REPUBLIC OF TRINIDAD AND TOBAGO
IN THE COURT OF APPEAL
PORT OF SPAIN
MAGISTERIAL APPEAL NO. 96 OF 2009
IN THE MATTER OF
CUSTOMS AND EXCISE OFFICER CLARENCE WALKER
Appellant
AND
IVEREN LUCY FEESE
Respondent
PANEL:
P. Weekes, J.A.
A. Yorke-Soo Hon, J.A.
APPEARANCES:
Mrs. J. Honore-Paul for the Appellant
No appearance for the Respondent
Mr. J. Singh appeared Amicus.
DATE DELIVERED: 10th May 2011.
Page 1 of 20
Delivered by: A. Yorke-Soo Hon JA
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
Page 2 of 20
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
Page 3 of 20
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
Page 4 of 20
the Canadians seek to prohibit double punishment1.
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 20112, 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);
1
Laskin J, giving the majority judgment in Kienapple 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.
2 Para D12:22.
Page 5 of 20
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 20113 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
3
Para 4-116.
Page 6 of 20
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”4.
12.
It is not in dispute that the earlier adjudication upon guilt or innocence
of the respondent was the result of a valid process and the Magistrate’s Court
was a court of competent jurisdiction to hear the matter. Thus, of the
principles set out above, in the instant matter, we find it necessary to fully
examine the propositions (c) and (d) above, that is, whether possession for the
purpose of trafficking is the same, or is in effect or is substantially the same as
importing and exporting prohibited goods.
13.
Lord Devlin explained in Connelly5:
“The word ‘offence’ embraces both the facts which constitute the
crime and the legal characteristics which make it an offence. For the
doctrine to apply it must be the same offence both in fact and in law.”
14.
Lord Borth-y-Gest laid down the test whether offences were substantially
the same. He espoused6:
“It matters not that incidents and occasions being examined on the
trial of the second indictment are precisely the same as those which
were examined on the trial of the first. The court is concerned with
Para D12:23.
[1964] 2 AC 1254, 1339-1340.
6
[1964] 2 AC 1254, 1309.
4
5
Page 7 of 20
charges of offences and crimes.
The test is, therefore, whether
such proof as is necessary to convict of the second offence would
establish guilt of the first offence or of, an offence for which on
the first charge there could be a conviction.” (emphasis ours)
15.
Lord Parker CJ in United States Government v Atkinson [1969] 2 All
ER 1151 relied on the test as expounded by Lord Borth-y-Gest and added this
explanation:
“Here as it seems to me it is clear that there can be an attempted
armed robbery without there being an aggravated burglary, and there
can be an aggravated burglary without there being an attempted
armed robbery. Indeed as it seems to me the pleas of autrefois convict
and autrefois acquit being pleas in bar which are decided before the
evidence in the later case is known, the validity of the pleas depends
on the legal characteristics of the two offences in question, namely
whether the facts necessary to support a conviction in each case are
the same, and do not depend on whether the actual facts thereafter
given in evidence are the same.”7
16.
Therefore, in order to determine whether offences are the same or
substantially the same, an examination of the elements or legal constituents of
the offences with which the offender is charged and the relevant facts of the
case becomes necessary.
ELEMENTS OF THE OFFENCES
A. Possession for the Purpose of Trafficking
17.
The offence of possession for the purpose of trafficking is set out in
Section 5(4) of the Dangerous Drugs Act. Section 5(4) provides:
7
[1969] 2 All ER 1151, 1157.
Page 8 of 20
A person who trafficks in any dangerous drug or in any substance
represented or held out by him to be a dangerous drug or who has in
his possession any dangerous drug for the purpose of trafficking is
guilty of an offence.
Additionally, Section 5(9)(b) reads:
A person... found in possession of more than... (b) ten grams of
cocaine; is deemed to have the dangerous drug for the purpose of
trafficking unless the contrary is proved, the burden of proof being
on the accused.
Actus Reus
18.
Section 3 of the Dangerous Drugs Act Ch 11:25 defines “trafficking” as
“the importation, exportation, manufacture, sale, giving, administering,
transportation, delivery or distribution by any person of a dangerous
drug ... whether in the Territory or elsewhere.” (emphasis ours) To traffic
therefore, an accused must do one of the above listed acts.
Importantly,
“export” means the taking or conveying out of Trinidad and Tobago and
“import” means the bringing or conveying into Trinidad and Tobago.
19.
However,
Section
5(9)(b)
being
a
deeming
provision,
where
its
requirements are met, the prosecution is relieved of the need to prove which
definition of trafficking it relies upon. In the instant matter, the prosecution
was entitled to rely on the deeming section.
Mens Rea
20.
The Dangerous Drugs Act expressly states the presumptions which are
to be made in relation to intention. Section 29B(d) provides that “a person who
is found to have had in his custody or under his control anything containing a
dangerous drug shall, until the contrary is proven, be deemed to have been in
Page 9 of 20
possession of such drug and shall, until the contrary is proven, be deemed to
have known the nature of such drug”. (emphasis ours) Once this presumption
takes effect, the accused will have the burden of proving, on a balance of
probabilities, either that (1) he did not have the drug was in his control or that
(2) he did not know the nature of such a drug. This was aptly stated by Lord
Diplock in Director of Public Prosecutions v Brooks (1974) 21 WIR 411 at
page 415:
“In the ordinary use of the word “possession” one has in one’s
possession whatever is, to one’s own knowledge, physically in
one’s custody or under one’s physical control.
This is obviously
what was intended to be prohibited in the case of dangerous
drugs.” (emphasis ours)
21.
Lord Scarman in R v Boyesen [1982] 2 All ER 161 put it this way:
“Possession is a deceptively simple concept. It denotes a physical
control or custody of a thing plus knowledge that you have it in
your custody or control. You may possess a thing without knowing
or comprehending its nature; but you do not possess it unless
you know you have it.” (emphasis ours)
Therefore, once control or custody of the drug is established, there arises a
rebuttable presumption of possession inclusive of its elements of knowledge
and control, which can be rebutted by the accused showing an absence of
knowledge.
B. Importing Prohibited Goods
22.
The offence of importing prohibited goods is set out in Section 213 of the
Customs Act. It provides:
Any person who
(a) imports or brings or is concerned in importing or bringing into
Trinidad and Tobago any prohibited goods, or any goods the
Page 10 of 20
importation of which is restricted, contrary to such prohibition or
restriction, whether the goods are unloaded or not;
(b) ...
(c) ...
(d) ...
(e) ...
(f) ...
shall... incur a penalty
(a) on summary conviction, in the case of a first offence, to a fine of fifty
thousand dollars or treble the value of the goods, whichever is the
greater and to imprisonment for a term of eight years; or
(b) on summary conviction, in the case of a second or subsequent
offence, to a fine of one hundred thousand dollars or treble the value
of the goods, whichever is the greater and to imprisonment for a term
of fifteen years; or
(c) on conviction on indictment be liable to imprisonment for a term of
twenty years.
Section 2 defines “prohibited goods” as any goods the importation or
exportation of which is prohibited by law.
Actus Reus
23.
According to Section 2 of the Customs Act to “import” one must bring or
cause a particular item to be brought within Trinidad and Tobago.
Mens Rea
24.
Section 205 of the Customs Ordinance (which is the similar to the
present day Section 213) was examined in Ramdwar v Fernandes Mag. App.
No. 238 of 1951.
It was held that the prohibition against importation is
absolute and that breach of the section which relates to importation is “wholly
independent of any proved intention”.
Additionally, in Glendon De Gale v
Page 11 of 20
United Hatcheries Ltd Mag. App. No. 155 of 1986, Hamel-Smith J.A.
considered extensively the requirement of the element of intention in Section
213.
After examining various authorities on the similar English section he
concluded that the omission of the word “knowingly” from the offences under
(a) and (b) made those offences absolute offences. In essence, Hamel-Smith J.A.
held that the offence is one of strict liability where a specific intention is not
necessary.
25.
However, modern attitudes to interpretation indicate that the more
serious the offence, the less likely the Court is to interpret the offence as one of
strict liability: Sweet v Parsley [1970] AC 132 (drug offence); B v DPP [2000] 2
AC 428 (rape); R v K [2002] 1 AC 462 (indecent assault).
The seriousness of a
crime is a property which can vary considerably across cultures and over time.
It is however universally accepted that the severity of sentence or punishment
imposed is an indicator of the perceived seriousness of an offence. In this
regard, the incremental increases in penalty8 for custom offences may be
indicative of the amplified abhorrence of the transhipment of certain goods
today. Today, the penalty culminates at twenty years imprisonment.
26.
Moreover, we find critical to our discussion, the case of He Kaw Teh v R
(1985) 157 CLR 523, which is not binding on us but meets with our express
approval and we adopt the reasoning therein. In that case, the High Court of
Australia examined Section 233B(1)(b) of their Customs Act 1901. Section
233B(1)(b) of the Customs Act 1901 is similar in substance to Section 213(a) of
our Customs Act. It reads:
Any person who... imports, or attempts to import, into Australia
any prohibited imports to which this section applies or exports, or
Section 213 itself has evolved from one imposing the forfeiture of goods and a five hundred dollar fine to
one imposing the forfeiture of goods and a four thousand dollar fine to, at present, one with fines ranging
from fifty thousand dollars to one hundred thousand dollars, and accompanying terms of imprisonment
from eight to as much as twenty years.
8
Page 12 of 20
attempts to export, from Australia any prohibited exports to which
this section applies...shall be guilty of an offence. (emphasis ours)
27.
In He Kaw Teh, the accused was charged under Section 233B(1)(b) and
(c) respectively of the Customs Act 1901, with the importation and possession
of a quantity of heroin found in his luggage after he had disembarked from an
international flight. He was in possession of a bag which contained the heroin
in a false bottom.
The trial judge directed the jury that, in relation to the
importation count, mens rea was not an element of the offence and, in relation
to the possession count, the accused bore the onus of establishing that he had
reasonable excuse for the possession and that he had no knowledge that the
goods in his possession had been imported in contravention of the Act. It was
held that mens rea is required before a person can be held guilty of the offence
under Section 233B(1)(b) and the prosecution bears the onus of proving that
the accused knew that he was importing a prohibited import.
28.
The Court began by examining the learning in Sherras v De Rutzen
(1895) 1 QB 918 that there is presumption that mens rea is an essential
ingredient in every offence, which however can be displaced by the words of
statute or by the subject-matter with which the statute deals.
Gibbs J
examined the words of the statute and when confronted with the submission
that the absence of the words “without reasonable excuse” from the subsection meant that absolute liability obtained, had this to say:
“[It] would lead to an absurdly Draconian result if it meant that a
person who unwittingly brought into Australia narcotics which had
been planted in his baggage might be liable to life imprisonment
notwithstanding that he was completely innocent of any connexion
with the narcotics and that he was unaware that he was carrying
anything illicit.”9
9
(1985) 157 CR 523, 529.
Page 13 of 20
29.
Secondly, Gibbs J commented that “the importation of and trade in
narcotics creates a serious threat to the well-being of the Australian
community”10. He expanded as follows:
“It has led to a great increase in crime, to corruption and to the ruin
of innocent lives... Offences of this kind, at least where heroin in
commercial quantities is involved, are truly criminal... It is unlikely
that the Parliament intended that the consequences of committing an
offence so serious should be visited on a person who had no intention
to do anything wrong and no knowledge that he was doing so.”11
It is of note that the Australian Section 233B(1)(b) applies exclusively to
narcotic goods. Notwithstanding that our Section 213 is not so limited, and in
fact contemplates a wider range of goods including narcotics, we are of the view
that it ought to be subject to the same interpretation especially where narcotics
are included in the charge. One can easily conclude that it is the imputation
inherent in dangerous items such as narcotics and arms that would attract
sentences at the higher end of the scale.
30.
He also looked at the potential consequences for the defendant if
convicted, suggesting that the higher the penalty, the more likely mens rea is
required. He stated:
“It seems improbable that the Parliament would have intended that it
might be committed as a result of mere carelessness, although that
would be the case if guilty knowledge was not an element, and an
unreasonable although honest mistake would not be sufficient to
exculpate the accused. It is true that the penalty of life imprisonment
provided by the statute is a maximum one and that a judge who
considered that the accused had brought in narcotic goods in the
honest but unreasonable belief that his luggage did not contain them
would sentence accordingly. Nevertheless, to provide that a sentence
10
11
(1985) 157 CR 523, 529.
(1985) 157 CR 523, 530.
Page 14 of 20
of life imprisonment might be imposed for an offence committed
merely through negligence would appear to be exceedingly severe.
The gravity of the offence suggests that guilty knowledge was
intended to be an element of it.”12 (emphasis ours)
31.
We are of the view that, in light of the seriousness of the offence and the
learning in He Kaw Teh, Section 213 ought not to be construed as creating a
strict liability offence.
C. Exporting Prohibited Goods
32.
The offence of exporting prohibited goods is set out in Section 154 of the
Customs Act. It reads:
Any person who puts on board any aircraft or ship, or puts off or
puts into any vessel to be water-borne to any aircraft or ship for
exportation or use as stores or brings to any aerodrome, Customs
area, quay, wharf or any place whatever in Trinidad and Tobago for
exportation or use as stores, or exports any goods prohibited to
be exported, or any goods the exportation of which is restricted,
contrary to such restriction, or attempts to perform or be knowingly
concerned in the performance of any of these acts, shall ...
(a) be liable on summary conviction, to a fine of fifty thousand
dollars or treble the value of the goods, whichever is the greater
and to imprisonment for a term of eight years, or
(b) on conviction on indictment be liable to imprisonment for a term
of twenty years. (emphasis ours)
12
(1985) 157 CR 523, 535.
Page 15 of 20
Actus Reus
33.
Exporting requires one to take or cause an item to be taken out of
Trinidad and Tobago: Section 2 of the Customs Act.
Mens Rea
34.
Aside from the directional flow of the goods, the offence of exporting
prohibited goods does not significantly differ from that of importing prohibited
goods. In fact, both offences carry the same twenty year penalty. As such we
find that, in similar vein as Section 213, Section 154 ought not to be viewed as
creating a strict liability offence.
Analysis of Offences: Are they the Same?
35.
One commonality between the offences is the penalties imposed for each.
The offence of possession for the purposes of trafficking attracts a twenty-five
year sentence13, and both custom offences attract twenty year sentences. It is
indisputably evident that legislators regard these three offences as similarly
serious.
36.
Accepting the custom offences as now requiring proof of intention, the
interpretation given to Section 233B of the Customs Act 190114 of Australia is
illustrative of the necessary intention to now be read into the customs offences.
An apt statement on the necessary intention can be found in the Australian
High Court case of Kural v R (1987) 162 CLR 502. The Court explained as
follows:
“Where, as here, it is necessary to show an intention on the part of
the accused to import a narcotic drug, that intent is established if
the accused knew or was aware that an article which he
Section 5(5) of the Dangerous Drugs Act.
This is the interpretation which obtained prior to 2001. The passing of the Criminal Code Act 1995
which came into effect in December 2001, now establishes criminal liability by requiring proof of “physical
elements” and “fault elements”, thereby implementing a major departure from the well-established
concepts of mens rea and actus reas.
13
14
Page 16 of 20
intentionally brought into Australia comprised or contained
narcotic drugs. But that is not to say that actual knowledge or
awareness is an essential element in the guilty mind required for the
commission of the offence. It is only to say that knowledge or
awareness is relevant to the existence of the necessary intent. Belief,
falling short of actual knowledge, that the article comprised or
contained narcotic drugs would obviously sustain an inference of
intention. So also would proof that the forbidden act was done in
circumstances where it appears beyond reasonable doubt that
the accused was aware of the likelihood, in the sense that there
was a significant or real chance, that his conduct involved that
act and nevertheless persisted in that conduct. As a practical
matter, the inference of mens rea or a guilty mind will ordinarily
be irresistible in cases involving the importation of narcotic
drugs if it is proved beyond reasonable doubt that the accused
actually imported the drugs and that he was aware, at the time
of the alleged commission of the offence, of the likelihood of the
existence of the substance in question in what he was importing
and of the likelihood that it was a narcotic drug.”
15
(emphasis
ours)
37.
As a result of the above, it can be seen that intention for importing and
exporting can be established by showing knowledge or awareness of the
likelihood that what is being imported is a prohibited good on the part of the
alleged perpetrator. Knowledge is also a crucial element in finding intention for
the offence of possession for the purposes of trafficking.
38.
Lastly, the definition of “trafficking” in the Dangerous Drugs Act
embraces a variety of acts which can constitute trafficking, including,
15
(1987) 162 CLR 502, 504-505.
Page 17 of 20
importation and exportation of goods.
On this basis, there appears to be a
similarity between the Dangerous Drugs Act and the Customs Act, particularly
since the definitions of “import” and “export” under the Dangerous Drugs and
the Customs Act are essentially the same. The clear result is that the concepts
of importing and exporting are in fact subsumed in the concept of trafficking.
However, it is evident that not every case of possession for the purposes of
trafficking will necessarily include the acts of importing and exporting.
Instead, only where the facts allow will the acts of importing and exporting be
proof of trafficking.
39.
In the round, these three elements, that is, the similarity in the
requirement for possession, intention and the penalty, make these offences the
same.
40.
It can be noted that the case of Jerry Delano Riedewald v Customs and
Excise Officer Sheldon Biggert Mag. App. No. 155 of 2005 was proffered to
lend assistance to the court. Regrettably, we are unable to say why the court
in that case was able to conclude that the offences were the same, due
particularly to the absence of a written judgment in that case. As such, we find
this case to be unhelpful.
41.
In the instant case, to prove importing, the prosecution would have had
to rely on the fact that the respondent was found at the airport, having left
Guyana and entered Trinidad and Tobago, bringing the cocaine in her suitcase.
To sustain the charge of attempting to export, the prosecution would have had
to point to the fact the respondent was at the airport in transit to England and
by attempting to check-in and board would have, of necessity, placed her
suitcase on board an aircraft, and thus would have been taking the cocaine out
of Trinidad and Tobago.
Page 18 of 20
42.
Reliance would have been placed on the following evidence to support
possession for the purpose of trafficking:
(i)
The respondent was at the Piarco airport, having arrived from
Guyana, with cocaine in her suitcase, thus trafficking by committing
the act of importing as defined by Section 2 of the Dangerous Drugs
Act;
(ii)
The respondent was in the process of leaving Trinidad and Tobago for
England when she was stopped in the random search. Thus, she was
attempting to export as defined by Section 2 of the Dangerous Drugs
Act;
(iii)
The drugs were in the custody/control of the respondent, having been
found in picture frames in her suitcase.
By virtue of Section 29B(d) of the Dangerous Drugs Act, the onus is on the
respondent to prove that she did not have possession of the cocaine.
43.
It is apparent from the above that, in the circumstance of this case, the
elements of importing and attempting to export under the Customs Act and
possession for the purpose of trafficking under the Dangerous Drugs Act, and
the evidence necessary to sustain the offences are the same, such that they
can be called the “same offence” as per Section 62 of the Interpretation Act.
44.
Thus, it appears that the Magistrate correctly concluded that because
the facts giving rise to the three offences with which the respondent was
charged were exactly the same, the offences with which the respondent was
charged were substantially the same, and as such the respondent was entitled
to the application of autrefois.
Page 19 of 20
45.
The understanding of the learned Magistrate is expressed in the Her
Worship’s reasons where she explained:
“The fact relied on was exactly the same as in the matter of
possession of cocaine for the purpose of trafficking. In dismissing
the two customs charges against the Defendant I took into account
Section 62 of the Interpretation Act.”
46.
Before we dispose of this appeal, we note that it is common practice
when persons are found attempting to pass through our ports carrying
dangerous drugs to charge them with offences under dangerous drugs and
customs legislation. There may be strategic reason for so doing and also for
electing to proceed with one class of offence as opposed to the other. The
prosecution, however, should elect between the two since prosecutions on both
offences cannot be justified.
Order
47.
This appeal is dismissed and the orders of the Magistrate are affirmed.
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P. Weekes
Justice of Appeal
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A. Yorke – Soo Hon
Justice of Appeal
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