Owens et Al v Commissioner of Police

JudgeHusbands, C.J.
Judgment Date17 February 1989
CourtDivisional Court (Barbados)
Docket NumberNo. 30 of 1987
Date17 February 1989

Divisional Court

Husbands, C.J. (Ag.); Belgrave, J.

No. 30 of 1987

Owens et al
Commissioner of Police

Mr. Elliott Mottley, Q.C. for the appellants.

Mr. Olton Springer for the respondent.

Criminal law - Appeal against conviction — Unlawful possession of cannabis — Appeal against conviction — Appeal dismissed


Husbands, C.J. (AG.) The two appellants were convicted on 17th September, 1986 by a magistrate in the Criminal Court at District “A” for being unlawfully in possession of a small quantity of cannabis on 19th February, 1989. A fine of $300.00 was imposed upon each appellant payable in one month, in default 3 months imprisonment.


The appeal in each case is against the conviction on the grounds that:–

  • (1) The decision of the learned magistrate is erroneous in point of law.

  • (2) The decision of the magistrate is against the weight of the evidence.


Mr. Mottley submitted that –

  • (1) there was no evidence before the magistrate which was capable of proving that either of the appellants was aware that there was cannabis on a dressing table in their bedroom.

  • (2) it was for the prosecution to prove that (1) two appellants were jointly in possession of the cannabis found on the dressing table in their bedroom and (2) each of the two appellants was aware of the presence of that cannabis on the said dressing table.

  • (3) failure by the prosecution to establish both of these elements would vitiate the convictions.


In support of his submissions Mr. Mottley cited Belle v. C.O.P. (1972) 8 Barb. L.R. 16; (1972) 18 W.I.R. 1 and Blackman and Another v. C.O.P. (1972) 8 Barb. L.R. 254; 21 W.I.R. 16. The evidence led in Belle v. C.O.P. showed that the police carried out a search of the S.S. Artemis which was anchored at the Port of Bridgetown and found in the appellants' cabin a card box containing two packages. The contents of these packages were tested and found to be Indian hemp. The appellant was subsequently convicted by a magistrate for the unlawful possession of the drug. The evidence was that the packages were found under the bottom drawer of the clothes locker and the magistrate in his reasons stated that he took particular note of the place where the drug was found and that the box did not contain a loose quantity but two neatly rolled packages.


It was held on appeal, that there was nothing in the case to indicate any knowledge on the part of the appellant that the box, or its contents, was in the cabin. The fact that the hemp was neatly rolled in two packages was in the circumstances of this case, of no great significance and, as to the place where it was found, it was possible for an unsuspecting person to have used the locker for months, even years, without knowledge that anything was under it.


Douglas, C.J. who read the judgment of the court concluded by saying:–

“Some aspects of the evidence invite comments and questions. Was there another key to the cabin? Even if there was not, could anyone have used the appellant's key to enter the room and place the box and its contents under the locker? The appellant was not on the ship when the police carried out the search and his cabin was about the last one searched. Could anyone have removed it from his own cabin to the appellant's when the search was in progress particularly as it is in evidence that some other members of the crew were also charged with like offences? It is for the above reasons that we thought that the appeal should succeed.”


In Blackman and Another v. C.O.P. the two appellants were convicted by a magistrate of taking out of the harbour area at the Bridgetown Port a quantity of articles without producing a pass out check authorising them to be in possession of the articles. They were each fined $100.00 or two months imprisonment. It was successfully argued on behalf of the appellant that the offence required proof of mens rea and that the magistrate did not address his mind to this aspect of the case. Alternatively it was submitted, even if the offence was absolute and mens rea was not a constituent, the magistrate should have addressed his mind to the question of possession and seen whether, in relation to each appellant, he was in law in possession of the articles. The concept of possession, it was submitted, involved a mental as well as a physical element.


It was held that the appeals must be allowed because the magistrate never really brought his mind to bear on what was essentially the matter at issue in the case. Once the question of the appellants' knowledge of the presence of the articles on the lorry had been put in issue, the magistrate should have gone on to consider in the case of each appellant, whether in all the circumstances he knew or must be taken to have known that they were on the lorry.


The decision of the court which consisted of Douglas, C.J. and Williams, J. as he then was, was read by the latter who referred to the Judgment of Lord Parker, C.J. in Lockyer v. Gibbs [1966] 2 All E.R. 653 where Lord Parker said:

“in my judgment it is quite clear that a person cannot be said to be in possession of some article which he or she does not realise is, or may be in her hand bag or her room, or in some other place over which she has control. That I should have thought is elementary; if something were slipped into one's basket and one had not the vaguest notion it was there at all, one could not possibly be said to be in possession of it.”


Lord Parker's statement of the law was affirmed by the House of Lords in Warner v. Metropolitan Police Commissioner [1969] 2 A.C. 256. In the light of the above authorities the questions which must now be considered are these:–

  • (1) Did the learned magistrate in the instant case apply his mind to the proper questions, namely, did he address his mind to the question of possession and see whether in relation to James Owens he was in possession in law of the small quantity of cannabis, and, whether in relation to Gale Owens she was in possession in law of the said small quantity of cannabis?

  • (2) If he did apply his mind to the proper questions was there evidence before him to support the findings he made?


The record shows that after the case for the prosecution was closed, Mr. D.A. Rawlins who at that stage was counsel for both appellants submitted to the learned magistrate that there was “no case” for either of them to answer, on the ground that the prosecution had failed to prove guilty knowledge on the part of either accused. The matter was adjourned so as to enable Mr. Rawlins to produce authority in support of his submissions. When the matter was resumed Mr. Rawlins cited a number of authorities to the court one of which was the important and valuable case of Warner v. Metropolitan Police Commissioner [1969] 2 A.C. 256. The submission of “no case” to answer was overruled and the appellants James Owens and his wife Gale then gave evidence on oath. No other evidence was led on their behalf.


In the light of the above, there can be no doubt that the magistrate's attention was properly drawn to the proper issues in the case and that the relevant authorities were cited to him. Further proof of this may be found in the statement of reasons for the decision where the learned magistrate wrote as follows:–

“…The court was left in no doubt that there was cannabis on the table in that bedroom in which both accused were dwelling up to that time and further that both accused knew of its presence there. The court believes the evidence of Sergeant Phillips and found the two accused guilty.”


It cannot be doubted in the circumstances of this case that the magistrate did apply his mind to the physical, as well as the mental element of possession as he was required to do.


A review of the evidence in the case must now be made in order to determine whether the decisions reached by him are supported by that evidence.


The evidence led on behalf of the prosecution came from Sergeant Phillips and the Government Analyst. Police Constable George Bennett who had accompanied Sergeant Phillips to the home of the appellants was tendered for cross-examination. The evidence of P.C. Bennett thus given supported that of Sergeant Phillips in all material particulars. Sergeant Phillips' evidence is that he obtained a warrant to search the premises of the appellant James Owens. He went to the said premises about 9.15 a.m. on Sunday the 19th February 1984 armed with the warrant and accompanied by constables 1051 Bennett and 196 Gibson. These...

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