Fitzroy Farrell v The Queen

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: Thom JA
• Judgment Date: 03 October 2017
• Judgment citation (vLex): [2017] ECSC J1003-1
• Docket Number: MNIHCRAP2015/0005
• Date: 03 October 2017

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Mario Michel Justice of Appeal

The Hon. Mde. Gertel Thom Justice of Appeal

The Hon. Mr. John Carrington, QC Justice of Appeal [Ag.]

MNIHCRAP2015/0005

Between:

Fitzroy Farrell

Appellant

and

The Queen

Respondent

Appearances:

Mr. David Brandt for the Appellant

Mr. Oris Sullivan, Director of Public Prosecutions, for the Respondent

Criminal appeal — Drug trafficking — Whether the learned judge erred in failing to uphold the no case submission — Whether the learned trial judge failed to put the defence's case fairly and adequately to the jury — Whether the learned trial judge failed to properly address and direct the jury on the issue of possession — Whether the learned trial judge failed to properly direct the jury on the issue of intent to supply

Mr. Fitzroy Farrell (“the appellant”), his mother, Florestina Farrell (“Ms. Farrell”) and his daughter, Keneshia Farrell (“Keneshia”) who was 14 years old at the time, resided in a two-storey house at Woodlands in Montserrat. On 23 ^rd September 2014, the appellant was arrested by the police in relation to another matter and kept in custody. While in custody, his personal belongings including the keys for his home were placed in a safe. From about 11:00 p.m. until approximately 9:00 – 10:00 a.m. the following day, police kept the appellant's residence under surveillance. During that period, no one entered or left the premises other than the police search party accompanied by the appellant. The police having obtained a search warrant to search the appellant's residence, took the appellant to his residence at about 6:15 a.m. the following morning, 24 ^th September 2014, so that he could witness the search. On arrival at the appellant's residence Sergeant Antoine, one of the officers executing the search warrant, enquired of the appellant which of the keys would open the front door. The appellant told him there was no need for a key since his daughter was inside the house. Keneshia had returned to Montserrat three days earlier having left on 5 ^th July 2014. The appellant called her and she opened the kitchen door.

On entering the house, the police informed the appellant they would commence the search in the kitchen and the appellant was required to witness the search. The appellant went and sat in the sitting room which is an area opposite the kitchen. Sergeant Antoine testified that from where the appellant was seated he could have observed what was happening in the kitchen. While searching the kitchen, one of the police officers used a step ladder to search a cupboard above the refrigerator and inside that cupboard he found a quantity of vegetable matter which appeared to be and smelt like cannabis. Sergeant Antoine showed the vegetable matter to the appellant and told him he believed it was cannabis. He asked the appellant to account for it and cautioned him. The appellant made no reply. He subsequently told Inspector Rodney that it was the Police who planted the drugs at his residence. The appellant was arrested and taken to the Police Station where he refused to be interviewed by the police. The vegetable matter was weighed in the appellant's presence and it weighed 119.7 grams. It was subsequently analysed by the Government Chemist who certified it to be cannabis. The appellant was charged with possession with intent to supply cannabis contrary to section 7(3) and possession of cannabis contrary to section 7(2) of the Drug Prevention and Misuse Act.

At the time of the search Ms. Farrell was not at the residence. She had left Montserrat on 5 ^th July 2014 and returned on 14 ^th October 2014. On her return, she was informed of the search, arrested and also charged with possession with intent to supply cannabis and with possession of cannabis. Ms. Farrell stated that she did not know anything about the cannabis.

At the end of the prosecution's case, defence counsel made a no case submission on behalf of the appellant and Ms. Farrell on the ground that there was insufficient evidence of possession of the cannabis by the appellant and Ms. Farrell. The learned Director of Public Prosecutions conceded that there was no case to answer in relation to Ms. Farrell and she was discharged. The submission in relation to the appellant was dismissed.

The appellant was convicted by a jury of the offences of possession of cannabis with intent to supply and possession of cannabis. He was sentenced to four years' imprisonment to run concurrently with a previous sentence. Aggrieved by the decision of the learned trial judge the appellant appealed on the grounds that the learned judge failed to properly direct the jury on the issues of possession and intent to supply and that the learned judge erred in law by rejecting the submission of the defence that there was no case to answer on any of the charges.

Held: dismissing the appeal and affirming the conviction and sentence, that:

• 1. On a charge of possession of drugs the prosecution has a duty to prove that the appellant has knowledge of the presence of drugs. Whether an appellant has knowledge is fact intensive and depends on the circumstances in each case. Mere presence in the house where the drugs are found may not be sufficient in some cases of multiple occupancy or single occupancy. In the case at bar, the evidence that the prosecution relied on to prove the appellant's knowledge included the fact that he resided at the house and had keys for the house; the fact that the two other occupants were off the island for a few months prior to the search, one of whom was still off the island and the other who had returned just 3 days before the search; the large quantum of drugs; the location of the drugs inside the home and the fact that while the appellant was in custody and his daughter was at home, the house was being guarded by police officers. Having regard to the evidence of the prosecution, the learned judge was justified in not upholding the no case submission and in concluding that a reasonable jury might find the case proved beyond a reasonable doubt and convict the appellant. It was open to the jury to accept the prosecution's evidence and reject the explanation given by the appellant when shown the drugs after it was found, that it was the police who planted the drugs at his residence.

  The Queen v Galbraith [1981] 1 WLR 1039 applied; The Queen v Selena Varlack [2008] UKPC 56 applied; John Hutchinson Bath v HM Advocate [1995] S.C.C.R. 323 considered; White v HM Advocate [1991] S.C.C.R. 555 considered.

• 2. In summing up the case to the jury a judge is not required to follow a rigid formula. Rather he is required to explain to the jury in clear and simple language the law applicable to the offence(s) charged, the evidence on which the prosecution relies to prove the offence(s), the standard of proof which the prosecution must meet, any defence(s) which was raised by the accused, or on the evidence as a whole and the evidence in relation to the defence(s). In the present case, the learned judge in directing the jury made clear to the jury the two elements of possession. He identified the evidence of the prosecution relating to the issue of possession, and the evidence of the defence which was capable of casting doubt on the prosecution's case. He gave the jury clear directions on the burden and standard of proof. The learned judge's directions on this issue cannot be faulted.

• 3. Where a person is charged with the offence of possession of a controlled drug with intent to supply, the onus is on the prosecution to prove beyond a reasonable doubt that (a) the accused was in possession of the controlled drug; and (b) that he intended to supply the drugs to another. In proving that the accused was in possession, the prosecution must prove beyond a reasonable doubt that the accused had physical control of the drug, being that the drug was in his custody or under his control and the mental element, being that the accused had knowledge that the drugs were in his possession. In relation to intent to supply, in the absence of an admission or confession, the prosecution is required to lead evidence from which the inference could be drawn that the accused intended to supply the drugs to another. An accused person could have an intent to supply even where the quantity of drugs is less than 15 grams. Where the quantity of the drugs exceeds 15 grams there is a presumption that the accused intended to supply. In the absence of evidence to the contrary, it would be open to the jury to find that he did possess such an intention.

  Regulation 23 of the Drugs (Prevention of Misuse) Regulations, 1989 applied; Sections 7(3), 7(4), 30(2) of the Drugs (Prevention of Misuse) Act, Cap 4.07, Revised Laws of Montserrat, 2002, applied; Thomson: Misuse of Drugs and Drug Trafficking Offences, Rudy Fortson, QC (5 ^th edn., Sweet and Maxwell 2005), pp. 206–207 considered.

• 4. A judge's summation must relate to the evidence and the issues which arise from the evidence. In this case, where the defence to a charge of possession with intent to supply was one of a complete denial of possession of the drugs and there was no evidence of a contrary intention, it was unnecessary for the learned judge to direct the jury on the burden and standard of proof of a contrary intention. The learned judge was simply required to direct the jury that the prosecution had to prove beyond a reasonable doubt both elements of the offence being possession and intent to supply and he did in fact so direct. In relation to the element of intent to supply, the learned judge reminded the jury of the evidence presented in relation to the quantity of the drugs and the evidence of the presence of plastic bags which are normally used for packaging of marijuana for sale. It was open to the jury to accept this evidence and to find that the appellant had the intent to...