R. v. WANDA MAE PHILLIPS

IN THE COURT OF APPEAL

1996, No 16
(Criminal)

-------------------

----------------------

J U D G M E N T

-----------------------

Bokhary, J.A.:

1. Late last year, two women, who were friends and flatmates, appeared before HH Judge Hawkes in the District Court on a charge sheet under which they were jointly charged with three dangerous drugs offences, being one of trafficking and two of simple possession.

2. We are concerned only with one of those two women. She was the 1st accused in the court below and is the applicant before us. Having pleaded guilty to the two simple possession charges, she was, on November 27 last year, convicted after trial on the trafficking charge as well.

3. Following that, she lodged a notice seeking leave to appeal against her conviction on the trafficking charge. We are now dealing with her application for such leave.

4. On January 13 last year, the police raided a flat in North Point. In the flat they found this applicant, then in her late 20's, and the other woman, then aged 30. They also found the dangerous drugs the subject-matter of the three charges.

5. It was the prosecution's case against the applicant that she was a drug addict who, in order to "feed" her drug habit, had descended to assisting her supplier by storing dangerous drugs for him, namely those the subject-matter of the trafficking charge which she faced, being 228.94 gms of a mixture containing 48.77 gms of heroin hydrochloride.

6. The applicant admitted to being a drug addict and to being in possession of the relatively small quantities of dangerous drugs the subject-matter of the simple possession charges.

7. She denied, however, that she had assisted her supplier by storing dangerous drugs for him. According to her, she did not even know that the dangerous drugs the subject-matter of the trafficking charge were in the flat.

8. However, the police produced a confessional statement signed by her admitting that she had stored those dangerous drugs for her supplier in return for such dangerous drugs as she consumed herself.

9. She challenged the admissibility and then the reliability of that statement, saying that she had made it under police threats and inducements and while in no fit state, suffering from withdrawal symptoms, to make any reliable confession.

10. Having received all the evidence at first-hand, the judge felt sure that the confession was voluntary and true; and he convicted accordingly.

11. There is only one aspect of the case which calls for further comment, because there was ample evidence on which the judge could convict as he did. The matter calling for comment is this. Initially, the applicant and her co-accused were represented by the same counsel. But in the course of the trial, that counsel come to perceive a conflict between the interests of the applicant and of her co-accused and that he could not represent both. So fresh counsel came in for the applicant.

12. The applicant now says - and one can take this from one of her written grounds of appeal - that fresh counsel told her that the only way that she could get a fair trial and the only way he could represent her properly was to ask the judge for a new trial because a lot of instructions which she had given him and the previous counsel were not put to the prosecution witnesses so that the prosecution would think that she was fabricating things and so would the judge. That is how she puts it in her written grounds.

13. Let us see what the judge had to say on that score. We take this passage from his Reasons for Verdict:

" I should, perhaps, also add that during the [applicant's] cross-examination in connection with her cautioned statement, [fresh counsel] made an application for a re-trial on the basis that the [applicant's] position had been irretrievably prejudiced. However, I declined to order a re-trial as I was satisfied that any prejudice that there might have been could be overcome by the recalling of witness et cetera.

The Crown did not take any point about certain matters being raised by the defence, which had not earlier been raised when [original counsel] was representing the [applicant] . Also, I did not allow these matters to affect my decision in this case in any way."

14. It seems to us from the foregoing perfectly plain that the applicant was not prejudiced in the way which she fears she might have been.

15. In those circumstances, there is no basis on which this application can possibly succeed. Leave to appeal must be, and is, accordingly refused.