[1] Kashif Mustaphakhan [2] Derek Parke Appellants v The Queen Respondent [ECSC]
| Jurisdiction | Grenada |
| Judge | MATTHEW J.A. [AG.],Justice of Appeal [Ag.],Chief Justice [Ag.],Albert N.J. Matthew,Brian Alleyne, SC,Hugh A. Rawlins,Justice of Appeal |
| Judgment Date | 29 January 2007 |
| Judgment citation (vLex) | [2007] ECSC J0129-3 |
| Docket Number | CRIMINAL APPEAL NOS.19 AND 20 OF 2003 |
| Court | Court of Appeal (Grenada) |
| Date | 29 January 2007 |
IN THE COURT OF APPEAL
The Hon. Mr. Brian Alleyne, SC Chief Justice [Ag.]
The Hon. Mr. Hugh A. Rawlins Justice of Appeal
The Hon. Mr. Albert N.J. Matthew Justice of Appeal [Ag.]
CRIMINAL APPEAL NOS.19 AND 20 OF 2003
Mr. Cajeton Hood for the Appellants
Mr. Christopher Nelson, Director of Public Prosecutions, with him Mr. Darshan Ramdhanni for the Crown
The appellants and three others were jointly charged in three counts of an indictment presented by the learned Director of Public Prosecutions. The counts were:
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(a) Possession of a controlled drug, to wit, cocaine contrary to Section 6(2) of the Drug Abuse (Prevention and Control) Act Cap 3 of the 1994 Edition of the Continuous Revised Laws of Grenada.
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(b) Trafficking in a controlled drug, to wit, cocaine contrary to Section 18(2)(a) and 18 (4) of the above mentioned Act.
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(c) Conspiracy to export a controlled drug, to wit, cocaine contrary to Section 38(1) of the said Act.
The indictment stated that the offences in the first and second counts were committed on November 7, 2002; and the offence in the third count was committed between October 24 and November 7, 2002. The Prosecution led evidence at the trial through three police witnesses. The appellants and the three others were tried before Benjamin J and a jury and were all sentenced to varying terms of imprisonment.
The Prosecution's case was based on alleged events between Tuesday November 5, 2002 and Thursday November 7, 2002 as recounted through the eye-witness accounts of Woman Detective Corporal Portia Nicholas, Sgt. Simon Dixon and Det. Sgt. Kenny Smart, all members of the Drug Squad of the Royal Grenada Police Force. Reliance was also placed upon written question and answer interviews recorded from the appellants.
In brief, the Crown's case was that the two female accused came to Grenada from the United Kingdom and developed intimate relationships with the appellants. The appellants spent late evenings in the hotel room of the two female accused. On November 6, 2002 a black suitcase was handed over by one or both of the female accused at their hotel, the Blue Horizon, and taken by the appellants to a garage at Queens Park owned by the Second appellant.
Later that day, the No. 3 accused, John Cecil Francis who incidentally pleaded guilty and who was employed at the airport, came to the garage and the appellants handed over to him a black suitcase which was placed in the trunk of his vehicle after which he left for his residence. The events thus far took place on November 6, 2002.
Sgt. Smart testified that he took up a position at the hotel from the morning of Tuesday November 5, 2002 acting upon information. On that day he observed the female accused leave Room 8 in beach attire and return during the morning hours. That night the appellants entered Room 8 where they remained until the early hours of Wednesday, November 6, 2002.
Sgt. Smart said that during the morning hours of November 6, 2002, the female accused were again seen leaving their room in beach attire. Later they came back in a car with the appellants. They all went into the room. Soon after, the Second appellant came out of the room and went to the car where he was seen speaking on a mobile phone. After that he went back to the room 8.
Early that afternoon, the appellants were observed leaving the room with the First appellant carrying a black suitcase with wheels which he placed in the trunk of the car, P 627. Both appellants got into the car and the Second appellant drove to his garage at Queen's Park. Sgt. Smart said he followed at a discrete distance and took up a surveillance position opposite the garage. He spoke of seeing the appellants greeting John Cecil Francis outside the garage before all three of them went inside. They all emerged five minutes later with the Second appellant carrying a black suitcase which he placed in the trunk of the car driven by John Cecil Francis.
The appellants also left in the other car P 627. Sgt. Smart said he elected to follow John Cecil Francis' car to Independence Avenue, St. Georges. He continued the surveillance there until 7:30 a.m. on Thursday November 7, 2002 when he saw John Cecil Francis come out of his house, get into his car and drive off. Sgt. Smart narrated that he followed the car up to the Maurice Bishop Highway, at which point he called Cpl. Nicholas who was stationed at the airport and spoke to her.
The Prosecution's narrative of events was taken up by Cpl. Nicholas who recounted how she accosted John Cecil Francis at the ASG Cargo Building with a black suitcase taken from the trunk of his car. When opened the suitcase contained female clothing and female shoes of different sizes. Cpl. Smart arrived and assisted in removing a piece of plywood from the suitcase. Below the plyboard, packages were found. The contents were later tested, analyzed and certified to be cocaine; certificates to this effect were tendered without challenge.
Cpl. Nicholas said she observed attached to the suitcase a tag marked PREMIUM with the name "A. Shepherd" and "Flight No. 306" written on it. One of the female associates of the appellants who had been charged and convicted along with them goes by the name Annette Shepherd.
The two officers took the suitcase and John Cecil Francis to CID in St. Georges. Cpl. Nicholas then left with another officer for the Blue Horizon Hotel. She spoke to the receptionist then proceeded to Room 8 where she met the two female accused and executed a search warrant. She observed two suitcases, one of which had a "Premium" tag on the handle and on the inside there was a "Golden Caribbean" tag with the name "A. Shepherd" and "Flight No. 306". The search also turned up airline tickets in the names of the female accused reflecting Monarch Flights 307 and 306 for arriving at and departing from Grenada.
The female accused were detained and taken to the front desk to check out. The No. 4 accused, Annette Shepherd, told the clerk that her boyfriend, Leslie, would be paying the bill for them. The female accused were kept at South St. George Police Station.
Sgt. Dixon was on duty at the Blue Horizon Hotel in the lobby at about 11:00 a.m. on the morning of November 7, 2002. He said he observed the Second appellant drive onto the hotel premises. Both appellants were in the car P 627. The car was driven to the apartment No. 8, where the First appellant came out and knocked on the door. No one opened the door.
The First appellant then walked to the lobby leaving the Second appellant at the apartment. The First appellant inquired of the occupants of Room 8 from the receptionist. She made inquiries and asked him if he had come to pay the bill. He acknowledged this and handed her a cheque signed by the Second appellant. Upon him receiving documents from the receptionist, Sgt. Dixon intervened and detained the First appellant. Sergeant Dixon later detained the Second appellant.
The First appellant was interviewed by Sgt. Smart during the evening of November 7, 2002. He admitted knowing both the nos. 4 and 5 accused, Annette Shepherd and Sharon Burrows and visiting them at their hotel. He accepted that he paid for their accommodation with a cheque written by the Second appellant and said he did not expect to be repaid. He however denied being at Queen's Park on the previous evening as testified to by Sgt. Smart. He described Annette Shepherd as his "woman" with whom he had slept over at the hotel.
The First appellant denied that he, along with the Second appellant took a suitcase from the hotel room occupied by Annette Shepherd and Sharon Burrows and handed it over to John Cecil Francis at Queen's Park.
During a search of the First appellant's premises at St. Paul's, a piece of paper bearing the name "Annette Shepherd" was found on his bill stock. He accepted this but could not recall when she gave it to him.
The Second appellant was interviewed on November 8, 2002. He admitted visiting a lady friend at the Blue Horizon Hotel along with the First appellant on Wednesday 6 th and Thursday 7 th November 2002. However, he denied being there at 1:42 p.m. on the Wednesday as was testified to by Sgt. Smart. He did admit paying the Hotel bill for Annette Shepherd and Sharon Burrows with his cheque as John Cecil Francis told him they had run short of money. The Second appellant denied any knowledge of the suitcase.
John Cecil Francis pleaded guilty and is presently serving his 4-year term of imprisonment. Annette Shepherd and Sharon Burrows were each sentenced to a 2-year term of imprisonment. They have served their sentences and are back home in England. The First appellant was sentenced to 7-year terms of imprisonment and the Second appellant to 5-year terms of imprisonment. The First and Second appellants have appealed their convictions and sentences. The appeals were heard together.
Learned Counsel for both appellants submitted eight grounds of appeal as follows:
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1. The learned Judge erred in finding that there was a case to answer by the appellants.
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2. The learned Judge erred in failing to give proper directions on the law regarding joint possession.
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3. The learned Judge erred in failing to give any proper direction on the law regarding circumstantial evidence.
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4. The learned Judge erred in failing to give any direction on the question of identification of the black suitcase.
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5. The learned Judge erred in failing to order disclosure of the identity of the alleged informant.
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6. The learned Judge erred in failing to give any proper direction on the good character of the Second appellant.
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7. The sentences handed down were disparate and there should only be one...
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