R v Mallory 2000 Criminal Jur. No. 7

• Jurisdiction: Bermuda
• Judgment Date: 19 July 2000
• Docket Number: Criminal Jurisdiction No. 7 of 2000
• Date: 19 July 2000
• Court: Supreme Court (Bermuda)

In the Supreme Court of Bermuda

Simmons, AJ

Criminal Jurisdiction No. 7 of 2000

The Crown

and

Jaha Akili Mallory

R v Tucker 1999 Crimnal Appeal No. 24

R v Shivpuri [1986] 2 All ER

R v HussainUNK (1969) 53 Cr App R 448

R v HenesseyUNK (1978) 68 Cr App R 419

R v TaaffeUNK [1984] 1 All ER 747

Misuse of Drugs Act 1972, s. 29

Importation of cannabis resin and cocaine — Possession of cannabis resin and cocaine with intent to supply — Direction to jury — Defence of lack of knowledge — Defendant admitted knowledge of cannabis resin but denied knowledge of cocaine

RULING

The defendant has been indicted on one count of importing cannabis resin, one count of possession with intent to supply cannabis resin, one count of importing cocaine and one count of possession with intent to supply cocaine.

At the commencement of the trial the defendant pleaded guilty to the two charges relating to the cannabis resin. The trial proceed on the remaining two counts relating to cocaine. The Crown's case was short consisting of 3 witnesses and the reading into evidence of the analyst certificate. The defendant gave evidence in his own behalf. In his evidence the defendant asserted that he is not guilty of the charges relating to cocaine, as he was not aware that cocaine was in his bags. At the conclusion of the defence case, counsel for the Crown and for the defendant made an application based on legal argument for a ruling on the applicable direction to the jury on the law.

THE LAW

The defence of lack of knowledge is contained in section 29 of the Misuse of Drugs Act 1972 (the Act). Section 29 is expressly stated by section 4(3) to apply to section 4(1) (importation), and it is stated by section 5(3) to apply to section 5 (1) (possession with intent to supply) of the Act. The defendant is charged under those sections.

Section 29 (2) reads as follows:

‘Subject to subsection (3), in any proceedings for an offence for which this section applies it shall be a defence for the accused to prove that he neither knew of nor suspected nor had reason to suspect the existence of some fact alleged by the prosecution which it is necessary for the prosecution to prove if he is to be convicted of the offence charged.’

Subsection (3) reads as follows:

‘Where in any proceedings for an offence to which this section applies it is necessary, if the accused is to be convicted of the offence charged, for the prosecution to prove that some substance or product involved in the alleged offence was the controlled drug which the prosecution alleges it to have been, and it is proved that the substance or product in question was that controlled drug, the accused—

• (a) shall not be acquitted of the offence charged by reason only of proving that he neither knew nor suspected nor had reason to suspect that the substance or product in question was the particular controlled drug alleged: but

• (b) shall be acquitted thereof—

  • (i) if he proves that he neither believed nor suspected nor had reason to suspect that the substance or product in question was a controlled drug;

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