Peter Barton v The Queen

• Jurisdiction: Barbados
• Judge: Peter Williams JA,Gibson CJ,Goodridge JA
• Judgment Date: 20 February 2019
• Neutral Citation: BB 2019 CA 5
• Court: Court of Appeal (Barbados)
• Docket Number: Criminal Appeal No. 7 of 2009
• Date: 20 February 2019

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL

Before:

The Honourable Marston C.D. Gibson, Chief Justice, The Honourable Peter D.H. Williams, Justice of Appeal and The Honourable Kaye C. Goodridge, Justice of Appeal (Acting).

Criminal Appeal No. 7 of 2009

Between:

Peter Barton

Appellant

and

The Queen

Respondent

Mr. Ajamu Boardi and Ms. Keren Prescott for the Appellant

Mr. Elwood Watts for the Respondent

Criminal law - Possession of cannabis — Trafficking in cannabis — Appeal against sentence — Whether sentences were excessive — Application of Prescod sentencing guidelines — Delay — reduction of sentence for breach of the reasonable time guarantee — Credit for time spent on remand in prison.

DECISION

Peter Williams JA

I. INTRODUCTION

1 This appeal has ranged far and wide. The appellant's counsel has presented submissions on a plethora of grounds of appeal. One would not wish to deprecate counsel's enthusiasm and industry. However, ultimately, we are concerned to determine the main issue, namely, whether the verdicts of the jury (by a majority of 8 to 1) should be set aside on the ground that under all the circumstances of the case they are unsafe or unsatisfactory.

2 The defendant was charged with possession of and trafficking in 205 kilograms (x 2.204 = 451 pounds) of cannabis on 18 December 2001 contrary to sections 6(2) and 18(4) respectively of the Drug Abuse (Prevention and Control) Act, Cap. 131 (Drug Act). On 3 July 2009 he was found guilty of both offences and on 15 July 2009 was sentenced by Worrell J to 10 years' imprisonment for possession and 14 years' imprisonment for trafficking. The sentences were ordered to run concurrently and to take effect from the date of conviction (they should have been ordered to take effect from the date of sentence).

II. EVIDENCE

3 The appeal can readily be resolved by a thorough analysis of the evidence. The prosecution case was that the defendant was the sole occupant driving a hired car from Pile Bay, which is off the Spring Garden Highway, when the car was followed by a police car with four police officers. The hired car was chased by the police car and ran into a pavement at Tudor Bridge. The defendant escaped from the car without being caught by two of the policemen who ran after him.

4 The police officers in the car were Sergeant Dale Crichlow, Acting Sergeant David Leslie, Constable 1268 Blunt and Constable 606 Griffith. They are referred to hereinafter, without disrespect, by their surnames only. Leslie had known the defendant for about five years before the incident and had seen him on several occasions. He was able to identify him; he had an unobstructed view of his face from the headlights of the police car and the street light. He gave a description of the clothes that the defendant was wearing. The car contained 15 bales of vegetable matter and there was sand in the car. The car and its contents were taken into police custody.

5 It was not until over a year after the incident, on 10 March 2003, that the police made contact with the defendant and arrested him. On the following day the defendant made a number of oral statements to Leslie. The defendant admitted that he was the person driving the car “out through Tudor Bridge that hit” and that he collected the cannabis from “a landing” at Pile Bay. He was shown the 15 bales of suspected cannabis and confirmed that it was the “weed” he had and that by weed he meant “marijuana”. However, he seems to have held the mistaken view that since “a year and a day gone” he was immune from prosecution.

6 At the trial the defendant gave a different account of what transpired. His defence was that at the material time he “was nowhere in and around Spring Garden”. The police had “framed” him as he was in fact at the time of the incident at a party with his friend Michelle. She, however, never gave evidence.

III. CONVICTIONS

(a) Grounds of appeal

7 On 16 November 2011, Mr. Boardi for the appellant, filed numerous ReAmended Perfected Grounds of Appeal and provided Skeleton Arguments and oral submissions on the same. We impliedly gave leave to appeal. The grounds were repetitive but those relating to conviction can briefly be categorised as follows: (i) a challenge to the admission of the Certificate of Analysis dated 10 November 2003 provided by the Forensic Science Centre; (ii) an allegation that the appellant was deprived of his constitutional right to a fair hearing by (a) the prosecution making “negative general characterizations of accused persons”, (b) the failure to give the appellant adequate facilities for the preparation of his defence and (c) the failure to provide an expert to assist the defence; (iii) a challenge to the admission of certain evidence and the judicial directions in relation to the same and in particular (a) the identification evidence, (b) the written statement of a police officer who was living abroad, (c) allowing the jury to see certain photographs, (d) certain evidence in relation to the cannabis, (e) evidence by way of demonstration sought to be given by the appellant and (f) discrepancies in the evidence; and (iv) the verdict was unsafe and unsatisfactory.

8 In the circumstances of this case it is unnecessary to give detailed reasons in support of the decision to dismiss the appeal against the convictions. Nevertheless, it may be helpful to explain briefly the reason why what appeared to be the main ground of appeal, namely, the challenge to the admission of the Certificate of Analysis, was misconceived. The verdict was therefore neither unsafe nor unsatisfactory.

(b) Certificate of Analysis

9 The defendant, who was unrepresented at the trial, objected to the admission of the Certificate of Analysis. The Certificate was produced pursuant to section 41 of the Drug Act, which came into operation on 15 August 1990. Section 41 provides that evidence of a certificate in the prescribed form signed by an authorised analyst and certifying the substance in the certificate to be a controlled drug shall be prima facie evidence of the matters so certified and of the qualification of the analyst. The Evidence Act, Cap 121, which came into operation on 1 September 1994, provides by section 132C the requirements necessary for the admission of samples as evidence in criminal trials. The section specifies a Certificate of Sampling of Seized Substance as set out in the Fifth Schedule and a Report with details of the sample. Samples are a means of preserving evidence in criminal cases so that the bulk can be discarded. The defendant at his trial submitted that “according to his research” the requirements for taking samples had not been complied with in this case. The trial judge, assisted by Mr. Watts, found no merit in the defendant's submissions; the prosecution was not relying on samples but on the Certificate of Analysis.

10 Somewhat surprisingly, Mr. Boardi advanced essentially the same submissions before this Court as the defendant had himself unsuccessfully made before the judge. Mr. Boardi imported the statutory requirements contained in the Evidence Act in relation to the Certificate of Sampling of Seized Substance and the Report into the Drugs Act in relation to the Certificate of Analysis. However, the sampling procedure and the analysis procedure are separate and distinct; they are set out in two different Acts which provide different requirements and generate different certificates (and in the case of sampling a Report as well). There is therefore no merit in the submissions which challenged the admission into evidence of the Certificate of Analysis.

(c) Convictions safe and no miscarriage of justice

11 The verdicts can be set aside on the ground that they are unsafe or unsatisfactory: Criminal Appeal Act, Cap. 113A section 4(1)(a). However, there is no doubt that the verdicts are safe and satisfactory. The appellant was caught in possession of a trafficable quantity of cannabis (which is fifteen grammes or any quantity in excess thereof). Apart from the Certificate of Analysis, the forensic scientist gave oral evidence that “the total weight of the cannabis was 205 kilograms”. The appellant was known to the police and identified as the person transporting the cannabis. He behaved suspiciously by running away from the police and was on the run for over a year. He made an oral confession to the police that he collected the bales of cannabis from Pile Bay and confirmed that his reference to “weed” meant marijuana. There was therefore also proof by admission; in the circumstances of this case the admission of the appellant as to his knowledge of the drugs constituted sufficient evidence to identify what they were. The jury obviously believed the prosecution case and rejected the defence of the appellant that he had no connection with the drugs and was at a party during the material time.

12 If a conclusion is made that the conviction is safe there should be no need to discuss the proviso. However, consideration of the proviso has become so much a part of Caribbean criminal jurisprudence that for the sake of completeness the statutory provision is discussed. Even if there was some technical merit in any of the grounds of appeal this Court could properly apply the proviso because:

“The Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.” (Criminal Appeal Act, Cap. 113A, section 4 (2).)

13 The Privy Council stated succinctly in Stafford v. The State (Trinidad and Tobago) [1999] 1 WLR 2026 at paragraph 9 the principles which govern the application of the proviso:

“The test which must be applied to the application of the proviso is whether, if the jury had been properly directed, they would inevitably have come to the same...