Tenielle Percival v The Chief of Police

• Jurisdiction: Saint Kitts and Nevis
• Judge: Webster JA
• Judgment Date: 10 November 2022
• Judgment citation (vLex): [2022] ECSC J1110-1
• Docket Number: SKBMCRAP 2017/0004
• Court: Court of Appeal (Saint Kitts and Nevis)

Between:

[1] Tenielle Percival

[2] Kenrick Simmonds

Appellants

and

The Chief of Police

Respondent

Before:

The Hon. Mde. Gertel Thom Justice of Appeal

The Hon. Mr. Paul Webster Justice of Appeal [Ag.]

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

SKBMCRAP 2017/0004

SKBMCRAP 2017/0005

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Criminal appeal — Appellate approach to challenges to findings of fact — Sections 6(2) and (3) 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 — Ras Sankofa Maccabbee v The Commissioner of Police and another — What effect would the decision in Ras Sankofa Maccabbee v The Commissioner of Police and another have on the convictions of the appellants — Constructive possession — Whether the evidence establishes beyond a reasonable doubt that Mr. Percival had constructive possession of the cannabis on the boat — Admissibility of evidence — Whether the learned magistrate erred in admitting and relying on the telephone records — Section 146 of the Evidence Act 2011 — Whether the learned magistrate erred in her decision as to the validity of the search warrants for searching the cell phones seized in the operation — Electronic Crimes Act — Whether the learned magistrate erred in her decision as to the validity of the search warrants for searching the cell phones seized in the operation — Joint enterprise — Whether the learned magistrate erred in the application of principles of joint enterprise to the facts of the case — Section 10 of the Small Charges Act — Whether the learned magistrate erred in finding that the cannabis was imported into St. Christopher and Nevis on the drug boat and the resulting conviction for importation — Sentencing — Whether the sentences imposed by the learned magistrate were excessive

On 15 ^th October 2015, Mr. Tenielle Percival and Mr. Kenrick Simmonds, also known as ‘Rico’ (“the appellants”) were arrested during a tactical operation carried out by the police on Conaree Beach on the island of St. Kitts. In the course of the operation, police observed Mr. Percival in an orange pickup truck on the beach. The police also observed him using his cell phone, searching nearby bushes, and piling palettes in the area. The police intercepted Mr. Percival and a plain clothes officer took his place in the orange pickup truck. While waiting in the truck, the police officer observed a cell phone ringing, displaying “Rico calling”. A boat later arrived at the beach with two men on board; the boat's captain and Mr. Greg Williamson. While attempting to anchor the boat, the boat's captain received a call on his cell phone and immediately opened fire on the police. The police returned fire killing the captain. The police arrested Mr. Williamson. They also arrested Mr. Simmonds who was on a nearby hill overlooking Conaree Beach with binoculars.

The police recovered 23 kilograms of cannabis from the boat with an estimated street value of EC$607,200.00. The police also searched an apartment said to be rented by Mr. Simmonds and used as a ‘drug kitchen’. They found cannabis shreds, large ziplock bags, empty dime bags, a digital scale, a trowel, a handsaw, two broken blades for the saw, two loaf pans coated with cannabis resin and a travel bag bearing the name of Mary Simmonds. Mary Simmonds is the mother of Mr. Simmonds. The police also recovered two cell phones taken from Mr. Simmonds, Mr. Percival's cell phone (found in the orange pickup), the cell phones of Mr. Williamson and the boat's captain, and $US1,855.00 from the orange pickup truck. The pickup is owned by Mr. Simmonds. The police cybercrime expert obtained search warrants to search the phones. He tested and searched the phones and recorded his findings.

The appellants were charged with various offences under the Drugs (Prevention and Abatement of the Misuse and Abuse of Drugs) Act (“the Drugs Act”) and were tried by the learned magistrate. The learned judge in her reasons for decision concluded that all the evidence taken together established that the appellants were guilty of the charges laid against them and convicted them. She sentenced Mr. Percival to pay $60,000.00 in to be paid in three months, in default four years imprisonment with hard labour on the importation conviction, and Mr. Simmonds to a fine of $300,000.00 to be paid in five months, in default four years imprisonment with hard labour, on the importation conviction.

Mr. Percival and Mr. Simmonds appealed against their convictions and sentences. The main issues which arise for the Court's determination are: (i) what effect would the decision in Ras Sankofa Maccabbee v The Commissioner of Police and another have on the convictions of the appellants; (ii) whether the evidence establishes beyond a reasonable doubt that Mr. Percival had constructive possession of the cannabis on the boat; (iii) whether the learned magistrate erred in admitting and relying on the telephone records; (iv) whether the learned magistrate erred in finding that the search warrants for searching the cell phones seized in the operation were valid; (v) whether the learned magistrate erred in the application of principles of joint enterprise to the facts of the case; (vi) whether the learned magistrate erred in finding that the cannabis was imported into St. Christopher and Nevis (“the Federation”) on the boat and the resulting conviction for importation; and (vii) whether the sentences imposed by the learned magistrate were excessive.

Held: making the orders in paragraph 82 of the judgment that:

• 1. Sections 6(2) and (3) of the Drugs Act deal with different matters and though possession is common to both offences, the declaration of unconstitutionality of section 6(2) in Ras Sankofa Maccabbee does not apply to offences under section 6(3) of the Drugs Act. Therefore, the appellants who sought to quash their convictions under both sections 6(2) and (3) can only successfully quash their convictions for possession under sections 6(2) of the Drugs Act. While the Court finds that the convictions of the appellants under section 6(2) of the Drugs Act is unconstitutional in this case, this finding is based on a concession from the Director of Public Prosecutions and is not a declaration that section 6(2) is unconstitutional for all purposes.

  Sections 6(2) and (3) 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; ( Ras Sankofa Maccabbee v The Commissioner of Police and another delivered 3rd May 2019, unreported) applied.

• 2. Constructive possession can be established by evidence that a person, though not in physical possession, nonetheless is aware of the presence of the drug and has some control over it. The learned magistrate having considered several circumstances that pointed to Mr. Percival knowing that the cannabis was on board the boat to be delivered to him and Mr. Simmonds, and having had the benefit of seeing and hearing the witnesses give their evidence and observing their demeanour, was entitled to make the finding of fact that Mr. Percival was in constructive possession of the cannabis on the boat. There is no basis for this Court to interfere with the finding that Mr. Percival had possession of the cannabis.

  Director of Public Prosecutions v Wishart Brooks (1974) 21 WIR 411 at 415 applied; R v Boyesen [1982] 2 All ER 161 at 163 applied; Ortiz and others v The Police (1993) 45 WIR 118 applied; Malcolm Maduro v The Queen HCRAP2007/004 (delivered 19th December 2008, unreported) applied; R v Pentecost [1998] EWCA Crim J0310–2 considered; R v North [2001] EWCA Crim 544 considered.

• 3. Section 146 of the Evidence Act provides that a person seeking to introduce an electronic record in any legal proceeding has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic record is what the person claims it to be. In this case, the prosecution led evidence in the court below which satisfied the requirements in section 146 of the Evidence Act. The learned magistrate did not err in her decision to treat the search warrants for searching the cell phones seized in the operation as valid.

  Evidence Act 2011 No. 30 of 2011 of the Laws of St. Christopher and Nevis applied; Kevin Fearon v R [2014] 3 SCR 621 considered.

• 4. There is no requirement for the police to comply with the provisions of the Electronic Crimes Act in securing the search warrants to search cell phones in respect of a suspected drug smuggling offence. The police followed the standard procedure in the Magistrate's Code of Procedure Act for securing warrants. Further, there was nothing irregular about the Justice of the Peace issuing warrants.

  Electronic Crimes Act Cap. 4.41 of the Laws of Saint Christopher and Nevis applied.

• 5. The telephone evidence in this case was authenticated and was not tenuous. It establishes beyond reasonable doubt a connection between the appellants and the persons who were on the drug boat. It includes information and directions on both sets of phones about The Gate and how to navigate through it. The learned judge therefore did not err in admitting and relying on the telephone records.

• 6. Where A and B embark on a joint criminal enterprise, each will be liable for acts committed in pursuance of the joint enterprise with the necessary intent. It is inconsequential which party committed the fatal act. Both parties are liable so long as the fatal act was a part of the joint enterprise. In this case, the evidence shows that there was a joint enterprise between the appellants, the captain of the boat and Mr. Williamson to possess and import drugs into the Federation. The finding of a joint enterprise is based on the strong circumstantial evidence that was before the learned magistrate. Its effect is that the...