THE PRIVY COUNCIL
(from for the Court of Appeal, Cayman Islands)
LORD HOPE OF CRAIGHEAD
LORD RODGER OF EARLSFERRY
LORD WALKER OF GESTINGTHORPE
SIR CHRISTOPHER ROSE
25 FEBRUARY 2008
Lord Rodger of Earlsferry
(delivered the judgment of the Board)
On 17 February 2002 the appellant, Donald King Knight, was arrested, along with Emily Scott, at Owen Roberts Airport, on suspicion of being involved in the importation of controlled drugs into the Cayman Islands. In due course it was ascertained that Emily Scott had indeed imported a quantity of cocaine. Three charges were eventually preferred against the appellant: being concerned in the importation of a controlled drug, cocaine, contrary to section 3(1) of the Misuse of Drugs Law (2000 Revision); being concerned in the possession of a controlled drug, cocaine, contrary to section 3(1); and being concerned in the possession of a controlled drug, cocaine, with intent to supply to another, also contrary to section 3(1). As a result of an incident in the holding cells when he tried to dissuade Emily Scott from giving evidence against him, the appellant was also charged with interference with a witness, contrary to section 105(b) of the Penal Code (1995 Revision).
On 14 November 2002 the appellant went to trial on the three drugs charges and the charge of interfering with a witness in the Summary Court at George Town. He was convicted of the offence of being concerned in the importation of cocaine and was sentenced to imprisonment for 15 years. On 1 August 2003 his appeal against his conviction was allowed, on the ground that the magistrate had not directed herself properly on the approach to be adopted in respect of the evidence of an alleged accomplice, such as Emily Scott. A retrial was ordered.
On 13 January 2004 the appellant again went to trial in the Summary Court at George Town on the three charges under section 3(1) of the Misuse of Drugs Law and the charge of interfering with a witness. Their Lordships were told that the appellant had declined the offer of a jury trial in the Grand Court in respect of the charge of interfering with a witness. The Board was also told that the appellant had been advised that he was not entitled to a jury trial for the Misuse of Drugs charges.
On 11 March 2004 the magistrate convicted the appellant, first, of being concerned in possession of cocaine with intent to supply and, secondly, of being concerned in the importation of cocaine. He was sentenced to 14 years imprisonment, to run concurrently, on both charges. The appellant was also convicted of interfering with a witness and sentenced to six months imprisonment, to run consecutively to the period of 14 years.
The appellant appealed to the Grand Court on the ground that the offence of being concerned in the importation of cocaine was a category B offence in terms of section 60(1) of the Misuse of Drugs Law and that he should accordingly have been tried by a jury. On 24 November 2005 Levers J allowed his appeal. When her attention was drawn to the fact that her decision appeared to be inconsistent with the decision of Orr Ag J in Attorney General v Donalds and Gooden 1997 CILR 494, she then expanded on her reasoning in a further judgment on 13 December 2005 in which she declined to follow the earlier decision.
The Crown appealed to the Court of Appeal (Zacca P, Taylor and Mottley JJA) which allowed the appeal on 11 August 2006. The Board granted the appellant special leave to appeal from that decision.
The argument in support of the appeal turns on two provisions. First, section 5(1) of the Criminal Procedure Code (2005 Revision) provides:
For the purpose of determining the mode of trial before a court, offences shall be classified into three categories -
Secondly, section 60(1) of the Misuse of Drugs Law (2000 Revision) provides:
Notwithstanding any other section of this Law, where a person is charged with any offence of selling, dealing in, distributing, supplying, dispensing, storing, issuing a prescription for, administering, importing, exporting, producing or attempting, contrary to section 3(1), which relates to a controlled drug that is a hard drug, then such offence shall be deemed for the purpose of determining the mode of trial, a category B offence in accordance with section 5 of the Criminal Procedure Code (1995 Revision).
In terms of section 2(1) of, and Part I of the First Schedule to, the Misuse of Drugs Law, the definition of "hard drug" includes cocaine.
It is also necessary to have in mind the terms of section 3(1) of the same Law, which creates the substantive offences:
Whoever, without lawful excuse or without being authorised in that behalf, -
any controlled drug, pipe, utensil or thing used in the preparation or consumption of any controlled drug, or who attempts, assists or is concerned in any of such matters is guilty of an offence.
The short, but important, issue is whether a person who is charged with being concerned in importing a (hard) controlled drug, contrary to section 3(1), "is charged with any offence of .... importing, contrary to section 3(1), which relates to a controlled drug that is a hard drug" in terms of section 60(1). The Court of Appeal held that such a person was not charged with any offence of importing a hard drug, contrary to section 3(1), but with the distinct offence of "being concerned in" importing a hard drug, contrary to section 3(1). This discrete offence was, accordingly, not deemed to be a category B offence in terms of section 5(1) of the Criminal Procedure Code (2005 Revision).
When interpreting section 60(1), the Court of Appeal referred to its predecessor, section 59(1) of the Misuse of Drugs Law (1995 Revision). Very importantly, the court had been told that "It is accepted that, prior to the 1995 amendment, all drug cases were tried summarily." This meant that, even if – as the court held - a defendant in the appellant's position were not entitled to a jury trial under the 1995 legislation, he was no worse off than he would have been under the previous law. It is common ground before the Board, however, that this is not the position. The actual position is that in 1982 the legislature had made provision for certain defendants charged with certain drugs offences to be tried by a jury.
The original legislation dealing with the mode of trial was to be found in section 6 of the Misuse of Drugs (Amendment) Law 1982, which inserted a new section 25 into the Misuse of Drugs Law 1973 in these terms:
Notwithstanding the provisions of any other section, where a person is charged with any offence contrary to this Law and such person is liable upon conviction to be sentenced to a term of imprisonment exceeding fifteen years, then such offence shall be deemed, for the purpose of determining the mode of trial, a category B offence in accordance with section 5 of the Criminal Procedure Code.
At the time when this section 25 was introduced, the coda to section 3(1) of the Misuse of Drugs Law provided that whoever imported any controlled drug
or who attempts or offers so to do or who causes, procures, solicits, entices, aids, abets, permits or suffers any other person so to do is guilty of an offence.
In 1982 a new Schedule B was also inserted into the 1973 Law in order to show the situations in which defendants were liable to various sentences, some of the sentences being of imprisonment for more than 15 years. One group of offences in Schedule B, which could involve sentences of more than 15 years, was "Selling, Dealing in, Distributing, Supplying, Dispensing, Storing, Issue [sic] a prescription for, Administering, Importing, Exporting, Producing, Attempting, etc." It follows that, as long as that first version of section 25 remained in force, in an appropriate case, a person charged with offering to import a controlled drug, or with causing, procuring, soliciting, enticing, aiding, abetting, permitting or suffering any other person so to do, would have been liable to imprisonment for more than 15 years. By virtue of section 25, the offences in question would accordingly have been deemed to be within category B in section 5 of the Criminal Procedure Code. So a defendant charged with such an offence would have been entitled to a jury trial, unless he consented to trial in the Summary Court.
That first version of section 25 proved to give rise to difficulties in practice, since the level of the potential sentence depended inter alia on whether the person had a previous conviction. So section 9 of the Misuse of Drugs (Amendment) Law 1985 repealed the section and enacted a new section 25. With one minor and irrelevant difference in wording, this new version of section 25 was re-enacted as section 59(1) of the 1995 Revision and is now to be found as section 60(1) of the 2000 Revision which is quoted in para 7 above. Contrary to what the Court of Appeal had been led to believe, the implication of their construction of section 60(1) is accordingly that section 9 of the 1985 Law had the effect of depriving certain defendants, charged with serious drugs offences, of a right to trial by jury which they had enjoyed between 1982 and 1985.
Before turning to look at the provisions in a little more detail, their Lordships think it right to stand back and to notice that, as Mr Perry QC readily acknowledged in his helpful submissions on behalf of the Crown, adopting the approach favoured by the Court of Appeal leads to somewhat surprising results, which it is hard to imagine that the legislature would have intended.
For instance, the Board was referred to section 18(1)(c) of the Penal Code (2006 Revision), which provides that every person who aids and abets another person in committing an offence is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it. The Board was not referred to an earlier revision of the Code, but Mr Perry accepted that, on the alleged facts in the present case, the appellant could indeed have been charged with importing cocaine into the Cayman Islands, contrary to section 3(1) of the Misuse of Drugs Law, on the basis that he had aided and abetted Ms Scott in doing so. In that event, by reason of section 60(1), he would, of course, have been entitled to a jury trial unless he consented to trial in the Summary Court.
Counsel for the appellant gave another example of a surprising consequence of the Court of Appeal's construction. Suppose that, in a case like the present, X had been charged with importing the hard drug and Y with being concerned in its importation. X would have been entitled to a jury trial, but Y would not. Yet, given the facts, and the serious nature of the two related offences, it is hard to imagine that the legislature would have intended the two defendants to be treated differently for the purposes of the mode of trial, with the possible need for them to be tried separately if X did not consent to a trial in the Summary Court.
In the United Kingdom, section 4(2)(b) of the Misuse of Drugs Act 1971 undoubtedly creates a distinct offence, which is dealt with separately for purposes of sentence. Problems can arise there if the Crown chooses to charge that offence when another offence might be more appropriate. Under the legislation in the Cayman Islands, however, the provision relating to being concerned in importing a controlled drug is very much bound up with all the other acts which are criminalised by section 3(1) of the Misuse of Drugs Law.
But for the inclusion of one word in section 60(1), their Lordships would have therefore regarded it as clear beyond argument that a person who is charged with "being concerned in importing" a hard drug is a person who is charged with "any offence of .... importing" that drug for the purposes of section 60(1). The inclusion of "attempting" in the list in section 60(1) does, however, raise a doubt. The word refers back to the words "or who attempts" in the coda to section 3(1): a person who attempts, assists or is concerned in any of the matters in subparagraphs (a) to (m) is guilty of an offence. While the drafting of section 60(1) is not particularly felicitous, the legislature must mean that a person who attempts, for example, to import a controlled drug is guilty of an offence. So, section 60(1) has the effect that a person who is charged with "attempting" to import a hard drug is entitled to a jury trial.
On the other hand - and really on the basis that expressio unius est exclusio alterius - it is argued that, since the draftsman felt the need to mention the defendant who is charged with attempting to import, so that he would be included within the scope of section 60(1), the draftsman must have intended that the subsection should not apply to the other persons in the coda to section 3(1) whom he does not mention - including a person "who assists [or] is concerned in" importing a hard drug. Their Lordships would not draw that inference from the inclusion in section 60(1) of "attempting" and the omission of any reference to assisting or being concerned in importing. But, equally, after due consideration, the Board would not be disposed to hold that the draftsman simply made a mistake when he singled out "attempting" for inclusion in the subsection.
To explain why, it is necessary to see how the words "who assists or is concerned in such matters" came to be included in section 3(1). The original terms of this part of section 3(1) in the Misuse of Drugs Law (1973 Revision) have already been set out in para 11 above. In 1985, as part of a fairly far-reaching revision of the legislation, section 3(c) of the Misuse of Drugs (Amendment) Law 1985 provided that section 3(1) of the principal Act should be amended by substituting "assists or is concerned in any such matters" for "or offers so to do or who causes, procures, solicits, entices, aids, abets, permits or suffers any other person so to do" in the coda. This amended version of the wording was carried over into the 1995 Revision and then into the current version of section 3(1) in the Misuse of Drugs Law (2000 Revision).
As is immediately apparent from a comparison of the original with the revised wording, the intention of the legislature was to provide a shorter, and more modern, form of words to replace the original, rather more elaborate, formulation. That was confirmed by the Hon Michael J Bradley, QC, the Second Official Member responsible for Legal Administration, when speaking on the clause in the Legislative Assembly on 28 May 1985. He referred to the intention to put in the place of the original wording "the shorter, simpler and clearer words 'assists or is concerned in any of such matters'." The essential point is that both the original and the revised versions describe various ways in which people may, in effect, participate as principals in the various offences, including importing. That is, in substance, the position even if a defendant must be specifically charged with "assisting" or with "being concerned in" importing.
For that reason, one would expect that, for purposes of the mode of trial, a defendant charged with assisting or being concerned in importing a hard drug would be treated in the same way as a defendant who is charged with importing the same hard drug. And, as already explained, that was indeed the position with defendants caught by the corresponding words in the version of section 3(1) which applied when the original version of section 25 of the Misuse of Drugs Law was introduced in 1982. Counsel for the Crown acknowledged that he could not think of any good reason why the legislature would have wished to adopt a different policy in this regard when enacting the new version of section 25 in 1985. That being so, their Lordships would tend to prefer a construction of section 60(1) of the current Law which treats those charged with assisting, or being concerned, in importing a hard drug in the same way as those charged with importing the drug.
On the other hand, a person who is charged with attempting to import a hard drug is in a different position from someone who is charged with actually importing the same drug. In many situations in the criminal law, for example, attempts to commit a crime are punished less severely than the completed crime. For that reason, it is understandable that the legislature may have felt the need to insert the word "attempting" in section 60(1) in order to make it clear that a person charged with attempting to import a hard drug was to be treated, for purposes of the mode of trial, in the same way as a person charged with the completed offence of importing that hard drug. By contrast, the legislature might well not have felt it necessary to include the words "assisting or being concerned in" importing in that list, because they would really just describe ways of committing an offence of importing a hard drug, which was already in the list. On that basis the Board concludes both that the wording of section 60(1) is not defective and that there is no basis for applying the expressio unius rule of construction.
Their Lordships are accordingly satisfied that a person who is charged with being concerned in importing cocaine is a person charged "with any offence of importing" a hard drug for purposes of section 60(1) of the Misuse of Drugs Law (2000 Revision).
Mr Perry submitted, if only with moderate enthusiasm, that, even if the Board came to this conclusion, it might nevertheless consider that the appellant had suffered no real injustice by being deprived of the chance to opt for a jury trial. There was nothing to suggest that his trial before the magistrate had been anything but fair and, since he had declined the offer of a jury trial on the charge of interfering with a witness, he might well have done so, too, on the drugs charge. In a small community, where people tended to know one another and rumours and gossip were inevitable, a decision to reject jury trial was readily understandable. The Board cannot, however, regard the right to jury trial as anything other than a most important right. Dismissing the appeal would be tantamount to downgrading that right, and to undermining the policy which the legislature, with the support of the Chief Justice, deliberately confirmed in 1985 in the face of suggestions that it might be removed. The Board must accordingly reject the Crown's fallback argument.
Although the appellant's argument was confined to the offence of being concerned in the importation of a hard drug, in the course of his submissions on behalf of the Crown Mr Perry pointed out that, if the Board were to uphold the appellant's contention that the offence of being concerned in the importation of a hard drug was deemed to be a category B offence, then it would be anomalous if the offences of being in possession of a hard drug with intent to supply, or of being concerned in the possession of a hard drug with intent to supply, were not also to be regarded as category B offences. He submitted that they could properly be regarded as falling within the scope of "dealing" in section 60(1). The Board sees the force of that submission, but the point was not really argued at the hearing. For that reason, the Board prefers to express no concluded view on it.
For these reasons their Lordships will humbly advise Her Majesty that the appellant's appeal should be allowed and that his conviction for importing cocaine should be quashed.
Perry QC for respondent, the Crown.
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