Davy v R

• Jurisdiction: Bermuda
• Judge: Clarke P,Bell JA,Smellie JA
• Judgment Date: 29 April 2021
• Docket Number: Criminal Appeal 2018 No 27
• Court: Court of Appeal (Bermuda)

[2021] Bda LR 40

In The Court of Appeal for Bermuda

Before:

Clarke P; Bell JA; Smellie JA

Criminal Appeal 2018 No 27

Between:

Omar Davy

Appellant

and

The Queen

Respondent

Ms E Christopher for the Appellant

Mr A Richards and Mr J Rogers for the Respondent

The following cases were referred to in the judgment:

Zegelis v R [2014] Bda LR 28

R v Downer [2014] EWCA 2998

Lottimore and Hatherley v R [2015] Bda LR 5

Richards v R [1991] Bda LR 15

R v Morris and Morris [2017] Bda LR 128

R v Alomar [2003] Bda LR 38

Brown v R [20177] Bda LR 50

Swan v R [2018] Bda LR 64

R v Cox [2005] Bda LR 47

Importation of 220 grams of heroin — Duress — Appeal against sentence of 18 years — Not guilty plea

JUDGMENT of Bell, JA

Introduction

1. On 10 July 2018, Omar Davy, a 38 year old native of Jamaica, (hereafter “the Appellant”) arrived at the Bermuda airport on board a commercial flight from Toronto, Canada, where he had been visiting family. His evidence was that he had purchased a ticket to travel to Bermuda only the previous day, and that he was travelling to Bermuda, which he had previously visited some six or seven times, for the purpose of attending traffic court. On returning to his brother's house in Scarborough, on the east side of Toronto, following the purchase of the ticket, he said that he had been approached by two men who had come from an SUV parked nearby. The men had shown him a phone on which were three videos of family members, his mother, his sister and his daughter, taken in Jamaica. He was then shown a video call on the phone, where he recognised the man on the call as someone to whom he owed $24,000 which had been advanced to him for architectural drawing and construction work, which he said he had been unable to carry out because his laptop had been taken from him by the Bermuda police during a previous visit. He described the man on the call as a don named Mr Courtney. One of the men had a gun, and told the Appellant to open his brother's car, which the Appellant did, and from which one of the men removed a laptop bag and an orange suitcase belonging to the Appellant, as well as his passport and ticket, which had been on the seat. These items were then transferred to the SUV, which the Appellant was told to get into. He said that when he entered the vehicle a dark cloth was placed over his head. He was then choked and hit, and at some stage told his attackers that he was going to Bermuda the next day, and that when he got back he would have the money to repay what he owed. When the SUV came to a stop the Appellant was taken to a garage where he was again attacked and beaten. The beating was said to have been severe, including further choking, kicks to his body and head, such that he passed out, and was awakened by heavy slaps to his face and jaw. During the course of this beating the Appellant was told that he had to take a package to Bermuda. The Appellant's evidence was that he felt he had no alternative but to agree. He was told that if he tried anything funny, the men would kill his family. He said that he told them that he had an 8.30 flight, and that it was by then 4.30 in the morning. He was given a package, which was placed in a book inside his laptop bag together with a roll of tape, which he said he was told should be used to tape the package to his leg after he had gone through Customs.

2. He was then taken to the airport, where he cleared security and boarded the flight to Bermuda. He said that he did not alert the police or dispose of the package during the flight because he believed the men's threats that they would kill his family. During the flight the Appellant took all the items out of the laptop bag, including the package. He said that he used a razor blade to cut the bag to make sure there were no more drugs in the bag (he later said that he did not know the package contained drugs), and placed the package in the waist of his pants. He said that he had thought about leaving the package in the pocket behind the plane seat, but had dismissed the idea because of his fear of harm being inflicted upon his family.

3. On landing in Bermuda the Appellant went through Customs, when he was subject to a secondary search. Before that could be undertaken the Appellant fled, but was eventually caught on the Causeway, and taken back to the Customs area. While there the Appellant removed the package from the back of his trousers and placed it in his luggage. The package was recovered and on analysis was found to contain some 220.88 grams of heroin with an estimated street value of $765,700.

4. The above is a brief summary of the circumstances under which the Appellant claimed to have brought the drugs in question into Bermuda, and the basis on which he maintained in his defence that he had acted under duress. He was charged with offences of importation and possession with intent to supply diamorphine, and obstruction of a Customs officer. It is submitted on his behalf by Ms Christopher that it was on the basis of the Appellant's belief that he had a defence to the charges, based on the duress to which he said he had been subjected, that he pleaded not guilty to the charges of importation and possession with intent to supply. I say no more at this stage about the version of events given by the Appellant in his evidence, save that Mr Richards aptly described the Appellant's account as “fantastical”, and submitted that the relatively short time it took the jury to convict the Appellant would suggest that they took a similar view.

Duress

5. There are two sections of the Criminal Code 1907 (“the Code”) which are relevant to a defence that the person charged is not criminally responsible for the act or omission in question, and these are as follows:

“Acts done in resistance to violence

47 Without prejudice to any other provision of this Act, a person is not criminally responsible for an act or omission where the act or omission is reasonably necessary for the purpose of resisting actual violence threatened to him or to another person in his presence:

Provided that the foregoing provisions of this section shall not have effect so as to justify or excuse—

• (a) [Deleted by 1999:51]

• (b) an act or omission which constitutes an offence of which causing grievous bodily harm to the person of another, or an intention to cause such grievous bodily harm, is an element.

Acts done for purpose of self-preservation

48 Without prejudice to any other provision of this Act, a person is not criminally responsible for an act or omission where he does the act or makes the omission for the purpose of saving...