Privy Council rules on C.I. case
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This is a digitised version of an article from The Cayman Compass's print archive. Occasionally, the digitisation process introduces transcription errors, or other problems.
See the article in its original context from March 2002.
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In one of its rulings, the Privy Council says that the term "cocaine" is a generic term and therefore covers cocaine hydrochloride which was what the certificate of analysis had specified.
The matter started in May 1998 when Carlyle Rudyard Roberts was arrested on Cayman Brac and charged with possession of cocaine with intent to supply.
The case went before Magistrate Margaret Ramsey-Hale. In December 1999 the defendant was convicted of possession with intent to supply, and in January 2000 was sentenced to 11 years imprisonment.
Roberts. gave notice of appeal. His grounds were that the verdict was unreasonable in light of the evidence and that the magistrate had failed to appreciate discrepancies in the evidence of the prosecution witnesses.
Roberts then changed his lawyer and this led to further grounds of appeal, that there had been an error by the magistrate in admitting the certificate of analysis into evidence and the alleged defects in the certificate.
It was said that the certificate of analysis should not have been admitted in evidence as a copy had not been served on the defendant with three days notice of the intention to produce it.
The grounds said that the Crown had failed to establish that the substance was cocaine. The certificate said it was cocaine hydrochloride. There was no evidence this was a controlled drug as defined by the Law.
The appeal was heard by Justice Henry Graham who granted an application by the Crown to admit fresh evidence. The evidence was an affidavit by Dr. David Schudel, a forensic scientist employed by government, who stated that cocaine hydrochloride was one of the forms of cocaine sold on the streets. It was a salt of cocaine and was a controlled drug.
Justice Graham in dismissing the appeal said there had been no objection during the trial about the certificate's admissibility.
Roberts then filed an appeal in the Court of Appeal and to his grounds added that the judge had erred in admitting Dr. Schudel's affidavit. The Court of Appeal ruled that the statute required strict proof of service of the notice on the respondent and that if the requirement was not met, the certificate was not admissible.
It also ruled that the magistrate was in error in convicting Roberts in that there was not evidence before her that cocaine hydrochloride was either cocaine or a salt of cocaine.
The Court of Appeal also said that Justice Graham had been wrong to admit Dr. Schudel's affidavit as it went to the heart of the prosecution's proof, gave the Crown a second chance to prove its case and was evidence that should have been Continued on page 2 from page 1 available at the hearing before the magistrate.
The appeal to the Privy Council by the Attorney General was on these three matters.
In their judgment the five Law Lords say that there is no evidence that Roberts was served with a notice of the prosecution's intention to produce a certificate. On the other hand, Roberts was represented by counsel who could have objected when the certificate was produced in evidence.
They say, "All objections to the admissibility of evidence in summary proceedings should be stated at the trial. This rule of practice is widely recognised."
They note that Roberts' attorney in the Court of Appeal, Mr. Bueno, QC, had relied strongly on a number of Canadian cases. They say, "But the thrust of English authorities is so clear and the rationale for the English and Scottish practice is so obvious that they do not find it helpful to rely on cases from another jurisdiction bearing in mind also that the legislative provisions with which they were dealing were different from those which are relevant here."
On the matter of cocaine hydrochloride, the Five Law Lords say the term "cocaine" is generic.
They say, "In their Lordships' opinion therefore the statement in the certificate that contents of the sealed package proved to be cocaine hydrochloride was sufficient to entitle the magistrate to find that it had been proved that the substance which was in the respondent's possession with intent to supply was the controlled drug cocaine."
They say that it follows from what had been said that there was no need for the Crown to rely on Dr. Schudel's affidavit to prove that the substance referred to in the certificate as cocaine hydrochloride was a controlled drug.
"Had it been necessary to do so however their Lordships would have held that Graham J was right to grant the Crown's application to admit this evidence."
The five Law Lords hearing the appeal were Lord Bingham of Cornhill, Lord Steyn, Lord Hope of Craighead, Lord Hutton and Lord Rodger of Earlsferry. The judgment was delivered by Lord Hope of Craighead.
The Lords awarded costs, saying the respondent must pay the costs which the appellant had incurred to date in the Court of Appeal and before their Lordships.
