Attorney General for the Cayman Islands v Carlyle Rudyard Roberts
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hope of Craighead |
| Judgment Date | 21 March 2002 |
| Neutral Citation | [2002] UKPC 18 |
| Court | Privy Council |
| Docket Number | Appeal No. 53 of 2001 |
| Date | 21 March 2002 |
[2002] UKPC 18
Privy Council
Present at the hearing:-
Lord Bingham of Cornhill
Lord Steyn
Lord Hope of Craighead
Lord Hutton
Lord Rodger of Earlsferry
[Delivered by Lord Hope of Craighead]
This is an appeal by the Attorney General for the Cayman Islands against a decision of the Court of Appeal of the Cayman Islands (Zacca P, Georges and Collett JJA) on 23 November 2000 which allowed an appeal by the respondent, Carlyle Rudyard Roberts, against his conviction on 7 December 1999 after trial in the Summary Court for possession of cocaine with intent to supply, contrary to section 4(1)(m) of the Misuse of Drugs Law, Law 13 of 1973 (revised 1995). His conviction had been upheld on appeal by the Grand Court. The Court of Appeal gave reasons for its judgment on 23 February 2001.
The respondent appeared in the Summary Court before the magistrate, Her Honour Margaret Ramsay-Hale, on two charges. The first, which was left on the file, was that on 14 May 1998 he had in his possession a quantity of cocaine being more than 2 ozs, contrary to section 4(1)(k) of the Misuse of Drugs Law. He went to trial on the second charge, the particulars of which were in these terms:
"Carlyle Rudyard Roberts on Thursday 14th May 1998 at West End, Cayman Brac, had in his possession whether lawfully or not, with intent that it be supplied, whether by himself or some other person and whether in the Islands or elsewhere, to another person, a controlled drug, namely Cocaine being more than 2 ozs."
The trial began on 6 July 1999. It continued on 16 and 17 November 1999. On 7 December 1999 the Magistrate convicted the respondent of possession of cocaine with intent to supply. On 25 January 2000 she sentenced him to eleven years imprisonment.
The evidence at the trial
The witnesses who gave evidence for the prosecution at the trial were three police officers of the Drugs Task Force who had conducted a search at the respondent's house in Cayman Brac on 14 May 1998. They were accompanied by a police dog named Tasso which had been trained to detect drugs. The police officers were Detective Sergeant Kenton Ebanks, Detective Sergeant Gillyard McLaughlin and Detective Constable Davis Scott, who was the dog handler. They spoke to having found a box hidden under the grass in the yard area of the premises which contained a white substance resembling cocaine in powder form. The respondent was present at the time of the search. He was arrested and cautioned. In reply he said "That stuff wasn't hidden, I put it there to get rid of it". He was taken to Cayman Brac Police Station, where the white substance was heat sealed and labelled Tasso 1A in the respondent's presence. It was also "field tested" there and tested positive for cocaine. On 17 May 1998 the respondent was interviewed in the presence of his lawyer. He made no reply to the questions that were put to him.
DS Ebanks said that on 30 June 1998 he submitted Tasso 1A to a laboratory in Miami for analysis and that he had received a Misuse of Drugs Law certificate from the laboratory. Evidence was then led from him without objection that the certificate certified that the exhibit labelled Tasso 1A was cocaine. He identified the certificate, which was also an exhibit in the case. It contained the following statement by the laboratory technician who had received the sealed package marked Tasso 1A and signed the certificate:
"I opened the sealed package and examined the contents which proved to be:
(result) Cocaine Hydrochloride
(weight) 1043g (percentage) N/A."
DS Ebanks completed his evidence on 6 July 1999. The trial was then adjourned until 16 November 1999 when the prosecution case was concluded. DS McLaughlin said that the substance in the box appeared to be a kilo of cocaine. DC Scott said that the substance appeared to him to be cocaine in powder form. The respondent's counsel Mr H. Delroy Murray did not challenge the evidence of any of the prosecution witnesses as to the nature of the substance which was in the box. He made no submission that there was no case to answer at the end of the prosecution case. On 17 November 1999 the respondent gave evidence. He denied dealing in drugs. He also denied saying that the stuff was not hidden and that he had put it there to get rid of it. He said that he did not know how the drugs got onto his property and that they were not his. He also said that following his arrest and interview he had not been served with any documents.
On 25 January 2000 the respondent gave notice of appeal to the Grand Court against his conviction and sentence. His grounds of appeal against conviction were that the verdict was unreasonable in the light of the evidence and that the magistrate had failed to appreciate discrepancies in the evidence of the prosecution witnesses. But before the appeal was heard the respondent changed his legal representatives. This led to the filing of supplemental grounds of appeal. They drew attention for the first time to an alleged error of law by the magistrate in admitting the certificate of analysis into evidence and to alleged defects in the certificate. The respondent's attorneys also submitted a request for an amendment to the magistrate's notes of evidence to the effect that during his cross-examination DS McLaughlin was asked if the analysis certificate was served on the defendant and that he replied no. In reply the magistrate stated that according to the record and her own recollection DS McLaughlin was not asked if the certificate of analysis was served on the defendant, and that no objection was made to the document being tendered in evidence.
The Misuse of Drugs Law
Section 7 of the Misuse of Drugs Law contains the following provisions about the admissibility in evidence of certificates of analysis:
"(2) Notwithstanding any other law, a certificate purporting to be under the hand of the [Chief Medical Officer], a qualified chemist, a qualified medical laboratory technician or any other person appointed by the Governor in that behalf either specially or generally, stating or certifying that a given substance has been analysed or examined and stating the result of such analysis or examination, shall be admissible in evidence on any prosecution under this Law and, in the absence of evidence to the contrary, shall be proof of the statements contained therein as to the foregoing matters and any other matter specified therein concerning the substance analysed or examined or the analyst or examiner thereof, and no evidence shall be required by the court as to the signature or qualifications of the person purporting to have signed the certificate.
(3) No certificate shall be received in evidence unless the party intending to produce it has given to the other parties three days notice of such intention and has furnished with such notice a copy of the certificate.
(4) Where it is considered necessary or advisable, the court may require the attendance of the person under whose hand the certificate was issued to give evidence on oath."
Section 2(1) of the Misuse of Drugs Law provides that in that Law "controlled drug" means a drug listed in the First Schedule. Among the substances and products listed in paragraph 1 of Part I of the First Schedule is "Cocaine". Part I of the First Schedule also includes the following:
"2. Any stereoisomeric form of a substance for the time being specified in paragraph 1 not being dextromethorphan or dextrorphan.
3. Any ester or ether of a substance for the time being specified in paragraph 1 or 2 not being a substance for the time being specified in Part II of this Schedule.
4. Any salt of a substance for the time being specified in any of paragraphs 1 to 3.
5. Any preparation or other produce containing a substance or produce for the time being specified in any of paragraphs 1 to 4."
The appeals
The supplemental grounds of appeal in the Grand Court set out eight grounds, which included the following:
"1. That the Learned Magistrate erred in admitting the certificate of analysis – exhibit 3 into evidence in breach of the strict requirement of section 7(3) of the Misuse of Drugs Law.
2. That the Learned Magistrate erred in law in admitting the certificate of analysis – exhibit 3 into evidence.
3. That the Learned Magistrate erred in law in admitting the certificate of analysis in breach of the requirement of section 7(2) of the Misuse of Drugs Law."
A further supplemental ground of appeal was later filed in substitution for ground 2 in these terms:
"The Crown failed to establish an essential ingredient of the offence charged in that there was no evidence adduced that the substance, the subject of the charge, was cocaine. The purported certificate asserted that the substance was cocaine hydrochloride. There was no evidence that this substance was a controlled drug as defined in the Law."
The respondent's appeal to the Grand Court was heard by Graham J. He granted an application by the Crown to admit as fresh evidence an affidavit by Dr David Schudel, a forensic scientist employed in the Cayman Islands Forensic Science Laboratory, in which he stated that cocaine hydrochloride is one of the forms of cocaine sold on the streets and that it is a salt of cocaine which is included in paragraph 4 of Part I of the First Schedule to the Misuse of Drugs Law as a controlled drug. The reason given for the application was that it was intended to deal with the respondent's point that, while the information in the charge alleged possession of "cocaine", the certificate described the substance which was submitted for examination as "cocaine hydrochloride". The judge said that this was a purely technical matter which could cause no prejudice to...
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