George Darrin Virgil v The Queen

• Jurisdiction: Bermuda
• Judge: Kawaley, JA,Baker, P,Bell, JA
• Judgment Date: 18 March 2016
• Neutral Citation: [2016] CA Bda 5 Crim
• Docket Number: CRIMINAL APPEAL No 2 of 2015
• Court: Court of Appeal (Bermuda)
• Date: 18 March 2016

[2016] CA (Bda) 5 Crim

The Court of Appeal for Bermuda

Before:

Baker, President

Bell, JA

Kawaley, JA (Acting)

CRIMINAL APPEAL No 2 of 2015

Between:

George Darrin Virgil

Appellant

and

The Queen

Respondent

REASONS

Kawaley, JA

Introductory

1 Conspiracies to import into and supply controlled drugs in Bermuda are not transparent transactions intended to be exposed to the light of public scrutiny.They are an exercise in concealment and subterfuge, often reflecting a hidden, “shadow”, dimension of apparently legitimate commercial operations. Absent a confession, or perhaps the election of a conspirator to give evidence for the Crown or to implicate a co-accused, prosecutions for such offences will rarely be grounded in direct evidence of what actually occurred. The Prosecution will typically have to lay charges relying primarily on circumstantial evidence. It is for the trial judge to determine whether there is sufficient evidence upon which a properly directed jury could safely convict. It is for the jury to determine whether or not the Prosecution's evidence, together with any incriminating evidence given by one co-defendant against another, satisfies them of an alleged conspirator's guilt. It is against this general background that the present appeal fell to be determined.

2 The Appellant was convicted on 2 March 2015 in the Supreme Court (Greaves J, sitting with a jury) on an Amended Indictment which charged him with conspiring to import and conspiring to supply cannabis between a date unknown and 27 November 2012, and between a date unknown and 30 November 2012, respectively. One of his initially seven co-Defendants pled guilty early on in the trial to conspiring to supply cannabis. All Defendants made submissions that there was no case to answer which were rejected at the end of the Crown's case. At the close of the Defence case, the trial judge directed the jury to acquit three of the Appellant's remaining six co-Defendants (Edwards, Trott and Tucker). The remaining three co-Defendants were acquitted by the jury. The Appellant, the only Defendant who elected not to give evidence in his own defence, was the only person convicted by the jury. On 15 April 2015, the Appellant was sentenced to 10 years' imprisonment, concurrently, on each of the two counts. He appealed only against his convictions.

3 On 11 March 2011 this Court dismissed the Appellant's appeal. These are the reasons for that decision.

The Prosecution case

The shipment and the arrest 1

4 On 26 November 2012, a shipment of iron plates, pipes and ‘I-beams’ arrived in Bermuda. The consignment was shipped by North York Iron in Canada and the importer was Swandell Welding & Steel Erection (‘Swandell’). The Appellant and the Defendant Edwards had both been employees of Swandell although by the date the shipment arrived, the company had not been active for some months and their employment had been terminated. A Customs inspection revealed rectangular objects were inside each of the five steel plates. The Police carried out covert surveillance of the delivery, which they allowed to proceed.

5 The Defendant Tucker was given money by the Appellant to clear the shipment through Customs which she did. Delivery was fixed for 29 November and Bermuda Forwarders was instructed to deliver the shipment of steel to a garden area in Abbott's Cliff. The Appellant and the Defendant Anderson (who pleaded guilty in the course of the trial) assisted the Defendant Jefferis to unload the cargo. The Appellant then called Scrap Iron Trucking to move the steel shipment to another destination. The pipes and beams were taken to a Southside workshop. The suspicious steel plates were taken to a body shop at 15 Limehouse Lane owned by two brothers, the Gibbons Defendants. The Appellant paid the trucker. The Police then attended the Gibbons' residence where the steel plates were found in the driveway and arrested the Appellant inside the residence, together with all of his eventual co-Defendants except Tucker, who was not there. Using welding equipment similar to that at Limehouse Lane, the Police opened the steel plates over the next few days. Inside they found 180 compressed packages containing 119.6 kilograms (263 pounds) of cannabis with a street value of nearly $6 million.

6 The facts revealed by investigations in Canada were essentially agreed. A Nicky Maraj organised the shipment from Canada to Bermuda. An unidentified person ordered the steel from North York Steel on 8 November 2012 and an unidentified trucker collected the steel on 12 November 2012 and delivered it to Mississauga Transportation Resources Inc (‘MTR’) the next day where it remained in secure bonding. On 15 November 2012, Melbourne Trucking moved it another secure location. On 19 November 2012, the truck driver transported the shipment directly to Port Elizabeth in New Jersey for shipment to Bermuda.

Circumstantial evidence incriminating the Appellant

7 The Appellant admitted when interviewed by the Police following his arrest that he entered into arrangements to bring the steel sheets into Bermuda and to supply them to a customer but denied any knowledge that they contained illegal drugs. There was, as Mr Mussenden fairly pointed out, no direct evidence adduced that the Appellant was knowingly involved in a conspiracy to import and supply cannabis. However, a number of striking evidential strands pointed to the Appellant's guilt in the absence of a plausible explanation on his part. Indeed, the Prosecution case was that the Appellant was a ‘kingpin’ in the conspiracy.

8 As far as the evidence adduced by the Prosecution as part of its own case is concerned, these strongly incriminating strands included the following allegations which were not seriously subject to dispute:

• (a) the Appellant was shown by phone records to be at the centre of a matrix of telephone calls to each of his co-Defendants, and received numerous calls from Nicky Maraj (the Canadian shipment organiser) between May 42012 and November 2012 when the shipment arrived in Bermuda;

• (b) numerous phone calls were made to,inter alia, Nicky Maraj from a phone registered in the name Kevin Ingham, a fictitious person whom the Appellant claimed was the Swandell customer to whom the steel shipment was to be delivered;

• (c) the calls from Maraj to the Appellant and from the Ingham phone to Maraj included calls made throughout the shipment period;

• (d) the Appellant was personally involved in a delivery exercise which was inconsistent with a legitimate commercial transaction and strongly suggested that he was well aware that there was no Swandell customer at all and that the steel plates contained illegal drugs. Most strikingly:

  • (i) the Appellant was seen by Police helping to offload the steel consignment in a remote garden area where the Bermuda Forwarder's truck was instructed by Tucker to deliver it;

  • (ii) the Appellant called an additional trucker to take the “innocent” portions of the cargo to one location and the steel sheets containing the drugs to a second location and paid the driver;

  • (iii) the Appellant was present at the location where the steel sheets were delivered, a location which had welding equipment capable of opening the steel sheets and removing the concealed cannabis;

  • (iv) the steel sheets containing the illegal drugs were not delivered to the premises of Swandell or to the property of a Swandell customer using the name Ingham. They were delivered to persons with whom the Appellant had been in telephone contact over the preceding months, persons who were, apparently, known to him.

9 Unsurprisingly, Greaves J ruled that the Appellant had a case to answer. The Crown's case against the Appellant was then fortified by the evidence given by some of his co-Defendants, while the Appellant elected not to testify. Most damningly:

• (a) Tucker explained that her involvement with organising clearance and delivery of the shipment when it arrived in Bermuda was solely by way of following the Appellant's instructions, as she was his subordinate in the context of their employment with Swandell ;

• (b) Corte Gibbons testified that earlier in the week of their arrest, the Appellant contacted him and told him that he had some steel coming in which he needed to have stored and cut.

The Appellant's case

10 The Appellant's case at trial, as Mr Mussenden made clear in the course of the present appeal, was essentially simple. There was no or no sufficient evidence that the Appellant had the requisite guilty knowledge that he had been involved in importing anything other than steel. This was his case when interviewed by the...