Ramesar v The State
| Jurisdiction | Trinidad & Tobago |
| Judge | Narine, J.A. |
| Judgment Date | 16 December 2016 |
| Neutral Citation | TT 2016 CA 54 |
| Docket Number | Cr. App. No. 8 of 2014 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 16 December 2016 |
Court of Appeal
Mendonca, J.A.; Narine, J.A.; Mohammed, J.A.
Cr. App. No. 8 of 2014
Mr. D. Khan, Ms. U. Nathai-Lutchman for the appellant
Mr. G. Busby and Ms. A. Teelucksingh-Ramoutar for the respondent
Criminal practice and procedure - Possession of a dangerous drug for the purpose of trafficking — Appeal against conviction — Whether the trial judge erred in his direction on possession — Jury instructed on actual possession rather than constructive possession — Jury correctly directed that the State relied on the inference that by virtue of the location and proximity of the bag, the appellant exercised custody and control of the bag — Whether the trial judge erred in failing to direct the jury of the significance and legal impact of the presence of the driver of the vehicle and that the appellant was not in a place in which he had sole exclusive access where no evidence was led and anything associated with the presence of the driver at the material time when the marijuana was found would be based on speculation — Whether the trial judge erred in law when he admitted into evidence the appellant's previous convictions which were several years prior to the incident — Judge's decision to admit the previous conviction of the appellant on the basis that it was necessary in order to secure a fair trial to both sides cannot be faulted, having regard to the serious allegations made against the character of the State's main witness — Use of Judicial Studies Board Crown Court Bench Book published in March 2010 to show what was required of the judge in directing on the bad character of an accused — Good character direction — Whether the trial judge should have directed the jury on good character of the appellant — Appellant had had recent convictions for possession of drugs — Appeal dismissed.
The appellant, Samuel Ramesar, was convicted on 29th July 2013 of the offence of possession of a dangerous drug, namely marijuana, for the purpose of trafficking contrary to section 5(4) of the Dangerous Drugs Act Chapter 11:25 (the Act). His sentencing was adjourned pending the Court of Appeal judgment in Barry Francis and Roger Hinds v. The State Cr. App. Nos. 5 & 6 of 2010, on the issue of the minimum mandatory sentence for drug offences. On 28th March 2014, after hearing the plea in mitigation on behalf of the appellant, the trial judge sentenced him to 16 years imprisonment with hard labour, less the number of days spent in remand. The judge ordered this 16 year sentence to commence from the date of conviction and to run concurrently with any other sentences he was serving. It is against this conviction that he now appeals.
On Friday 20th December 2002, at around 8:00 am, Constables Ramjattan and Gordon in the company of Inspector Modeste were on mobile patrol on the Uriah Butler Highway in the vicinity of Bamboo Settlement No. 1, in an unmarked police vehicle. At the traffic light coming out from Bamboo Settlement, they observed vehicle PAU 1582 behind them facing east.
The police officers alighted from their vehicle and approached the vehicle. There were two persons in the vehicle. The appellant was in the front passenger seat. The other occupant, Mr. Williams, was in the driver's seat. The police officers identified themselves and asked the men to exit the vehicle. They were searched. Nothing illegal was found on them. The vehicle was searched. The officers found a black plastic bag containing three packages of plant like material resembling marijuana on the floor of the front passenger side of the vehicle. The two men were cautioned, arrested and taken to the St. Joseph Police Station. The packages seized were weighed and marked. The marijuana weighed 4kg. The appellant was subsequently charged for being in possession of the marijuana for the purpose of trafficking.
The appellant opted not to give evidence at his trial. No witnesses were called on his behalf. Through his counsel the appellant contended that the police officers fabricated the case against him, that no bag containing the packages of marijuana was found in the vehicle, and that he and Mr. Williams were mistreated by the police officers when they searched the vehicle.
The appellant was convicted on 29th July 2013 on the charge of possession of a dangerous drug for the purpose of trafficking. The trial judge imposed a sentence of 16 years imprisonment with hard labour to commence from the date of the conviction, less the time spent in remand which was 54 days in total, leaving 15 years and 311 days imprisonment, to run concurrently with any other sentences he was serving.
The appellant had four previous convictions. In 1991 he was convicted on two counts of robbery with aggravation. He served five years concurrently with hard labour. In 2000 he was convicted of attempting to obtain the sum of $86,500.00 by false pretences. He served four years with hard labour for that offence. In 2012 while on bail for the present offence which is the subject of this appeal, he was convicted of possession and trafficking of 690 gm of cocaine. He was fined $15,000.00 or two years imprisonment with hard labour.
Written submissions were filed on behalf of the appellant in respect of seven grounds of appeal. At the hearing of the legal submissions, counsel for the appellant withdrew grounds four and seven of the appeal which concerned the unavailability of bad character evidence in relation to the State's main witness and the severity of the sentence imposed on the appellant.
In support of this ground, counsel for the appellant submitted that the evidence could not support the contention that the appellant was an “occupier” within the meaning of the Act. The judge's direction was also criticised for focusing the jury's attention on concepts regarding actual possession and constructive possession by virtue of proximity. Mr Khan submitted in essence that the judge may have given the jury the impression that because the appellant was in the vehicle in which the marijuana was found, he was required to prove that he did not know it was there or that he did not consent to it being there.
It was also argued on behalf of the appellant that his guilt, if any, would have been properly founded on the basis of constructive possession supported by proximity and visibility of the black plastic bag. Counsel for the appellant complained that since the facts of the case does not support a finding that he was in actual possession, the legal directions that emerged from such a finding were likely to confuse the jury and compromise “the golden thread principles” of presumption of innocence, burden and standard of proof and right to silence.
Counsel for the appellant further argued that the prejudice caused by this grave misdirection was bolstered when the trial judge directed the jury to keep in mind that the accused presented no evidence to discharge the burden on him to prove that the dangerous drugs found in the vehicle were there without his knowledge and consent. It was argued that these errors taken cumulatively prejudiced the appellant.
The appellant relied on the cases of Latchmi Bharath and Ferney Bohoroquez v. The State Cr. App. Nos. 49 and 50 of 2008 and Mantoor Ramdhanie & Ors. v. The State Cr. App. Nos. 91-92, 97 of 1997.
In reply, the State contended that this ground of appeal was wholly misconceived and proceeded from a misunderstanding of the terms actual and constructive possession and of the basis on which the trial judge put the case to the jury.
The State also submitted that the issue of the appellant being in possession of the dangerous drug by virtue of being an occupier of the vehicle, in the context of the Act, was never advanced to the jury and so any argument in respect of the shifting burden of section 21(1) of the Act was totally misplaced.
It was further submitted that the case for the State and that put to the jury by the trial judge, was a straight forward one of actual possession of the marijuana by the appellant. There was never any suggestion of constructive possession by the appellant.
The State argued that the trial judge was correct in his charge to the jury with respect to the presumptions that could be used to find the appellant to be in possession of the dangerous drug and having knowledge of its nature. The only logical inference to be drawn from the evidence is that the appellant knew of the marijuana and had it under his control. Reliance was placed on the case of Dial Maharaj and Chris Mohammed v. The State Cr. App. Nos. 30 and 31 of 2007.
In respect of the matters raised under this ground, the judge directed the jury as follows:
“The point that has been raised consistently throughout the trial is whether or not the accused was in possession of those packages. So I then, now, turn, if I may, to the second element or ingredient, that is the issue of possession, which I may also add, in my humbleopinion, seems to be the central issue in the trial.
So, Members of the jury, someone can be in possession of something when that person knows that he has it, and it is in or on his person or in his presence and he has control over it. For example, a juror has a bag on her lap. She has control over it because she can determine what can be done with the contents of that bag. That would be a simple example, perhaps, of possession. But what is the position in law if a dangerous drug is found in a vehicle in which you are a passenger or occupant in the vehicle on the passenger side. However, on the well of that passenger side, or on the floor, it was...
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