Darryl Frett v The Commissioner of Police

• Jurisdiction: British Virgin Islands
• Judge: Ward JA
• Judgment Date: 06 June 2024
• Judgment citation (vLex): [2024] ECSC J0606-3
• Docket Number: BVIMCRAP2022/0002
• Court: Court of Appeal (British Virgin Islands)

Between:

Darryl Frett

Appellant

and

The Commissioner of Police

Respondent

Before:

The Hon. Margaret Price Findlay Justice of Appeal

The Hon. Mr. Trevor M. Ward Justice of Appeal

The Hon. Mr. Eddy D. Ventose Justice of Appeal

BVIMCRAP2022/0002

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Criminal appeal — Appeal against conviction and sentence — Section 42 of the Eastern Caribbean Supreme Court (Virgin Islands) Act — Application to admit fresh evidence on appeal — Trial in the absence of an accused individual — Right of accused to attend trial — Whether the accused received a fair trial — Section 12 of the Firearms Act — Joint enterprise — Possession — Whether the elements of possession were made out against the appellant — Whether the appellant's conviction is unsafe

On 18 ^th August 2016, the police observed the appellant, Mr. Edgar Carasco (“Carasco”) and Mr. Jose Almestica (“Almestica”) sitting in a parked vehicle outside of the Sports Complex at Pasea Estate, on the island of Tortola in the Territory of the Virgin Islands. Carasco was the driver of the vehicle and the appellant was seated in the front passenger seat while Almestica was seated in the rear seat. The police searched each person but nothing illegal was found on them. Thereafter, Police Constable Terry Humphrey (“PC Humphrey”) commenced a search of the vehicle. While nothing illegal was found in the front seat of the vehicle, PC Humphrey discovered a firearm and ammunition in a black backpack that also contained Almestica's identification documents. Upon making this discovery, PC Humphrey shouted ‘Gun’ whereupon Almestica took off running. He was pursued and apprehended a short distance away. Cash totalling the sum of US$49,000.00 was also found in the rear pouch of the front passenger seat.

The appellant was jointly charged with Carasco and Almestica for the offences of possession of the proceeds of criminal conduct contrary to section 29(11)(a) of the Proceeds of Criminal Conduct Act, keeping a firearm without a licence, contrary to section 11(2)(a) of the Firearms Act, and possession of explosives, contrary to sections 6 and 26 of the Explosives Ordinance. However, a no case submission was successfully made in relation to the proceeds of crime and possession of ammunition charges. The appellant, who did not give evidence at trial as he was absent from the jurisdiction for the greater part of it, was convicted for the offences of keeping a firearm without license and sentenced to 73 months imprisonment.

Dissatisfied with the decision of the learned senior magistrate, the appellant appealed against his conviction and sentence. The appellant then sought leave to amend his grounds of appeal to add the ground that a portion of the trial was improperly conducted in his absence. The appellant also filed an application to adduce additional evidence.

Held: dismissing ground 7 of the appellant's appeal, allowing grounds 3, 4 and 5 and quashing the appellant's conviction and sentence, that:

• 1. Pursuant to section 42 of Eastern Caribbean Supreme Court (Virgin Islands) Act, the Court of Appeal may receive fresh evidence on an appeal if the evidence is credible and there is a reasonable explanation for the failure to adduce it at trial. However, the Court has a discretionary power to receive fresh evidence when the Court thinks it necessary or expedient to do so in the interest of justice. Where the evidence to be adduced is not credible, that is the end of the matter. However, where the evidence is both credible and fresh it should be admitted unless the court is satisfied that it would not affect the safety of the conviction. Where the evidence is credible but not fresh, the court must make an assessment of its strength and the possible impact on the safety of the conviction. In this case, while the evidence of Detective Constable Ron Augustin is credible and would have been admissible at trial, the evidence cannot be considered as fresh. Evidence is fresh if it is evidence which could not have been obtained for the trial with reasonable diligence. The transcripts show that it was well-known to all parties, including the senior magistrate, that the appellant was incarcerated in St. Martin and that that was the reason for his absence from the trial. Furthermore, this information does not possess any strength such that would impact the safety of the appellant's conviction. The application to adduce fresh evidence is therefore dismissed.

  Section 42 of the Eastern Caribbean Supreme Court (Virgin Islands) Act, Cap 80, Revised Laws of the Virgin Islands, 2013 applied; R v Benedetto [2003] 1 WLR 1545 applied; Lundy v The Queen [2013] UKPC 28 applied.

• 2. An accused person has the right to be present at his trial, which is a component of the right to a fair trial. However, a judicial officer has a discretion whether to commence or continue a trial in the absence of the accused. In exercising this discretion, fairness to the defendant is of prime importance but fairness to the prosecution must also be taken into account. The judge must have regard to all the circumstances of the case including the nature and the circumstances of the defendant's behaviour in absenting himself from the trial or disrupting it as the case may be and, in particular, whether his behaviour was deliberate, voluntary and such as plainly waived his right to appear. The critical question on appeals of this nature is whether the appellant received a fair trial. In this case, the appellant was represented by counsel from the outset. At some stage during the course of the trial the High Court granted him bail to travel to Puerto Rico for medical attention but on the resumption of the trial, it was discovered that the appellant was incarcerated in St. Martin. There was no evidence put before the magistrate explaining the circumstances under which the appellant came to be incarcerated in St. Martin despite her requests for, and the opportunities given to provide, same. Further, the magistrate enquired but was given no definitive answer from counsel as to when the appellant was likely to return to the jurisdiction. The appellant was in contact with and giving instructions to his counsel who continued to represent him, even in his absence. There was also full and effective cross-examination of the prosecution's witnesses by his counsel. In all the circumstances, although it could be said that the learned magistrate failed to demonstrate in her reasons that she had considered all the relevant matters before deciding to proceed in the absence of the appellant, there are compelling reasons for finding that the appellant waived his right to be present at the trial and in examining the trial proceedings as a whole, the appellant undoubtedly received a fair trial.

  Section 16 of the Virgin Islands Constitution Order 2007 applied; R v Hayward [2001] 3 WLR 125 applied; R v Jones (Anthony Williams) [2002] UKHL 5 applied; R v Lopez [2013] EWCA Crim 1744 considered; Czekala v District Court in Bydgoszcz (2010) [2010] EWHC 1895 (Admin) distinguished; Dula v Director of Public Prosecutions of Zwolle Lelystad Holland [2010] EWHC 469 (Admin) considered.

• 3. Where there is an allegation that two or more persons are in joint possession of an article, the prosecution must prove to the criminal standard that each person had knowledge of the presence of the article and that each had the intention to assist or encourage its possession or control by one or more of them. The prosecution must adduce evidence from which such knowledge and intention can be reasonably inferred. In this case, section 12 of the Firearm Act does not apply to the appellant as there was no evidence that he was the owner or person in charge of the vehicle. Moreover, there was no evidence to support an inference that the appellant had knowledge that the firearm was in Almestica's bag nor behaviour from him from which guilty knowledge could be inferred. The prosecution did not lead evidence from which the inference could be drawn that the appellant assisted or encouraged Almestica in the possession of the firearm. The appellant's mere presence in the vehicle as a passenger cannot without more lead to a conclusion that he is part of a joint enterprise and in possession of any illegal item found in the vehicle.

  Section 19 of the Criminal Code Act No. 1 of 1997 of the Laws of the Virgin Islands considered; DPP v Brooks (1974) 21 WIR 411 applied; Malcolm Maduro v The Queen Territory of the Virgin Islands HCRAP2007/004 (delivered 19th December 2008, unreported); Tenielle Percival et al v The Chief of Police SKBMCRAP2017/0004 (delivered 10th November 2022, unreported) applied; Levar Brown v The Chief of Police SKBMCRAP2021/0003 (delivered 9th July 2023, unreported); Dial Maharaj & Anor v The State Cr. App. No.30 & 31/2007 applied; Latchmi Bharath v Ferney Bohoroquez Cr. App No. 49 & 50/2008 applied.

Appearances:

Mr. Terrence Williams and Ms. Karlene Thomas-Lucien for the appellant

Ms. Khadija Beddeau for the respondent

Ward JA

1 The appellant was convicted along with Mr. Edgar Carasco (“Carasco”) and Mr. Jose Almestica (“Almestica”) of the offence of keeping a firearm without license. He was sentenced to 73 months imprisonment.

Background facts

2 The facts of this case are straightforward. On 18 ^th August 2016, the police observed three persons sitting in a parked vehicle outside of the Sports Complex at Pasea Estate, on the island of Tortola in the Territory of the Virgin Islands. Carasco was the driver of the vehicle. The appellant was seated in the front passenger seat while Almestica was seated in the rear seat. The police approached the vehicle and indicated to the occupants their intention to search the vehicle. They smelled cannabis. They ordered the men to exit the vehicle and they complied. The police searched each person but nothing illegal was found on...