Jemmott v. Commissioner of Police [2002] UKPC 51

Judicial Committee of the Privy Council
Case No Privy Council Appeal No. 18 of 2001
Between
JemmottAppellantCommissioner of PoliceRespondent
Before
Lord Bingham of CornhillLord SteynLord Rodger of EarlsdLord Hobhouse of WoodboroughDate 14 October 2002
[1]:- Lord Bingham of Cornhill Lord Steyn, Hoffmann Lord Rodger of Earlsd Lord Hobhouse of Woodborough [Delivered by Lord Steyn, Hoffmann ] At the end of the hearing on 22 July 2002 the Board announced that it would humbly advise Her Majesty, for reasons to be given later, that the appeal should be dismissed. Their Lordships now give their reasons.[2]In June, July and August 1999 in the Magistrates Court for the Southern District of Grenada the appellant stood trial on the following charge:
"On Wednesday the 16th June 1999 at Point Saline International Airport in the Parish of St George, within the Southern Magisterial District, did do an act preparatory to or for the purpose of trafficking in a substance he believed to be a controlled drug, to wit cocaine. Contrary to section 18(2) (c) and 18 (4) of the Drug Abuse (Prevention and Control) Act Chapter 3 of Volume 1 of the 1994 Revised Laws of Grenada."
[3]On 16 June 1999 the appellant (a man aged 36 years) arrived at Point Saline International Airport on a flight from Barbados. He was stopped by Corporal Kenny Smart and searched. He had a number of packages taped to his body. The packages were later found to contain about US$65,000 in currency. The appellant was cautioned. When asked why he had so much money, the appellant replied that he had come to do some shopping. Smart said that he did not believe him. Smart noticed that the contents of the appellant's bag included a bible. According to Smart the following exchange took place:
"I said 'Are you a Christian?' He said 'Yes'. I said 'I am a Christian too a Seventh Day Adventist Christian.' I said 'You know the bible says speak the truth and the truth shall set you free'. He then said 'You seem to me to be a man that I could trust. I will tell you the truth. Anthony Williams of Barbados gave me $65,000 US to take to some Venezuelans at the No Problem Hotel to collect some drugs'. . . I then asked him how much did Anthony pay him to do that job, and he said $2100 US. I said 'Now why did you take that offer knowing that drugs is not a good thing to be involved in'. He said 'Officer I am owing $2000 to the phone company back home for my telephone and I have three children and the mother is not working."
[4]On the next day at about 13.20 hours, again according to Smart, the appellant was reminded of the caution and a further written statement was recorded. In the statements the appellant stated that Anthony Williams had given him the money in Barbados, and on Williams' instructions he had brought it to Grenada, where he was to give it to some Venezuelans. He said that he knew the purpose of the money was to buy drugs, and had assisted the persons concerned on three previous occasions in Barbados. In the second written statement he said that he knew that the Venezuelans were dealing with cocaine. He was asked "what was going to happen with the drug if it was being collected here in Grenada?" He replied "Well I believe the drugs would be transported to Canada for Anthony Williams; his base (is) in Canada not in Barbados". He also said "I suspect it (ie the drug) would come from Venezuela". At 15.00 the appellant was arrested.[5]On a voir dire the Magistrate heard evidence from prosecution witnesses and oral argument from both sides. The appellant did not testify on the voir dire. On 23 July 1999 the Magistrate ruled that there was no inducement and that the oral and written statements were voluntarily made.[6]The rating powers of local authorities are very wide. At the relevant time they were set out in Part II of RPA 1988. Territorial authorities had power under section 19 to make and levy uniform annual general charges on every separately rateable property in the district or a subdivision of the district. The expression “separately rateable property” was defined as “a property entered as a separate property in the district valuation roll which is rateable property in terms of this Act:” RPA 1988, section 2. Uniform annual general charges are to be contrasted with general and special rates, which were levied either as a uniform rate in the dollar on every rateable property or on a differential basis under sections 79 to 83 of the Act: RPA, sections 12 and 16. They are also to be contrasted with separate uniform annual charges for the ordinary supply of water and refuse collection and disposal, which attached to “each separately used or inhabited portion of the property or building”: RPA 1988, section 24(1). Those charges could be levied on each separately used or inhabited portion of the property, irrespective of whether the person against whom they were levied was the occupier of that portion as defined by the Act. The problem which has been identified in this case relates only to the system for levying uniform annual general charges.[7]The trial then continued. The prosecution evidence consisted of the money taped round the appellant's body and his oral and written statements. The appellant made an unsworn statement from the dock. He disputed much of the prosecution case. He said that he had told "an immigration lady" that; "I had $64,000 conceal on my belly and my back and around my foot. She asked me why do you do that. I said to her, when you go to Trinidad and those kind of country with that kind of money the Government can seize it from you, and that's why I had it strapped to my body".[8]After hearing argument the Magistrate convicted the appellant. On the alleged inducement her reasoning was as follows:
"Does the quote 'The bible say speak the truth and the truth shall set you free' amount to an inducement by Smart? Only the defendant would know what the truth was. Smart would not know and whatever that truth was, if he spoke it, it would purge his conscience. This is the natural meaning of this quote. Smart did not say 'Speak the truth and I will set you free'. I find that this did not amount to an inducement by Smart." [Emphasis added]
"Under section 18(2)(c) of the DAPAC Act it is an offence to do or offer to do an Act preparatory to or for the purpose of trafficking in a controlled drug or in a substance he believed to be a controlled drug. . . . I find that taking $64,719 US from Barbados to Grenada to two Venezuelans to be used to buy drugs which would be transported to Canada for Anthony Williams is doing an act preparatory to or for the purpose of trafficking in a controlled drug or in a substance the defendant believed to be a controlled drug. I find the defendant guilty as charged."[9]The Court of Appeal dismissed an appeal. Dealing with the argument based on the policeman's statement that "the bible says speak the truth and the truth shall set you free", the Court of Appeal concluded that in the context of the case "the evangelical exchange . . . was [not] in the form of an inducement. We also did not find that the evidence supported a view of advantage."[10]On appeal to the Privy Council counsel for the appellant accepted that, if the Magistrate rightly admitted the statements, there was sufficient evidence to support the conviction. However, in a carefully presented argument he submitted that the Magistrate should have excluded the statements as having been procured by an inducement. He said the words of the policeman that "the bible says speak the truth and the truth shall set you free" must have been understood as conveying "speak the truth and we (the police) shall set you free". Their Lordships cannot accept this gloss placed on the words actually spoken. The context does not justify it. It is also clear that the appellant did not understand the words in the suggested way because on 17 June 1999 he was asking what the likely penalty for a guilty plea would be. In any event, his failure to testify at the voir dire or during the trial as to how he understood the phrase does not help his case. And even in his statement from the dock he did not suggest that an inducement had been held out to him. Furthermore, the Magistrate found as a matter of fact that the statement did not convey that the policeman was saying that "I will set you free". In the circumstances the principal submission on behalf of the appellant must be rejected.[11]Counsel for the appellant also submitted that the statements were procured by breaches of the Judges Rules. The alleged breaches were not of a particularly grave nature. None of these points were raised before the Magistrate or argued in the Court of Appeal. In the circumstances of the present case they cannot now be relied on as grounds of appeal.[12]Counsel also sought to rely on discrepancies between the officers' evidence. The points do not merit the weight put on them. In any event, the Magistrate would have had them well in mind.[13]Finally, counsel submitted that the prosecution failed to adduce evidence that the importation, possession or supply of cocaine in Canada is an offence under Canadian law as required by s 18(2)(c) of the Drug Abuse (Prevention and Control) Act. He argued that the prosecution failed to prove an essential element of the offence. Counsel frankly acknowledged that this is an argument of great technicality. Their Lordships also consider that it is without merit. It is public knowledge that Canada has ratified all three United Nations Conventions dealing with drug trafficking, namely(1) the Single Convention on Narcotic Drugs 1961;(2) the Convention On Psychotropic Substances 1971; and(3) the comprehensive UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988. Canada ratified the last Convention in 1999. It was always overwhelmingly probable that the importation of hard drugs such as cocaine into Canada was at all material times prohibited. The relevant Canadian legislation prohibiting the importation of cocaine into Canada has now been placed before the Board. There is obviously no miscarriage of justice which must be put right. Moreover, there was no hint of this defence at trial or even before the Court of Appeal. If it had been raised at trial, the alleged technical gap in the prosecution case could have been cured by an adjournment and a certificate covering the point. If such a point is to be raised, it ought to be put forward at trial. If it is not raised at trial, it will generally be too late to advance it on appeal, particularly in a case such as the present in which the trial was conducted on the common assumption of fact recorded by the Court of Appeal "that the $64,719.00 was to be used in an illegal drug transaction".[14]For these reasons their Lordships concluded that there was no merit in any of the grounds of appeal.