Dearing v R

• Jurisdiction: Bermuda
• Judgment Date: 11 December 1986
• Date: 11 December 1986
• Docket Number: Criminal Appeal No. 44 of 1985
• Court: Court of Appeal (Bermuda)

In the Court of Appeal for Bermuda

In the Court of Appeal for Bermuda

Blair-Kerr, P.

da Costa, JA

Henry, JA

Criminal Appeal No. 44 of 1985

Criminal Appeal No. 44 of 1985

Curtis Edward Dearing

Appellant

and

The Queen

Respondent

Curtis Edward Dearing

Appellant

and

The Queen

Respondent

CooperELR [1969] 1 QB 267

Stafford and LuvaglioUNK (1974) 58 Cr App R 256

Pattinson and LawsUNK (1974) 58 Cr App R 417

R v MurphyDNI [1965] NI 138

Kuruma v R [1955] NC 197

Noor Mohamed v RELR [1949] AC 182

Callis v GunnELR [1964] 1 QB 495

King (Herman) v RUNK (1969) 52 Cr App R 353

Misuse of Drugs Act

Conspiracy to import heroin — Appeal against conviction — Undercover agent put in cell with appellant

REASONS FOR JUDGMENT

There were seven counts in the indictment and the accused persons named therein were (1) the appellant (2) one Jerry Truman Stovell and (3) Colin Nathaniel Washington.

Count 1:

The three accused were charged with conspiring with one another and with one Kapadia and others to import heroin into Bermuda. The conspiracy was said to cover the period 1st October 1982 to 7th January 1985; and the accused were alleged to have conspired in Bermuda, in the United Kingdom and elsewhere.

Count 2:

The appellant Stovell was charged with importing heroin into Bermuda between 24th December 1984 and 5th January 1985.

Count 3:

Washington was charged with procuring the importation of heroin by Stovell and the appellant on 5th January 1985.

Count 4:

Stovell and the appellant were charged with having heroin in their possession on 5th January 1985.

Count 5:

Washington was charged with procuring the possession of heroin by Stovell and the appellant.

Count 6:

Washington was charged with importing cannabis resin on 8th January 1985.

Count 7:

Washington was charged with possession of cannabis resin on 8th January 1985.

Stovell pleaded guilty to count 2 and he was sentenced to 7 years imprisonment on that count. The prosecution offered no evidence against him as regards counts 1 and 4 and he was acquitted as regards those two counts. He gave evidence as a prosecution witness.

The Crown indicated that they were not proceeding with counts 4 and 5 at that stage, and the trial judge ordered that they remain on the file and not to be proceeded with except with the leave of the court.

Washington pleaded guilty to count 6. The Crown offered no evidence on count 7 and Washington was acquitted as regards count 7.

The trial proceeded against the appellant and Washington. At the close of the case for the prosecution, the learned judge ruled that Washington had no case to answer as regards count 1, and Washington was found not guilty on count 3. He was fined $1500. on count 6. The appellant was convicted on counts 1 and 2. He was sentenced to 18 years imprisonment on count 1 and 12 years imprisonment on count 2, the sentences to run concurrently with one another, and time spent in custody awaiting trial to be taken into consideration.

The appellant (Dearing) appealed against conviction. On 1st October 1986, we dismissed his appeal and we now give reasons for our decision. By his notice of appeal, the appellant indicated that he would be appealing also against sentence; but he abandoned his appeal against sentence during the hearing of the appeal.

Broadly, the prosecution case was that the appellant agreed to purchase heroin from time to time from Kapadia, that the heroin would be imported into Bermuda, not by the appellant personally but by couriers recruited by him; that quantities of the drug had been imported in this way between 1st October 1982 and 7th January 1985; that towards the end of December 1984, the appellant asked Stovell to go to London ostensibly to hand over a diamond to a friend of his; that the appellant put Kapadia in touch with Stovell in London; that the diamond was handed over to Kapadia; that the latter did not pay for it in cash; instead Kapadia gave Stovell a quantity of heroin to deliver to the appellant; that Stovell and Washington concealed the drug inside the tube of a child's bicycle which Stovell had purchased in London; and that the drug, so concealed, was imported into Bermuda by Stovell on 5th January, 1985; that it was seized by the police; that Stovell was arrested; and that during a search of Stovell's premises, the appellant came to collect the heroin and was also arrested.

Kapadia is said to be an Indian, who lives at 16 Lillian Close, London N16 OSG; and from 17th October 1981 until 13th March 1985, a Mrs. M. Kapadia of that address was registered by British Telecom as the subscriber of a telephone number 01-2544292.

The heroin seized on 5th January 1985 was weighed and analysed by Dr. Young, the Senior Government Analyst. It weighed 175.8 grams and was 56% pure. The evidence was that this quantity was sufficient to produce approximately 8950 ‘doses’ each containing 11 milligrams of diamorphine (heroin); that a ‘dose’ is sold on the streets of Bermuda for $25. Accordingly, the street value of 8950 ‘doses’ would be $223,750.

Stovell said in evidence that he had known Washington for a long time and that he had met the appellant about August or September 1984 through a mutual friend named Burcher who lives in the same building as the appellant, namely Guanhani, Middle Road, Southampton West. The substance of Stovell's evidence relating to the importation of the heroin on 5th January 1985, may be summarised as follows:

In December 1984 Dearing asked me to go to London and deliver a diamond to a friend of his. He gave me the diamond. He gave me money for my expenses. He paid for my air passage. I left Bermuda on 29th December and arrived at Heathrow on 30th December. I met Washington there. He put me on to a friend of his who arranged for me to stay at the Y.M.C.A. I phoned Dearing on 31st December and gave him the address of the Y.M.C.A. where I was staying and the telephone number. Next day (1st January 1985) there was a message for me at the Y.M.C.A. that someone had called. On 2nd January, a male person telephoned and asked to speak to ‘Curtis' friend’. He and I agreed to meet at the Y.M.C.A. next day (3rd January). On 3rd January ‘an Indian-type guy’ came to see me. Dearing was the only person to whom I had given my number at the Y.M.C.A. I showed this man the diamond Dearing had given me and a document which Dearing had given me stating that the diamond was worth $6000. I gave this man the diamond but kept the chain to which it was attached. The Indian came back and said the diamond was worth $6000. But he didn't hand it back to me. Instead, he brought ‘something for the diamond’—a brown package in a plastic bag. I asked him what it was and he said it was heroin. I was reluctant to take the package, but the Indian threatened me saying this is a business transaction, you could get into serious trouble, ‘even lose your life’. So, I accepted the package. On 4th January Washington and I went shopping. Amongst other things I bought a child's bicycle from Halford's for Dearing. I showed Washington the heroin. He said: ‘Why don't you put it in the bike’. I agreed. And we hid the package in the inner tube of the front wheel. I took the bike to Bermuda. The police found the heroin in the bike. I was arrested. Next day the police was searching my apartment. There was a knock on the door. I asked who it was. The voice said ‘Curtis’ and I believe he asked if I was OK. So, when the door was opened, the police arrested Dearing.

Stovell was, of course, an accomplice and he was closely cross-examined by counsel for the appellant and by counsel for Washington. He gave contradictory answers on a number of matters, for example as to the amount of money which Dearing had given him. In summing-up to the jury, the learned judge said:

‘….. you might have reached the view that Mr. Stovell's management and knowledge of money matters is very minimal indeed.’

In a very careful summing-up, the learned judge reminded the jury of the discrepancies in the witness's evidence and of the danger of convicting on the uncorroborated evidence of an accomplice. The jury had ample opportunity of forming a view as to the worth of Stovell's evidence. They did not, of course, hear the evidence of Detective Constable Worrell who, after Stovell's plea of guilty, produced his antecedent history form and a list of previous convictions and who said in answer to questions by Mr. Dunch (Stovell's counsel):

‘From my knowledge of Curtis Dearing, I know he used people to do his drug trafficking for him and is well-known for taking advantage of others who are of sub-normal intelligence. Mr. Stovell is rather slow and a likely subject for Mr. Dearing's attention.’

The police evidence regarding the arrest of the appellant differed from that of Stovell. The judge's note of Constable Worrell's evidence reads:

‘….. I searched the apartment. While doing so, there was a knock on the door of the apartment and Detective Sergeant Hull in a disguised voice, said ‘who is it'? The reply was: “Curtis, Jerry, its me”. Hull asked “what do you want”? and the person said “Have you got the stuff”? At this time Detective Sergeant Hull opened the door and I saw a man I know as Curtis Dearing ………….’

Hull's evidence and that of D.V.Wilson was to the same effect.

Detective Constable Worrell said that on 10th January 1985, he went to London and visited 16 Lillian Close with drug squad officers from Scotland Yard. A woman at that address gave her name as Hafra Kappadia. Worrell said that she was ‘apparently Indian or Asian descent’. He said that he saw a passport belonging to a Yessep Kappadia and a telephone bearing the number 254-4292, but that he did not find the person he was looking for—the man ‘whose passport it apparently was’.

The appellant's telephone number is 8-1832. A member of the staff of the Bermuda Telephone Company (Miss Dowling) gave evidence...