Butenscheon et Al v White

• Jurisdiction: Belize
• Court: Supreme Court (Belize)
• Judge: Alcantara, J.
• Judgment Date: 02 October 1981
• Docket Number: Inferior Court Appeal No. 4 of 1981
• Date: 02 October 1981

Supreme Court

Alcantara, J.

Inferior Court Appeal No. 4 of 1981

Butenscheon et al

and

White

Mr. J. N. Avilez, for the appellants

Mr. G. C. Gandhi, for the respondent

Criminal law - Possession of marijuana — Whether magistrate correctly convicted the appellants with possession of marijuana contrary to section 5(b) of the Dangerous Drugs Ordinance — Joint possession of dangerous drugs — Elements necessary to prove joint possession.

Alcantara, J.

1 This is appeal from the Inferior Court for the Cayo Judicial District. The appellants were convicted and sentenced on the 5th day of October, 1980 by the learned magistrate of and for the following offences:–

“For that Ben Butenschoen and Deborah Butenschoen on the 25th day of September, 1980 in the Mountain Pine Ridge area in the Cayo Judicial District had in their possession a quantity of leaves, seeds and flowering tops of the Pistilate Plant Canabis Sativa about 150 lbs. from which the resin has not been extracted.

Possession of Dangerous Drugs: Contrary to section 5(b) of the Dangerous Drugs Ordinance, Chapter 85”.

2 A fine of $450 was imposed on each with $1.00 costs or in default 4 months imprisonment.

3 From the said convictions both appellants now appeal to this court and their grounds of appeal are:

• (1) The decision was unreasonable or could not be supported having regard to the evidence.

• (2) The decision was erroneous in point of law.

• (3) The decision was based on a wrong principle or was such that the Inferior Court viewing the circumstances could not properly have so decided.

• (4) It would seem that the learned magistrate based his decision on knowledge while possession is the essence of the charge in question; not knowledge.

4 In court, counsel for the appellants has combined grounds 1 and 4, thus leaving only 3 grounds of appeal.

5 The facts of the case are as follows:– The police found two bags, later ascertained to contain 150 lbs. of Indian Hemp, inside the house of Ben and Deborah Butenschoen, the appellants. At the time of finding both appellants were inside the house, the male appellant upstairs where the bags were actually found and the female appellant downstairs. When the police drew the attention of the appellants to what they had found, the male appellant answered, “It is only herbs”; the female appellant answered, “It is only a little bit”.

6 Although they were not bound to offer any explanation at no time did any of them deny the presence of the bags upstairs or say that the bags did not belong to them. They were charged jointly with being in possession of 150 lbs. of dangerous drugs contrary to section 5(b) of the Dangerous Drugs Ordinance.

7 At the trial the female appellant did not give evidence. The male appellant made an unsworn statement from the dock, but did not say that the bags did not belong to him or offer any explanation as to the bags.

8 The question which arises for decision is whether the learned magistrate was at liberty on the evidence to find that both appellants were in possession of the said drugs.

9 Counsel for the appellants says no and draws the...