The appellant was convicted by a jury of importing cocaine and conspiracy to import cocaine after bricks of cocaine were found in an airport washroom.
A co-accused had previously pleaded guilty to the conspiracy charge.
On appeal, the appellant argued the trial judge erred in instructing the jury that they must accept the existence of the conspiracy based on the co-accused's guilty plea, and by failing to provide a proper Carter instruction regarding the use of co-conspirators' acts and declarations.
The Court of Appeal agreed that both instructions were erroneous and rendered the trial unfair on the conspiracy count.
However, the Court applied the curative proviso to uphold the importing conviction, finding the evidence on that count overwhelming.
The conspiracy conviction was set aside and a new trial ordered.
