Rohan Shastri Rambarran v The Queen
| Jurisdiction | Barbados |
| Judge | Gibson CJ |
| Judgment Date | 05 December 2019 |
| Neutral Citation | BB 2019 CA 22 |
| Docket Number | Criminal Appeals No. 6, 9, 10 of 2009 & No. 2 of 2010 |
| Court | Court of Appeal (Barbados) |
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
CRIMINAL DIVISION
the Hon. Sir Marston C.D. Gibson K.A., Chief Justice; the Hon. Sandra P. Mason and the Hon. Andrew D. Burgess, Justices of Appeal
Criminal Appeals No. 6, 9, 10 of 2009 & No. 2 of 2010
Sir Richard Cheltenham K.A., QC, and Ms. Shelly-Ann Seecharan for Appellant Rambarran
Mr. Arthur Holder, Mr. Kendrid Sargeant with Mr. Shane Thompson and Ms. Danielle Mottley for Appellant Campbell
Mr. Marlon Gordon with Safiya Moore for the Appellants Persaud and Green
Mr. Charles Leacock QC Director of Public Prosecutions; Mr. Anthony Blackman and Ms. Krystal Delaney for the Crown.
Criminal Law - Possession of drugs — Admissibility of confession statements — Whether sampling and testing process was flawed — Expert witness — Presumption of knowledge — Identification of seized substances — Whether judge misdirected jury — Circumstantial evidence — Whether conduct of the trial was unfair to appellant — Whether judge erred in rejecting no-case submission — Appeal against sentence — Aggravating and mitigating factors — Davie v. Magistrates of Edinburgh (1953) SC — Browne v. Dunn (1893) 6 R. 67 — Sargeant v. R Criminal Appeal No. 2 of 2006.
This case deserves the description “legendary” for several reasons. The first is that it was the longest trial in recent memory, and perhaps in the entire history of trials in this country, to occupy the High Court of Barbados. The trial took some 14 weeks, resulting in 10 Volumes of Trial Transcript of some 4,656 pages; a Summation Volume of 545 pages; and a Mitigation and Sentencing Volume of 136 pages, for a total of 5,337 pages of trial transcript.
Six persons, all Guyanese nationals, were arrested, tried and convicted of serious drug offences. Two of them, a husband and wife named Christopher and Diane Bacchus (“Bacchus”), testified at trial and implicated both themselves and their co-accuseds. The Bacchuses never appealed. They have since been released from prison, along with two of the appellants, Somwattie Persaud and Gavin Wayne Green. Ms. Persaud was released before the hearing of the appeal by the former Governor-General acting on the prerogative of mercy, leaving only two remaining incarcerated appellants, Rohan Rambarran (“Rambarran”) and Lemme Campbell (“Campbell”). This appeal therefore mainly concerns them.
There are several issues which we will address on appeal, including, (i) the admissibility of the confession statements; (ii) the claimed violation of the rule in Browne v Dunn (1893) 6 R.67, (H.L.) as a result of the testimony of co-accused Christopher Bacchus; (iii) the evidence relating to the testing of the vegetable matter and the white powder; and (iv) the sentence imposed. For the reasons which follow, we find that the trial and convictions were unassailable and that there was ample evidence of the guilt of all the accuseds. However, as will become clear, in the exercise of our power to review and vary the sentence imposed on Rambarran and Campbell, we allow the appeal against sentence and vary the sentences as indicated below. We should note, as well, that the facts relating to the points on appeal will be set out when dealing with those points.
Despite the length of the trial in the High Court and the many witnesses, the salient facts can be shortly stated. On 29 November 2005, a container of wood was off-loaded by three of the accuseds, namely Lemme Campbell, Gavin Wayne Green and Christopher Bacchus (“Bacchus”) at a construction site in Rowans St. George. The wood was part of a consignment in a container legitimately ordered by a contractor, Mr. Forde. Some of the wood remained in the container but, at the direction of co-accused Bacchus, some was loaded onto a truck and subsequently transported to the home occupied by Bacchus and his wife, co-accused Diane Bacchus (“Diane Bacchus” or “Mrs. Bacchus”).
The police executed a search warrant at the Bacchus' residence and found that the wood, comprising 16 hollowed-out logs, contained a powdery substance suspected to be cocaine, and vegetable matter suspected to be cannabis. In total, 134 packages were found in the hollow logs: 65 of them contained vegetable matter later shown to be cannabis, and 69 contained the powder which was later shown to be cocaine. The search also revealed two suitcases. One suitcase contained 18 packages of vegetable matter shown to be cannabis while the second one contained 44 packages of the white powder shown to be cocaine. The weight of the drugs was 91.3 kilos of cannabis and 119.4 kilos of cocaine for a total of 210.7 kilos or 464.5 lbs.
Bacchus, his wife Diane, Campbell, his wife, Persaud, and Green, were arrested at the Bacchus' residence. Acting on information gleaned from appellant Campbell, Rambarran was arrested at the Hilton Hotel where he had been staying. All the accused were taken to the Oistins Police Station where they were interviewed. On 23 February 2009, appellants Rambarran, Campbell and their four co-accuseds were arraigned on the six drug offences abovementioned. They all pleaded not guilty. Samples of the cannabis and cocaine were taken and submitted to the Forensic Sciences Centre for analysis and a Certificate of Analysis containing the results was served on the appellants thereafter.
After a trial lasting, as noted above, some 14 weeks, on 4 June 2009, Rambarran and Campbell were each convicted of the following offences, all committed on 29 November 2005, namely:
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(1) Importation of 91.3 kilograms of cannabis contrary to Section 4 (3) of the Drug Abuse (Prevention and Control) Act Cap. 131 (Cap.131); Importation of 119.4 kilograms of cocaine contrary to Section 4 (3) of Cap. 131, on 29 November 2005;
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(2) Possession of the 91.3 kilograms of cannabis contrary to Section 6 (2) of Cap. 131;
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(3) Possession of the 119.4 kilograms of cocaine contrary to Section 6 (2) of Cap. 131;
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(4) Drug Trafficking contrary to Section 18(4) of Cap. 131, namely that he had in his possession a trafficable quantity of cannabis; and
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(5) Drug Trafficking contrary to Section 18(4) of the Cap. 131, in that he possessed a trafficable quantity of cocaine.
On 11 December 2009, the accuseds were sentenced as follows:
— Rohan Rambarran:
1) 15 years for importation of cannabis;
2) 20 years for importation of cocaine;
3) 15 years for possession of cannabis;
4) 20 years for possession of cocaine;
5) 25 years for trafficking in cannabis; and
6) 30 years for trafficking in cocaine.
— Lemme Campbell was sentenced to:
1) 15 years for importation of cannabis;
2) 20 years for importation of cocaine
3) 15 years for possession of cannabis;
4) 20 years for possession of cocaine;
5) 20 years for trafficking in cannabis; and
6) 25 years for trafficking in cocaine.
— Gavin Green and Somwattie Persaud were sentenced to lesser terms (10 years) and, as indicated above, have since been released.
At the outset we wish to state for the record a number of things. The appellants largely have the same or significantly similar grounds of appeal and they agreed that, where appropriate, their arguments would be subsumed under those of Rambarran whose were the most extensive. So while we will concentrate our attention on the contentions of Rambarran, our discussion and analysis applies, with appropriate changes, to appellant Campbell as well.
Rambarran originally filed some 19 grounds of appeal. We propose to deal with those grounds relating to the conviction first and, thereafter, the grounds relating to the sentence.
In relation to this head, both Rambarran and Campbell complained that the oral statements which they allegedly made were not procured from them voluntarily, that they were beaten, and their constitutional rights violated.
For his part, Rambarran complained that Sgt. Ellis who had arrested them along with other officers of the Royal Barbados Police Force, had given him an abridged, truncated and distorted version of his right to counsel within the meaning of section 13 of the Constitution. He complained that in ruling that there was a proper and sufficient communication of the right, the trial Judge erred in law. The Crown maintained, in response, that Rambarran was notified of his right to an attorney in a language capable of being understood by him; that he was informed of his right without delay and further that he was so informed before being taken into custody. Appellant Campbell also complained that the orals, which were taken from him were not voluntarily taken, that he was beaten, and that his constitutional rights to an attorney were violated.
During the course of the trial, the trial judge conducted a voir dire with regard to the allegations of each appellant. In the case of Campbell, Station Sergeant Cecil Watson testified that he was with other officers who arrested the appellant Campbell, his wife Somwattie Persaud, Bacchus, his wife Diane Bacchus and Gavin Green at the residence of the Bacchuses in Bayville, where the drugs were found.
On the voir dire, Sgt. Watson testified to the circumstances of the arrest of Campbell and the orals, which he recorded in his notebook. On being taken into custody, Campbell stated to the officers, “I ain't de boss man, officer. I is only de second man.” Sgt. Watson cautioned Campbell and transported him and the other accuseds to Oistins Police Station. He recalled that appellant Campbell, on being advised of his right to an attorney-at-law, replied: “I don't want a lawyer right now I going to talk to you.” Watson stated that, when he told Campbell of the number of...
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