Sidney Gibbons and Ronald Beach v R

• Jurisdiction: Bermuda
• Judgment Date: 19 June 2009
• Date: 19 June 2009
• Docket Number: Criminal Appeal 2007 Nos. 23 & 24
• Court: Court of Appeal (Bermuda)

In The Court of Appeal for Bermuda

Before: Zacca, P; Ward, JA; Auld, JA

Criminal Appeal 2007 Nos. 23 & 24

BETWEEN:

SIDNEY O'NEIL GIBBONS AND RONALD O'NEAL BEACH

Appellants

and

THE QUEEN

Respondent

Mr J Perry, QC and Mr C Attridge for the Appellant Gibbons

Mr L Peniston for the Appellant Beach

Mr R Welling for the Respondent

The following cases were referred to in the judgment:

Fox v RBDLR [2009] Bda LR 36

R v ClintonUNK (1993) 97 Cr App R 320

R v ThakrarUNK [2001] EWCA Crim 1096

Boodram v The State of Trinidad and TobagoUNK [2001] UKPC 20

R v Day [2003] EWCA 1060

R v SearleUNK [1971 Crim LR 592

GrantUNK [1996] 1 Cr App R 73

Possession of cocaine and diamorphine with intent to supply - 28.7 grams of cocaine and 12.87 grams of diamorphine - Joint enterprise - Whether denied practical and effective representation - Directions to jury - Appeal against conviction and sentence

JUDGMENT of WARD, JA

1. On Wednesday, 30th May 2007, a telephonic reservation was made at Aunt Nea's Inn in St. George's Parish in the name of Sidney Gibbons. On the same date two men arrived at the Inn, referred to the reservation and paid $733 of which half was paid by the appellant, Gibbons for the room with bath en suite for the period of three days. The two men were the defendants, Gibbons and Green. They were later joined by a third man, namely, the appellant Beach.

2. On the first of June, 2007 they were present in the hotel suite when the police raided at 7 AM. Gibbons and Beach were in the room section of the suite and Green was in the bath. The three defendants were charged in Count 1 of the indictment dated the 23 July 2007 that they on the first of June 2007 had in their possession a controlled drug, namely, cocaine which was intended for supply. The weight of the cocaine was 28.7 grams with a street value of $9,000.

3. In Count 2 they were charged that on the first of June 2007 they were in possession of the controlled drug, namely, diamorphine, which was intended for supply. The weight of the drug was 12.87 grams with a street value of $9,000.

4. In Count 3 they were charged that on the first of June 2007 they had possession of a controlled drug, namely, cocaine which was to be found in two home-made cigarettes discovered in the bathroom. The amount of the cocaine was 0.1 grams.

5. Finally in Count 4, Beach alone was charged that he had in his possession a controlled drug, namely, diamorphine which was intended for supply. The drug was found during a search at the police station in the tongue of his left sneaker in the form of ten twists weighing 1.76 grams with a street value of $1,500.

6. The case as presented by the prosecution, and as accepted by the jury, was that they were engaged in a joint enterprise to supply controlled drugs to others. All three defendants were convicted; two of them, namely, Beach and Gibbons have appealed.

7. When the police entered the Loquats Room of the Aunt Nea's Inn where the two appellants were, they found a number of items on the floor and on the bed. Green at that time was in the bathroom. The items included small pieces of brown paper, plastic bags, some of which had the corners cut off, paper which can be used in the making of homemade cigarettes, "Cut Right" wax paper, plastic sandwich wraps, two wooden sticks like coffee stirring sticks with traces of cocaine, two pieces of brown paper with traces of white powder and one with traces of plant material, a pair of scissors with traces of powder, a piece of strawitems which led the police to believe that the room was being used for a cutting and bagging drugs' operation.

8. In the bathroom on top of the toilet tank were two homemade cigarettes, one of which was partially burnt, a decorated bowl with a jewellery box inside and a large pink "Skittles" bag. Green was naked in the bathroom when the police arrived. He tried unsuccessfully to escape through the bathroom window. There was a scuffle in the bathroom between himself and a police officer. After he had dressed himself he was taken back into the bathroom where he moved to the point where the "Skittles" bag was. Later when he was in the main area of the Loquats Room, there dropped from his person behind him a bag containing $4,270 in cash and the pink "Skittles" bag which had been seen in the bathroom and which was subsequently found to contain the cocaine and diamorphine referred to in Counts 1 and 2 respectively.

9. The First Ground of the Perfected Grounds of Appeal for the appellant Gibbons is that he suffered unjustified prejudice such that it rendered his trial unfair in that he was represented by the same counsel who represented the co-defendant Beach. Further, the appellant was denied practical and effective representation. Beach later presented a similar ground of appeal.

10. The appellants, Gibbons and Beach, were represented at the trial by the same counsel, Mr. Woolridge, by their own deliberate choice. At pages three to five of the transcript, the learned trial judge raised the question of representation of the two accused by the same counsel having regard to the statements made to the police by the...