Henfield et Al v Commissioner of Police

JurisdictionBahamas
JudgeFountain, C.J.
Judgment Date26 September 1996
CourtSupreme Court (Bahamas)
Date26 September 1996

Supreme Court

Fountain, C.J.

Henfield et al
and
Commissioner of Police

Mr. Berthan Macauley, Q.C. with Mr. Elliott Lockhart for Kevin Henfield.

Mr. Philip ‘Brave’ Davis for Benjamin Beneby.

Mr. Simeon Brown for Derek Miller.

Mr. Bernard Turner for respondent.

Criminal practice and procedure - Appeal against conviction — Conspiracy to possess dangerous drugs contrary to section 29(1) and 22(1) of Chapter 213 — Conspiracy to import dangerous drugs contrary to section 29(1) and 15(5) of Chapter 213 — Judgment that the magistrate's decision as it related to the second appellant was clearly severable from those relating to the other two appellants — No error in magistrate's judgment as it related to the second appellant — Appeal dismissed.

Fountain, C.J.
1

This is an appeal by Kevin Henfield, Benjamin Beneby and Derek Miller against the decision of Magistrate Carolita Bethel, handed down on the 27th November, 1989. Magistrate Bethel therein stated that Benjamin Beneby and Kevin Henfield were each found guilty of:

  • (1) Conspiracy to possess dangerous drugs, namely cocaine, contrary to Section 29, sub-section 1, and Section 22, subsection 1 of Chapter 213 of the Commonwealth of The Bahamas Statute Laws; and

  • (2) Conspiracy to import dangerous drugs, namely cocaine, contrary to section 29, sub-section 1 and section 15, subsection 5 of the said Chapter 213.

2

The magistrate sentenced Kevin Henfield to a term of imprisonment of two (2) years with a fine of Ten Thousand Dollars ($10,000.00) on the count of conspiracy to possess dangerous drugs with intent to supply, contrary to section 29, sub-section 1 and section 22, sub-section 1 of the said Chapter 213.

3

Benjamin Beneby received a similar sentence in relation to the same sections of the said Chapter 213. But, Benjamin Beneby was also sentence to serve one extra year imprisonment if the fine levied was not paid.

4

On the second charge, conspiracy to import dangerous drugs, contrary to section 29, sub-section t and-Section 15, sub-section 5 of the said Chapter 213, both Kevin Henfield and Benjamin Beneby, were each a cautioned.

5

The record of the hearings in the Magistrate Court, with copies of the Information Sheets and Exhibits cover 152 pages of 62” x 13” foolscap.

6

The particulars of the charge brought under Sections 29 sub-section 1 and section 22 sub-section 1 of the said Chapter 213, states:

“That you between Thursday, 16th March, 1989 and Wednesday, 22nd March, 1989 between Freeport, Grand Bahama and Old Bight, Cat Island, being concerned with others, did act together with a common purpose in committing the offence of possession of dangerous drugs, namely: Cocaine with intent to supply same to another.”

7

The decision of the Magistrate covered pages 10$ to 128 inclusive. The magistrate stated that:

“In considering the conspiracy charges, the court has to decide whether the prosecution has proved there was an agreement to bring cocaine into The Bahamas and whether the defendants were a party to that agreement or whether through their words or actions the court can infer they were a party to that agreement.”

8

The magistrate also quoted from Mr. Justice Grouse for “one of the most classical definitions of the law of conspiracy:

‘….conspiracy is a matter of inference declared from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them, and which hardly ever are confined to one place.’

9

Does the evidence recorded against Kevin Henfield and Benjamin Beneby satisfy the above stated principles of the law, against which the Magistrate evaluated the evidence?

10

I am indebted to both Berthan Macauley, Q.C. and Philip (Brave) Davis for the thoroughness with which the Court was carried through the recorded evidence, as related to appellants Henfield and Beneby.

11

The time frame on which the charges of which the said appellants were convicted was stated to be the 16th March, 1989 through the 22nd March, 1989, inclusive.

12

As Mr. Henfield and Mr. Beneby were each found guilty of:

  • (a) conspiracy to possess dangerous drugs, namely: Cocaine with intent to supply; and

  • (b) conspiracy to import dangerous drugs, namely: Cocaine.

13

I shall deal with their appeals first. Both appellants were convicted under sections 15(5); 22(1) and 29(1) of the Dangerous Drugs Act. Ch. 213 of the Statute Laws of The Bahamas.

14

The said sections read as follows, viz:

  • “15(5) No person shall import, cause to be imported or take any steps preparatory to importing, any dangerous drug into The Bahamas except in pursuance of and in accordance with the provisions of this Act.”

  • “22(1) It is an offence for a person to have a dangerous drug in his possession, whether lawfully or not, with intent to supply it to another in contravention of the provisions of this Act.”

  • “29(1) If two or more persons agree or act together with a common purpose in committing or abetting an offence against this Act whether with or without any previous concert or deliberation, each of them is guilty of conspiracy to commit or abet that offence as, the case may be.”

15

It is factually admitted by all parties, that neither Mr. Henfield nor Mr. Beneby were found with the drug cocaine in their possession.

16

It is also common ground by all parties, that neither Mr. Hlenfield nor Mr. Beneby were directly involved in the importation of the cocaine, the dangerous drug subject of the charges.

17

The charge, if found to be sustainable, of conspiracy, would in that event, support the convictions under the said sections 15(5) and 22(1), but not otherwise.

18

Consequently, the gravaman of all counsel addresses relatively to Mr. Henfield and Mr. Beneby were based on the question, conspiracy or no conspiracy.

19

Mr. Ducille in prosecuting the charges before the Magistrate stated:

“The conspiracy and substantive offences arise out of one transaction”

“The conspiracy charges and substantive charges are part and parcel of one transaction. Substantive charges are merely outcome of the overt acts of conspiracy.”

20

(See page 8 of record)

21

It is also, common ground, admitted by all parties that the conspiracy was initiated in Florida, prior to the 16th March, 1989.

22

Mr. Hank Wells in his evidence, as recorded at page 13 of the record stated: “I decided to come to The Bahamas in March because during the first part of March I met with Eddie in Miami, and he asked me if I would fly a plane for him to Columbia for cocaine.”

(at p. 15) “The agreement was made before I went to Freeport. The agreement was made sometime before the 16th March during the first part of March.

But, in addition, Mr. Wells stated that the agreement was come to between four persons: “There were only four men in the room at the time of the agreement. The agreement was about the quantity of coke that I had to bring on the aeroplane, but there were other discussions….. I am telling you exactly who was involved on the trip, I am not tying at all.”

And at p. 10 of the record, in examination in chief, Mr. Wells stated that: “Eddie told me that we were going to pick up four hundred and fifty (450) kilos of coke. When he told me this, just me, Sammy, Tito and Eddie were present.”

23

Neither Mr. Henfield nor Mr. Beneby were present in that room, and again neither are they one of the persons named by Mr. Wells.

24

Therefore accepting Mr. Wells' evidence, there is no direct evidence to connect either Mr. Henfield or Mr. Beneby to that agreement.

25

Mr. Turner in his address stated that he accepted that position as being true and correct. He submitted that a person may join a conspiracy by words or actions from which it can be inferred that the person is a part of the conspiracy, and further that it was from the evidence of Mr. Wells and only on Mr. Wells' evidence that it could be inferred that Mr. Henfield or Mr. Beneby were involved as part of the conspiracy.

26

Mr. Henfield denied the suggestion put to him by both Detective Corp.1774 Ronald Arthur and Constable 592 Glen Stuart that he knew about the conspiracy to possess dangerous drugs. He also denied said conspiracy under oath, when he gave viva voce evidence at the Magistrate Court's hearing. Mr. Beneby also denied the charges laid against him.

27

In this ruling I will deal with issues which arise in this appeal seriatim.

NO CASE TO ANSWE.R.
28

THE Court of Appeal of The Bahamas in Bethel v. R, 1987 L.R.C. (Crim) 238 ruled that “since at the close of the case for the prosecution, there was no evidence against the appellants on the charges of murder and arson, the trial judge overruling of the submission of no case to answer was wrong in law” and allowed the appeal.

30

In the case of R. v. Abbott [1955] 2 All E.R. 899, Court of Criminal Appeal, (England) (Lord Goddard, C.J. Finnemore and Devlin, JJ.), appellant counsel submitted that there was no evidence against the appellant to go to the jury. Goddard, C.J. in giving the ruling of the court, said:

“All the members of the court are of the opinion that at the close of the case for the prosecution, there was no evidence against the appellant at all….

Not only did the appellant give evidence denying that he knew anything about it, he stuck to his story that he knew nothing about it, and I dare say in some respects he made an unsatisfactory witness. People on trial often do make unsatisfactory witnesses, and the jury might have taken an unfavourable view of him as a witness, but he did not supply any direct evidence against himself that he had taken part in this fraud.

[I interject by saying that the preceding can clearly apply to both Henfield and Beneby].

If two people are jointly indicted for the...

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