Walker (Customs and Excise Officer) v Feese

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Yorke-Soo Hon, J.A.
• Judgment Date: 10 May 2011
• Neutral Citation: TT 2011 CA 11
• Docket Number: Mag. App. No. 96 of 2009
• Date: 10 May 2011

Court of Appeal

Weekes, J.A.; York Soo-Hon, J.A.

Mag. App. No. 96 of 2009

Walker (Customs and Excise Officer)

and

Feese

Appearances:

Mrs. J. Honore-Paul for the appellant

No appearance for the respondent

Mr. J. Singh appeared Amicus

Criminal practice and procedure - Possession — Respondent charged with offences of possession of cocaine, importing cocaine and attempting to export cocaine — All charges dismissed — Prosecution unable to prove possession charge and plea of autrefois acquit applicable to other charges — Whether offence of possession same or substantially same as offences of importing and attempting to export — Whether plea of autrefois acquit applicable.

Yorke-Soo Hon, J.A.

1 This appeal was heard in the absence of the respondent, Iveren Lucy Feese. Mr. Jagdeo Singh, appeared amicus, having been invited to assist the Court due to the non-appearance and non-representation of the respondent and the importance of the matter.

Background

2 On 2nd July 2005, the respondent was at the Piarco International Airport in transit from Guyana to Britain. She was travelling with her friend Wayne Harris. Both she and Harris were stopped by a police officer during a random passenger check and had their baggage searched. In the respondent's suitcase, the police officer found two wooden picture frames containing photographs of the respondent. Within each of the frames, three plastic packages wrapped with brown tape and containing cocaine were discovered. The packages weighed a total of 1412.8 grams. A third picture frame containing cocaine was also discovered in Harris's suitcase.

3 The respondent was arrested and charged with possession of cocaine for the purpose of trafficking under the Section 5(4) of the Dangerous Drugs Act, Ch 11:25, and charged with two offences under the Customs Act, Ch 78:01, namely (1) importing certain prohibited goods, namely cocaine, contrary to Section 213(a) and (2) attempting to export certain prohibited goods, namely cocaine, contrary to Section 154.

Procedural Background

4 The Magistrate dismissed all three charges brought against the respondent on the following grounds:–

• i. In order to sustain a conviction under Section 5(4) of the Dangerous Drugs Act, the prosecution must prove possession. Possession itself contains two critical elements, control and knowledge. The prosecution was unable to prove that the respondent knew that the frames contained packages of cocaine since the appellant testified that the frames were given to her by her boyfriend and she was unaware that they contained cocaine; and

• ii. Since there was a dismissal on the charge of possession, by virtue of Section 62 of the Interpretation Act, Ch 3:01, the principle of autrefois acquit became applicable. Section 62 states:–

  “Where an act constitutes an offence under two or more laws, the offender is liable to be prosecuted and punished under either or any of those laws but a conviction or an acquittal upon a prosecution is a bar to prosecution for the same offence or for an offence which is substantially the same offence under any other of those laws.” (emphasis ours)

The Court found that the charge of possession of cocaine for the purpose of trafficking under the Dangerous Drugs Act and the charges of importing and attempting to export prohibited goods namely cocaine under the Customs Act arose out of the same set of circumstances and were therefore substantially the same offence. Therefore, the respondent was entitled to plead autrefois acquit to the customs charges.

5 The main question to be answered on appeal is: Was the respondent entitled to a plea of autrefois on an interpretation of Section 62 of the Interpretation Act on the basis that the offence of possession for the purpose of trafficking under the Dangerous Drugs Act was the same or substantially the same as the offences of importing and exporting under the Customs Act.

Submissions

6 Counsel for the State contended that the Magistrate wrongly applied Section 62 of the Interpretation Act, submitting that the offences were not the same since the requirement to prove knowledge for possession under the Dangerous Drugs Act differentiated it from importing and attempting to export under the Customs Act, which are strict liability offences therefore not necessitating proof of knowledge.

7 Mr. Singh submitted that possession under the Dangerous Drugs Act was substantially the same as the offences under the Customs Act as the offences could no longer be distinguished on the grounds of intention. He contended that the drastic increase in the penalties imposed for the customs offences strongly suggested that the offences under the Customs Act ought not to still be construed as strict liability offences.

Law

8 Section 62 of the Interpretation Act is accepted as a codification of the doctrine of autrefois. Our section can be distinguished from the doctrine of autrefois as it applies in some other Commonwealth states such as Canada. In the Canadian case of Kienapple v. The Queen 15 C.C.C. (2d) 524, the court accepted Section 11 of the Canadian Criminal Code as encapsulating the doctrine of autrefois. It reads:

“Where an act or omission is an offence under more than one Act of the Parliament of Canada, whether punishable by indictment or on summary conviction, a person who does the act or makes the omission is, unless a contrary intention appears, subject to proceedings under any of those Acts, but is not liable to be punished more than once for the same offence.” (emphasis ours)

A comparative reading of our Section 62 with the Canadian Section 11 clearly reveals that the rationale behind the plea of autrefois, in our jurisdiction, is to avoid double prosecution and any resulting duplicitous convictions, whereas the Canadians seek to prohibit double punishment (Laskin, J., giving the majority judgment in Kisnapple opined (at page 539) that although Section 11 was geared towards prohibiting double punishment, the better position was to avoid double prosecution and multiple convictions in the first place, thereby endorsing the position which obtains in Trinidad and Tobago as the preferred one). The fundamental principle for us therefore is that a man is not to be prosecuted twice for the same offence.

9 The leading authority illustrative of the principles of autrefois is that of Connelly v. Director of Public Prosecutions [1964] 2 AC 1254, where the appellant was acquitted on a charge of murder which arose out of a robbery. There were two separate victims. Following his acquittal, the prosecution successfully proceeded with the charge of robbery, after the trial judge refused his plea of autrefois acquit. He was convicted and appealed on the ground that his plea of autrefois ought to have been upheld. The House of Lords dismissed his appeal. Lord Morris of Borth-y-Gest exhaustively reviewed the old authorities and formulated several governing principles.

10 The learned authors of Blackstone's Criminal Practice 2011 (Para D12: 22), discussing Connelly, distilled the following propositions based on Lord Morris’ oft-quoted principles as follows:–

• a. A man may not be tried for a crime in respect of which he has previously been acquitted or convicted;

• b. A man cannot be tried for a crime in respect of which he could on some previous indictment have been lawfully convicted;

• c. A man cannot be tried for a crime which is in effect the same, or is substantially the same, as a crime of which he has previously been acquitted or convicted (or could have been convicted by way of alternative verdict);

• d. What has to be considered is whether the crime or offence charged in the later indictment is the same, or is in effect or is substantially the same, as the crime charged in the former indictment; and

• e. It is immaterial that the facts under examination or the witnesses being called in the later proceedings are the same as those in some earlier proceedings.

  The learned authors of Archbold 2011 (para 4-116) added the following:

• f. For the above rules to apply, the offence charged in the second indictment must have been committed at the time of the first charge; and

• g. In all cases, the earlier adjudication must have been upon guilt or innocence resulting from valid process and by a court of competent jurisdiction.

11 Lord Morris’ principles were later re-examined by the English Court of Appeal in R. v. Beedie [1998] QB 356, where the appellant was first prosecuted for an offence under the Health and Safety Act and later for manslaughter in respect of the same deeds. His application for a stay of the indictment was refused and he was convicted and appealed. The question for consideration was whether or not the second offence had to be the same as the first or whether it was sufficient that it arose from the same facts. The Court stated the following principles:–

• (i) The Court in Connelly had identified a narrow principle of autrefois, that is, where the same offence was alleged in the same indictment. For the principle to apply, it must be the same offence both in fact and in law;

• (ii) The Court should exercise its discretion where the second offence arises out of the same or substantially the same set of facts as the first. Where a person is tried on a lesser offence he is not to be tried again for more serious one;

• (iii) It is only where special circumstances are present should a prosecution for an offence of greater gravity be allowed.

  Thus, in Beedie, the charge of manslaughter should have been stayed as the appellant had already been dealt with for the summary offence under the Health and Safety Act. In light of the above the learned authors of Blackstone have noted that the plea of autrefois has “in reality become a species of abuse of process” (para D12:23)

12 It is not in dispute that the earlier adjudication upon guilt or innocence of the respondent was the...