Henderson J
IN THE GRAND COURT OF THE CAYMAN ISLANDS HOLDEN IN GEORGE TOWN, GRAND CAYMAN Cause No: SCA 26/10 BETWEEN REGINA Respondent -AND- FREDDY BODDEN-CORDERO Appellant Appearances: Mr. A. Akiwumi for the Appellant Ms. T. Lobban for the Crown/Respondent Before: Hon. Justice Henderson Heard: 15th May 2012 JUDGMENT
The Appellant Freddy Bodden-Cardero appeals from his conviction in the Summary Court on charges of possession of ecstasy with intent to supply, possession of cocaine with intent to supply, possession of ganja (3 counts), possession of morphine, and possession of utensils used in the preparation of controlled drugs. He says that his convictions are unsafe because, in light of the fact that no police caution was administered, his various statements of an incriminating nature should not have been admitted in evidence. The result is that there was insufficient evidence of possession. Mr. Bodden-Cordero also says that the evidence of intent to supply was insufficient. Evidence
Constable Roderick Evans testified that around 4:30 pm on 16th October 2006 he was travelling down Walkers Road in an unmarked police car when he saw Mr. Bodden-Cordero standing with two other men in the vicinity of 853 Walkers Road. Mr. Bodden-Cordero had a cigarette in his mouth; the officer smelled ganja coming from where the men were standing.
Constable Andrew Bowen stopped a vehicle driven by Mr. Bodden-Cordero on the afternoon of 16th October 2006 on Smith Road. The officer told Mr. Bodden-Cordero that he had been seen on Walkers Road smoking what appeared to be ganja. The officer also said that he understood that Mr. Bodden-Cordero had thrown away whatever he was smoking. The officer testified that he then recited to Mr. Bodden-Cordero the standard police caution. Mr. Bodden-Cordero replied, "that was just a little spliff that I threw away". The officer then asked Mr. Bodden-Cordero to show him where he had thrown the spliff. In the Magistrate's notes of the evidence it suggests that Officer Bowen may have testified to administering the police caution a second time but the notes are unclear. I proceed on the assumption that just one caution, not two, was administered at this time.
Mr. Bodden-Cordero agreed to show Officer Bowen where he had thrown away the spliff and directed him to a bushy area beside 853 Walkers Road. Nothing was found. Mr. Bodden-Cordero was then arrested and taken to police headquarters.
After he was booked in Mr. Bodden-Cordero was told that the police intended to make a search of his residence. He was taken in a police vehicle to the area and pointed out his residence to the accompanying officers upon arrival at the building. The officers obtained a key to the residence from Mr. Bodden-Cordero and entered the premises. No other civilians were present.
A number of unlawful drugs and paraphernalia relating to drugs were recovered. From a plastic bowl in a wood and glass cabinet in the dining room a glass pipe, seeds, small zip lock bags, and "Bob Marley" rolling papers were recovered. Officer Bowen said that he asked Mr. Bodden-Cordero to give an account for the contents of this plastic bowl and cautioned him again. Mr. Bodden-Cordero replied, "that is why I did not want you all to come here, because I did not want you all to find them." Officer Bowen then appears to have cautioned Mr. Bodden-Cordero yet again and told him that "the caution would apply if anything was found."
Next, a small porcelain jar in the same cabinet was found to contain a number of green tablets. Officer Bowen showed them to Mr. Bodden-Cordero and asked what they were. The response was "morphine tablets for pain". The officer asked if Mr. Bodden-Cordero had a prescription for them; he replied, "no I bring them from Canada."
The search was continued in the kitchen. Officer Bowen found a scale, a bottle of liquid labelled "Spanish Fly" and five white tablets in a porcelain jar. He asked Mr. Bodden-Cordero if he could account for the presence of these items but the Appellant made no reply.
Detective Sergeant Mohammad, who was participating in the search, opened the refrigerator and removed a Dr. Pepper can. Officer Bowen asked Mr. Bodden-Cordero what was in it but received no reply. The officer then located a Pepsi bottle which appeared to have a white powdery substance in plastic bags inside it. He showed this to Mr. Bodden-Cordero and asked him what it was; the reply was, "Pepsi, sir".
The officers then went to the bedroom to continue searching. Officer Bowen found a bank statement bearing the name "Jonathan Ebanks" and a quantity of currency. When he showed the money to Mr. Bodden-Cordero and asked what he could say about it the latter replied, "that's my money". The officer then took possession of what has been described as a "box of Rizzla" and asked Mr. Bodden-Cordero to give an account of its presence. He replied that "to buy a box is cheaper." He added, "I use them to smoke my blunts and weed still." Next, a white shaving can containing a false bottom was recovered. More money was found in a "camouflage bag" and Mr. Bodden-Cordero was asked for an account of it. He gave no reply. In the garbage in the bedroom Officer Bowen found a very small burnt cigarette which he called a "roach". He showed it to the Appellant, who replied, "that is nothing man, cha!".
The officers moved to the bathroom to continue their search. One tablet was retrieved from the medicine chest and shown to Mr. Bodden-Cordero, who made no reply.
The officers then went to the second bedroom and asked Mr. Bodden-Cordero about it. He said that it was the "spare" bedroom. Officer Bowen testified that "he identified the other bedroom as the one that he occupied." A black case was recovered from a chest of drawers near the closet in the spare bedroom. A basket and a coffee grinder were inside. Officer Bowen noticed a strong scent of fresh ganja coming from the coffee grinder and saw what appeared to be ground up ganja. There were zip lock bags in the basket. Mr. Bodden-Cordero was asked what he could say about these items and replied, "that is a coffee grinder, but I does grind weed in that to smoke". A red silver can was found in this bedroom which had a scale inside it. When Mr. Bodden-Cordero was asked about the scale he said, "that is a diamond scale. It is not working." Some receipts for rental of the property were found. A second key to the premises was also located and shown to Mr. Bodden-Cordero. He said, "that is where it is! I thought my girl had that. This is for the house."
At this point the Dr. Pepper can found in the refrigerator was examined. Inside there was a black vial containing a number of green tablets and some small zip lock bags. These were shown to Mr. Bodden-Cordero and he was told by Officer Bowen that the tablets were believed to be ecstasy. Mr. Bodden-Cordero made no reply.
When the search was completed, Officer Bowen asked Mr. Bodden-Cordero if he was content with the way it had been conducted and if he had any complaints to make. Mr. Bodden-Cordero replied "no, actually, I think you did very well". He then pointed to Officer Bowen and said, "he made some good finds still".
In cross examination Defence Counsel suggested repeatedly to Officer Bowen that no police caution had been administered. The witness was adamant that he had cautioned Mr. Bodden-Cordero.
Detective Constable Andrew Graham said that around 2pm on 16th October 2006 he participated in the stopping of the vehicle on Smith Road driven by Mr. Bodden-Cordero. He observed Constable Bowen approach the driver and speak to him. Detective Constable Graham returned to the Walkers Road address but did not accompany Mr. Bodden-Cordero to the police station. Detective Constable Graham was present during the search of the residence.
Detective Constable Graham said he was present when ganja seeds were recovered from a table in the living room but testified that he could not recall what Mr. Bodden-Cordero said at that point. He observed a Pepsi bottle taken from out of the refrigerator but said he did not recall if "anybody said anything". He referred to the finding of the Dr. Pepper can but again said he could not recall if anything was said at this point. On two occasions, this witness ventured to paraphrase something Mr. Bodden-Cordero had said. On each occasion, he prefaced his evidence by saying that the suspect had said "something to the effect of ....". Detective Constable Graham gave no evidence of hearing any police caution administered to Mr. Bodden Cordero at any time.
In cross examination he agreed that he had never heard a caution being administered to the suspect. In re-examination, the witness testified (for the first time) to having heard Mr. Bodden-Cordero say that the coffee grinder was used for "to cut up ganja" and, in reference to the ganja seeds, "this is why I did not want you to come." The record contains no explanation of why this evidence was given for the first time in re-examination. Detective Constable Graham said that he did not record anything said by anyone "other than the accused" but also asserted that, "I was not always listening to what was said."
Detective Constable Neil Mohammad participated in the stopping of the vehicle drive by Mr. Bodden-Cordero. He said that Constable Bowen had a "conversation" with Mr. Bodden-Cordero but made no mention of a police caution being given. Detective Constable Mohammad also spoke with Mr. Bodden-Cordero about some liquor found in the back of the vehicle. Mr. Bodden-Cordero explained that, "it was a new product they were importing from Costa Rica."
Detective Constable Mohammad was present when Mr. Bodden-Cordero was taken back to 853 Walkers Road before being transported to police headquarters and was present at the search of the residence. He testified that Mr. Bodden-Cordero was asked which one of the apartments was his and he pointed one out.
When a plastic container with seeds in it was shown to Mr. Bodden-Cordero he responded, "that's why he did not want us to come to the premises."
Detective Constable Mohammad was asked to consult his notes to determine if a police caution had been administered and replied, "I don't have it noted, so I cannot say if he did or not". He then asserted, "he did caution him."
This witness testified to some of the responses made by Mr. Bodden-Cordero to Officer Bowen's questioning but also replied to a number of questions on that subject by saying he could not recall.
In cross examination Detective Constable Mohammad was pressed on the subject of the caution and said "I am confident that" a caution was given to Mr. Bodden-Cordero by Officer Bowen. He repeatedly asserted that he is "sure" that he heard the caution but admitted he had no note of it.
Mr. Bodden-Cordero gave evidence on the voir dire. He denied that any caution was given to him at any time. He denied that he had made any reference to a spliff or to ganja when being questioned on the roadway. He denied saying "that is why I did not want you all to come here. I did not want you to find them." He denied saying in reference to the Rizzla, "I buy it by the box because it is cheaper. I use them to smoke my blunts." In reference to the coffee grinder, he denied saying that he used it to grind weed. He also denied saying at the end of the search that the police "did quite well" or that they "made some good finds". He said he was nervous and handcuffed during the search. He claimed that he "stayed quiet throughout".
Mr. Bodden-Cordero denied telling the police that the residence was his house. He did accept that the key to open the door "had been in my vehicle." He testified that the "only words I spoke" were to deny any knowledge of what was in the plastic container found in the cabinet in the living room. Mr. Bodden-Cordero summarized his participation in the search by saying, "I just stayed quiet and let them do what they had to do. They showed me items from time to time. I did not say anything. They were asking questions. I did not say anything."
The evidence and argument from the voir dire were presented on 12th and 13th December, 2007. The trial was then adjourned to 3rd January 2008, at which time the learned Chief Magistrate gave the following ruling (as recorded in her notes): "Evidence of statements made admissible. What was said or what weight should be given to the evidence is a matter for the jury."
Constable Bowen was then recalled and gave a brief repetition of evidence he had given earlier. Certain notices and certificates were entered.
After the Crown closed its case, Mr. Bodden-Cordero testified in his own defence. In general, Mr. Bodden Cordero denied having any knowledge of the presence of any unlawful drug in his residence at any time. He said that he had signed a one-year lease on 6th July 2006 for the premises in which the drugs were found. He intended to share the premises with his girlfriend. When the couple moved in, they found many items such as clothing and food had been left behind by the previous tenants. He also said that sometimes his girlfriend would bring her own friends to the residence and they would sleep in the second room. Mr. Bodden-Cordero said he tidied up the house when he moved in but he retained the clothes which he found there "in case the people came back for them" and he did not dispose of the food he found because "it was stuff I could eat."
Mr. Bodden-Cordero testified that he had formed a friendship with a Canadian who was taking medication because of some major surgery he had had on his hip. This was a reference to the tablets which proved to be morphine. When it was put to Mr. Bodden-Cordero that he had told Officer Bowen that these tablets were morphine, he denied actually knowing that to have been the case. He first said in evidence, "I did not say that", and then said, "I was not really thinking. I said what came to my mind."
Later, in reference to the morphine he said, "I identified it as morphine to the police at the time because I had had morphine before for my accident. I had a car accident two years ago. I got a morphine prescription. I was on it for 6 to 8 months until I stopped taking them." He was again asked why he told the police it was morphine (given that he was asserting that he did not know the content of the tablets at the time of the search) and he replied simply, "I do not know." He said he was unaware of what was in the glass cabinet in the living room and had never seen the scales before. He agreed that he used the refrigerator regularly but denied knowledge of what was in the Dr. Pepper can and the Pepsi can. He did agree that "one scale" in the house belonged to him.
The Magistrate's decision was not rendered until 16th April 2010. I was advised by counsel that the Summary Court proceeding was "stayed" prior to judgment at the urging of the Defendant, who had launched an appeal challenging the court's jurisdiction to continue. That appeal was itself delayed while counsel awaited the outcome on an appeal to the Privy Council in an unrelated case but on a similar ground of law. Eventually, the point was decided conclusively and against the Defendant's position.
In her decision, the Magistrate gave more extensive reasons for allowing the evidence of Mr. Bodden Cordero's admissions at the time of the search into evidence. She noted correctly that the Defendant's position was that he did not make the admissions attributed to him. She then observed that because of his position "there is no issue of admissibility." However, she also held that if she was satisfied that the statements had been made she would then have to determine whether a caution had been administered in order to determine what weight, if any, should be attributed to the admissions.
The Magistrate found that she was sure that Mr. Bodden-Cordero had made the various admissions acknowledging possession and ownership of the drugs during the search.
On the subject of the caution, the Magistrate characterised Detective Constable Mohammad’s evidence as “unhelpful” but was satisfied from Officer Bowen’s evidence that the Defendant had been cautioned on Walkers Road and again at the premises at the time of the search. The Magistrate acknowledged that the Defendant had been handcuffed throughout the search but observed that some of his comments indicated he was at ease nevertheless. She found that the answers he gave to the police questioning were given voluntarily and after a caution. She was satisfied that Mr. Bodden-Cordero was aware of his right to silence and exercised it with respect to certain questions.
In the result, the Magistrate found Mr. Bodden-Cordero in possession of all of the items taken during the search. She rejected the suggestion made during argument that a previous tenant (and presumed drug user) had left the ecstasy pills and cocaine powder in the house. The Magistrate was sure that the Defendant knew of their presence.
Having made that finding, the Magistrate found she was sure that Mr. Bodden-Cordero had an intent to supply ecstasy and cocaine. The presence of the scales, the zip lock bags, and the money, together with the quantity of drugs found, led her to that conclusion. The Magistrate also convicted Mr. Bodden-Cordero of simple possession of ganja and morphine and of possession of utensils used in the preparation of controlled drugs. Did Mr. Bodden-Cardero make the Admissions?
While there are differences in their respective narratives, all three police officers described admissions by Mr. Bodden-Cardero as the search progressed. His position was that he made no admissions at all and "stayed quiet throughout".
The Magistrate found Mr. Bodden-Cardero's evidence about the morphine to be internally contradictory and ultimately untrue. He first denied knowing there was morphine on the premises and denied having admitted that to the police. He suggested (by inference) that a Canadian friend could have left it in the residence. Later in his evidence, he admitted telling the police that the tablets were morphine and tried to explain its presence by saying he had had a prescription for that drug. Not surprisingly, the Magistrate considered that this stark contradiction destroyed his credibility as a witness. She did not believe his evidence. Her conclusion was not erroneous.
Having discounted the Defendant's evidence as unworthy of belief, the Magistrate accepted the evidence of Officer Bowen that the admissions were made. Nothing emerged from the cross-examination of Bowen and the other officers which would cast any doubt on their veracity. The Magistrate's conclusion that the admissions were made follows inevitably from her conclusions on credibility and was not in error. Was a Caution Administered?
The fact that the admissions were made does not (on the evidence in the case at bar) eliminate the need to find that they were made voluntarily: see Ajodha v. the State (1981) 73 Cr. App. R. 129 (PC).
Mr. Bodden-Cardero testified that he was never given the standard caution. If true, that would be a breach of Rule 2 of the Judges’ Rules and would permit the Magistrate to exercise her discretion in favour of excluding the admissions. (A recent review of the function and effect of the Judges’ Rules by the Privy Council can be found in Peart v. The Queen [2006] UKPC 5.)
Officer Bowen was adamant that he had cautioned Mr. Bodden-Cardero more than once. The evidence of Detective Constable Mohammed that he was “sure” he had heard a caution although he made no note of it is unconvincing. Detective Constable Graham’s evidence was vague and lacking in detail; he admitted that he did not hear a caution. Graham’s evidence does not go so far as to suggest that he was always in a position to hear a caution if one had been administered. On the contrary, he says he was not always listening to what was said.
Essentially, the Magistrate had evidence from two witnesses – Officer Bowen and Mr. Bodden-Cardero – which conflicted on whether a caution had been administered. However, having disbelieved Mr. Bodden-Cardero’s denial that he had made any admissions, it was entirely reasonable to disbelieve his evidence about the lack of a caution as well. Moreover, since Mr. Bodden-Cardero was denying having made any admissions, he was hardly in a position to say (and did not say) that the lack of a caution induced him to speak in a way he would not otherwise have done. The Magistrate did not err in finding that a caution had been given. Defendant’s Vulnerability
On this appeal, Mr. Bodden-Cardero presented additional evidence in the form of psychological and psychiatric expert reports. These suggest that he was suffering from a depressive disorder, a “mild, chronic” cognitive disorder (in the opinion of Dr. Marc Lockhart), and a degree of memory impairment when he made admissions during the search. His attorney characterizes him as a “vulnerable individual” and cites R. V. McKenzie [1993] 1 WLR 453 (CA). In a brief judgment in McKenzie, the Court of Appeal observed that where a case depends wholly upon a confession and the defendant suffers from a significant degree of mental handicap then, if the confession is unconvincing, the judge is obliged to withdraw the case from the jury.
The case against Mr. Bodden-Cardero does not depend entirely upon his admissions. A significant quantity of drugs was found in his residence in locations where he might be expected to know of their presence. Moreover, his admissions are not "unconvincing" in the sense set out in McKenzie: they are not implausible, lacking in convincing detail, or inconsistent with other evidence. The mental state of the Defendant was not a reason to exclude his admissions from evidence. Police Officer's Notes
A further objection to the admissibility of the admissions is that Officer Bowen did not invite Mr. Bodden-Cardero to read over, correct and sign his notes of what was said. This is an objection which goes to the accuracy of the evidence of the statements attributed to Mr. Bodden-Cardero and not to their voluntariness.
The Defendant's denial that he admitted anything at all obliged the Magistrate to assess, as she did, the veracity of Officer Bowen's evidence of what was said. It would not have assisted her to hear, in addition, that after reading over Officer Bowen's notes the Defendant declared them to be inaccurate. Mr. Bodden-Cardero's position is not that he has been misquoted; he asserts that he said nothing of consequence at all. Consequently, the failure to follow this salutary procedure (albeit not one set out in Rule 2 of the Judges' Rules) was of no consequence. Adequacy of Reasons and Delay in Giving Them
A period of two years and four months elapsed between the voir dire to determine the admissibility of the Defendant’s statements and the completion of the main trial. At the conclusion of the voir dire the Magistrate announced her decision on admissibility ("Evidence of statements made admissible. What was said or what weight should be given to the evidence is a matter for the jury.") but gave no reasons. At the conclusion of the main trial the Magistrate gave her judgment which included reasonably full reasons for her earlier decision to admit the Defendant’s statements.
A trial judge or magistrate, like any trier of contested facts, is required to give reasons for convicting or acquitting which at the least "state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues": per Kirby, P. in Soulemezis v. Dudley (Holdings) Pty. Ltd. (1987) 10 NSWLR 247; quoted with approval in R. v. Keyte 78 SASR 68 (CA). The obligation is a fundamental attribute of procedural fairness. Without adequate reasons, justice is not seen to be done. They are necessary so that each party may know why he won or lost and whether an appeal is advisable. Such reasons will be necessary to enable an appellate court to review the decision.
While these principles are not controversial when applied to the obligation to explain a decision on guilt or innocence, I am unaware of any decision which extends them to a ruling following a voir dire. Where, as in the present case, the decision on a voir dire is likely to dictate the result in the main trial, it follows that the obligation to provide adequate reasons will extend to the ruling on the voir dire. A voir dire is a trial within a trial; once the issue has been tried, reasons which resolve the principal points of contention and explain (briefly) why the impugned evidence is or is not admissible must be provided.
If the Magistrate’s brief and conclusory statement at the end of the voir dire is viewed as the entirety of her stated reasons for ruling as she did, I would agree with Mr. Akiwumi’s contention that it is inadequate. She did, however, provide adequate reasons for her voir dire ruling when rendering her final judgment.
The delay of two years and four months between the voir dire and the judgment is regrettable and might, in other circumstances, require that the decision be set aside. However, Mr. Bodden-Cardero was represented by competent counsel throughout and there is no indication that he considered the delay to have prejudiced his client. He could have, but did not, request reasons for the voir dire ruling at any time after January 3, 2008. On this appeal, the delay (or, for that matter, the adequacy of the reasons) was not made a ground of appeal. I infer that the Defendant has suffered no prejudice. Conclusion on Grounds 1 to 4
For these reasons, I am satisfied that the Defendant was cautioned before speaking to the police and that his statements were admissible against him. His admissions provide a sound basis for concluding that he was in possession of the ecstasy, cocaine, ganja, morphine and utensils found in his residence. Intent to Supply
Officer Bowen seized 2 scales, 23 zip lock bags, US$980, CI$685, and a significant quantity of illegal drugs from Mr. Bodden-Cardero’s residence. The Defendant was earning $1500 per month at the time. Mr. Bodden-Cardero’s evidence was not believed. I agree with the Magistrate’s conclusion that the Defendant had an intent to supply for the reasons given by her. Henderson, J. Judge of the Grand Court July 26, 2012