Levar Devere Browne v The Chief of Police

• Jurisdiction: Saint Kitts and Nevis
• Judge: Ward JA
• Judgment Date: 05 July 2023
• Judgment citation (vLex): [2023] ECSC J0705-1
• Docket Number: SKBMCRAP2021/0003
• Court: Court of Appeal (Saint Kitts and Nevis)

Between:

Levar Devere Browne

Appellant

and

The Chief of Police

Respondent

Before:

The Hon. Mr. Mario Michel Justice of Appeal

The Hon. Mr. Trevor M. Ward Justice of Appeal

The Hon. Mr. Gerard St. C Farara Justice of Appeal [Ag.]

SKBMCRAP2021/0003

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Magisterial criminal appeal — Appeal against conviction — Possession — Drug trafficking — Section 29(2) of the Drugs (Prevention and Abatement of the Misuse and Abuse of Drugs) Act — Whether, on a charge of possession of controlled drugs with intent to supply, where the drugs are secreted in a container box or other receptacle, the prosecution must prove that the accused knew that the box contained controlled drugs — Constructive possession — Whether a consignee of a parcel which has not been released into his physical custody by Customs officials can be said to be in possession of that parcel and its contents — No-case submission — Whether the learned magistrate erred in overruling the appellant's no-case submission — Statutory interpretation — Strict liability — Whether the mens rea of importation requires knowledge on the part of the accused that the parcel or thing being imported contains dangerous drugs — Whether the offences of importation under sections 4(1)(a) of the Drugs Act and sections 103(1)(b) and 108 (1)(a) of the Customs Act are strict liability offences

A box purportedly containing personal effects was shipped from Miami to Saint Kitts by sea. The box was consigned to the appellant and the bill of lading listed his address and his telephone number. On arrival in Saint Kitts, the box was stored in the Customs Department's transit shed. On 4 ^th September 2019, the appellant went to the Customs and Excise Department to clear the box. He presented the bill of lading to the Customs Examination Officer, Ms. Adonis Gumbs, who retrieved, opened, and examined the box in the appellant's presence. Ms. Gumbs removed a container purportedly containing Kool-Aid mix, a large can purportedly containing mixed vegetables and a container purportedly containing iced tea mix. She shook the containers but noticed that they felt compact and that they did not appear to contain any powdery or liquid content.

Ms. Gumbs asked the appellant to accompany her to the scanner where Customs Officer Gregory Davis scanned the items. Ms. Gumbs took them back to the examination room where she and Mr. Davis further examined the contents of the box in the presence of the appellant. They discovered other cans of Tang iced tea mix, two large cans of ketchup and two bottles of protein powder. Mr. Davis opened the Tang container and emptied its contents into a plastic bag. He observed that there was a plastic container inside of the Tang container. He removed the plastic container and discovered a package wrapped with rubber bands and ‘caution paper’. Inside of that was a transparent Ziplock plastic bag containing vegetable-like matter, which he suspected to be cannabis. A total of fifteen such packages containing 1,627 grams of cannabis were found concealed in seven containers. The appellant was cautioned. He denied knowledge of the packages and claimed that somebody was trying to set him up.

The appellant was arrested and charged with several offences under the Drugs (Prevention and Abatement of the Misuse and Abuse of Drugs) Act (“the Drugs Act”) and the Customs Act. He was tried by the learned Senior Magistrate for District A. At the close of the prosecution's case, the appellant made a no-case submission, which was overruled. The appellant was convicted and sentenced to two years imprisonment on the charges of possession with intent to supply and importation of controlled drugs contrary to the Drugs Act, to run concurrently. He was convicted but reprimanded and discharged on the Customs offences.

Being dissatisfied with the ruling of the learned Senior Magistrate, the appellant appealed to this Court on four grounds of appeal. However, three main issues fell for determination by this Court: (i) whether, on a charge of possession of controlled drugs with intent to supply, where the drugs are secreted in a container box or other receptacle, the prosecution must prove that the accused knew that the box contained controlled drugs; (ii) whether a consignee of a parcel which has not been released into his physical custody by Customs officials can be said to be in possession of that parcel and its contents; and (iii) whether the mens rea of importation requires knowledge on the part of the accused that the parcel or thing being imported contains dangerous drugs.

Held: dismissing the appeal and affirming the appellant's conviction, that:

• 1. On a charge of possession of controlled drugs with intent to supply, it suffices for the prosecution to prove that an accused knew that he had the container or box in his physical custody or under his control and that there was something in it. That is the degree of knowledge and control that the prosecution is initially required to prove, which vests the accused with the necessary possession of the container and its contents. The burden then shifts to the accused to bring himself within the scope of section 29(2) of the Drugs Act to prove on a balance of probabilities that he neither knew nor suspected nor had reason to suspect that the box contained cannabis.

  Section 29(2) of the Drugs (Prevention and Abatement of the Misuse and Abuse of Drugs) Act Cap. 9.08 of the Laws of Saint Christopher and Nevis applied; R v McNamara (1988) 152 JP 390 applied; R v Lambert [2002] 2 AC 545 applied; Salmon v HM Advocate 1998 SCCR 740 applied; DPP v Brooks (1974) 21 WIR 411 distinguished; Bernal and Moore v R (1997) 51 WIR 241 distinguished.

• 2. It is settled that it is perfectly possible for possession to exist without physical custody. Possession entails that the article must be in the physical custody or under the control of the accused (in legal terms, the actus reus) and the accused must know that the article or thing is in his physical custody or under his control (the mens rea). The evidence before the magistrate was that a box containing cannabis was brought into Saint Kitts from Miami. There is no dispute that the appellant was the consignee of that box: the bill of lading bore his name, address and his telephone number. As consignee, the appellant was, in law, the importer of that box. As importer, the appellant was the one who caused the box to be imported into Saint Kitts. To cause something to be brought into Saint Kitts is to exercise control over that thing. Though the appellant did not have physical custody of the box, he exercised control over it and was in constructive possession of it. The appellant knew that he had imported the box and that it contained something because he attended the Customs Department and presented the bill of lading, fully intending to take physical custody of the box subject, obviously, to the payment of any applicable customs duties.

  Section 2 of the Customs Act Cap. 20.04 of the Laws of Saint Christopher and Nevis applied; DPP v Brooks (1974) 21 WIR 411 applied.

• 3. The circumstances under which a trial judge may uphold a no-case submission are settled: (a) when there has been no evidence to prove an essential element of the alleged offence or (b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it. The criticism that the learned Senior Magistrate misdirected himself in relation to the elements of the offence of possession is unsustainable. The Senior Magistrate clearly appreciated that he was dealing with a ‘box possession case’ and that the interplay between section 6(3) and sections 29(2) and (3) of the Drugs Act had to be considered. The appellant not having given evidence, and the magistrate by his verdict obviously not having accepted the truth of his statement to the police that he was expecting school supplies, the appellant did not discharge the evidential burden placed on him by section 29(2) to show that he neither knew nor suspected nor had reason to suspect that the box contained cannabis. Accordingly, the no-case submission was bound to fail, and the learned Senior Magistrate was right to overrule it.

  Section 29(2) of the Drugs (Prevention and Abatement of the Misuse and Abuse of Drugs) Act Cap. 9.08 of the Laws of Saint Christopher and Nevis applied; R v Galbraith (1981) 1 WLR 1039 applied; R v Lambert [2002] 2 AC 545 applied.

• 4. The law presumes that mens rea is required before a person can be convicted of a criminal offence. However, based on the wording of the sections, the penalties prescribed and the issues of social concern, that presumption is rebutted and the offences under sections 103(1)(b) and 108(1)(a) of the Customs Act and section 4(1) of the Drugs Act are strict liability offences. It was therefore sufficient for the prosecution to prove that the appellant imported a box into Saint Kitts and that the box contained cannabis. As importer, the appellant was the one who caused the box to be imported into Saint Kitts. The importation was complete the moment the box entered the territorial seas of Saint Christopher and Nevis. The appellant knew that he had imported the box and that it contained something because he attended the Customs Department and presented the bill of lading fully intending to take physical custody of the box. This being a strict liability offence, the prosecution was not required to prove that the appellant knew that the box contained cannabis.

  Section 2 of the Customs Act Cap. 20.04 of the Laws of Saint Christopher and Nevis applied; Sections 103(1)(b) and 108(1)(a) of the Customs Act considered; Section 4(1) of the Drugs (Prevention and Abatement of the Misuse and Abuse of Drugs) Act Cap. 9.08 of the Laws of Saint Christopher...