Caught in the Dragnet: Understanding Felony Murder & Constructive Possession

And this week we have another senior counsel by his name, John Heath. But of course, before we get into that, we now have our segment Legal Lingo.

Used by a jury to determine whether a criminal defendant is guilty. And uh of course, let's span back to our case example. Now, in a criminal trial, a man named Alex is accused of theft. The prosecution presents evidence, but some key details remain unclear. There is no direct witness to the crime and security footage is blurry, making it very hard to identify the suspect. Now the defense argued that Alex was elsewhere at the time of the incident and provides an alibi.

As the jury deliberates, some jurors express uncertainty. Noting gaps in the evidence and the possibility that someone else could have committed its crime. They are not fully convinced of Alex's guilt and believe there might be a chance he is innocent. The lingering uncertainty leads them to conclude that the prosecution has not provided its case beyond a reasonable doubt.

Ultimately resulting in a verdict not guilty. So there's an example of beyond a reasonable doubt. This was Legal Lingo. We'll be right back with more.

And um I must say um congratulations to him of course on his confirmation of um senior counsel. Now he was called to the bar um on the twenty eighth of october two thousand five. Um he joined the Trinity Chambers, who head of chambers at the time was the late Desmond Alam SC. He joined the criminal bar executive in 2006 and remained a part of the executive to this day.

um within a couple um within his private sector practice. Um he diversified he diversified, sorry, his his law practice included civil, public, employment, industrial relations and constitutional law. Uh he appears before the court primarily as an advocate attorney. He was called to the bar in Gwyneda in 2009 and in 2014 together with his colleagues Mr. Rajiv Passad and Lionel Luku.

um he formed Alum Chambers, which presently house a total of twenty four attorneys. That reminds me of Trinity Chambers back in the day. And um on the eighth of May 2023 he was appointed in the rank of Silk Senior Counsel. And um and he is a household name um in our jurisprudence and I would like to welcome again on set Mr John He.

Yes, no problem. And um of course you know our our discussion today is about um felony murder. I mean I I I don't think my many people understand the concept of felony murder. I mean when when you think felony murder, you think a felony that is that is um a a a term that is used in the United States. Yes. Right? Um So so really and truly this really is about understanding um what is friendly murder and of course what is you known as as as the deem provisions um whereby someone is innocent.

um until proven guilty. But of course you're the expert. Um so so so tell us, um w what what is what is felony murder in in that context?

Criminal Law Act. So I'll just read out the definition and then I'll just go into explain its operation. So under section two A of the Criminal Law Act, it says Where a person embarks upon the commission of an arrestable offence involving violence, and someone is killed in the course of furtherance of that offence, or any other arrestable offence involving violence,

he and all other persons engaged in the course of furtherance of the commission of that arrestable offence, or any other arrestable offence involving violence, are liable to be convicted of murder even if the killing was done without intent or to cause grievous bodily harm.

In felony murder construct, the intention is not an element. If it's was in the commission of an arrestable offense, and essentially an arrestable offence is an offence for which you could be arrested without warrant, which carries a term of imprisonment of over five years. So for instance, robbery, robbery with aggravation, arrestable offence. If in the commission of that offense there's violence and someone is killed,

you would be liable for murder. Whether you intend it or not, it does not matter. Alright? And I will come later to to explain what I see as a sort of dilemma with respect to a factual matrix.

Which can be mounted on the basis of felony murder or on the basis of joint enterprise, there being no difference with the fact. But it's the exclusive purview of the Office of the Director of Public Prosecutions to say on which basis um the prosecution will be mounting uh the charge, the the prosecution.

uh place to start is a case called Nimrod Miguel because that case um sort of brought a sort of watershed moment in our jurisdiction. Not by intention, but by design, meaning that what the the ruling that came out of there created a sort of categorization uh for murder in our jurisdiction. Prior to which the only sentence for murder was death. Now there had been challenges to the death pen the mandatory nature of the death penalty before Nimrod Miguel.

But even though the courts, the Privy Council had uh stated that it the death penalty was unconstitutional and really was cruel and unusual punishment, Specific intent murder was nevertheless saved and as existing law, and so they could not touch it. What happened in Nimrod Miguel, um, the case really was mounted on alternative basis. Joint enterprise as well as felony moodle.

the foreseeability test was used. So if you, though you were in the car outside, you know that your confederate went inside there with a gun and something could play off, well then you were equally liable for the murder. Since Jogi, however, intention is brought in and in the secondary you must find that he also intended

Um and for Sibbil seeability is not a f is just a factor that the court can use to see whether or not the intention was born in the person who's outside. So the principal is the one who is inside. Now what I have alluded to earlier on, the dilemma is that

Both felony murder and joint enterprise can be one and the same because in that exact same scenario that I've described, you can also bring it for felony murder. Right? So in in Nimrod Miguel, what had happened was The appellant, Nimrod Begel, and four other persons decided to rob someone of the car. They're dead, violence was used, the person died. The judge in that case summed up the case.

um on the basis of joint enterprise and felony murder. However, when the jury came back with their verdict, the judge did not ascertain upon which basis the jury had found them guilty. So they appealed

That was not saved law, and therefore the mandatory imposition of the death penalty in cases of felony murder was unconstitutional with respect to sections 4e and 5. to be of the constitution. What that meant is that For the first time, persons who were found guilty of murder on the basis of felony murder were entitled to have a sentence in hearing. It was not mandatory that that will be the sentence.

And so that why I see that created a sort of watershed moment in our jurisdiction is because for the first time you had persons en masse. Now coincidentally, I...

So when that Miguel decision came out, they realised well look if if If my case is really the worst of the worst and I don't think I'm gonna get a death sentence, which is for really for the worst of the worst crimes, in terms of you know uh killings, unlawful killings. You have persons coming and pleading guilty. They know they'll get a third of their sentence and they'll also know that

They would also get um all the time spent on Rimana waiting trial taken off. So if you were there for let's say fifteen years. and you got a sentence of 30. You take a third of that, that's 10 come off, and then you're there for 15 years, the next 15. five and if you were good character you get so you literally had three years to do two because you know a jail yeah is eight months. So all of a sudden persons were seeing a way out of the prison system.

And I don't have the statistics, but I mean I I'm sure that it it must be in the hundreds uh with respect to persons who took this avenue uh because of what had uh the ruling in Nimrod Miguel. All right? So Yeah, yes. Right. And so I think I think Nicholas Aguilera was the first case in which they pleaded guilty and which the sentence in guidelines.

uh came down with respect to that. But there have been I I it has to be in the hundreds with respects to persons who have um availed themselves The dilemma in my view is that Yes, yeah, of course. So and the way you have to do it is that if you feel on the evidence. Um that there is a basis for uh felony murder uh to be applied to the case. You write to the DPP.

Um and you ask to for him to agree, uh by way of plea agreement, that the your client plead guilty to murder on the basis of the felony murder rule. And that will in once that is settled, then you the judge will know it's a sentencing exercise from that point on.

Now the dilemma that comes in is that I if you as a counsel representing your client sees that the evidence has felony murder. There's really nothing you can do because this the exclusive purview of mounting the case and basis for mounting the case is with the director of public prosecutions. So if you write to the director of public prosecutions and he says, I don't see it.

I am proceeding on specific intent. I am speaking sp uh proceeding on the basis of joint enterprise in which tension intention is a main element. You really have no choice in that. You have to go ahead.

The first thing on our mind well let me not say it, first thing on my mind is what can I do to get this noose away from this man's neck? And there's a number of things can happen. I could go to trial and hook get try to get as best as I could uh the jury to return a verdict of not guilty or a judge alone. Or I could try to ple play it to a lesser charge, maybe manslaughter, on the basis of the provocation or dismined responsibility, or since Nimrod Beagle asked for um felony murder.

Now, this issue sort of came to a head in a case in which I represented accused of any court of appeal called Jason Huston. Now I didn't appreciate it at the time why the DPP himself came personally to um to to argue that appeal, right? But I I have since uh appreciated it because it was important for the DPP. to maintain the exclusive domain of how a case is mounted.

And uh in that case, uh, essentially DP was saying, well the judge is not wrong to not um sum up on felony murder because we didn't bring our case on that.

Independent of what he had stated in his statement, one of her family members would have said, I knew she took out some money in her wallet and the wallet was missing. So we're saying that The commission, arrestable offense, violence is used, right? My my simple point was N notwithstanding what the prosecution wants and what the defense wants, because sometimes we want different things based on and the persons that we represent. Right? And the judge has to rise above that.

And my simple point was if you see on evidence it comes out then I think you are bound and mandated to put it to the jury. the DPP was not of that view. I mean and an all all all respected um senior counsel Mr Gaspard. Um he is protecting um his up his domain in terms of mounting a prosecution and on what basis, right? I'm simply saying that that's fine. But if evidence speaks out during the case, then a court must address that.

Ultimately the court on a majority decision allowed the appeal and they found that the judge ought to have put a felony murder and he was therefore sent back. um for uh resentencing. Now it's still hanging in the balance because that that appeal was dealt with the the most senior uh judges at at the time and still are. Justice Musay, Justice Suhan, Justice Suhan is no longer there, and Justice Mohammed, right?

well respected criminal justice of appeal, and Justice Mohammed wrote the dissent in judgment. So of course in in deference to uh Justice of Appeal, Mr Muhammad, um, it's something that uh is still alive and has to be looked at, and because no doubt the DPP is going to be of a view. Certainly if I am representing someone and the felony murder is there with respect in i as evidence, I'm always going to ask. that the judge sum it up on the basis of the felony murder rule. But the dilemma is this.

So for instance I've I alluded to that in in Nimrod Miguel it was put on alternative basis, right? Joint Enterprise and Felony Moodle. The really the essential element of intention has to be proven in respect of joint enterprise, but is of no moment. Whether or not you intended when you went to Rob, you intended for anybody to get hurt, it does not matter.

Now, if that is believed, then a couple slap is neither intention to kill or to cause grievous bodily harm. And so therefore if it's lower than that, it's not a case of murder, it's a case of manslaughter, right? Because murder is a his intention to kill or to cause grievous bodily harm. Right? And in that case, even though his defense, and this is the next dilemma, sometimes your defense will ru run contrary to the principle of law, his defense of that was denial.

But I'm saying notwithstanding that, if there is evidence and there was evidence, because he told the police in his statement, then that was an av it was something that the jury ought to have been Addressed on and directed their attention to that if they believed in his statement that when he was going there with his Confederate, it was just really to

Slap up demand, then that's not an intention to form murder, right? In joint enterprise um you have the intention is either to kill or to cause grievous bodily harm, right, from the enterprise that you've embarked upon. That very same enterprise you have embarked upon, if it's felony murder, the prosecution does not have to prove you intended anything. All they have to do is to prove that there was a commission of an arrestable offense.

in which violence occurred it and it resulted in death. And y it specifically says your intention is of no moment. Right? And I'm saying if you have to go to court And this is one of the problems I had when we were doing preliminary inquiries, because my view is that someone ought to know the the case that they have to face. And part of knowing the case is knowing what is what principle are you basing it on.

And I used to find uh when we used to have what we call preliminary inquiries now re uh replaced by the sufficiency hearings. I used to have to pull prov h proverbial teeth to try to get the prosecution to say at that stage, at the preliminary crime stage, this case is being mountain. Joint Enterprise, felony murder, X, Y, and Z.

And it's important because you need to know how um to among your defence. Whether or not I have to address the issue of intention if it's joint enterprise or whether intention is not an issue because it's it's felony murder, it's felony murder control. And that, as I said, continues to be the dilemma. It was dressed uh somewhat in in hostin and the majority seem to suggest look, it's something that the court the the the judge ought to put to the jury, right?

because there's a big difference with respect to getting a term of years and getting the death penalty um read against you. generally speaking, and it has only happened probably now twice, persons don't plead guilty to specific intent murder. I saw it happen as I read any papers that it happened on Monday. But but even reading that, the judge would have answered.

sentenced someone and fell in the mood for for um to death. But it would seem to be have to be the worst of the worst.

It have no fit for felony murder there, it's specific intent. So there's no gray area in circumstances like that. Uh the the guy who again wants to plead on on on mu who has indicated that he's going to plead. It seemed that that was the circumstances. He went about, he killed somebody because they had done something to a friend of his and there's no room it would seem so the DPP would not

Right. I'm saying that there's sometimes a grey area, as in the case of Huston, because it was just a small part in the interview. He said, Well I I I I went and I take all the money from and the witness said, Just mention it kinda Cursory. Right? But um so there's a gray area in which there may not be an agreement or it may not be so clear.

Um and then I'm saying to break that tie, meaning the tie between the defence and the prosecution, I'm saying the judge is the person to say, Yeah, I don't think it arises or or it arises and that's what happened in Austin.

um construct. Uh so so let's let's let's turn to the the constructive possession element. Um can you can you just give give uh

You're not there right now, you're not home with the television, it's not within your physical reach and control, you're not rather remote. Notwithstanding that, you are in constructive possession of it. It is your, you bought it, you can room, you can open your door, you could turn it on, you could turn it off, right? So there's an element of control. Why I say it's a sorta legal fiction is because

Actual possession is a possession can be of two types, actual or uh constructive. Actual possession is when it's on your person, within your reach, in your pocket, in a purse right within your control, physical control. constructive possession uh kinda creates the legal fiction that it's in your physical control, though I can't see your TV on you know, but I'm saying wherever it is, it's yours, you have control over it. Right? So that is the dilemma. Now again

Because again there are circumstances. It might be my room, but the circumstances don't speak to me being in possession. I'll give you an example.

In Canadian cases, there's series of Canadian cases which are used in our jurisdiction to finally come to a point in in our local case called Lachem Barat, right? But in R versus Gun Gun Gon Hing, I think it is. Gun yin. The appellant was out of the ju out of Ontario for a couple of days. in his room Uh was found some opium. At in his room at the time was his wife and another man who was not resident there but was resident within Ontario.

The court nevertheless found it was his room, charged him, and he was convicted, right? Say it could not be that Parliament intended that in do in that circumstance the man could be in constructive occupation. Meaning if I'm not there still there, right? And the circumstances were such that you could not rule out that the drugs was there, placed there by persons who were in the room, right? Without his knowledge and or consent.

So there must be, as our local court came to say in the case of Latshmirat, and prior to Latshmi Barat we had a s a series of cases started but Mantu Ramdani, Thomas and Garcia Ramdas cases, in which the courts will strive. haggle in with what is really occupation. And for instance, in Mantua Randami, they seem to have given it a wider definition. Occupies does not mean that you're because you're an occupant, because I'm inside this room now, I'm occupying its space, I don't qualify.

occupying here in the in the legal sense. I have no element of control inside here. I can't go and interfere with all these knobs. I don't have the k the key for the door. I don't have anything. So I certainly don't have any control. Uh they simply say, so in Latchery Bar, they tied it down to say, look.

persons can't be deemed to be an occupier in that sense, because they have no evidence of any element of control or ownership of the vehicle. And in those circumstances, such a person will not be found guilty. 'Cause it used to be before that the police Taking on everybody. Everybody going down. Everybody in the car. If it found in the trunk, everybody going down. Everybody getting charged.

Well it's happening now but a lot of people are getting off and a l lot of people are bringing in um malicious prosecution matters, right, before the court. Because as I say, the law if you don't have anything more to rise above the person's mere presence. Inevitably it seems that they're going to be found not guilty. Right? You can in circumstances like that, if you have additional circumstances, find, for instance, the person

The police went to the vehicle and in the back seat they saw someone trying to hide something. They opened it, they found drugs in it. The driver of the vehicle was then coming back to the vehicle. He had a knapsack, they realized he runs off. They've in they chased him, he fling the bag, right? When they found him, he's not in actual possession of the bag. So you can't get him on actual possession. You need to show that he was nevertheless in constructive possession of the bag.

Fortunately during that case for them for the prosecution. Inside the bag were packets and when they did the D the um DNE they found his fingerprints on the packets. So that was used to show notwithstanding we didn't find the drugs on him, he never the left w was in constructive possession or the court had the evidence. that he was in constructive possession of the um the bag in the case of peter coltess which i was i did the appeal

in a boat because God gave chase and they flung the marijuana into the sea. Now in his first case, they used the deeming provision to say look found it was found even though it was found in the sea, the demon provision applied because it went to the Court of Appeal. He cut off any Court of Appeal and in that instance and had the retrial and was found guilty and that's when I represented him at the Court of Appeal.

But when I went back again I was saying, No, the Court of Appeal is wrong. It was not found in literal interpretation, right? The court agreed with me with respect that it must be found in. So if you have premises found in a vehicle, a place, a vessel, it must be found in.

And therefore, nevertheless, even though the judge would have heard, but the judge in that case only heard because the court of appeal. Had in had stated that the demon provision ought to be used. Now, what is important with respect to when the demon provision applies is that Mae'n ymwneudol yn ymwneudol yn ymwneudol. Mae'n ymwneudol yn ymwneudol. Mae'n ymwneudol yn ymwneudol yn ymwneudol. deeming provisions such as this there's a reverse burden so that if the court finds there is possession

The accused person now has uh has to give evidence to show on a balance of probabilities, lower standard than the reasonable doubt, that it was not there with his knowledge and or consent. And that is important because Bearing in mind in any case in which the demon provision for drugs is Drugs are is applicable. You must have uh occupation, possession, or control. These are the elements that they have to show, right? Because it's not in every case.

which on the face of it it seems that a thing was found in which the person is the occupier that you will charge. So for instance in the New South Well Petit. The drugs were found in a couch, on underneath a couch. But there were six persons in the house at the time.

That area is a common area and will be traversed by many people. So the appellant, they charged, the appellant was convicted, but it was overturned because they could not rule out the possibility in the circumstances of that case, notwithstanding he lived there and he'd occupy there. that the circumstances of that case that it could not belong to anybody of any of the other other six persons.

So I I mean I have seen it happen in cases in which uh you're just sitting down that uh involving drugs where Uh the person is not giving evidence and you're saying but you ha y i it seems that if the the prosecution have discharged their burden in proving that the thing was there. And if your person does not in those circumstances give evidence where the court finds that the prosecution has proved their case.

then inevitably you're going to be found guilty because the burden shifts on you and you would have offered no evidence. And remember it's a legal burden. It's a legal burden on a balance of probability as opposed to an evidential burden by just raising the issue. And you can't um not give evidence and satisfy your legal burden on a balance of probabilities. Alright? So that that is the the dynamic with respect to um constructive possession and the the demon provision.

And if you they if you say look well I was in the front and cause the drugs are found in the back then you kinda breed. But if you say well I was the driver, you all automatically start to think, well, okay, what are more than flowers? So for instance, if the drugs is in the trunk. If the vehicle is in the driver's name, it's his vehicle. There's no evidence to suggest that this vehicle was anywhere else.

has control over that vehicle. Yeah. That's where the demon provision provides if you're you're deemed to know it's there. And we have proven, because you are the owner, we put in the certificate of ownership, we put in the fact that we've seen you surveillance using this vehicle for the last week, coming home on to and fro, element of control.

And no one else, that person, the driver, it would seem in those circumstances going to be in trouble, right? As opposed to someone who is just sitting in the front.

You and why I'm saying the demon provision is a fiction. You can never know what's in a man's mind. Correct. But if I'm just sitting without more in the front seat. then the there's no evidence against me with respect to the element that I knew.

And I don't control this vehicle. I don't own this vehicle. And therefore, the case, the state's case, they will always have a problem of such a person. And that's why coming out of the Lachmy Barrett case, one of the principles of serendipitous presence, just mere presence alone. Will never be enough. Right. So that is the the dynamics of the the the the difficulty because we have moved away from the

carry everybody down even though it still happens, right? Yeah. Um but um we've certainly moved away from that and the cases suggest that that occupies has a narrow meaning. A narrow meaning to it. But even in that Even in that sense you have to look at the particular circumstances of the keys.

Right? So the gun hang case that I told you about he was away, he was not too muddy time, his wife and another one was there. But nevertheless you charged him. I just finished a case, I mean that might go elsewhere, but and drugs in his house. Well three of them, right? And um they were deemed because they were all occupiers. They didn't that that was the evidence. Yeah, yeah, that's where we live, right? So fortunately for them, the it was a very big read.

Lots of items are found all over the neighborhood. And we were saying that their their house was simply used as a repository to bring everything and store it there. And the police went on their social media, no doubt promote any good work that they did. And there it was, outside of the house, the very same exhibit which they brought into court and said It was found on a closed basket. It's outside any bush being filmed. So in that in such a case the

Magistrate was not satisfied that possession in that item existed at all. So the daemon provision didn't kick in in those circumstances.

The fact that it was never disclosed, the fact that they hold on it, the magistrate expressed grave consternation to that as well. So they were fortunate that we were able to get that. They didn't and even though my my guy gave evidence it was clear that he didn't have to because they did not discharge their burden of possession. Because once you're deemed to be in possession, once there's possession, then you're deemed to know it's there. So, they were a good job.

They still have to go into that box and discharge their burden and give evidence and hope the court comes down on their side with respect to on a balance of probabilities. that they d it was there, but it was not there with their knowledge and consent.

It's it's not it's not uh I mean even th this was challenged constitutionally const a constitutional challenge on monk on this reverse burden. Yeah and I think in the case Dial Miraj. But it was dealt with. And they say no, the propa proportionality test is met that, you know, a person are called upon. Because remember it's a mischief, right? You don't want to have persons who have a room full of drugs and you can't arrest them because they wasn't home any time.

Right? It has to be that and that's that's that's what the the demil provision seeks to to circumvent. Yeah. Otherwise I could just put a room, pull it up, put drugs on it's never ever be in the room. But if it is that the court can show that and this is what happens sometimes, persons rent They're not there, but When the bus comes around, police are able to show that the leases in there and the surveillance show that they came to there, not regularly, but enough.

a construct of constructive possession is that they have an element of control over that prompt that property. Right? And so therefore they can be charged and once the evidence is there to support it. Once the court finds an constructive possession, well, then that's it.

Boxes full of marijuana. Deosuran at the time was downstairs, right? Police bust down, he says, I don't know about these things. I live upstairs, you can come and check my place. He was convicted, but on appeal it was overturned. Because his presence there was just a mere presence. They didn't have anything additional to show that the th those boxes there he had any element of control over it because he had leased the property to the other person.

And he had indicated to police, I don't know about it. You can come and check my place upstairs. They went and checked and there was nothing. And so that was overturned on appeal. Right? So and it's always fact fact specific with respect to the courts and how they view the evidence.

Well then you you can't necessarily bring a c a case for malicious prosecution. But uh in m a lot of circumstances uh There they are good grounds for it.

Plant like material resembling whatever. So it would seem the evidence in those cases will speak to everybody being in a sort of actual possession of the drugs,'cause it's right there it's in everybody's physical control.

And uh it's going to be hard for you to say, well, oh, I was b unless you're blind literally, to say that well, I didn't know it was there and it wasn't there with my knowledge and no consent. Right? Now sometimes you can have a sort of gray area which I've had before, in that you for instance you're in a vehicle and Boyfriend and girlfriend, boyfriend stopped to buy drugs.

Didn't forecast that he was going to do that, didn't alert. So there was no time or opportunity to say, Okay, yeah, go ahead, let's do it. I I know you're gonna buy drugs, that's fine with me. There's no opportunity to do that. So in those circumstances now, bust down the police bust down shortly afterwards and charge and say, Look, we saw you all stop the buyout, right? It would seem that you would have to say look.

He stopped to buy, but I didn't know and he didn't do it with my consent. And I certainly didn't know he was going to buy drugs. And that's uh uh That will be tested on the facts for the jury, meaning a magistrate sitting as both judge and jury, or if it's close to the high court.

they will have exercised an element of possession and control over that that room and therefore that's why we charge them, right? I say difficulties if you can't prove that. But sometimes And sometimes and this is where we b bring a malpros is that the prosecution never had any evidence that you were in s uh an occupier in the legal sense. And they never had evidence, additional evidence to suggest that. Nevertheless they go ahead and charge you.

i mean man you can have a boat it could be in your home right there next to your bed table in a drawer you know something really could reach in your physical your physical grip really so to speak but nevertheless it's it's in it's in a place that you occupy

Um so so I I I I think um I I think that this this has been a really, really good um session. Umfortunately our time is up.

My name is Rhonda Donowa. And before I go, I leave you with this slight quote. Do not judge me by my success. Judge me by how many times I fell down and got back up again, Nelson Mandela. So have a great week ahead and God bless. Take care.