The Attorney General v Thompson

JurisdictionBahamas
CourtCourt of Appeal (Bahamas)
JudgeJohn, J.A.
Docket NumberMCC App Side & Cais No. 81 of 2011
Date28 July 2014

Court of Appeal

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

MCC App Side & Cais No. 81 of 2011

The Attorney General
and
Thompson
Appearances:

Garvin Gaskin counsel for the appellant,.

Harvey Tynes QC with NaShonda Tynes for the respondent.

Criminal Practice and Procedure - Conspiracy to abet fraud pretences contrary to s.8911 and 348 Penal Code — Abetment of fraud by false pretences contrary to s.861 and 348 of the Penal code — No case submission — Circumstantial evidence — Trial Judge upheld a submission of no case and discharged the Respondent — whether the magistrate in determining that as there was no direct evidence in support of the charges, erred in law by ruling that the Respondent had no case to answer — Appeal allowed.

Held:– appeal allowed, decision of the magistrate set aside

Circumstantial evidence is evidence of surrounding circumstances which, by undersigned coincidence, is capable of proving a proposition with accuracy. It is no derogation of evidence to say that it is circumstantial evidence and often, especially in criminal cases, it is the best evidence available.

In the instant case there was a sufficient nexus between the respondent, Dwight McCoy and RxNorth.com from which an agreement to ship counterfeit drugs to Miami could be inferred.

John, J.A.
1

This was an appeal by the Attorney General against the decision of the magistrate sitting in Grand Bahama who at the close of the case for the prosecution upheld a submission of no-case to answer and discharged the respondent.

2

On the 27th March, 2014 after several hearings we allowed the appeal, quashed the decision of the magistrate and remitted the matter for hearing de novo before another magistrate. We indicated then that we would give our reasons at a later date. This we do now.

3

The appellant together with another person was charged with 2 counts namely: 1. Conspiracy to abet fraud by false pretences contrary to sections 891 and 348 of the Penal code, Chapter 84 and 2. Abetment of Fraud by false pretences contrary to sections 861 and 348 of the Penal Code.

4

The Prosecution's case was that, by way of a conspiracy between the respondent, Dwight McCoy (a US citizen) and Rx North.com (in the person of Andrew Strenipler), the respondent's pharmacy, Personal Touch Pharmacy, [the pharmacy] was used to import counterfeit pharmaceutical products; namely counterfeit Lipitor, Singulair, Celebrex, Hyzaar, Plavix, inter alia, into Freeport, for onward export to patients in the USA.

5

The patients through Rx North.com ordered the drugs on the representation that they would receive what they ordered, not counterfeit products. The drugs were in a warehouse in Freeport, under the general management of the respondent. In June, 2006, the counterfeit drugs were sent by the respondent, through DHL (courier), pursuant to the alleged conspiracy, to Miami. The drugs were seized by law enforcement at the Miami International Airport. In addition, counterfeit pharmaceutical drugs were seized at the Freeport warehouse by the Police. Those drugs seized were positively tested as counterfeit by the actual manufacturers and the Food and Drug Administration.

6

The DHL airway bill, with the respondent's pharmacy, as the sender of the drugs that accompanied the drugs to Miami, was also seized. A copy of the said airway bill was also found in the Freeport warehouse. Paper work in relation to respective patients was found, in Miami, with the said seized counterfeit drugs and were subsequently seized, along with the purchase price of the said drugs and the credit card information of the patients, inter alia. This material also matched material seized from the warehouse. The respondent admitted possession of the drugs in an action filed in the Supreme Court. The warehouse was leased from a local company by Andrew Strenipler, owner of Rx North.com.

7

In addition, the respondent successfully applied to the Department of Immigration for work permits for Matthew Henderson, and a Mr. McCoy to work for the Pharmacy. A letter was seized, sent from Attorney Sean Callendar, on behalf of the Pharmacy, in relation to McCoy and Henderson, to the Department of Immigration, confirming to the said Department that Rx North.com supplies the Pharmacy with medication which was then exported outside of The Bahamas.

8

Further the Bank account of the respondent was used by McCoy and Henderson, to pay the rent of the warehouse and other expenses.

9

The respondent was warned in 2006 by Dr. Marvin Smith (a Pharmaceutical expert) that information was circulating about the respondent selling counterfeit drugs. The respondent nonchalantly thanked him for the information.

10

The respondent was also told by Mr. Carol Sands, a fellow pharmacist and the duly authorized supplier of Lipitor, while visiting the Pharmacy, that the Lipitor that she had on her pharmacy's shelf had counterfeit packaging. Again the respondent nonchalantly thanked him for the information. When interviewed by the Police, the respondent offered no comment.

11

The Sole Ground of Appeal was that

“That the decision of the magistrate was erroneous in point of law in finding that there was only circumstantial evidence of the charges, and that because there was no direct evidence in support of the charges, a sufficient case was not made out against the respondent: That under all the circumstances of the case, the decision is unsafe and unsatisfactory.”

12

Section 203 of the Criminal Penal Code provides as follows:

At the close of the evidence in support of the charge, the Court shall consider whether or not a sufficient case is made out against the Accused person to require him to make a defence, and if the Court considers that such a case is not made out the charge shall be dismissed and the accused forthwith acquitted and discharged.”

13

THE LEGAL POSITION

In Riley v. Barran (1965) 8 W.I.R. Phillips, J.A. referred to the Practice Note issued by Lord Parker, C.J. [1962] 1 All E.R. where he said:–

“Those of us who sit in the Divisional Court have the distinct impression that justices today are being persuaded all too often to uphold a submission of no case. In the re4sult, this Court has had on many occasions to send the case back to the justices for the hearing to be continued with inevitable delay and increase expenditure. Without attempting to lay down any principle of law, we think that as a matter of practice justices should be guided by the following considerations. A submission that there is no case to answer may properly be made and upheld (a) when there has been no evidence to prove an essential element in the alleged offence; (b) when the evidence adduced by the prosecution has been so discredited as a...

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