R v Walker (Assad Adana), Ottey (Fitzroy), Reid (Owen Omar - Ruling

¶ __________________________________________________________________________________________________________ Ruling on Legal Argument. R v. Walker (Assad Adana), Ottey (Fitzroy), Reid (Owen Omar). Ind. 43/18; Coram: Dobbs J. (Actg.). Date: 4.01.2019 Page 1 of 14 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL SIDE 2 3 INDICTMENT NO: 0043/2018 4 5 REGINA 6 7 v. 8 9 ASSAD ADANA WALKER 10 11 FITZROY OTTEY 12 13 OWEN OMAR REID 14 15 16 17 Appearances: Ms. Nicole Petit for the Crown 18 19 Ms. Amelia Fosuhene of Brady Attorneys for 20 Defendant Walker 21 22 Mr. Jonathon Hughes of Samson Law for 23 Defendant Ottey 24 25 Mrs. Prathna Bodden of Samson Law for 26 Defendant Reid 27 Before: Dame Linda Dobbs 28 Written Submissins: December 2018 29 30 Legal Argument Hearing: 4th January 2019 31 32 33 34 35 HEADNOTE 36 Criminal Law – Legal Argument – Possession – Firearms Law – “Possession”. 37 38 39 RULING ON LEGAL ARGUMENT ON “POSSESSION” 40 41 42 __________________________________________________________________________________________________________ Ruling on Legal Argument. R v. Walker (Assad Adana), Ottey (Fitzroy), Reid (Owen Omar). Ind. 43/18; Coram: Dobbs J. (Actg.). Date: 4.01.2019 Page 2 of 14 INTRODUCTION 1

¶ [1] The three defendants are charged on this Indictment with offences of: 2 (a) Possession of an unlicensed firearm – namely a firearm and some 3 ammunition; 4 (b) Being concerned in the importation of cocaine and MDMA1; and 5 (c) Possession of the same drugs with intent to supply. 6 They have pleaded guilty to the drugs offences in the Summary Court. 7 FACTS 8

¶ [2] The brief facts are that on 2nd March 2018 a canoe – containing the three Defendants 9 and the drugs – was intercepted at sea. The three defendants were arrested. A scan of 10 the packages seized revealed that inside one of them, buried in the centre of the main 11 package within two other packages, was a firearm. There was another package inside 12 which, when cut open, contained an energy drink bottle inside of which were 49 live 13 rounds of ammunition. 14

¶ [3] When interviewed, all three defendants admitted having been engaged to smuggle 15 drugs, but all denied knowledge of a firearm/ammunition in any of the packages. 16 17 18 19 1 Methylenedioxymethamphetamine (MDMA), commonly known as Ecstasy __________________________________________________________________________________________________________ Ruling on Legal Argument. R v. Walker (Assad Adana), Ottey (Fitzroy), Reid (Owen Omar). Ind. 43/18; Coram: Dobbs J. (Actg.). Date: 4.01.2019 Page 3 of 14 PROCEDURAL HISTORY 1

¶ [4] At a Mention hearing in relation to another similar case, this case was alluded to. The 2 court was told that this case had been fixed for trial on the outstanding firearm 3 offences. The Court, mindful of the backlog of cases and persons in custody awaiting 4 trial, asked the Crown to consider its position in light of, the evidence, the public 5 interest, given the guilty pleas, bearing in mind that the defendants would be deported 6 back to their country, and, having regard to the pressures on the criminal courts at 7 present with the absence for medical reasons of the Grand Court’s senior criminal 8 judge, Justice Charles Quin Q.C.. 9

¶ [5] The case was, therefore, listed for another mention. At that hearing, the Crown 10 indicated that it intended to proceed to trial on the basis that it had sufficient evidence 11 to proceed. “Possession” seemed to be the issue in point. The Court decided that, as a 12 legal issue arose which could affect the outcome of the case, the issue ought to be 13 argued well in advance of the current trial date set for March 2019. 14

¶ [6] Thus, I have heard the legal argument today. 15 SUBMISSIONS 16

¶ [7] The Crown’s position, simply put, is this: that the offence is one of strict liability. All 17 the Crown has to show is that the Defendants knew they had the packages in their 18 possession which contained something which turned out to be a firearm. It is 19 immaterial what they thought it was. The knowledge and control of the packages has 20 been shown by their pleas of guilty. 21 __________________________________________________________________________________________________________ Ruling on Legal Argument. R v. Walker (Assad Adana), Ottey (Fitzroy), Reid (Owen Omar). Ind. 43/18; Coram: Dobbs J. (Actg.). Date: 4.01.2019 Page 4 of 14

¶ [8] The Crown produced an extract from Archbold - para 24-8. Reliance is placed on the 1 authorities cited in that extract, namely, Hussain2, Waller3, and Steele4. Reference is 2 also made to a Cayman Islands Grand Court case of R v GA General5 in which 3 Graham J., interpreting s.15 of the Cayman Islands Firearms Law (2008 Revision), 4 (the same section pursuant to which the defendants are charged), and, considering the 5 UK equivalent in the Firearms Act 1968, namely Section 1, and, in addition, having 6 reviewed the UK authorities which are now relied on by the Prosecution in this case, 7 found that the Cayman Islands legislature clearly intended to create an offence of strict 8 liability. 9

¶ [9] The Defence submit that where the drugs are contained in a parcel, as in this case, the 10 Crown must prove that the Defendant was in possession of the contents of the parcel, 11 i.e. that he was not completely ignorant as to the type of thing contained in it. If it were 12 to be shown that a person in possession of a parcel was completely mistaken as to its 13 content, he is not guilty of unlawful possession. It is submitted that the Crown has 14 conflated two types of knowledge – i.e. knowledge that something exists and 15 knowledge of what it is. 16

¶ [10] The Defence distinguish the present case and the authorities cited by the Crown on the 17 facts – namely, because of the nature of the container in which the firearm is located. 18 The defence point out that in each case on which the Crown relies, the Defendant knew 19 he had an article in his possession within a container and could easily have checked 20 what it was. In the case before this court the Defendants were ignorant that there was 21 anything concealed within the drugs they were carrying. Reliance is placed by the 22 2 (1981) 72 Cr App R 143 3 (1991) Crim LR 381 4 (1993) Crim LR 298 5 2002 CILR 276 __________________________________________________________________________________________________________ Ruling on Legal Argument. R v. Walker (Assad Adana), Ottey (Fitzroy), Reid (Owen Omar). Ind. 43/18; Coram: Dobbs J. (Actg.). Date: 4.01.2019 Page 5 of 14 Defence on three local cases to which I will refer shortly, such as the well-known case 1 of Warner6 but particularly the case of Swaby-Powery, Hydes, Crowe7. 2 LEGISLATIVE PROVISIONS 3

¶ [11] Section 15 of the Firearms Law (2008 Revision) reads: 4 “15. (1) Subject to subsection (2), no person shall be in possession of any firearm 5 except under and in accordance with the terms of a Firearm User’s 6 (Restricted) Licence.” 7 Subsection (2), which I need not rehearse, as it is not relevant to the facts of this case, 8 sets out the exceptions to subsection (1). 9 10

¶ [12] It is not dissimilar to s.1 of the UK Firearms Act 1968 which reads: 11 “1 (1) Subject to any exemption under this Act, it is an offence for a 12 person- 13 (a) to have in his possession, or to purchase or acquire, a 14 firearm to which this section applies without holding 15 a firearm certificate in force at the time, or otherwise 16 than as authorised by such a certificate; 17 (b) to have in his possession, or to purchase or acquire, any 18 ammunition to which this section applies without holding 19 a firearm certificate in force at the time, or otherwise than 20 as authorised by such a certificate, or in quantities in 21 excess of those so authorized.” 22 23 24 25 26 27 28 29 6 1962 2 AC 256 7 Ind. 35, 36 + 37/2016 __________________________________________________________________________________________________________ Ruling on Legal Argument. R v. Walker (Assad Adana), Ottey (Fitzroy), Reid (Owen Omar). Ind. 43/18; Coram: Dobbs J. (Actg.). Date: 4.01.2019 Page 6 of 14 THE AUTHORITIES 1 2

¶ [13] I deal first with the local Grand Court authorities relied on by the defence. 3 4

¶ [14] In R v Orrett, Borden, Montague and Ebanks8, Quin J found that: 5 6 7 “a person is in possession of a firearm if he or she (a) exercises control over 8 premises in which the firearm is located; (b) knows that the firearm is on the 9 premises; and (c) takes no proper steps to remove it (such as asking its owner to 10 leave or alerting the relevant authorities).’ It is not necessary for him or her to 11 have control over the firearm itself.” 12 13 14 The facts of the case are not set out in the reference cited and provided. 15 16

¶ [15] In Ebanks v R9: The appellant had been charged with possession of an unlicensed 17 firearm, the evidence being that he had been seen by police to throw away a revolver. 18 The submission on the appellant’s behalf was that there was no case to answer as the 19 evidence of possession or control of the weapon was inadequate. The conviction was 20 upheld by Hercules J stating that the Crown had presented enough clear and cogent 21 evidence to prove the appellant’s possession of the revolver by establishing that he had 22 been knowingly and willingly in control of the object he had thrown away. The Crown 23 was not required to prove that he had actual knowledge that the object in his 24 possession had been a revolver. The Defence rely on the phrase “knowingly and 25 willingly”. 26 27 8 [2010(1)] CILR Note 7 9 1980 – 83 CILR 248 __________________________________________________________________________________________________________ Ruling on Legal Argument. R v. Walker (Assad Adana), Ottey (Fitzroy), Reid (Owen Omar). Ind. 43/18; Coram: Dobbs J. (Actg.). Date: 4.01.2019 Page 7 of 14

¶ [16] In R v McCafferty10, Graham J (who was also the Judge in the General case) held that 1 mens rea is an essential element of the offence of importation of a firearm under the 2 Firearms Law (1998 Revision). 3 4

¶ [17] The defence therefore submit that knowledge of the presence of a firearm amongst the 5 imported goods is necessary for conviction and that the present case, although charged 6 as a simple possession, in order to circumvent this aspect of the law, is de facto a case 7 of importation and that, therefore, the same principles should apply. 8 9

¶ [18] Reliance is also placed on the case of Swaby-Powery, Hydes, Crowe, a case in which 10 Justice Quin acquitted the defendants on Count 2 of the indictment (i.e. the Count of 11 Attempting to Import Firearms) in virtually identical factual circumstances as the 12 present case. Originally there was no judgment provided - a copy of an article in the 13 media being the only source of the case. The Court was invited to proceed on the basis 14 that Quin J had considered the relevant authorities when coming to his decision. 15 However, Miss Livingston in her usual efficient manner has tracked down the 16 judgment. Justice Quin found that there was no case to answer on the basis that there 17 was no forensic evidence to link the Defendants to the gun. Although there were 18 fingerprints on the gun but not identified, there was no evidence of the Defendants 19 having been involved in the packing of the ganja and no evidence that anyone told 20 them about the gun in the ganja. 21 22 23 24 25 26 10 2000 CILR 177 __________________________________________________________________________________________________________ Ruling on Legal Argument. R v. Walker (Assad Adana), Ottey (Fitzroy), Reid (Owen Omar). Ind. 43/18; Coram: Dobbs J. (Actg.). Date: 4.01.2019 Page 8 of 14 THE UK AUTHORITIES 1 2

¶ [19] I have set out very briefly the extracts relied on by the Crown in the cases of Hussain, 3 Waller and Steele. 4 5

¶ [20] The Defence rely on the well-known case of Warner11 which was a case of possession 6 of drugs which it is submitted held that the prosecution must prove that the Defendant 7 was in possession of the contents of the parcel – that he was not completely ignorant as 8 to the type of thing contained therein. 9 10

¶ [21] I now turn to three other cases to which the court drew the attention of all counsel – 11 they are the cases of: Price v DPP12; Deyemi and Edwards13 and Zahid14. 12 13

¶ [22] Price appealed by way of case stated against conviction of ammunition without 14 holding a firearms certificate contrary to s.1(1) of the Firearms Act 1968. He 15 contended that a rucksack found in his house which contained ammunition was not his; 16 the rucksack, having been left by a friend who was a gamekeeper and authorised to 17 carry firearms, and having picked up Price’s very similar rucksack by mistake. He did 18 not know the contents of the friend’s rucksack. The Divisional Court, following the 19 cases of Bradish15, Waller and Steele, dismissed the appeal finding that all that was 20 required was that Price had knowledge of the fact that he was in possession of a 21 rucksack. It was not necessary for him to have knowledge of the nature and the quality 22 of the object in his possession. 23 24 11 1962 2 AC 256 12 1996 CLY 1469 13 2008 1 CAR 25 14 (2010) EWCA Crim 2158 15 1990 90 CAR 271 __________________________________________________________________________________________________________ Ruling on Legal Argument. R v. Walker (Assad Adana), Ottey (Fitzroy), Reid (Owen Omar). Ind. 43/18; Coram: Dobbs J. (Actg.). Date: 4.01.2019 Page 9 of 14

¶ [23] The case of Deyemi involved possession of a prohibited weapon. Following a ruling 1 from the trial judge that s.5 of the Firearms Act 1968 created an offence of strict 2 liability, the Defendants pleaded guilty. They were in possession of an electrical stun 3 gun which they claimed to have thought was a torch. They appealed on the basis that 4 the offence should not have been considered an offence of strict liability particularly in 5 light of the provisions of Articles 6 and 7 of the European Convention on Human 6 Rights. 7 8

¶ [24] Latham LJ Vice President of the English Court of Appeal Criminal Division gave the 9 judgment of the court. The court reviewed the authorities which had previously dealt 10 with the issues of possession, noting that both s.1 and s.5 of the Firearms Act 1968 11 were expressed in similar terms and finding that Parliament intended to impose a 12 draconian prohibition on the possession of firearms. The Court considered and 13 distinguished the cases of Warner and Vann and Davis in coming to the conclusion 14 that no mens rea was required for the offence of possession under s.1 and s.5 of the 15 Firearms Act 1968. Insofar as the case of Vann seemed to suggest that an accused 16 might have a defence if he did not know the nature of the object, that went too far16. 17 18

¶ [25] The English Court of Appeal was taxed again with the issue of possession in the case 19 of Zahid which sought to distinguish Deyemi and the cases which went before. In that 20 case, following a ruling by the trial judge that an offence of possession of expanding 21 ammunition under s.5 of the Firearms Act 1968 was one of strict liability, the 22 Appellant pleaded guilty. He had been arrested for a non-related matter and when 23 searched using a metal detector, two bullets were found in the inside breast pocket of 24 his jacket. He told the police that it must have been left over from when he was on a 25 16 See Latham LJ @para. 24 p.355 __________________________________________________________________________________________________________ Ruling on Legal Argument. R v. Walker (Assad Adana), Ottey (Fitzroy), Reid (Owen Omar). Ind. 43/18; Coram: Dobbs J. (Actg.). Date: 4.01.2019 Page 10 of 14 shooting range in Dubai and he did not realise they were there. A search of his home 1 revealed a taped package containing 38 bullets of the same calibre as those found 2 inside the jacket pocket. The package was inside a Gucci washbag in the study. The 3 Defendant said that he had found the package outside his front door and had later put it 4 in the washbag thinking that it contained bolts or screws left by workmen who had 5 been working at his home. He did not know that it contained ammunition. His DNA 6 was not found on the bullets. 7 8

¶ [26] On behalf of the Appellant, it was submitted that there should be a distinction between 9 two factual situations involving the firearm being in a container: 10 11 i. cases where the defendant’s case is that he was unaware of the contents of the 12 relevant container and 13 ii. cases where the defendant’s case is that he believed that the contents of the 14 container were something other than a firearm and/or ammunition. 15 16

¶ [27] Reliance for a defence in the second category was placed on the speech of Lord Pearce 17 in Warner with which Lords Reid and Wilberforce agreed. 18 19

¶ [28] The Court of Appeal rejected this argument finding that there can be no reason in 20 principle for the alleged distinction. The judgment of Auld J in the case of Bradish17 21 was cited as the reason for the court’s conclusion. In that judgment Auld J sets out why 22 the s.5 is one of strict liability based on, inter alia, the words of the legislation and in 23 particular the comparable words and structure of s.1 of the Firearms Act 1968, the 24 clear purpose of the legislation; the fact that the Firearms Act 1968 has other 25 provisions where there is specific reference to the accused’s state of mind or an express 26 17 1990 90 CAR 271 __________________________________________________________________________________________________________ Ruling on Legal Argument. R v. Walker (Assad Adana), Ottey (Fitzroy), Reid (Owen Omar). Ind. 43/18; Coram: Dobbs J. (Actg.). Date: 4.01.2019 Page 11 of 14 provision of a defence and also the public policy issue of making evasion easier and 1 putting a burden on effective control. 2 DISCUSSIONS AND DECISION 3 4

¶ [29] Does s.15 of the Cayman Islands Firearms law create an offence of strict liability? 5 6

¶ [30] As can be seen from a brief distillation of the authorities at appellate level concerning 7 offences under s.1 and s.5 of the Firearms Act 1968, the position in UK law is that 8 they are offences of strict liability. 9 10

¶ [31] That means that the prosecution only has to show that the Defendant knew he had 11 something in his possession which is in fact a firearm; it is irrelevant what he thought it 12 was. 13 14

¶ [32] So far as the UK authorities are concerned, the defence submit that the facts of this 15 case can be differentiated from those – because this case is not about mistaken identity 16 or possession. 17 18

¶ [33] It is submitted that the Defendants were in possession of what they thought they were – 19 namely ganja, inside which, very thoroughly concealed, was a firearm – for which they 20 cannot, in these circumstances, be in possession. 21 22

¶ [34] What is the position in the Cayman Islands? 23 24

¶ [35] No appellate authorities have been drawn to my attention by any of the parties. I have 25 set out a brief distillation of the local cases provided. I remind myself that these cases 26 are not binding on me but are of persuasive value. I also bear in mind that the UK 27 appellate authorities are not binding. That having been said, they are of highly 28 persuasive value, not least because the legislation, so far as s.1 of the Firearms Act 29 __________________________________________________________________________________________________________ Ruling on Legal Argument. R v. Walker (Assad Adana), Ottey (Fitzroy), Reid (Owen Omar). Ind. 43/18; Coram: Dobbs J. (Actg.). Date: 4.01.2019 Page 12 of 14 1968 and s.15 of the Cayman Islands equivalent law are concerned, are effectively the 1 same. 2 3

¶ [36] I deal with the local cases relied on by the defence. 4 5

¶ [37] In Orrett the facts are not set out to put the principles relied on into context. 6 7

¶ [38] In Ebanks the words “knowingly and willingly” relied on seem to me to reflect the 8 actual facts of the case as opposed to an exposition of whether the count was one of 9 strict liability. It is to be noted that the judge went on to say that the Crown was not 10 required to prove that the Defendant had actual knowledge that the object in his 11 possession had been a revolver. 12 13

¶ [39] The case of McCafferty deals with a different section of the legislation. The fact that 14 the defendants could possibly have been charged with importation of the firearm is not 15 a reason to deviate from the charge they actually face. 16 17

¶ [40] So far as Swaby-Powery, Hydes, Crowe is concerned, there is now a judgment 18 available. The important thing to note is that the case is not on all fours with this case 19 because the Defendants in that case were charged with attempted importation of the 20 firearms, the reason most likely being because they were intercepted some 24 miles off 21 the coast and therefore were not within the jurisdiction. 22 23

¶ [41] As Graham J found in McCafferty” importation is not an offence of strict liability and 24 thus Quin J did not address, as he did not need to, the same issues as now face this 25 court. It was treated as a submission of No Case strictly on the facts. 26 27

¶ [42] I agree with Graham J in the GA General case that s.15 creates an offence of strict 28 liability. The essence of the defence submissions, not dissimilar to the submissions 29 __________________________________________________________________________________________________________ Ruling on Legal Argument. R v. Walker (Assad Adana), Ottey (Fitzroy), Reid (Owen Omar). Ind. 43/18; Coram: Dobbs J. (Actg.). Date: 4.01.2019 Page 13 of 14 made in Zahid, is that a defence ought to be available depending on the facts of the 1 case - in other words, moving the goalposts depending on the facts. I reject that 2 submission for much of the same reasons expressed in Zahid and the other authorities 3 cited. 4 5

¶ [43] On the facts of this case a lay person may well find the strict liability approach difficult 6 to understand and may consider that there is an injustice in such cases. There are some 7 jurists who are uncomfortable with this interpretation of the law. Indeed, Mr Hughes, 8 in what might be teasingly said to be an attempt to pull the heartstrings of the court 9 asked rhetorically – how difficult will it be for the defendants to understand how the 10 three Defendants in the case of Swaby-Powery, Hydes, Crowe could be acquitted on 11 similar facts, but they could be guilty. He submitted that they would have a legitimate 12 expectation they would be dealt with in the same way. The just thing was that they be 13 treated in the same way. But, as already noted, there is a distinction between the two 14 cases and that lies in the charges and the fact that the charges are treated differently in 15 law. That can be explained to the defendants. 16 17

¶ [44] But remaining on the issue of injustice: Depending on the facts of a particular case, the 18 remedy for what could be considered an injustice as a result of the draconian 19 prohibition, lies in the courts powers of sentence - that is for the court to be able to 20 pass a sentence which mitigates the position, for example to pass a sentence which 21 does not increase the overall totality. 22 23

¶ [45] When this case was mentioned informally, the court asked the Crown to review its 24 position, including considering the public interest in pursuing a trial in light of the 25 particular circumstances – inter alia - the pleas of guilty, the fact that the defendants 26 will be deported and the need for a speedy determination to free up the court’s lists. 27 __________________________________________________________________________________________________________ Ruling on Legal Argument. R v. Walker (Assad Adana), Ottey (Fitzroy), Reid (Owen Omar). Ind. 43/18; Coram: Dobbs J. (Actg.). Date: 4.01.2019 Page 14 of 14 When announcing that it intended to proceed, no indication was given of having 1 considered that aspect. 2 3

¶ [46] I propose to give the Crown 7 days to confirm their further course of action. Should the 4 Crown still wish to proceed the Defence must indicate to the court within 7 days 5 thereafter whether the case is still to proceed to trial in light of the ruling I have made. 6 7 8 9 Dated this the 4th day of January 2019 10 11 12 13 Dame Linda Dobbs 14 Acting Judge of the Grand Court 15