Sargeant v R
| Jurisdiction | Barbados |
| Judge | Peter Williams,Connell JJA,Moore, J.A. |
| Judgment Date | 29 November 2006 |
| Neutral Citation | BB 2006 CA 25 |
| Docket Number | Criminal Appeal No. 2 of 2006 |
| Court | Court of Appeal (Barbados) |
| Date | 29 November 2006 |
Court of Appeal
Williams, J.A.; Connell, J.A.; Moore, J.A.
Criminal Appeal No. 2 of 2006
Sir Richard Cheltenham Q.C., Mr. Larry Smith and Miss Verla DePeiza for the appellant.
Miss Manila Renee and Mr. Elwood Watts for the respondent.
Evidence - Expert evidence — Whether witness was properly excluded from being considered an expert witness — Witness possessed same academic qualifications as other witnesses qualified as experts — Limited and no recent experience in drug testing — Counsel not heard on issue of qualification — Court should not have precluded competence as expert — Matter for the jury when attaching weight — Evidence of witness not analysed or put in context for the jury — Court proceeded on erroneous legal basis and in an inconsistent manner — Conviction unsafe — Appeal allowed — Conviction quashed.
Peter Williams AND
Perjury is an ancient criminal offence against the administration of justice in which a witness tells a lie in a Court of law after having been sworn to tell the truth. The appellant was convicted of perjury on 6 February 2006 and sentenced by Blackman, J. to three years' imprisonment. There have been no convictions for perjury in the High Court within living memory neither have there been any decisions of this Court on perjury of which we are aware. This appeal therefore raises novel and difficult points for our resolution.
The appellant is a forensic scientist, having graduated from John Jay College of Criminal Justice, City University of New York, with a Bachelor and a Master of Science Degree in Forensic Science. He also had “several years training at Yonkers Police Academy”. His job at the Forensic Sciences Centre (FSC) in Barbados from 1st November, 1997 to 29th January, 2001 involved the analysis of drugs.
On 1st October, 1999, a Forensic Drug Submission Form, produced as part of Exhibit “G”, was delivered to the appellant for analysis with 24 packages, some containing vegetable matter and the others a white solid substance, “to determine the presence (or absence) of any substance cited in the Drug Abuse (Prevention and Control) Act of the Laws of Barbados”. These packages were found to contain cannabis and cocaine related to offences of “unlawful possession of cocaine” and “acts preparatory to the importation of cocaine”. Edward Lavine, John Jean-Marie and Abraham Moses were charged with offences alleged to have been committed on 27th September, 1999 under the Drug Abuse (Prevention and Control) Act, Cap. 131 which resulted in a criminal trial, hereinafter referred to as the Moses trial, in which the appellant was required to give expert evidence of his analysis of the packages.
No issue arose in relation to his analysis of the packages which contained cannabis. The appellant stated that he found the substance to be cannabis and in cross-examination, he agreed that “there were confirmatory tests for the analysis of cannabis” and that they “were done in this case”. The indictment for perjury arose out of his statement in relation to his analysis of the packages which were found to contain cocaine. He stated that he found the substance to be cocaine, but when cross-examined, he agreed with defence counsel's suggestion that, “the confirmatory test was not done in this particular case”, and he added of his own accord, “because it was not in the last protocol at that time”.
The indictment contained a statement and particulars of the offence with which the appellant was charged, as follows:
“STATEMENT OF OFFENCE
Perjury, contrary to Section 3(1) of the Perjury Act, Chapter 142.
PARTICULARS OF OFFENCE
Mark Arthur DaCosta Sargeant, on the 7th day of November, 2001, in the parish of St. Michael, in this Island, having been lawfully sworn as a witness in a judicial proceeding, namely the trial of Edward Lavine, John Jean Marie and Abraham Moses at the 2001 October Assizes of the High Court of Barbados at that time in answer to a question posed to him under cross-examination to wit, “But the confirmation test was not done in this particular case?” wilfully made a statement material in that proceeding which he knew to be false to wit, “No because it was not in the last protocol at that time”.” (Emphasis added.)
The indictment was signed by Mr. Charles Leacock Q.C., Director of Public Prosecutions.
Section 3(1) of the Perjury Act (the Act) provides for the offence of perjury as follows:
“Any person, lawfully sworn as a witness…in a judicial proceeding, who wilfully makes a statement material in that proceeding which he knows to be false or does not believe to be true shall be guilty of perjury and shall on conviction thereof on indictment be liable to imprisonment for 7 years or to a fine or to both such imprisonment and fine.” (Emphasis added.)
Following the submission of the packages, the appellant issued the FSC's Certificate of Analysis dated 26th October, 1999. This Certificate was produced at the appellant's trial as Exhibit “G” and stated:
“The white substance was analysed and found to be cocaine.”
The Certificate was endorsed and signed by the appellant as follows:
“I, Mark A. Sargeant do solemnly declare that the evidence set out in this document is true to the best of my knowledge and belief and the opinions expressed therein are honestly held.
Mark A. Sargeant M.Sc.
Forensic Scientist.” (Emphasis added.)
It is to be noted that the Certificate makes a distinction between “the evidence” which “is true”, and “the opinions” which “are honestly held”.
The appellant's statement needed to be considered and explained in the context in which it was made. Senior Superintendent of Police, Morgan Greaves, produced Exhibit ‘A’, the appellant's deposition taken by the magistrate on 29th January, 2001 at the preliminary inquiry of Moses and the co-defendants. In his deposition he repeated:
“The white substance was analysed and found to be cocaine.”
He was not cross-examined on this finding.
Miss Eureka Weekes, a Legal Assistant, gave evidence that she was in Court on 7th November, 2001 and swore the appellant in the Moses trial. Mrs. Marguerret Stuart and Miss Lesa Ellis, Court Transcription Officers, gave evidence that they took a transcription of the proceedings of the Moses trial and gave an initialled transcript of the appellant's evidence to Superintendent Greaves, who produced it as Exhibit “B”. The transcript of the proceedings was available to the members of the jury, but they received no assistance as to how they should treat the document and no submissions were made to us on the same.
In examination-in-chief the appellant, who was treated as an expert by the trial judge, Inniss, J. responded to the questions put to him by Mr. Delroy Saddler, as follows:
“MR SADDLER: So you had 24 packages in all, sir?
A: Yes, sir.
Q: You did anything to these packages?
A: I took representative samples of each of the contents of the 24 packages. These samples were subsequently analysed and the chemical content of each sample was then identified.
Q: What was the result of your examination, sir?
A: Results of analysis: The vegetable matter was examined and found to consist of seeds, crushed leaves and stalks of the plant of the genus cannabis from which the resin had not been extracted… The white substance was analysed and found to be cocaine.
Q: How many packages were found?
A: There were 12 packages. Packages 13 to 24 are the ones that contained the white solid substance. All these were tested to be cocaine.” (Emphasis added.)
It should be noted that the appellant in his evidence-in-chief confirmed that the white substance was analysed and found to be cocaine.
The relevant parts of Mr. Ezra Alleyne's cross-examination of the appellant are as follows:
“CROSS EXAMINATION BY MR. ALLEYNE
Q: How many tests, one?
A: I did three colour tests and these were the Cobalt Thiocyanate test, the Mandelin test [and the] Marquis test.
Q: And these are all basic tests?
A: These are all tests to look for the presence of the tertiary and [quarterly] amines that is found in cocaine.
Q: Did you do any confirmatory test?
A: At that time we never used to do any confirmatory test? At that time we used a host of colour tests.
Q: But not confirmatory?
THE COURT: Did you use any confirmatory test?
A: No. It was not in the protocol at the time.
MR. Alleyne: Now, just help me here. The practice is to do these several tests and also to do confirmatory tests. Is that correct?
A: With respect to the cocaine, yes, the practice was to do confirmatory test in all types of examinations in this Island. (Emphasis added.)
Q: But the confirmatory test was not done in this particular case? (Emphasis added.)
A: No, because it was not in the last protocol at that time. (Emphasis added.)
Q: I see. What would be the reason for doing confirmatory test?
A: Obviously the reason for doing confirmatory test is to confirm one's results.
Q: I see. And these confirmatory tests are normally done because the basic test results are not always absolute. Correct?
A: Yes, sir.
Q: So that when the confirmatory tests are not done there is some doubt, [how]ever marginal or [how]ever small, there is some doubt about the basic test?
A: Yes, sir. It could be.
Q: Let me put it to you in a sentence. You cannot be absolutely sure that this is cocaine in the absence of a confirmatory test?
A: Scientifically speaking, no.
MR. Alleyne: You cannot be absolutely sure that this substance which you tested is cocaine?
A: Scientifically speaking, no.”
It is important to note that the appellant in his cross-examination drew a distinction between the practice and the protocol. He never denied that the practice of the FSC was to do confirmatory “test” (in the singular), but that “it” was not in the protocol.
The appellant was re-examined as...
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