Ferguson v The State

JurisdictionTrinidad & Tobago
JudgeMendonca, J.A.,Narine, J.A.,Mohammed, J.A.
Judgment Date16 December 2016
Neutral CitationTT 2016 CA 52
Docket NumberCriminal Appeal No. 7 of 2014
CourtCourt of Appeal (Trinidad and Tobago)
Date16 December 2016

Court of Appeal

Mendonca, J.A.; Narine, J.A.; Mohammed, J.A.

Criminal Appeal No. 7 of 2014

The State

Mr. D. Khan, Mrs. U. Nathai-Lutchman and Ms. S. Hinds for the appellant

Mr. G. Busby, Assistant D.P.P. and Mrs. A. Teelucksingh-Ramoutar, Assistant D.P.P. for the respondent

Criminal practice and procedure - Possession of a dangerous drug for the purpose of trafficking — Appeal against conviction and sentence — Whether the trial judge erred in convicting the appellant on the ground that it cannot be supported as the State did not establish a prima facie of occupation of the premises where the appellant had admitted to residing on the premises and the doctrine of constructive possession — Meaning of occupied — Whether the trial judge erred in his directions on law regarding “occupation” as defined in the Dangerous Drugs Act, Chapter 11:25 where the judge had used clear and unambiguous terms to explain the issue of occupation of the premises and also isolated the evidence capable of supporting the term — Whether the trial judge erred in failing to assist the jury on the law regarding “knowledge” as defined in the Dangerous Drugs Act — Judge's summing up on the issues was in faithful compliance with his duty to not put either the prosecution case or the defence case to the jury on a misleading basis — Whether the trial judge erred in his assistance to the jury on the issue of the utterance — Judge provided the relevant directions to the jury with respect to the appellant's oral utterance and the circumstantial evidence in the case — Whether the trial judge erred in that he failed to assist the jury as to the significance of the destroyed exhibit of the dangerous drugs and the impact of such on the credibility of the State's witness — Judge properly and adequately reminded the jury of the reasons for the discrepancy in the weight of the destroyed exhibit — Jury informed of the inconsistencies in relation to the weight of the exhibit and went to the credibility of the police officers who gave evidence — Whether the trial judge erred in commenting on the plausibility of the defence case — Trial judge gave full and fair weight to the evidence and arguments of both the prosecution and the defence — Whether the jury was adequately directed on various issues — Whether the sentence was too severe where the trial judge had correctly applied the relevant sentencing principles and remained within the available range of sentences — Whether a retrial should be ordered — Appeal allowed — Retrial ordered — Conviction was fundamentally compromised and cannot stand as the new evidence of the bad character of the state's main witness impacted the credibility of the state's case.

Evidence - Admission of new evidence — Whether bad character evidence which was not available at trial but went to the credibility of the State's main witness should be able to be adduced — Whether the pending charges of the state's main witnesses were of substantial probative value in establishing propensity and showed a lack of credibility with respect to evidence where the prosecution's case pivoted on the evidence and credibility of the witnesses and the observations made by the witness — Four requirements for its admission as fresh evidence under R v Parks [1961] 3 All ER 633 — Whether the mere making of an allegation was capable of bad character evidence — Test regarding the introduction of bad character evidence against a person other than the accused was more stringent than the test applicable to the introduction of bad character evidence against an accused person — Appeal allowed against conviction — Bad character evidence should be adduced as fresh evidence.


(1) On the 22nd March, 2012, the appellant, Roger Ferguson, was convicted of the offence of possession of a dangerous drug, namely, cannabis sativa for the purpose of trafficking, contrary to section 5(4) of the Dangerous Drugs Act, Chapter 11:25 (The Act). On the 26th March, 2012, the appellant was sentenced to 15 years and 93 days imprisonment with hard labour. The sentence was ordered to run from the date of conviction.

The appellant now appeals his conviction and sentence.


(2) On the 11th October, 2002, around 5:45a.m., a party of police officers, including Officer Bernard and Officer George, conducted a search at Temple Street in Arima at the premises of Lily Lane. Approximately one month before, Officer Bernard and other police officers had those premises under surveillance. One week before he was apprehended, the appellant was seen on two occasions in the corridor which led to the apartment in which he was found. On the 11th October, 2002, while at the premises, Officer Bernard called out the name of Lily Lane and the appellant answered at the door of an apartment. After a search warrant was shown and read to the appellant, the apartment, which consisted of one room with two beds and a bathroom, was searched. The search revealed a plastic bag containing ten black plastic packets which was hidden under a bundle of dirty male and female clothing close to one of the beds. The contents of the packets were examined and they were found to contain a quantity of compressed plant material resembling marijuana. The appellant was cautioned and he replied, “Officer, that is mama's goods. I am only living here, she has gone up the road”. The appellant was subsequently arrested, formally charged, and taken to the Arima Police Station.


(3) At the Arima Police Station, the exhibit, namely the ten black plastic packets, was weighed and was found to be approximately 10.2kg. On the 1st November, 2002, the exhibit was sent to the Forensic Science Centre for analysis. It was later retrieved along with a report which indicated that the packets contained cannabis sativa, weighing 9.49kg. In 2003, the exhibit was taken to the Arima Magistrate's Court and then returned to the La Horquetta Police Station. In May, 2008, Police Inspector Forde destroyed the exhibit under the mistaken impression that the case had been completed. The exhibit was weighed prior to its destruction and was found to be 5.73kg.


(4) The defence case was one of fabrication and that of a “set up” by the police. It was suggested that following a search at the premises of Nazir Ali at Temple Street in Arima, the police officers seized a quantity of marijuana, some of which they kept for themselves and some which they used to fabricate a case against the appellant.


(5) The appellant elected to give evidence at the trial and called Nazir Ali as a witness. Ali gave evidence that on the 11th October, 2002 he was at an apartment at Temple Street in Arima which he rented from Lily Lane. At around 5:30am on that day, police officers came to his house, searched the inside, and found seventeen blocks of marijuana. Ali testified that when he was taken to the Arima Police Station, he was charged with possession of only two blocks of marijuana.


(6) The appellant gave evidence that on the 11th October, 2002, around 6:00a.m., he was at his rented apartment at Temple Street in Arima and heard his name being called out by a group of police officers. He responded to the police officers, who were at that time, at the nearby apartment of Lily Lane's son. He asked who they were looking for and they replied, “Roger Ferguson”. The police officers walked towards him and one of them asked if he was Roger Ferguson and another gave instructions to arrest him. The appellant was taken to the Arima Police Station where he was informed that he was being charged for possession of marijuana for the purpose of trafficking along with Lily Lane, who he said was his landlady.


(7) Mr. Khan, counsel for the appellant, submitted that the prosecution adduced insufficient evidence to place the appellant in occupation of the apartment within the meaning of section 21(1) of the Act, so as to properly found the operation of the principle of constructive possession. Counsel further submitted that the presence of male clothing in the self-contained apartment, as well as the presence of the appellant at the premises at an early hour, fell short of what was required to prove that the appellant was an occupier or in control of those premises. In support of this argument, he relied on the case of Bharath and Bohoroquez v. The State [Cr. App. Nos. 49 and 50 of 2008] which established that the term “occupier” imports an element beyond mere presence. In order to be an “occupier” within the meaning of the Act, a person must be in control of the premises.


(8) Mr. Khan also relied on the case of Ramdass and Ramoutar v. Knights (Unreported) [Mag. App. No 13 of 2002] where this court examined what constituted occupation of premises in accordance with the Act. In that case, police officers executed a search warrant for illegal arms and ammunition at the home of Kelvin Jadoo in Biche. At the time of its execution, the officers found Jadoo, the two appellants and some young children at the premises. They also found two plastic bags containing marijuana, a shotgun cartridge and a tin holding a quantity of seeds, stems and plant material resembling marijuana. The appellants told the police that they did not live at Jadoo's premises but were staying there at the time while the roof of their house was being repaired. The appellants were arrested and the prosecution case was that they were “occupiers” within the meaning of section 21(1) of the Act.

In that case, Sharma C.J., upon reviewing the Canadian authorities of R v. Gun Ying [1930] 3 D.L.R....

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