R v Lottimore and Hatherley
| Jurisdiction | Bermuda |
| Judge | Baker, JA,Zacca, P,Evans, JA |
| Judgment Date | 08 January 2015 |
| Neutral Citation | [2015] CA Bda 1 Crim |
| Date | 08 January 2015 |
| Court | Court of Appeal (Bermuda) |
| Docket Number | CRIMINAL APPEALS Nos 12 of 2012 & 1 of 2013 |
[2012] CA (BDA) 12 CRIM & [2013] CA (BDA) 1 CRIM
[2015] CA (BDA) 1 Crim
The Court of Appeal for Bermuda
Zacca, President
Evans, JA
Baker, JA
CRIMINAL APPEALS Nos 12 of 2012 & 1 of 2013
Mr. Lottimore in Person
Mr. Larry Mussenden, Mussenden Subair, for Hatherley
Mr. Garrett Byrne, Department of Public Prosecutions, for the Respondent
REASONS FOR DECISION
These two appellants were convicted on 25 September 2012 before Simmons J and a jury of conspiracy to import heroin contrary to section 4(3) of the Misuse of Drugs Act 1972 as read with section 230(1) of the Criminal Code. Hatherley was sentenced to 12 years imprisonment and Lottimore to 15 years imprisonment. We dismissed their appeals against conviction on 21 November 2014 and we now give our reasons.
The appeals were initially listed for hearing on 29 May 2014 but adjourned until the November Sitting as Lottimore had only recently obtained legal aid to cover his appeal and his counsel required more time. The court decided in June that the appeals should be heard together and granted Hatherley bail.
In explaining how Lottimore came to represent himself during the course of the appeal it is necessary to set out briefly the history of his representation. At the trial he was represented by Ms Pearman. On 4 January 2014 he wrote to the Legal Aid Office to request a change of counsel to Mr Attridge. He says he was unable to contact Mr Attridge and requested a change to Ms Harvey on 4 March 2014. Lottimore's next change was to Mr Richardson who says he received the documents from former counsel on 22 September 2014. Although he was covered by the legal aid certificate, Mr Richardson did not come on the court record as, he said, ‘he had not been afforded the opportunity to take any instructions from Mr Lottimore’. On 7 November 2014 he swore an affidavit saying he would be out of the jurisdiction on the date that had been fixed for the hearing of the appeal, 10 November 2014 and asked for the appeal to be adjourned until the next session of the court in March 2015. On 10 November 2014 Mr Richardson did not appear and no one was in a position to argue Lottimore's appeal. This is an entirely unacceptable situation; either Mr Richardson should have been present to argue the appeal or he should have returned the brief in sufficient time for other counsel to prepare and present Lottimore's appeal. At some inconvenience the court was able to re-fix the appeal to begin on 17 November 2014 telling Lottimore that he had the alternatives of:
He chose the latter course.
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(1) acting in person;
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(2) instructing Mr Richardson, if available, or
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(3) instructing Mr Mussenden who was familiar with the case as he was representing Hatherley and confirmed to us that no conflict of interest arose.
Mr Mussenden put in a great deal of work over a short period of time and helpfully produced a document consolidating the grounds of appeal of the two appellants and thus, where appropriate, dealing with the relevant grounds of the two of them together. When, however, he came to argue Lottimore's appeal, Lottimore withdrew his instructions, sought an adjournment until the March sitting of the court and said he was not ready to proceed with his appeal. The court refused his application on the ground that he had already been provided with an opportunity to obtain representation and had indeed instructed Mr Mussenden. Furthermore the interests of justice required the present panel of the court to conclude the hearing of the appeal.
After a short adjournment Mr Mussenden provided us with a list of documents that Lottimore wished us to read when considering his appeal. This included an amended skeleton argument that had not been filed, a skeleton argument prepared by Mr Mussenden, a letter from Lottimore and a report of the case of R v Courtie [1984] AC 463. The Court carefully considered the contents of all these documents.
On 7 October 2010 a US Air Ramp employee called Wade was arrested at Philadelphia International Airport after being found in the cargo hold of an aircraft the previous day without authority. He admitted having put marijuana on a plane bound for Bermuda and later agreed to assist the US authorities in relation to a drug ring importing drugs into Bermuda. Thereafter telephone calls were recorded between him and a man called ‘Afro’ in Bermuda making arrangements to send drugs from the US to Bermuda. The Crown alleged that ‘Afro’ was Lottimore.
Next there were telephone calls recorded between Wade and ‘Afro’ arranging for Wade, via an associate, to collect a package from an associate of ‘Afro’ who would be standing outside the Hotel Pennsylvania in Manhattan. Hatherley travelled from Bermuda to New York on 18 April 2011 and stayed at the Hotel Pennsylvania where he shared a room with a man called Tucker, also from Bermuda.
On 21 April 2011 ‘Afro’ called Wade to tell him to expect contact with ‘his boy’. Wade received a call from another man to arrange the meeting to pass over the drugs and that person, Hatherley said that it would have to be soon ‘because we are leaving tomorrow’. (Hatherley left New York the next day).
On that day, 22 April 2011, there were telephone calls between Wade and an unidentified caller in which it was arranged that the person to receive the package would be driving a black Lexus. Shortly afterwards, Hatherley stood outside the hotel and a black Lexus pulled up. Hatherley got into the front passenger seat. He was then seen on video handing over a white towel from within a small rucksack. He said: ‘the money and everything is in there’. The recipient was an undercover agent. After the Lexus had travelled a few blocks Hatherley got out. The package was subsequently examined and found to contain US$2,000 and 388 grams of heroin of 30% purity with a street value of BD$775,000. It was not disputed that Hatherley handed over the package. He declined to answer questions in interview and did not give evidence.
Following 22 April 2011 there were further telephone calls between ‘Afro’ and Wade to discuss when the package would be brought into Bermuda. A dummy package was placed on a plane and arrived in Bermuda on 11 May 2011. But the conspirators could not find it and it was returned to Philadelphia where, Wade told ‘Afro’, he would retrieve it. At the time of the anticipated removal of the dummy package from the aircraft in Bermuda a man called Carroll (of whom more later) met a man on a bike in the trees nearby. The bike's licence tag matched that on one subsequently seen parked outside Lottimore's house.
A further attempt to deliver the dummy package to Bermuda was made in late May 2011 and on 1 June 2011 it was received in Bermuda by Carroll who conveyed it, via a man called Marshall, to Lottimore. It was recovered from Lottimore and various individuals were arrested in relation to the conspiracy later that day.
The case against Hatherley was based upon his travelling to New York and handing the package containing heroin and money to the undercover agent in the black Lexus. The jury was invited to infer that he must have known what he was handing over.
The case against Lottimore had a number of strands. When arrested the police found in his possession a cell phone number 441–518–6446. This was the number of the phone that called Wade and that Wade called back. He also had a second phone in his possession, number 441–732–9156. This phone had had contact with Carroll.
The second strand was a Western Union form found in Lottimore's bedroom. This showed the transfer of US$1,500 to the United States from Shawn Hatherley (not the appellant) to Kathleen Delaney. The document is dated 17 May 2011. On 10 May 2011 there had been a conversation between ‘Afro’ and Wade on phone 441–518–6446 in which there was talk of Wade receiving extra money. US$1,500 was to be sent to Kathleen Delaney.
The third strand of evidence was the discovery of two pieces of paper in Lottimore's bedroom. Each piece of paper contained several numbers. One of the numbers on each piece of paper ended in 1794. This matched the phone used by Wade.
The fourth strand of evidence was that Lottimore's bike was at Burchell's Cove on 12 May 2011, the day of the abortive delivery, and that, by inference Lottimore was the person riding it. This was shortly after several telephone calls between ‘Afro’ and Wade. The fifth and final strand was that Lottimore was present at the time of the arrival of the dummy package on 1 June 2011. He met Carroll and when the police appeared tried to make his escape.
The jury was invited to infer that ‘Afro’ was indeed Lottimore. Like Hatherley, he neither answered questions in interview nor gave evidence. This was, therefore, a case in which the prosecution was simply put to proof of the case against each appellant.
When Mr Mussenden was acting for both Hatherley and Lottimore he helpfully provided a table of consolidated grounds of appeal, showing those that had been abandoned and those that remained to be argued. Some of the grounds overlap and in some instances they cover both appellants.
In order to set some of the grounds in context it is necessary to look at the indictment and see how matters developed. The indictment originally contained two counts. The first charged conspiracy to import a controlled drug. The particulars of offence alleged that Carroll, Lottimore, Hatherley and Marshall:
‘between a date unknown and 2 June 2011 conspired together and with other persons not before the court to import into these islands a controlled drug, namely Diamorphine (Heroin).’
There was a second count against Carroll alone to which he pleaded guilty alleging...
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