Maduro v The Queen

• Jurisdiction: British Virgin Islands
• Judge: Rawlins, C.J.
• Judgment Date: 19 December 2008
• Neutral Citation: VG 2008 CA 8
• Docket Number: Criminal Appeal No. 004 of 2008
• Court: Court of Appeal (British Virgin Islands)
• Date: 19 December 2008

Court of Appeal

Rawlins, C.J.; Edwards, J.A. (Ag.); Thomas, J.A. (Ag.)

Criminal Appeal No. 004 of 2008

Maduro

and

The Queen

Appearances:

Dr. J.S. Archibald, QC, with him Mr. Thomas Theobalds, for the appellant.

Mr. Terrence Williams, Director of Public Prosecutions, with him Mr. Myron Walwyn for the respondent.

Criminal Law - Possession of a controlled drug — Appeal against conviction — Whether trial judge erred in leaving the question of joint enterprise to the jury — Whether trial judge erred in directing the jury on possession — Whether Lucas direction was required.

The appellant, Mr. Maduro, was charged with blackmail and possession of a controlled drug, namely cocaine. Cocaine was discovered on 28 October 2006 on an unmanned dinghy which was found floating in the Sir Francis Drake Channel by dive operators, Messrs Wise-Fone and Jenkins. They towed the dinghy to Cooper Island and contacted the police. The dinghy was later found to belong to the sailing vessel “No Grief” but attempts to trace the person(s) who had chartered the vessel proved unsuccessful as a fictitious name had apparently been given. Messrs Wise-Fone and Jenkins testified that on 3rd November 2006, they were confronted by Mr. Maduro and an unknown man whilst at Cooper Island. The men requested that Messrs Wise-Fone and Jenkins return “their two bags of drugs” or pay for them. Messrs Wise-Fone and Jenkins denied any knowledge of the two bags of drugs. Mr. Maduro then told them that they could do it the easy way or the hard way. Mr. Maduro and the unknown man left when a customs boat approached the shore of Cooper Island.

The following day, Messrs Wise-Fone and Jenkins visited a restaurant in the building which housed their offices in Hodge's Creek. They observed Mr. Maduro sitting at the bar alone wearing dark sunglasses and drinking beer. They called the police who arrived shortly after the appellant left the bar. Mr. Maduro was apprehended two days later. Mr. Maduro, who owned 4 vessels which were used in his power boat rental business, denied having chartered the vessel, “No Grief”. He also denied that he had approached Messrs Wise-Fone and Jenkins to demand the return of the drugs or payment. Mr. Maduro also sought to provide an innocent explanation for his presence at Hodge's Creek. He testified that his cousin had called that morning to request that he pick him up at 5:00 pm that day. When his cousin did not arrive, he left the bar. The prosecution adduced evidence at trial which showed that Mr. Maduro had received no phone call that morning by which this message could have been conveyed. Mr. Maduro was convicted by a jury on both counts. Mr. Maduro has appealed against these convictions.

Held: dismissing the appeal against conviction and affirming the sentence:

• (1) On the charge and the evidence that was adduced during the trial, the case was simply one of possession. A direction on joint enterprise was therefore unnecessary. The direction, although superfluous, was not one which prejudiced the appellant in his trial, given the tenor of the direction and the fact that the focus of the summation by the judge related to blackmail and possession. Villa Cay Marina Ltd. v. Acland (1996) 52 W.I.R. 238 and Romero and Macrado v. R (1994) 46 WIR 151 considered.

• (2) Where the case involves circumstantial evidence, the only concern of the judge is whether a reasonable jury could reach a conclusion of guilt on the evidence by drawing reasonable inferences from the evidence that is given at the trial. The question, then, is whether a reasonable jury may on one view of the evidence convict the accused. If so, even if another view of the circumstances thrown up on the evidence may be consistent with innocence, the judge should not withdraw the case from the jury. The evidence of Messrs Wise-Fone and Jenkins was evidence upon which the jury could properly have convicted Mr. Maduro if they believed it. The judge did not accordingly err in rejecting the no case submission. Taibo (Ellis) v. R (1996) 48 W.I.R. 74 and R v. Galbraith (1981) 73 Cr. App. R 124 applied. Ortiz v. The Police (1993) 45 W.I.R. 118 followed.

• (3) A person is in possession of a controlled drug if that person has it in his custody or control with knowledge that the thing is in his custody or control. Although the person does not have the drug under his or her physical control, that person may still be in constructive possession of it. It was therefore open to the jury to believe that Mr. Maduro could have possessed the two bags of drugs without having physical custody of them or the boat from which they were recovered. R v. Pentecost English Court of Appeal (unreported) judgment 9703740/X5 (10th March 1998), applied.

• (4) The judge, in directing the jury on possession, told them that even though Mr. Maduro might have held himself out as the owner of the drugs, they (the jury) still had to determine whether he had control of the drugs and knowledge that the drugs were under his control. The directions were accordingly proper and adequate in the circumstances of the case.

• (5) It is not necessary for a trial judge to traverse all the evidence in the case or point out every possible weakness or discrepancy in the prosecution case. Mr. Maduro was not prejudiced by the fact that the judge did not specifically address minor details in the evidence. R v Lawrence [1982] A.C. 510 and Byers v. R (1996) 49 W.I.R. 83 applied.

• (6) It was permissible for the prosecution to adduce evidence of possible lies told by Mr. Maduro in relation to a telephone call to his cousin on 4th November 2006 to support the charges of the blackmail of the 3rd November 2006 and to support the charge of unlawful possession of cocaine on 28th October 2006, because that evidence was relevant and admissible circumstantial evidence. Deolal Sukhram et al v. The State (1993) 44 W.I.R. 400 applied.

• (7) Mr. Maduro suffered no prejudice in his trial on account of the judge's failure to give a specific direction in relation to the police interview as the judge's directions on the burden and standard of proof would have achieved the same effect. R v. McDonald (1965) 8 W.I.R. 388 applied.

• (8) The judge did not err in failing to give a specific burden of proof direction in relation to a statement of the Director of Public Prosecutions made at the end of his final address to the jury. In the context of the cross-examination, that statement merely asked the jury to determine whether they saw anything in the police treatment of this case which shows bias because of race. Mr. Maduro suffered no prejudice in his trial on account of the statement.

Rawlins, C.J.

1 The appellant, Mr. Maduro, was charged with blackmail and possession of a controlled drug, namely cocaine. A jury convicted him of both offences on 15th June 2007. The trial judge sentenced him to 3 years imprisonment for blackmail to run concurrently with a 3 year sentence for possession of the controlled drug. On the latter conviction for possession, he was also ordered to pay a fine of $200,000.00 by 3rd January 2008, or in default, serve 2 years imprisonment. The judge ordered this 2 year sentence to run consecutively with the 2 concurrent 3 year terms of imprisonment for blackmail and possession. Mr. Maduro appealed against his conviction, but not the sentences. His appeal was argued on 11 grounds.

2 The grounds upon which Mr. Maduro bases his appeal are:

• 1. The learned trial judge erred in rejecting the no case submission in relation to the charge of unlawful possession.

• 2. The judge misdirected the jury on the law of unlawful possession. This ground of appeal states that the learned judge misdirected the jury in law on the meaning of possession and on the application of the meaning to the evidence.

• 3. The judge erred in that he did not adequately put the case for the defence to the jury; assist the jury on the cross-examination of the main prosecution witnesses and how to evaluate that evidence.

• 4. The trial judge erred in failing to direct the jury that in reaching a verdict on the blackmail count they were not to consider lies told by the appellant in relation to telephone calls to his cousin on 4th November 2006 to support the charge of blackmail which allegedly occurred on 3rd November 2006.

• 5. The learned judge erred in failing properly to direct the jury in relation to the police interview of 6th November 2006 as to what happened at Cooper Island on 3rd November 2006 and in failing to give a specific burden of proof direction.

• 6. The judge erred in failing to address or inadequately addressed the prosecution witnesses' rivaling stories.

• 7. Grounds 7 and 8, which will be considered together, state that the judge was wrong in law in causing the jury to understand from her “Lucas Direction” that a possible lie told by the accused on 4th November 2006 could strengthen the prosecution's case on unlawful possession on or before 28th October 2006 and blackmail on 3rd November 2006.

• 8. Grounds 9 and 10 relate to issues concerning joint enterprise. In these grounds the appellant contends that the learned judge erred in inviting the jury to consider any joint enterprise and in giving directions on intention in joint enterprise on the charge of unlawful possession.

• 9. Ground 11 states that the judge erred in permitting the Prosecutor in his final address to the jury to allege that the defence had accused the prosecution witnesses, Messrs Wise-Fone and Jenkins of being involved in drug trafficking without bringing any proof of it and directing the jury to ignore the allegation.

3 A brief factual background will facilitate the consideration of the issues which arise from these grounds of appeal.

THE FACTS

4 On the morning of 28th October 2006, Messrs Thomas Wise-Fone and Ian Jenkins, accompanied by other persons, were travelling by boat from Hodge's Creek, where they...