Eric Llewellyn Jemmott v The Commissioner Of Police

GRENADA IN THE COURT OF APPEAL MAGISTERIAL CRIMINAL APPEAL NO. 4 OF BETWEEN: ERIC LLEWELLYN JEMMOTT Appellant and THE COMMISSIONER OF POLICE Respondent Before: The Hon. Mr. Satrohan Singh Justice of Appeal The Hon. Mr. Albert Redhead Justice of Appeal The Hon. Mr. Albert Matthew Justice of Appeal (Ag.) Appearances: Mr. Anselm Clouden, Mr. Gill with him for the Appellant Mr. Hugh Wildman OPP (Ag.), for the Respondent 1999: November 24; 25. JUDGMENT

[1]SINGH , J.A. : On June 16, 1999, Corporal Smartt of the Grenada Police Force, acting on a tip off, awaited the arrival of the appellant at the Grenada Point Salines International Airport on a BWIA aircraft emanating out of Barbados. At 4.40 p.m., the appellant disembarked from the aircraft and was met in the customs area by Corporal Smartt.

[2]Acting on his suspicions that the appellant came to Grenada in pursuant of an illegal drug transaction, Corporal Smartt, having told the appellant of his suspicions, requested of the appellant a search of his person. The appellant demonstrated reluctance at first but then submitted to the search by assisting the police officer to declothe him. Corporal Smartt then found $64,719.00 US cash, strapped to the trunk and leg portion of the appellant’s body. The appellant was then questioned by Corporal Smartt about the money. He eventually confessed that it was brought in to be given to two Venezudlans staying at the No Problem Hotel for the purpose of purchasing cocaine. The money was seized and the appellantwas arreste.d In a written interview with the police unde.: : Jtion, the appellant said, inter cJiia, “I did not come to Grenada to buy the cocaine, I only c0me to drop the money in Gmr.ada.” At the trial, the appellant said he came to Grenada with the money to buy land ?’.1d he sought to secrete it on his body because he knew that in Trinidad it was illegalto take in so much cash.

[3]On these facts, on August 20,1999, the appellan,t a Barbadian, was convicted before Magistrate Patricia Mark of the offence of doing an act preparatory to or for the purpose of trafficking in a substance he believed to be a controlled drug , to wit, Cocaine, contrary to section (2) (c) and 18 (4) of the Drug Abuse ( Prevention and Control) Act Cap of the Revised Laws of Grenada . He was sentenced to imprisonment for 18 months and the Magistrate ordered forfeiture of the US$64,719. The app l!a!1t appealed and on November 25, 1999, we unanimously dismissed the appea,l affirmed the conviction, sentence and order of forfeituremade by the learned magistrate.

[4]In dismissing the appea,lwe gave consideration to all the issues raised by Counsel for the appellant and found merit in none of them. The arguments indulgedin by Counsel revolved around the issues of (1) the voluntariness of the oral confession of the appellant includingthe concept of fairness when such a statement was unrecorde.d (2) At what stage should the Vair Dire as to its admissibility have been held. (3) Request for particulars of the offence charged (4) Search and Seizure (5) Reasonableness of the verdict of the Magistrate (6) the forfeiture.

[5]In determining these issues we gave the following reasons: THE UNRECORDED CONFESSION

[6]As earlier mentioned, the appellant, upon being caught in flagrante , so to speak, eventually told the police that the $64,719.00 was to be used in an illegal drug transaction. ‘ The transcriptshowed that before he made this revecl1tion, he had a discussion with Corporal Smartt as to the possible results of being convicted of the relevant offence. The transcript also showed that Corporal Smartt advised him of all the Jlt.:)matives e.g. a fine, imprisonmuntand/or deportation. They also had an evangelical exr.harige during which Corporal Sm2:tt reminded the appellant of the biblical advice “speak the truth and it will set you free.”

[7]The argument of Mr. Clouden was that this evangelical exchange was an inducement by a person in authority which affected the voluntariness of the confession. In our opinion, havinglooked at the entire context from whence came the revelation, we concluded that from the moment the appellant realizedhe was caught, his desire was to speak the truth and that when he indulged in the discussion with Corporal Smartt as to the possible consequencesof the crime, including the evangelical exchang,ehe was weighing his optionsand at the same time indulging in a veiled form of plea bargaining with the officer.

[8]Given these consideration,swe did not share the view of Mr. Clouden tha the evangelical exchange, in the context of this case, was in the form of an inducement. We also did not find that the evidence supported a view of hope of advantage. We therefore concluded that the oral statements were given voluntarily by the appellant.

[9]Addressingthe submission of Mr. Clouden of unfairness because these statements were not recorded, we saw no miscarriage of justice resultant therefrom. We so concluded because, having found the statements to be voluntarily given, that made them admissibl,e and when regard is had to the unchallenged confession in the written interview under cautionmentioned earlier, that written confession aided us in our acceptance of the truth of theoral confessoin.

THE VOIR DIRE

[10],… Voir Dire was done by the Magistrate during the trial to detennine the voluntariness of these oral confessions. Mr. Clouden criticized the stage of the trial at which this r. pµene.d

[11]We found no merit in the criticism. We cor.5ideredthat what the Magistrate did was just and fair. We expressed the opinion tha,t iri the interestof fairnessto an accuse,dwhere theonly evidence against the accused was his confession, that there could be no room for valid criticism of a Magistrate who did the Voir Dire during the trial or even before any other evidence was taken. The appropriate time for the Voir Dire, is usually just before the challengedevidence is due to be given.

REQUEST FOR PARTICULARS

[12]Counsel for the appellant at the trial, requested particulars of the offence but received none. Mr. Clouden described this as a miscarriage of justice based on the concept of unfariness. We agreed generally with the principle but concluded no unfairness in the context of the case. Particulars are required to ensure no surprise to the accuse.d We expressedthe view, thatbecause of the confessions of the appellan,t there was no room for surprise, hence no miscarriage.

SEARCH AND SEIZURE

[13]We also found no merit in the ground of appeal that addressed the issue of Search and Seizure. We were satisfied from the evidence in the transcript, that whenever the search took place, it was with the consentand active participaiton of the appellant.

[14]The evidence disclosed that the police went to the airport with reasonable suspicio,nand, with that state of mind, sought to execute the search. We accordinglydisagreed with counse’ls submission ihai 11 Wd s an aroitrary search. vVe concludedthat it was a search thatwas acceded to by the appellant. In any event, even if it could have been said that the search was improper, that could not have tainted the evidence iscovered therefrom, if such evidence was relevant and therefore admissible.

[15]Before t’ e PAC E Ac t o f , the method by which evidence wcis nbtained was strictly irrelevant Therefore evidence was admissible which had been stolen (R -v- Leatham) (1861) Cox C 498) or obtained by an illegal search [Jones -v- R (1870) 345 p 759 Kuruma •V• R (1955) AC 197.]

[16]The authorities under the PACE Act show, that evidence obtained improperly or by trick, may be excluded, if the admission of the evidence would have such an effect on the fairness of the proceedings that the Court ought not to admit it.

[17]The PACE Act has not to date been incorporated into the laws of Grenada therefore the law pre PACE still applies to search and seizure in Grenad.a However, even if the principles of PACE did apply, because of the strength of the confession, we would have concludedno unfariness.

REASONABLENESS OF MAGISTRATE’S DECISION

[18]We had no lurking doubt at the end of our deliberations as to the wisdom of the conviction in the matter. The appellant was caught red handed and he confessed more than once.

FORFEITURE

[19]The learned Magistrat,eafter conviction and sentenc,einvokedpowers given to her by S 47(1) of the Drugs Act and ordered the forfeiture or confiscation of the $64,719.00. Mr. Cloudenargued against this order on grounds that (1) there was no nexus established, connecitng this sum of money with any illegal drug activity and (2) before such an order couia have been made, the appellant should have been given the opportunity to show causeagainst the making of such an order {S 47(3)} .

[20]Because of the confessions of the appellan,t we dismissed this grounu as being without merit on both limbs.

[21]We expresseu the opinion that the evidence was pellucid as to the ron!lection of the $64,719.00 with the illegal drug trade. We also held that opportunity was given to appellant to show cause pursuant to S 47(3). The transcript showed that at the time forfeiture was being considered by the Magistrate, S 47(3) was discusse.d Mr. Clouden then told the Magistrate that the money “was not the product of an offence.” The onus was then on the appellant to lead evidenc.e Counsel did not seek to lead any evidenc.e The Magistrate then made the order. Given these circumstances we saw no miscarriage of justice to the appellant and were satisfied that the Magistrate complied with S 47 (3) . We consideredthe forfeiture order a proper one and dismissed the appeal in its entirety.

[22]Dated this 24th day of January, 2000. Satrohan Singh Justice of Appeal I concur Albert Redhead Justice of Appeal (Ag.) I concur Albert Matthew < p style=”text-align: right;” align=”right”> Justice of Appeal (Ag.)