Berkeley v R
| Jurisdiction | Bermuda |
| Judgment Date | 01 July 2022 |
| Court | Supreme Court (Bermuda) |
| Docket Number | Appellate Jurisdiction 2019 No 42 |
[2022] Bda LR 65
Appellate Jurisdiction 2019 No 42
In The Supreme Court of Bermuda
Conspiracy to import Delta-9 THC — Appeal against conviction — Defence of lack of knowledge
The following cases were referred to in the judgment:
R v Minors [2002] Bda LR 64
Hill v R [2001] Bda LR 83
R v Lambert [2001] UKHL 37
Lottimore and Hatherley v R [2015] Bda LR 5
McGowan [1990] Crim LR 399
Ms V Greening for the Appellant
Mr A Richards for the Defendant
JUDGMENT of Wolffe J
1. On 5 November 2019 the Appellant was found guilty by the trial Magistrate for the offence of Conspiracy to Import a Controlled Drug, namely Delta-9 Tetrahydrocannabinol, contrary to section 4(3) of the Misuse of Drug's Act 1972 (the “MDA”) as read with section 230(1) of the Criminal Code Act 1907 (the “Criminal Code”).
2. By way of an amended Notice of Appeal filed on or about 15 March 2022 the Appellant now appeals that conviction on the following grounds:
“1. That the Learned Magistrate misdirected himself on the necessary ingredients of conspiracy to import;
2. That the conviction is not supported by the evidence;
3. Any other grounds which appear upon receipt of the record.
4. The Learned Trial Magistrate failed to consider at all the Appellant's defence as laid out in her defence statement, namely lack of knowledge, pursuant to section 29 of the Misuse of Drugs Act 1972, and which arose during the trial;
5. The Learned Trial Magistrate failed to direct himself on the applicable burden and standard of proof when section 29 is engaged.
6. The Learned Trial Magistrate erred in finding that a logical or reasonable inference could not be drawn from the What's App exchange that the Appellant was unaware of the hidden contents, and failed to draw the inference in favour of the Appellant, as required by law.”
3. At the hearing of the appeal Ms Victoria Greening, Counsel for the Appellant, abandoned Grounds 1, 2 and 3 and accordingly focused most of her attention on Grounds 4, 5 and 6 above.
4. Reflected in the Magistrate's Judgment dated 5 November 2019 is the evidence that on the 4th July 2017 Customs Officer Sinclair Richards conducted an inspection of a parcel which was addressed to the Appellant at #11 Blue Hole Hill in Hamilton Parish. The address was that of the Appellant's employer Grotto Bay Hotel and is also where she resided in staff dormitory/accommodation. The sender of the parcel was listed as a Mr Russell Murray who was the Appellant's co-defendant.
5. In that parcel were two “Tresemme” shampoo bottles as well as some shea butter and coco butter. The shampoo bottles were x-rayed and found to contain objects wrapped in plastic. The parcel and its contents were seized by the Bermuda Police Service (the “BPS”) and placed into secure storage, and on the 5th July 2017 and the 10th July 2017 photographs were taken of them (the photographs were adduced into evidence at trial). It was then discovered by police that both of the shampoo bottles were found to each contain a plastic bag with eighteen (18) small vials of brown liquid i.e. a total of thirty-six (36) vials. The brown liquid was later analysed by the Government Analyst and found to be the controlled drug Delta-9 Tetrahydrocannabinol with the weight of 6.85 grams in one bottle and 4.82 grams in the other bottle. A drug expert estimated the street value of all of the 36 vials to be between $900 and $5,400.
6. It was decided by police that a controlled delivery of the parcel should be carried out i.e. for the parcel to be put back into normal postal circulation (at trial the police could not say whether on the date of the controlled delivery that the parcel contained a controlled drug). To this end, a controlled delivery was carried out by the BPS on 18 July 2017 and on this date a man by the name of Mr David Landy, who is a Customs Officer, attended the Crawl Post Office and presented to the clerk a parcel notice or slip for the said parcel. It appeared from the parcel notice that Mr Landy was authorized by the addressee to collect it and he therefore signed for the parcel after being presented with it. The clerk requested Mr Landy to open the parcel so that Customs may ascertain whether the items contained within were duty free i.e. did not exceed the value of $30.00. With no duty being payable Mr Landy took the parcel away and the clerk called the BPS. Upon arrival at the Crawl Post Office the clerk gave the police a description of Mr Landy and from that information the police attended Mr Landy's place of employment at the DHL Customs Facility on Cox's Hill in Pembroke Parish. They eventually arrested Mr Landy and the parcel was seized from the rear seat of his motorcar.
7. Mr Landy gave police the Appellant's telephone number and later that same day the Appellant attended the Hamilton Police Station (“HPS”) where she was arrested. At the time the Appellant was arrested she did not have her telephone with her but eventually the police went to the workplace of the Appellant's friend where they seized the Appellant's phone. Eventually, data was extracted from the Appellant's phone by a forensic technician and a report was produced in this regard.
8. On 19 July 2017 a search was conducted by police at the Appellant's residence and a phone was recovered as well as travel documents and delivery information for the parcel (some of which was scrunched and some torn up). One of these documents was UPS tracking information. It was accepted at trial that some of the torn documents included a boarding pass and a luggage receipt but that some of the documents were not torn in such a way as to intentionally make them illegible.
9. On 13 March 2018 the Appellant was seen walking in the company of Mr Murray (her co-defendant). She was issued with a Court Summons and Mr Murray was arrested and detained on suspicion of conspiracy to import a controlled drug. However, Mr Murray, who is a private jet pilot, subsequently left Bermuda and has not returned. It is unclear as to whether Mr Murray was interviewed under caution by police.
10. Mr Landy gave evidence at trial and he said that he had known the Appellant for approximately (10) years since she started working at the Grotto Bay Hotel where he also worked on the Front Desk (presumably in addition to his work as a Customs Officer). He explained that all mail for staff residing in the dormitory came to the hotel's front desk and then the mail would be distributed to the various departments for the staff member concerned. He also said that in July 2017 the Appellant was out of the jurisdiction tending to her sick mother when he reached out to her and she asked him if there was a “postal slip” at the front desk (I presume that a “postal slip” is the same a “parcel notice”). He confirmed to the Appellant that there was and it was he, as her friend, who asked her if she wanted him to collect the package for her. The Appellant said “yes” so he filled out the form nominating himself as the Appellant's agent to collect the parcel. He also signed the Appellant's name on the form.
11. Mr Landy went on to say that on 18 July 2017 he went to the Crawl Post Office to collect the parcel thinking that it contained shampoo and lotion as the Appellant had told him, and once there he opened the parcel and saw that it did contain lotion and shampoo in Ziplock bags that were cut open. The bags being cut open indicated to him that they were inspected (he would have probably known this as he is was a Customs Officer). At some point the Appellant called him and he told her that that he had the parcel in his possession and that he would take it to the hotel. He stated that he was going to take the parcel to the hotel that night for the Appellant to collect but that he did not do so because the police had attended his job at Customs, placed him under arrest, and seized the parcel from the back of his motorcar.
12. The Appellant did not give evidence in her own defence nor did she call any witnesses, as she was legally entitled not to do, but in a recorded police interview conducted on 19 July 2017 (the transcript of which was made an exhibit at trial) she did answer various question put to her by the police. The Magistrate extracted the following from what the Appellant said in her police interview:
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• She went to New York at the end of the previous month for a graduation but that she got so busy that she did not have time to do...
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