Brown and Outram v The State

• Jurisdiction: Trinidad & Tobago
• Judge: Yorke-Soo Hon. J.A.,Moosai J.A.,Mohammed J.A.
• Judgment Date: 25 March 2014
• Neutral Citation: TT 2014 CA 13
• Docket Number: Cr. App. 18 & 20 of 2013
• Court: Court of Appeal (Trinidad and Tobago)
• Date: 25 March 2014

Court of Appeal

Yorke-Soo Hon. J.A.; Moosai J.A.; Mohammed J.A.

Cr. App. 18 & 20 of 2013

Brown and Outram

and

The State

Appearances:

Mr. R. Rajcoomar instructed by Ms. Nalini Bansee for appellant No.1.

Mr. J. Heath instructed by Mr. M. Juman for appellant No. 2.

Ms. K. Waterman Latchoo for the respondent.

Evidence - Drugs — Possession of dangerous drugs, marijuana and cocaine for the purpose of trafficking — Appeal against sentence and conviction — Surveillance — Whether the judge erred by failing to provide an appropriate warning against speculation relating to the use of surveillance and by failing to give a direction concerning the limited use to which the evidence could be put — Evidence of money — Whether the trial judge erred in admitting the evidence of money where the jury was not left to decide whether in its view it was indicative of an ongoing drug trade — Whether a trial judge erred where he did not direct the jury as to the possible probative significance of the money and scales that were found on the premises and where he failed to tell the jury that it was for them to determine the significance — Collusion — Whether the judge erred in failing to raise the issues relevant to collusion despite the express invitation of the defence — Bad Character — Whether the evidence of bad character was correctly admitted where the appellant made an attack on another witness' character — Right to silence — Whether the judge correctly warned the jury that they should not assume that the appellant is guilty because he had not given evidence and emphasised that silence was not equated with silence — Judicial Comment — Separate Counts — Constructive possession — Approach — Whether the trial judge erred in providing the jury with an incorrect order of the approach they should have adopted when assessing the evidence — Either or direction — Consideration of R v. W (D) [DW] [1991] 1 S.C.R. 742 — Delay — Whether the trial judge erred in failing to direct the jury to assess the impact of the delay in determining whether they could be assure that the prosecution had proven the guilt of the appellant — Oral statement — Whether the trial judge in failing to direct the jury that the utterance was only evidence against the maker of the statement and not against the other party — Appeal allowed and retrial allowed.

YORKE SOO HON, J.A.; P. MOOSAI, J.A. AND M. MOHAMMED, J.A.:

FACTS:

The appellants were charged on a 2 count Indictment, in that on the 6t October, 1999 they had in their possession dangerous drugs for the purpose of trafficking. 2. The case for the Prosecution was that the appellants were in possession of two types of dangerous drugs namely: cannabis sativa (marijuana) and cocaine, and both were found in the living room of premises located at No. 15 Brazil Road. Wallerfield. The second appellant was seen weighing one of the packets on a scale in the living room while the first appellant was heard commenting on its weight. The case for the Prosecution was that the second appellant saw a police officer peeping through a window of the living room, at which point other police officers surrounded the house and shouted for the two appellants to open the door. 3. 93 packets of dangerous drugs were found of which 92 packets contained marijuana weighing 230.71 kilograms: and 1 packet contained cocaine weighing 4.093 kilograms. Both appellants denied that the packets were ever in the house. The second appellant further denied that she ever placed any of those packets on a scale. 4. The first appellant testified that when the police arrived at the premises. he was outside the house. having just returned from Port of Spain with the second appellant. Shortly after they entered the house the first appellant went outside eating chicken and chips. Whilst there he saw a number of cars approaching, the police emerged therefrom and placed him on the ground. He saw other police officers coming from a bushy area to the south of the house with crocus bags in their hands which were eventually emptied outside the house. The packets were never in the house. The second appellant chose not to give evidence. 5. On the 27th March. 2013 both appellants were found guilty in respect of both offences and were sentenced on the 8th April, 2013 to 18 years imprisonment respectively. 6. In respect of the first appellant 8 grounds of appeal were filed on his behalf. In respect of the second appellant, 10 grounds were filed on her behalf. 7. Where the grounds raised by both appellants are similar in nature we find it convenient to deal with them together.

SURVEILLANCE, MONEY AND SCALES.

1 Appellant No. 1

GROUNDS 1 & 2 - The trial judge failed to properly direct the Jury on the Prosecution's evidence of “information” and surveillance, and cash and scales found at the scene;

Appellant No. 2

GROUND 5 — the trial judge should not have allowed into evidence the money which was allegedly found on the appellant's co-accused as it was more prejudicial than probative to do so.

GROUND 6 — the trial judge having allowed into evidence the money allegedly found on appellant No. 1 failed to direct the jury on how to approach the issue of the money, particularly as the co-accused had given an explanation for the presence of the money.

GROUND 7 — the trial judge failed to address the issue of the presence of the money in relation to appellant No. 2.

SURVEILLANCE, MONEY AND SCALES.

SURVEILLANCE

1 The first appellant complained that the judge erred in law when he failed to direct the jury on the evidence led by the Prosecution of information received by surveillance and the obtaining of a warrant based on the said information.

2 It was contended that the judge having referred to these items of evidence on several occasions was duty bound to direct the jury on the issues raised by such evidence

3 Under cross examination of police officer White, evidence was adduced that the subject premises were under surveillance for about 5 days to one week before October 6th 1999. The judge in his summation merely mentioned this event but gave the jury no assistance on how they ought to approach it. This left the door wide open for the jury to speculate about what the information might have been and may have led them to believe that such an exercise might confirm guilt. The judge should have given the jury the appropriate warning against speculation and was also under a duty to give a clear direction concerning the limited use to which the evidence could be put.

4 The judge therefore fell into error.

ADMISSION OF EVIDENCE OF MONEY

5 The finding of money, either in the home of an accused or in his possession, in conjunction with a substantial quantity of drugs, is capable of being relevant to the issue of trafficking of dangerous drugs. This is an established principle settled in the case of R v Wright [1994] Crim. L.R. 55 and confirmed in later authorities. The presence of the money is a matter for the jury who must decide whether, in all the circumstances, it was indicative of an ongoing trade in drugs - see R v. Grant [1996] 1 Cr. App. R. 73. Accordingly, the trial judge did not err in admitting the evidence of the money.

FAILURE OF THE JUDGE TO DIRECT ON HOW TO APPROACH EVIDENCE OF MONEY AND SCALES

6 Although the trial judge pointed out the evidence in relation to the money found at the subject premises and the scale, he did not give any directions whatsoever as to how the jury ought to treat with such evidence.

7 In the case of Dianne Morris 1995 2 CR App R 69 the appellant dropped a number of bags containing some £5, 000. She was searched and heroine was found on her person. The trial judge admitted the evidence concerning the monies but gave no indication in his summing up as to how the jury should evaluate that evidence which he referred to as “peripheral”

8 It was held that where a Judge admits this type of evidence he must direct the Jury as to the possible probative significance of it, making it clear that the jury must decide whether or not it has probative significance. The Judge must then warn them that if they conclude that the defendant was dealing/trafficking in drugs, this is not in itself evidence for possession of drugs on a particular occasion or a basis for not believing the defendant.

9 In Stafford George Gordon (1995) 2 Cr. App. R. 61 Henry, L.J. pointed out:

“The presence of sums of cash in a house is likely to be equivocal, not only are many legitimate trades cash based, but there are many legitimate explanations for having a large sum of cash at home at any given time, therefore the jury need a careful direction on this question.” [(1995) 2 Cr. App. R. 61 at 66 A]

10 We agree that it was incumbent on the trial judge to direct the jury on how they should approach the issue of the finding of the money. The case of R v. Grant (supra) is instructive on the type of direction that should be given. In that case the defendant was charged with possession of a Class A drug with the intent to supply. His explanation for the possession of money found on him was that he intended to buy a second hand car. The Judge in his Summing Up said nothing to the jury about how to approach the evidence of possession of the money. Taylor, C.J. at page 78 said:

“In our judgment it is necessary, in the circumstances, for the judge to indicate that any explanation for the money which has been put forward by way of an innocent explanation by the accused would have to be rejected by the jury before they could regard the finding of the money as relevant to the offence. Again the jury should be directed that if there were any possibility of the money being in the accused's possession for reasons other than drug dealing, then the evidence would not be probative. lf, on the other hand, the jury were to come to the conclusion that the presence of the money indicated not merely past dealing, but an on-going...