Bartlett v The Commissioner of Police; The Commissioner of Police v Bartlett

• Jurisdiction: Bahamas
• Court: Court of Appeal (Bahamas)
• Judge: Isaacs, J.A.
• Judgment Date: 24 July 2015
• Neutral Citation: BS 2015 CA 96
• Docket Number: MCCrApp & CAIS No. 36 of 2015
• Date: 24 July 2015

Court of Appeal

Allen, P.; Adderley, J.A.; Isaacs, J.A.

MCCrApp & CAIS No. 36 of 2015

Bartlett

and

The Commissioner of Police

The Commissioner of Police

and

Bartlett

Appearances:

Mr. Murrio Ducille, counsel for the appellant.

Mr. Garvin Gaskin, Director of Public Prosecutions, with Mr. Terry Archer, counsel for the respondent.

Bernal and another v. R [1997] 2 L.R.C. 534 applied

Bowleg v. R [2009] 3 BHS J No. 38 considered

Butler v. Commissioner of Police [1994] BHS J. No. 112 applied

Commissioner of Police v. Michael Aaron Webster SCCrApp No. 288 of 2014 considered

DPP v. Brooks [1974] AC 862 applied

Ephraim Brice and others v. Commissioner of Police Nos. 21, 22, 24 and 25 of 2005 mentioned

Jean v. Commissioner of Police [2010] 2 BHS J. No. 151 followed

Knoepflein v. Commissioner of Police [1971–6] 1 L.R.B. 369 mentioned

Knoll v. Commissioner of Police [1965–70] 2 L.R.B. 479 mentioned

Mario Moxey and Rico Knowles v. Commissioner of Police Nos. 23 and 28 of 2005 mentioned

Melvin Maycock Sr. v. The Attorney General SCCrimApp No. 158 of 2011 considered

Ortiz (Jose), Castillo (Julio), Ortiz (Edwardo) and Newball (Luis) v. The Police (1993) 45 W.I.R. 118 mentioned

Regina v. Boyesen [1982] A.C. 768 applied

Seymour v. Commissioner of Police [2014] 1 BHS J. No. 60 applied Warner v. DPP [1968] 2 All E.R. 356 applied

Criminal Procedure and Practice - Possession of dangerous drugs with intent to supply — Conspiracy to possess dangerous drugs with intent to supply — Importation of dangerous drugs with intent to supply — Appeal against verdict — Cross appeal against the leniency of sentence — Definition of possession — Consideration of Regina v. Boyesen [1982] A.C. 768 and Seymour v. Commissioner of Police [2014] 1 BHS J. No. 60 — Whether the Appellant was fixed with knowledge, which was sufficient to show beyond a reasonable doubt that he was in possession of such drugs — Imputed knowledge — Consideration of Warner v. DPP [1968] 2 All E.R. 356, DPP v. Brooks [1974] A.C. 862 and Ortiz (Jose), Castillo (Julio), Ortiz (Edwardo) and Newball (Luis) v. The Police (1993) 45 W.I.R. 118 — Guidelines in Bernal and another v. R [1997] 2 L.R.C. 534 considered — Conspiracy — Whether the Appellant should have been charged with conspiracy to possess dangerous drugs where the statements made by a conspirator during the course of the conspiracy could be used in evidence against his co-conspirators — Consideration of a statutory conspiracy in Butler v. COP [1994] BHS J. No. 112 — Whether the sentence was unduly lenient having considered the sentences imposed on persons in other cases who had pleaded guilty of possession of dangerous drugs with intent to supply — Consideration of Melvin Melvin Maycock Sr v. The Attorney General SCCrimApp No. 158 of 2011; Commissioner of Police v. Michael Aaron Webster SCCrApp No. 288 of 2014 and Bowleg v. R. [2009] 3 BHS J. No. 38 J — Appeal dismissed — Cross appeal allowed and sentence substituted — Section 29 (6) of the Dangerous Drugs Act — Sections 5 and 39 (2) of the Evidence Act

The appellant, a pilot by profession, was hired, along with Murrillo Sullivan to fly a plane from The Bahamas to Canada, to pick up a passenger, and then back to Treasure Cay, Abaco, The Bahamas. Sullivan was the co-pilot. Upon their arrival in Canada they were picked up by a man named Johnny who dropped them off to have lunch and returned for them later with their intended passenger, Michael Aaron Webster.

Previously, the appellant had been a Confidential Informant for the United States of America Drug Enforcement Agency (DEA). However, he was deactivated in 2013 but remained in constant communication with DEA Special Agent Durante.

En route to Treasure Cay the appellant and Sullivan contacted Durante. During the conversation the appellant asked Durante why there was “heat” at Treasure Cay and remarked that he could not take any heat. Sullivan suggested that they land in Moore's Island instead but Durante told them to come to Nassau. The appellant flew into New Providence where he, Sullivan and Webster were arrested.

A search of the plane revealed 149 pounds of Indian Hemp and 17.4 pounds of amphetamines. In the result the appellant was charged with three counts of possession of dangerous drugs with intent to supply, three counts of conspiracy to possess dangerous drugs with intent to supply, three counts of importation of dangerous drugs with intent to supply and three counts of conspiracy to import dangerous drugs. Sullivan and Webster were also charged.

The magistrate convicted the appellant on all counts and sentenced him to two and a half years on each count, to run concurrently. The appellant appealed on the ground that the verdict was unreasonable having regard to the evidence. His main contention was that the prosecution adduced no evidence to prove that he knew of the presence of the drugs on the plane. The respondent cross-appealed on the ground that the sentence was unduly lenient, considering that one of the appellant's co-accused, Webster, who entered a guilty plea had his sentence of four years affirmed on appeal.

Held:

appeal dismissed. Cross-appeal against sentence allowed. Sentence of five years substituted.

The law describes possession as physical control or custody of a thing plus knowledge that you have that thing in your custody or control. It matters not whether you know or comprehend what the thing is, once you know that you are in physical control or have custody of it you are, by law, in possession of that thing. Knowledge is, therefore, an essential element of the offence of possession. In this regard, it is important to note that possession may be proven actually, or constructively. Constructive possession occurs where there is control or custody of a thing coupled with circumstances from which one can safely say that the person with custody or control ought reasonably to have known that he was in custody or control of that thing.

In the present case the appellant submitted that he had no knowledge of the presence of drugs on the jet which he piloted. In support of his submission the appellant asserts that he was merely a pilot of a jet engaged to perform a charter, he was not present when Webster was collected for transport to the airport or when he boarded the jet, he was also not present when the bags were loaded onto the jet and he did not see any bags prior to landing in New Providence.

On the other hand, the respondent submitted that the appellant's knowledge may be inferred from the surrounding circumstances, namely; a conversation the appellant had with Durante about two men, Ronald and Johnny seeking a new drug route from Canada to The Bahamas and the person who the appellant met in Canada having the same name; Johnny. There was also the evidence of the appellant's attempt to charter the jet under the name Joseph Albury and the finding of Albury's passport and National Insurance card in the appellant's possession. Additionally, the appellant was found with a large amount of cash and there was evidence that the bags containing the drugs were found in the cabin area of the jet, through which the appellant had to pass to get to the cockpit. Also, there was the conversation the appellant had with Durante about there being heat in Treasure Cay and his not landing there despite it being the destination of the charter. Further, the respondent also submits that there were warning flags surrounding this transaction, i.e., the cost of flying the jet from Europe to The Bahamas to Canada and back to The Bahamas just to pick up a passenger and the payments of cash for his services.

The aforementioned evidence was sufficient to raise in the magistrate's mind a reasonable inference that the appellant was in possession of dangerous drugs and engaged in the conspiracies as charged. As an appellate court there can be no interference with the decision of a magistrate unless it was found to be unreasonable in the Wednesbury sense.

Isaacs, J.A.

1 On 27 May 2015 we heard the submissions of counsel and adjourned the matter with a promise to render a decision at a later date. We do so now.

THE HISTORY

2 The appellant and one Murillo Sullivan (Sullivan) were hired to fly a plane from The Bahamas to Montreal, Canada to pick up a passenger. The appellant was the pilot and Sullivan was the co-pilot. Once they arrived in Canada they cleared Customs and were picked up by a man named Johnny. He dropped them for lunch and left. He returned for the men with the intended passenger in the vehicle. The passenger was Michael Aaron Webster (Webster). The appellant got in the front passenger seat. He saw no bags in the vehicle. Johnny drove the appellant, Sullivan and Webster to the airport.

3 On arrival at the airport the appellant came out of the vehicle and entered the fixed base operations (the FBO) office to settle aviation and clearance fees. His business complete, the appellant went to the plane and went into the cockpit without checking the interior or exterior of the aircraft. Once the appellant saw that Webster was on board the plane they left Canada for The Bahamas.

4 While en route, the appellant and Sullivan were in contact with United States of America Drug Enforcement Agency Special Agent Eric Durante (S/A Durante). At some point Sullivan communicated with S/A Durante that the passenger had four bags with him, and he was not claiming the bags as his own. Shortly after, the appellant asked S/A Durante why there was heat at Treasure Cay. He also remarked that he could not take any heat. Sullivan proposed to go to Moore's Island instead but S/A Durante told them to bring his bags and come to Nassau. The appellant flew to New Providence where he, Sullivan and Webster were arrested. On searching the aircraft the Police discovered four suitcases in the cabin and a clear plastic bag...