documentation from the Saint Lucian authorities gives rise to the inference that he arrived at a port other than a customs port. It is true, however, that no evidence was led that his vessel had arrived at the Gros Islet Fisheries Complex, as particularised. However, this is not fatal as the essence of the offence is in the act of arriving in Saint Lucia at a place that is not a customs port. In practice, the arrival of a vessel in Saint Lucia’s territorial waters may sometimes be discovered only after the fact. The appellant’s inability to produce customs documentation for Saint Lucia, grounds an irresistible inference that the vessel did not arrive at a customs port and suffices to establish that the vessel arrived at a place other than a customs port, whatever that place may have been.

[99]The particulars of charge No. 35/2018 are: “You are arrested and charged for that you at a time and place unknown prior to 9:20 p.m. on Wednesday 29th November 2017 being the captain of a... marine vessel registration number FF697024... having arrived in the territorial sea of Saint Lucia... from a place outside Saint Lucia did cause or permit that vessel to arrive at a place other than a customs post, namely Gros Islet fisheries complex contrary to section 21(2) of the Customs (Control and Management) Act.

[100]Section 21 of the Customs Act provides: “(1) Subject to the provisions of this section and save as the Comptroller may otherwise permit – (a) the master of any vessel arriving in the territorial sea of Saint Lucia from a place outside of Saint Lucia shall not cause or permit that vessel to arrive at any time at any place other than a customs port; and… (b) … (2) A master or other person who contravenes or fails to comply with any requirement of subsection (1) commits an offence and is liable to a fine of $5000, or three times the value of the goods whichever is the greater, and any goods imported in contravention of that subsection are liable to forfeiture.”

[101]Proof of this charge required the prosecution to establish that the appellant piloted his vessel from a place outside St. Lucia and caused it to arrive in the territorial sea of Saint Lucia at a place other than at a customs port.

[102]The no-case submission asserted at paragraph 3.5.1 that the appellant’s vessel was intercepted and stopped at the Marina in the Rodney Bay area, and that the evidence established that that was the first time the boat was seen. It was submitted that there was no evidence adduced that the boat arrived at any port in Saint Lucia, let alone at the Gros Islet Fisheries Complex.

[104]In my view, identifying the precise place where the vessel arrived is not an essential element of the offence, provided that there is evidence to establish that the vessel did not arrive at a customs port. In this case, as I have found, there was such evidence.

[105]Accordingly, I hold that this ground of the no-case submission was also bound to fail. No-case submission – Charge No. 35A/2018

[111]The appellant’s admitted possession of the bags gave rise to the strong inference that he was in possession of its contents. Furthermore, after being cautioned, the appellant was asked about the contents of the bags and told PC Chicquot that they contained conchs. This was evidence that he had knowledge that the bags contained at least conchs. While he did not specifically say they contained lobster, even if it could be argued that he mistakenly thought the bags all contained conch, it would make No. difference since the export of conch is also restricted without written permission and thus mere mistake as to the nature of the thing under his control would not negate possession in him. For example, a person charged with possession of controlled drugs, namely cocaine, but who thought the bag in his possession contained marijuana would still be guilty of possession of cocaine.

[106]The particulars of charge No. 35A/2018 are that: ‘You are arrested and charged for that you… in the territorial seas at Rodney Bay Marina... being the captain of a... vessel... registration number capital FF697024... did you have in your possession ninety-two (92) lobsters that were undersized and one lobster carrying eggs, contrary to section 32(1)(a) and (b) of the fisheries regulations.”

[107]Regulation 32.1, so far as relevant, provides: “(1) A person shall not harm, give, receive from anyone, or at any time have in his or her possession, expose for sale, sell or purchase— (a) any lobster that is undersized; (b) any lobster carrying eggs…”

[108]The written no-case submission stated that it adopted the previous submission that an inference could be drawn that the appellant brought the goods from Martinique and that would therefore make his possession of them lawful because it could not be established that they were fished from Saint Lucian fishery waters. It was further submitted that in any event, the appellant’s presence in Saint Lucian waters was “protected by his right of innocent passage.” In oral submissions before this Court Mr. Fraser further posited that the prosecution was required to prove that the appellant had knowledge that the bag contained lobsters and there was no evidence to establish this. Discussion

[115]I address now Mr. Fraser’s submission in relation to the failure to prove that the lobsters were fished from the fishery waters of Saint Lucia. Mr. Fraser seems to be labouring under the misapprehension that regulations 32(1)(a) and (b) impose a requirement to prove that the lobsters were removed from the fishery waters of Saint Lucia. They do no such thing. This erroneous submission seems to derive from the chapeau to section 32, which reads: “Prohibition against removing from the fishery waters or being in possession of lobsters.”

[109]Mr. Fraser conceded that the appellant was in possession of the bags on board during the course of oral arguments. By this concession, counsel must be taken to admit that the appellant had knowledge, custody and control of the bags, for that is what possession entails. However, he posited that the prosecution was required to prove that the appellant had knowledge that the bag contained lobsters and there was no evidence to establish this.

[110]The case of Director of Public Prosecutions v Brooks is well known for its simple definition of the concept of possession, which it held should be given its ordinary meaning. Lord Diplock’s definition was that: “In the ordinary use of the word “possession” one has in one’s possession whatever is, to one’s own knowledge, physically in one’s custody or under one’s physical control.”

[112]The prosecution having proved the appellant’s possession of the 39 bags on the vessel, it was open to the learned magistrate, even without his statement saying that the bags contained conchs, to draw the strong inference that he had knowledge of their contents. As Lord Steyn explained in R v Lambert in the context of possession of drugs: “First, the relevant facts are usually peculiarly within the knowledge of the possessor of the container and that possession presumptively suggests, in the absence of exculpatory evidence, that the person in possession of it in fact knew what was in the container. This is simply a species of circumstantial evidence. It will usually be a complete answer to a no-case submission. It is also a factor which a judge may squarely place before the jury. After all, it is simple common sense that possession of a package containing drugs will generally as a matter of simple common sense demand a full and adequate explanation.”

[113]This reasoning is applicable here mutatis mutandis. The appellant as captain of the vessel had comprehensive physical custody and control of its cargo including the 39 bags and in the absence of exculpatory evidence it was a reasonable inference that he knew the contents of the bags.

[114]In the circumstances, any submission at the close of the prosecution’s case that the prosecution had not proven that the appellant knew the bags contained lobster was bound to fail and a conviction was inevitable.

[116]The prohibition against removing fish from the fishery waters is contained in regulation 32.2(d), which provides: “(2) A person shall not – … (d) remove from the fishing waters, give, or at any time have in his or her possession, expose for sale, sell or purchase any lobster between 30 April to 1 September in every year, or as otherwise stated by the Minister by notice published in the Gazette and in a newspaper which is printed or circulated in the State.”

[117]The simple point is that the appellant was not charged under this regulation, which creates an offence which is distinct from the offences of being in possession of undersized lobsters and lobsters carrying eggs created by regulation 32(1) (a) and (b), which do not require proof that the lobsters were removed from the fishery waters.

[118]Secondly, I have already rejected the argument in relation to the inference to be drawn about the origins of the goods being Martinique and will not repeat my reasons for so doing here.

[119]Finally, in relation to the argument that the prosecution did not negative innocent passage, it is important to understand what that concept means in law. Section 16 of the Maritime Areas Act, provides in material parts: “(1)A foreign vessel may, subject to and in accordance with this section and international law, exercise the right under international law of innocent passage, that is to say, the right of passage by navigating through the territorial sea for the purpose of (a) Traversing the territorial sea without entering internal waters or calling at a roadstead or port facility outside internal waters: or (b) proceeding to or from internal waters or a call at any such roadstead or port facility, where the passage is innocent. (2) The passage of a foreign vessel – (a) Is innocent so long as it is not prejudicial to the peace, good order or security of Saint Lucia: and (b) is deemed to be prejudicial to the peace, good order or security of Saint Lucia if the vessel, in the territorial sea engages in any proscribed activity. (1) In exercising the right of innocent passage a vessel shall comply with – (a) Generally accepted international regulations, procedures, and practices for safety at sea which have effect in the territorial sea or any part thereof; and (b) the provisions of the Regulations and any enactment, order or direction which have effect in the territorial sea, or any part thereof, for or with respect to – (i) … (ii) … (iii) … (iv) … (v) Fishing and fisheries, (vi) … (vii) … (viii) Controls or prohibitions in relation to customs, excise, immigration or sanitation.”

[120]In summary, foreign vessels have the right to navigate through Saint Lucia’s territorial sea for the purpose of: (i)traversing the sea without entering internal waters or calling at ports outside internal waters; (ii) proceeding to or from internal waters or a port facility, provided the passage is innocent. Passage is considered innocent as long as it is not prejudicial to the peace, good order, or security of Saint Lucia. Engaging in any "proscribed activity" (as defined in Section 15) automatically renders the passage non-innocent. Proscribed activity includes engaging in any fishing activities. Additionally, there must be compliance with Saint Lucia’s laws and regulations regarding navigation, marine traffic, environmental protection, customs, and other specified matters. By its provisions, section 16 ensures that the right of innocent passage for foreign vessels through Saint Lucia’s territorial waters must be harmless and complies with local and international laws.

[121]The appellant did not assert innocent passage at the trial, and if innocent passage is proferred as some sort of defence, the appellant gave no evidence to establish or support it. On the contrary, the factual circumstances in which he was attempting to depart completely negate innocent passage. He was in possession of a large quantity of fish in breach of prohibitions on export contained in the Customs and Fisheries Acts, and also prohibitions on possession of them, contrary to the Fisheries Regulations. He was also transporting a passenger who was departing Saint Lucia without clearing with the Customs or Immigration authorities. The appellant’s passage was anything but innocent as it was in plain breach of the provisions of section 16 of the Maritime Areas Act.

[122]For all these reasons, this ground of the no-case submission can fare no better than those that preceded it. It too was bound to fail. Conclusions on written no-case submission

[130]Ms. Thomson conceded that not all the offences were strict liability offences. She stated that charge numbers 34A/2018 and 34B/2018 required proof of fraudulent intent and knowledge. She submitted that although in one breath the learned magistrate described all the offences as strict liability offences, in the next breath she said the six offences were mainly strict liability offenses and later said “these customs offences of strict liability. It was suggested that this indicates that the learned magistrate appreciated the distinction. Although she misspoke on occasions, she did not regard all the customs offences as strict liability offences submitted Ms. Thomson. Discussion

[123]Having carefully considered the learned magistrate’s ruling delivered on 31st August 3023 and the appellant’s written no-case submissions, I find that the learned magistrate did address the evidential objection to PC Chicquot’s evidence but did not rule whether it was admissible or not, having deferred her ruling on the issue on 22nd June 2023. She also addressed the issue whether the prosecution was required to prove that the lobsters were fished from the fishery waters of Saint Lucia; and whether the vessel departed from a port or place in Saint Lucia without customs clearance.

[124]It is also tolerably clear that the learned magistrate did not engage in a point-by-point consideration of some of the other discreet submissions raised in the appellant’s written no-case submission in her ruling. To be specific, she failed to address the submission that there was no evidence: (i) that the goods were prohibited or that the appellant acted with fraudulent intent; (ii) that the appellant lacked written permission to possess the goods; (iii) that the vessel arrived at a port in Saint Lucia other than a customs port; and (iv) that the appellant had knowledge of the contents of the bags.

[125]The foregoing notwithstanding, the question for this court is whether her ultimate decision to dismiss the no-case submission and convict the appellant was supported by the evidence. For the reasons given earlier in this judgment, save for charge No. 34C/2018, I would hold that the evidence supports her decision to convict.

[126]The appellant having stood on his no-case submission by calling no evidence in his defence, the learned magistrate was then required to consider whether the evidence adduced by the prosecution made her sure that the offences, or any of them, had been proved to the requisite standard such that she was sure of the guilt of the accused.

[127]Having overruled the no-case submission, the learned magistrate directed herself in the following way: “Going beyond the submissions of No-Case to Answer and having determined that these charges concerned cases of strict liability, I am satisfied so that I could feel sure that this defendant is GUILTY as charged on all six counts.”

[128]That statement may be interpreted as saying that all the offences were of strict liability. Indeed, that is the interpretation urged by the appellant and which forms the basis of his second ground of appeal, to which I now turn. “Ground 2 – A procedural material irregularity took place in the trial process when the learned magistrate erroneously found as a matter of law that the charges laid against the appellant are strict liability offences and thus pointed to no evidence upon the upon which the guilty verdicts could rest, in the premises giving the impression that despite the absence of material evidence pointing to the guilt of the appellant his condition conviction was nevertheless automatic.”

[129]Mr. Fraser made the bold submission that the learned magistrate did not identify the evidence she relied on to convict the appellant but convicted him automatically on the basis that all the offences were strict liability offences.

[139]The learned magistrate then addressed what she called the fisheries offences. The evidence she considered to ground conviction is described at paragraph (6) of her ruling: “6) When Mr. Pelage goes further upon being signalled by the port authorities to pull alongside, so that they could board his vessel and upon compliance he is found to have on board a quantity of seafood restricted by St. Lucia law (s.36 (a)) – the offense creating subsection does not exclude the date 29/November, 2017) then he perpetrates the two fisheries offenses (sic)… All of this is prior to any possible admission or confession on the basis of which Defence Counsel seeks to forestall a conviction.”

[131]A strict liability offence is one in which normally no fault element is required in relation to some aspect of the actus reus but mens rea or a mental element is required in relation to other aspects. Determining whether a statutory offence is an offence of strict liability or whether it is an offence requiring proof of mens rea as to its essential facts requires the court to begin its analysis with the presumption that mens rea is required before a person can be convicted of a criminal offence. Where the offence can be described as being ‘truly criminal’ in character then the presumption is particularly strong. Further, the presumption applies to statutory offences and may only be displaced where if it is clearly the effect of the statute that the presumption be displaced. This requires that the statutory language of the provisions, as well as the structure of the sections be carefully construed; some of which may expressly require mens rea as signalled by the use words such as ‘knowingly’. Additionally, factors such as the severity of the penalties, the public policy considerations underpinning the offence such as the seriousness of the mischief intended to be addressed and whether the creation of strict liability will be effective to promote the objects of the statute and deter commission of the prohibited act are also relevant in determining whether an offence is one of strict liability: Nurse v Republic of Trinidad and Tobago; Canserve Ltd v Republic of Trinidad and Tobago; Levar Devere Brown v The Chief of Police .

[132]The appellant does not argue that none of the six offences was an offence of strict liability. His case is that the learned magistrate regarded them all as such when some of the customs offences clearly were not, as signified by words such as ‘fraudulent intent’ and ‘knowingly’, which indicate the need for the prosecution to establish mens rea.

[133]The respondent concedes that that charge numbers 34A/2018 and 34B/2018 required proof of fraudulent intent and knowledge and were not offences of strict liability. That is a proper concession. The real issue in relation to this ground of appeal is whether the learned magistrate’s mischaracterization of all the offences as strict liability offences led to her automatically convicting the appellant without considering the element of each offence.

[134]If the appellant’s contention on this ground is to be interpreted as saying that the learned magistrate convicted the appellant on the basis that the offences were strict liability offences without engaging with the evidence but regarded conviction as flowing automatically from the fact that they were (in her view) offences of strict liability, it misrepresents the true position.

[135]At paragraph (5) of the ruling the learned magistrate directed herself on how to approach strict liability offences in relation to customs cases: “The case of Glendon de Gale v Unted Hatcheries Mag. App No 155 of 1986 provides clarification of the meaning of Strict Liability in customs offences. It is not that there is no mental element required but that however innocent the error, that ignorance of the law is no excuse (ignorantia lex non excusat). …, “This case is replete with other facts and circumstances which are both cogent and compelling – that this defendant committed the requisite elements of each count of these CUSTOMS OFFENCES OF STRICT LIABILITY, in which ignorance of the law is no excuse.”

[136]It seems to me that in this passage the learned magistrate demonstrates awareness that the fact that an offence was one of strict liability did not obviate the need to satisfy herself that the elements of each offence were established.

[137]The learned magistrate then held at paragraph (5) that she was satisfied that the elements of each offence was made out. She proceeded thereafter to rehearse the evidence on which she relied. The facts which the learned magistrate expressly relied on in her ruling are that the appellant was seen leaving the marina and was subsequently found not to have had customs clearance from Saint Lucia. She found that this was established without his need to say anything or do anything else – in French, English or Patois and that he was “seised of both mental and physical elements of the customs offences.”

[138]The learned magistrate further stated that “no customs officer could upon their encounter with Mr. Pillage on board his vessel, say whether he had come from Martinique with the sea food later retrieved from on board or had fished for them in St. Lucian waters. However, the law says that insofar as he was at the Gros Islet port without submitting to them any landing documents, reports, entries for Customs Proper (sic) Officers to address, the customs offenses (sic) had already been completed.” This passage seems to be addressing the submission in relation to the requirement to prove the origins of the lobster and conch from the fishery waters of Saint Lucia. Her view seems to be that that was not something which the prosecution could prove, and furthermore the appellant’s failure to clear customs, itself established the customs offences.

[140]Here the learned magistrate is saying that the finding of the 39 bags on board the appellant’s vessel, which, on examination, were proved to contain lobster and conch, established that the appellant was in possession of them contrary to the Customs Act and the Fisheries Regulations. The learned magistrate is also here saying that proof of these offences did not depend on any admission the appellant had made.

[141]It has to be said that the learned magistrate did not express her reasons in the most structured way or in any forensic detail by articulating the actus reus and mens rea required to establish each offence; her reasoning was expressed in a rather summary way. However, the contention that she automatically convicted the appellant because she erroneously regarded the offences to be strict liability is not made out, having regard to the fact that she expressly directed herself that “it is not that there is no mental element required” and further found that “this defendant committed the requisite elements of each count of these CUSTOMS OFFENCES OF STRICT LIABILITY”; and also said that the appellant was “seised of both mental and physical elements of the customs offences.” (emphasis added)

[142]It seems to me, that even though the learned magistrate erroneously mischaracterized all of the customs offences as strict liability offences, she nonetheless expressly addressed her mind to the need to satisfy herself that the elements of each offence was made out and identified the evidence on which she relied. The flaw lies in her failure to more fulsomely articulate why she found each element of each offence made out. Notwithstanding this, however, I would reject this ground of appeal because, as I have found, save for Charge No. 34C/2018, the elements of each offence were clearly established. Ground 3 – The convictions entered against the appellant go against the weight of the evidence and were in fact entered in the absence of cogent evidence pointing to the guilt of the appellant.

[143]This ground in substance echoes the submissions contained in the appellant’s written no-case submission, which formed the subject of ground 1. It must ineluctably suffer the same fate as ground 1 and is dismissed. Ground 4 – A material irregularity took place in the trial process thus rendering the trial unfair when the learned magistrate entered the convictions against the appellant and proceeded to sentence him on the various charges without inviting counsel to enter a plea in mitigation on the appellant’s behalf.

[144]It is clear from the record of appeal that having pronounced the guilt of the appellant the learned magistrate proceeded immediately to sentence him without entertaining a plea in mitigation.

[145]The maximum sentence for 34/2018 is a fine of $5000.00. The maximum sentence for 34A/2014 is a fine of $10,000 or three times the value of the goods, whichever is the greater, or to imprisonment for five years, or to both. The maximum sentence for Charge No.34B/2018 is a fine of $5000.00 or three times the value of the goods whichever is the greater or to imprisonment for two years, or to both. The maximum sentence for Charge No. 35/2018 is a fine of $5,000.00 or three times the value of the goods whichever is the greater. The maximum sentence for Charge No. 35B/2018 is a fine of $5,000.00.

[146]The learned magistrate imposed the maximum fine of $5000 prescribed for all the offences, save for Charge No. 34A/2018.

[147]The maximum sentence is ordinarily reserved for the most egregious offending at the top end of the scale. It is a cardinal principle that a sentence should be fashioned to meet the justice of the case having regard to the facts and the individual circumstances of the offender. A plea in mitigation serves the useful purpose of furnishing the court with information of the personal circumstances of the offender or features or circumstances surrounding the offending conduct which might mitigate the sentence.

[148]Compounding the fact that the learned magistrate did not entertain a plea in mitigation is the fact that she provided no reasons whatsoever for determining that the maximum sentences were appropriate in the circumstances of this case. There can be a justifiable sense that the sentences were imposed somewhat arbitrarily. Undoubtedly, these deficiencies constitute an error of principle in the approach to the sentencing exercise such this court is empowered to intervene.

[149]This court was not assisted by counsel for the appellant or counsel for the respondent with any details of the personal circumstances of the appellant. Neither could tell us his age or even whether he had any previous convictions or was a person of previously good character. Nor were we furnished with any guideline or precedent cases where offenders were sentenced for similar offences. Neither counsel could offer any insight into the approximate value of the sea food on board the appellant’s vessel. This lack of preparedness is perplexing, considering that the sentence was appealed. Ms. Thomson seems to have taken the position that it was for the appellant to establish that the sentence should not be disturbed. With respect, that is a misguided position to adopt.

[150]On an appeal against sentence, where the appellant is seeking to have the Court set aside or vary the sentence, and the respondent is seeking to have the Court uphold the sentence, both parties must contemplate the possibility that the appeal might be upheld and that the question of re-sentencing will therefore arise. In that event, they both have a duty to fully assist the court by furnishing authorities or cogent argument to guide the court in determining an appropriate range of sentence in the circumstances of the case.

[151]We were invited to order the preparation of a pre-sentence report and remit the case to the learned magistrate for sentencing. That suggestion is not feasible for a few reasons. First, the learned magistrate is no longer on the bench. Secondly, the appellant is from Martinique and the logistics and legality involved in the Saint Lucian authorities obtaining a pre-sentence report in relation to him might present issues. Thirdly, the matter is almost 8 years old and needs to be completed without further delay. In these circumstances, this Court will have to do the best it can.

[152]An appropriate place to start is to determine the starting point for the sentence. I therefore consider the appellant’s culpability in the commission of these offences. The evidence suggests that he played a leading role, being the captain of the vessel. He must have taken a conscious decision to ignore and breach the Customs and Fisheries laws of Saint Lucia. Given the large quantity of sea food in his possession, it is likely that it was intended for commercial sale and not personal consumption. This suggests that the appellant was motivated to commit these offences for profit. In my view these factors lead me to assign a high degree of culpability to the appellant.

[153]The maximum sentence being a fine of $5,000 for all offences except 34A/2018, on account of the high level of the appellant’s culpability, the starting point I adopt is a fine of $3,500 for each offence.

[154]I next consider whether there are any further aggravating factors in relation to the offence, not already considered when setting the starting point. I find there are none. Neither are there any other aggravating factors in relation to the appellant.

[155]I consider next whether there are any personal mitigating circumstances which might reduce the sentence. In the absence of evidence of previous convictions, the appellant must be treated as a person of good character. On this account, I reduce the fines to $3,000 on Charge Nos. 34/2018, 34B/2018, 35/2018 and 35A/2018. In relation to charge No. 34A/2018 for which he was fined $5,000 instead of the maximum $10,000.000, the appellant received from the learned magistrate a generous discount of 50%. That sentence has not been challenged by the respondents as unduly lenient and I make no adjustment to it. Disposition

[156]The appellant’s conviction on charge No. 0034C/2018 is quashed. His convictions in relation to Charge Nos. 34/2018, 34B/2018, 35/2018 and 35A/2018 are affirmed.

[157]The appeal against sentence in relation to charge Nos. 34/2018, 34B/2018, 35/2018 and 35A/2018 is upheld and the sentences imposed by the learned magistrate are varied by substituting a fine of $3,000.00 in relation to each Charge. These fines must be paid within 30 days of the delivery of this judgement or in default the appellant will serve a term of imprisonment of six months. I concur Vicki-Ann Ellis Justice of Appeal I concur Eddy D. Ventose Justice of Appeal By the Court Chief Registrar

1.The learned magistrate did consider the no-case submission but failed to address some specific points raised in the appellant’s written submissions before delivering her written decision. Nonetheless, when the Court of Appeal is considering the question whether a no-case submission should have been upheld, the Court of Appeal should not focus on the manner in which the learned magistrate has expressed herself, but must examine the evidence itself to see whether there was a case to answer. R v Galbraith [1981] 2 All ER 1060 applied, Edwin Gomez v The Queen ANUHCRAP2014/0012 (delivered 17th August 2022, unreported) applied, R v McLeod and Others [2017] EWCA Crim 800 applied, Section 753 of the Criminal Code of Saint Lucia Cap. 3.01 of the Revised Laws of Saint Lucia applied, Section 77 of the Evidence Act Chap. 4.15 of the Revised Laws of Saint Lucia applied.

3.In relation to the issue of the sufficiency of the evidence to sustain the charges, the evidence adduced by the prosecution justified the clear inference that the appellant (i) arrived in Saint Lucia at a non-customs port; (ii) was departing Saint Lucia without valid clearance; (iii) was in fraudulent possession of restricted goods, namely conch and lobsters; (iv) had failed to declare said goods for export; and (v) was in possession of undersized and egg-bearing lobsters. However, there was no evidence to support the conviction for Charge No 34/C/2018, as there was no evidence of sea urchins being in the appellant’s possession. Section 37 of the Customs (Control and Management) Act, Cap. 15.05 of the Revised Laws of Saint Lucia 2023 applied, Section 3 of the Maritime Areas Act Cap 1.16 of the Revised Laws of Saint Lucia, 2015 applied; Section 116 of the Customs (Control and Management) Act, Cap. 15.05 of the Revised Laws of Saint Lucia 2023 applied; Schedule 3, Part 3 of the Customs (Control and Management) Act, Cap. 15.05 of the Revised Laws of Saint Lucia 2023 applied; Regulation 47 of the Fisheries Regulations under the Fisheries Act, Cap. 7.15 of the Revised Laws of Saint Lucia 2023 applied; Section 34 of the Customs (Control and Management) Act, Cap. 15.05 of the Revised Laws of Saint Lucia 2023 applied. Regulation 36(a) of the Fisheries Regulations under the Fisheries Act, Cap. 7.15 of the Revised Laws of Saint Lucia 2023 applied, Section 16 of the Maritime Areas Act Cap 1.16 of the Revised Laws of Saint Lucia, 2015 applied Section 21 of the Customs (Control and Management) Act, Cap. 15.05 of the Revised Laws of Saint Lucia 2023 applied. Director of Public Prosecutions v Brooks 1974) 2 AER 840 applied, R v Lambert [2002] 2 AC 545 applied, Regulation 32.2(d) of the Fisheries Regulations under the Fisheries Act, Cap. 7.15 of the Revised Laws of Saint Lucia 2023 applied, Section 16 of the Maritime Areas Act Cap 1.16 of the Revised Laws of Saint Lucia, 2015 applied

5.In relation to the appeal against sentence, the magistrate erred in failing to invite a plea in mitigation on behalf of the appellant and then proceeding to impose the maximum fine of $5000 prescribed for all the offences, save for Charge No. 34A/2018. The maximum sentence is ordinarily reserved for the most egregious offending at the top end of the scale. It is a cardinal principle that a sentence should be fashioned to meet the justice of the case having regard to the facts and the individual circumstances of the offender. A plea in mitigation serves the useful purpose of furnishing the court with information of the personal circumstances of the offender or features or circumstances surrounding the offending conduct which might mitigate the sentence. The evidence suggests that the appellant played a leading role in the commission of the offences, being the captain of the vessel. He must have taken a conscious decision to ignore and breach the Customs and Fisheries laws of Saint Lucia. Given the large quantity of sea food in his possession, it is likely that it was intended for commercial sale and not personal consumption. This suggests that the appellant was motivated to commit these offences for profit. These factors lead to the assignment of a high degree of culpability to the appellant. There are no further aggravating factors in relation to the offence, neither are there any other aggravating factors in relation to the appellant. In considering whether there are any personal mitigating circumstances which might reduce the sentence, in the absence of evidence of previous convictions, the appellant must be treated as a person of good character. On this account, the fines are reduced to $3,000 on Charge Nos. 34/2018, 34B/2018, 35/2018 and 35A/2018. In relation to charge No. 34A/2018 for which he was fined $5,000 instead of the maximum $10,000.000, the appellant received from the learned magistrate a generous discount of 50%. That sentence has not been challenged by the respondents as unduly lenient and no adjustment is made to it. JUDGMENT

[14]Importantly, the real question in considering the judge’s ruling that there was a case to answer is not whether his statement of the legal principles as understood by him were correct but whether his assessment of thesufficiency of evidence was correct.”