The Queen v. Thomas Dacre Carnelley and Another

CACC000137/1983

BETWEEN

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Coram : Sir Alan Huggins, V.-P., McMullin, V.-P. & Yang, J.A.

Date of Judgment: 7th July 1983

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JUDGMENT

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Sir Alan Huggins, V.-P. :

1. Three defendants were charged before the District Court on three charges, all related to possession of dangerous drugs or instruments for the smoking of dangerous drugs. The first charge was against the 1st and the 2nd Defendants only. The second and third charges were against the 3rd Defendant only. The third charge was amended on the first hearing before a District Judge. On that date, , which was 18th October 1982, pleas were taken and all the three Defendants pleaded not guilty.

2. On the date fixed for the trial, 4th January 1983, counsel for 1st and 2nd Defendants asked for a separate trial for his clients on the first charge. This was not opposed by the Crown or by counsel for the 3rd Defendant. The reason for the application appears to have been that the charges related to different defendants and that the only connection between the charges was, to use counsel's word, geographical and he suggested that the two trials would be shorter than a joint trial. In the event we think that this separation of the defendants was unfortunate, because, although the Defendants were going to run inconsistent defences in which they blamed each other, the facts were so bound up together that a joint trial would have been more satisfactory. It would have also - we speak here with hindsight - avoided some of the difficulties which have been raised on the appeal.   All three Defendants were convicted of the charges against them. 1st Defendant and 3rd Defendant have appealed.  The trials having been separate, there were of course separate appeals When the appeal of 3rd Defendant came before another division of this court, the court came to the conclusion that the appeals should be heard together and they came before us in that form. In spite of that order for a joint trial, counsel for 3rd Defendant asked to have his appeal heard separately subject to one point. We need not go into the reasons why he did so ask. We agreed that we would hear him first, that we would then hear Mr. Clayton in his appeal on behalf of 1st Defendant on one point which was relevant to both appeals and that we would then give judgment in respect of the 3rd Defendant.

3. The ground which is relevant to both is, as regards 1st Defendant, his ninth ground of appeal and, in respect of 3rd Defendant, it is the third ground of appeal. The point arises because of the successive trials. What 3rd Defendant alleges is that evidence in the trial against 1st Defendant was used in considering whether he was guilty and the same point is taken by 1st Defendant, although it does not have quite the same effect in his case. What happened was that, at the end of the evidence of the first trial against 3rd Defendant, the learned judge remanded 3rd Defendant for 14 days on bail and said:

"I intend to give my findings on the case of Ferreira at the conclusion of both cases".

4. It is pointed out that the evidence against 3rd Defendant had been short and there was very little reason why the judge should find it necessary to reserve his decision. He did not in so many words reserve his "decision": he said, as I have already quoted, that he was going to give his "findings", that is his decisions on matters of fact, after the conclusion of the other case. Now whether. the learned judge was in fact suggesting that he wanted to hear all the evidence and to consider all the evidence together before making his findings or whether he used an unfortunate way of saying "I reserve my decision", the fart remains that the Appellants will undoubtedly be left with the feeling that the evidence was going to be considered in the lump. It may be . that, as we have said, a joint trial would have been proper and in that case all the evidence would have been considered together, but, separate trials having been ordered, it was clearly wrong that evidence in one trial should be considered in relation to another.

5. Mr. Clayton has argued that there is indication that the judge did in fact use evidence in the first trial in relation to the second trial. He has referred to the finding relating to the discovery of an ash tray with one or more cigarette ends in it and he has referred to the finding of a packet of cannabis on or under a shelf.  As to the first of these points, we think that the point was of such small significance that the judge, in the first place, may not have realised that there was a conflict between two parts of the agreed facts and if he did, he may have considered that it was such a minor point that he could readily resolve the point on the documentary evidence. We are not persuaded that there is any likelihood that he looked at the previous evidence to resolve this difficulty.

6. The second point is a little more difficult, because it was agreed by counsel orally, and recorded by the judge, that the packet of drugs in question was found "on" a shelf The documentary evidence included a sketch plan (and an explanation of it) and photographs. . Now the sketch plan and the photographs were clearly in conflict. The photographs show quite clearly when they are examined closely, that the drugs were found under the shelf. This raises the difficulty that we do not know whether the judge again appreciated that there-was a conflict at all. If he did, he might well have concluded that the drugs were under the shelf because the photographs showed that, but in fact he says in his judgment that they were on the shelf. We think it is not necessary to say that the judge looked at the evidence in the first trial in order to resolve this conflict. The chances are, we think, that he did not appreciate the importance of the photograph. The photograph was not re referred to expressly either in the course of such evidence as was called or in the addresses of counsel and he may well have overlooked the significance of the photograph completely. He had been told by counsel that they agreed the drugs were on the shelf. We, therefore, do not think that there is sufficient indication that the judge was in fact in error but for the reason which we have indicated  that the Appellants may well be left with the uneasy feeling that the evidence may have been looked at - and remembering the desirability that justice should be seen to be done as well as to be done, we think that the appeals' must be allowed on this ground. We say, however, without hesitation that if this be the only ground upon which the appeals are allowed, this is a proper case for a re-trial.

7. Having said that, we must now, leave the 1st Defendant's appeal because there are other grounds of appeal to be discussed and Mr. Clayton will no doubt wish to address us on them. However, we have heard the grounds of 3rd Defendant and we must now attempt to deal. with them.

8. To clear the way we must mention that ground 6 was abandoned.

9. Ground 1 and 7 alleged that both charges against 3rd Defendant were defective because each related to possession of property which was divisible and because the defences raised were different in relation to the divided parts. Reliance was placed upon Reg. v Jones (1974) Cr. App. R 120 In that case there was a charge of affray and it became apparent in the course of the trial that there had been more than one affray. accordingly there was duplicity and the court held that the judge should have directed an amendment or have called upon the prosecution to elect which affray it would rely upon. That case is distinguishable, for here it is conceded that the charges were not bad for duplicity. In our view no adverse criticism can properly be levelled against the charges themselves.

10. We, therefore, pass to ground 2, for it is said that, although the charges may not have been defective, it was essential that the defences of 3rd Defendant should be properly understood and properly considered. It was contended that they were not so understood and considered.

11. Now it becomes necessary to state what were the facts of the case. On 8th September 1982 a parcel arrived in Hong Kong from Manila and was opened by Customs Officers. Within the parcel they found six slabs of cannabis, each weighing approximately 200 grammes There were other items and the parcel was addressed to 2nd Defendant. The parcel was re-wrapped and it was eventually delivered to 2nd Defendant, who was seen to take it to 1st Defendant, who in due course took it to his home on Lamma Island. 3rd Defendant is the principal tenant of that home. He sublet in those premises a bedroom and the use of other parts of the premises to 1st and 2nd Defendants. On 18th September the Customs carried out a raid on these premises in the early hours of the morning. 3rd Defendant was not present: he was arrested the same day when he arrived in a yacht at noon. In his bedroom were found 29 packets of cannabis weighing in all 760.4 grammes. In the bedroom of 1st and 2nd Defendants were found two slabs of cannabis, similar to those in the parcel which was passed through the Customs. These two slabs weighed 400 grammes in all. In the sitting room were two pipes, various articles with traces of cannabis (including the cigarette ends which I have already referred to) and a packet of cannabis weighing 17.1 grammes. 1st and 2nd Defendants were in the premises with. one Hr. Nick Lovatt. The 2nd charge related to the 29 packets in 3rd Defendant's bedroom and at the. same time the one packet in the sitting room - 777.5 grammes in all. The presumptions of possession and of possession for the purpose of trafficking arose in respect of each quantity. It is apparent from the judge's Reasons that he thought 3rd Defendant admitted possession of both these lots of drugs. Mr. Huggins has suggested that he was misled into thinking this by the prosecutor, who, in the course of his address, stated the facts in a somewhat confused manner. The judge said in the course of his Reasons:

"The 3rd Defendant went on to say that he was not innocent as he had brought the drugs in question into his premises and was merely looking after them for a man called John Oade whose girl friend Candace Barry had informed the accused that Oade thought he was under surveillance and asked the accused to keep the dangerous drugs for Oade for a couple of days.

12. What 3rd Defendant in truth admitted was possession of the 29 packets in his bedroom - 760 grammes. These, he said, he had received from Oade for safekeeping because Oade was believed to be under surveillance. He denied possession of the 17.1 grammes in the sitting room. The defence in relation to this second lot was clearly not appreciated by the judge This, might not be fatal, because the defence in relation to the 29 packets clearly was appreciated and the judge disbelieved 3rd Defendant's story in relation to them. However,. we have to go on to consider the, other grounds of appeal, because it is contended that the judge did not fairly consider the evidence of 3rd Defendant and disbelieved him for reasons which cannot stand.

13. Ground 3 therefore relates to the credibility of 3rd Defendant. The judge thought, as we have seen, that 3rd Defendant was admitting possession of the small packet of drugs but, more importantly, he also thought that 3rd Defendant was admitting possession of the smaller of the two pipes referred to in the 3rd charge. Now what the 3rd Defendant said was this:

Grammatically it is clear that what the witness said he used from time to time was "cannabis" and not the pipe: he admitted that he had used the pipe on one occasion, but he said it had a nasty taste, and the implication is that because of that he did not use it again. It is true that he went on to say that he usually used cigarettes, and it is contended on behalf of the Crown that that is consistent with his having sometimes also used the pipe, but in our view that is not sufficiently clear and we think that the judge was wrong to say that 3rd Defendant was admitting possession of the smaller pipe. At page 74 of the record the judge was considering the evidence of 3rd Defendant and he said this:

"I do not know nor art I satisfied that the accused received any cannabis from Oade on the night of the 16.9.82".

What is suggested here is that that suggests a somewhat nonchalant attitude on the part of the judge. We also "do not know'': we do not know what the judge meant.  Effectively he is saying that he is not satisfied We think that that is probably sufficient explanation of the words he used So we are left with the position that he has given one bad reason for disbelieving the 3rd Defendant.

14. Now we must pass on to ground 5, by-passing ground 4, which in our view really adds nothing. Ground 5 is material to the credibility of 3rd Defendant. Brown's evidence was not challenged in cross examination. Moreover, the Crown conceded in the address of counsel for the prosecution that he was "a good witness". The judge did not assess the credibility of Brown's evidence or its effect, beyond this -he said that Brown had not seen Oade hand the drugs to 3rd Defendant. That, of course, was true, but the evidence of Brown did tend to support the story of 3rd Defendant as to his having received 760 grammes of cannabis from Oade. That was the story which 3rd Defendant had told in the third of three statements which he made to the police, and he repeated it in his evidence. The judge, as I say, disbelieved 3rd Defendant and said that the third statement was "concocted". If it was concocted, Brown must have been a party to the concoction, and, if the judge found that he was a party to the concoction, he must clearly have disbelieved him and should have said so. The judge did not say that he disbelieved him but rather he appears to have accepted that he was telling the truth. He has not shown that he appreciated the support which Brown's evidence gave to 3rd Defendant's evidence, even bearing in mind the fact that Brown did not see the drugs handed over.

15. The result of all this is, in our view, that the defence of 3rd Defendant was not properly put and the evidence was not properly evaluated. For that reason we think that the appeal will have to be allowed.

16. We must finally deal with the eighth ground of appeal, which relates to the pipes. We have already considered the difficulty which arises from the possible ambiguity in the evidence of 3rd Defendant and we have said that we think the judge was wrong to assume that he was admitting possession of the smaller pipe. Because the judge thought that there was this admission, he did not properly consider whether the pipe was fit and intended for the smoking of dangerous drugs. For those reasons the conviction on the third charge must be quashed in respect of the small pipe. As for the larger pipe, the complaint is again that the judge did not properly consider the issue whether the pipe was fit and intended for the smoking of drugs. The judge certainly does not show clearly that he ever applied his mind to this point at all. He does not even mention the defence evidence that it was an ornamental pipe, stated to be full of holes, which was neither fit nor intended for the smoking of cannabis. Whether the pipe is in fact fairly described as "full of holes", such as would in any way cast doubts upon its suitability for smoking cannabis, is open to grave doubt. However, we are satisfied that the conviction of 3rd Defendant on charge 3 must also be quashed in relation to the larger pipe.

7th July 1983