Kempson Ryan Appellant v The Commissioner of Police Respondent [ECSC]

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: MATTHEW J. A. [AG.],Justice of Appeal [Ag.],Chief Justice [Ag.],Justice of Appeal
• Judgment Date: 13 July 1998
• Judgment citation (vLex): [1998] ECSC J0713-1
• Docket Number: MAGISTERIAL CRIMINAL APPEAL NO. 4 OF 1997
• Date: 13 July 1998

Between

Kempson Ryan

Appellant

and

The Commissioner of Police

Respondent

[1998] ECSC J0713-1

Before:

The Hon. Mr. C.M. Dennis Byron Chief Justice [Ag.]

The Hon. Mr. Albert Redhead Justice of Appeal

The Hon. Mr. Albert N.J. Matthew Justice of Appeal [Ag.]

MAGISTERIAL CRIMINAL APPEAL NO. 4 OF 1997

IN THE COURT OF APPEAL

Criminal Law — Conviction for possession of a controlled drug [cocaine], contrary to statute — Drug discovered on appellant's person as a result of a stop and search of vehicles on the highway — What appeared to be the drug sent to Antigua to a chemical analyst for analysis — Appellant claims he was framed — Certificate of analyst admitted into evidence, though analyst himself did not give evidence — Whether the certificate was rightly admitted as proof of the matters stated therein without the defendant being able to examine the analyst — Whether reliance on the certificate as proof of an essential ingredient of the charge in such circumstances was contrary to section 57[2][e] of the Constitution Order — Whether the relevant provision [section 29] of the Drugs [Prevention of Misuse] Ordinance is therefore unconstitutional and ultra vires the Constitution — Medical Evidence Ordinance No. 14 of 1965, sections 2 and 3, St. Lucia considered — Who should bear the costs of the analyst's being summoned to court to give evidence and be cross-examined by accused —Police v Stehlin [Western Samoa CA 13/93] referred to. Appeal dismissed.

Appearances:

Mr. D. Brandt for the Appellant

Mr. C. Ekins, Attorney-General, for the Respondent

MATTHEW J. A. [AG.]

1 On Friday June 20, 1997 about 8.15 p.m. while a police party were carrying out a stop and search of vehicles at Runaway Ghaut for dangerous drugs, arms and ammunition the Appellant who was driving alone in his car was stopped and searched. In his right front small pocket two aluminum foil wrappings were found which when opened were seen to contain a creamish coloured substance which according to two of the officers appeared to be cocaine.

2 Later in the course of the investigations Coporal Brade took the wrappings and the contents to Antigua to Mr. Malverne Spencer, a chemical analyst employed by the governments of Antigua and Montserrat, for analysis and one week later he returned to Mr. Spencer who handed him a certificate which was admitted in evidence at the trial of the Appellant for having in his possession a controlled drug, to wit, .15 grams of cocaine, contrary to section 7[2] of the Drug [Prevention of Misuse] Ordinance 1989.

3 Mr. Spencer did not give evidence before the learned Magistrate who heard the matter. The Appellant contended before the Magistrate that he had been framed but the Magistrate rejected that contention and preferred to accept the evidence of the police witnesses to the effect that the Appellant did in fact have the drugs in his possession on the evening in question. He therefore convicted the Appellant on August 13, 1997 and fined him $3,000 to be paid in three weeks time or in default six months imprisonment.

4 On August 20, 1997 the Appellant filed a notice of appeal with one substantial ground, namely, that the findings of the learned Magistrate are against the weight of the evidence.

5 However in that notice he said he reserved the right to add to this ground of appeal when the Magistrate's memorandum of his reasons for his decision was delivered.

6 Whatever may be the effect of this reservation of right, the Appellant obtained the leave of the Court to argue another ground of appeal as follows:

"The learned Magistrate erred in law when he admitted the certificate of the purported analyst as proof of the matters stated in the said certificate without the Defendant/Appellant being able to examine or have examined the said analyst whose certificate was relied upon to prove an essential ingredient of the charge contrary to section 57[2] [e] of the Montserrat Constitution Order, 1989."

7 So there are in effect two grounds of appeal. I can dispose of the first one very simply. It was not seriously pursued. The learned Magistrate heard two versions of an incident. In strong and clear language he said he did not believe the Appellant that he was framed and he went on to give his reasons for his disbelief. He said he rejected the Appellant's contention. On the other hand he accepted the evidence of the police witnesses. How can it then be said that the findings of the learned Magistrate are against the weight of the evidence? This ground of appeal fails.

8 The second ground of appeal in short is alleging that section 29 of the Drugs [Prevention of Misuse] Ordinance which provides for the admissibility of the certificate of the analyst without the need for him to give evidence in person, is unconstitutional and is ultra vires section 57[2] [e] of the Constitution of Montserrat.

9 Section 57[2] [e] is as follows:

"Every person who is charged with a criminal offence—shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before the court, and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution."

10 Perhaps it might be convenient to set out the impugned legislation in full. Section 29 of the Drugs [Prevention of Misuse] Ordinance is as follows:

"[1] Subject to subsections [3] and [4], notwithstanding the provisions of any other law, a certificate of an analyst purporting to be signed by him stating that he has analysed or examined a substance and stating the result of such analysis or examination is admissible in evidence in any prosecution under this Ordinance of the matters stated therein if it is proved by other evidence that the seals or other fastenings of the container of the substance or thing analysed and in respect of which the certificate was given were intact at the time the container was delivered to him.

[2] No evidence shall be required by the court as to the signature or qualifications of the person purporting to have signed the certificate.

[3] No certificate shall be received in evidence unless the party intending to produce it has given to the other parties seven days notice of such intention and has furnished with such notice a copy of the certificate.

[4] In any prosecution under this Ordinance either of the parties may require the attendance of an analyst to give evidence and in such case the costs of his attendance shall, unless the Judge or Magistrate orders otherwise, be payable by the party so requiring."

11 In support of his submissions learned Counsel for the Appellant referred to the approach taken by the Courts in the following cases:COLLYMORE AND ABRAHAM V THE ATTORNEY GENERAL [T&T] [1967] 12 WIR 5 at page 8. SAN JOSE FARMERS' COOPERATIVE SOCIETY LTD V ATTORNEY GENERAL [BELIZE] [1991] 43 WIR 63, 68, 69,78. Counsel also referred to an extract where a case from Western Samoa was reported, POLICE V STEHLIN. This case...