Woman wins appeal

Cocaine in a freezer in the kitchen could not be attributed to the owner of the house without something more, Mr. Justice Seymour Panton indicated last week.

After hearing the appeal argued by Attorney James Austin-Smith, the judge quashed the conviction and set aside the sentence of nine years.

Lilly Marie McLean, now 56, had been convicted after trial in Summary Court in April 2004 for possession with intent to supply 12.81 ounces of cocaine.

Her son Charles was sentenced to eight years.

Mr. Justice Panton noted that the appeal was not a re-hearing of the evidence, but he needed to look at the magistrate’s findings because those were challenged.

The evidence was that police went to the George Town residence around 5pm on 2 October 2001. They saw McLean sitting on an enclosed porch with a young girl. Her son Charles was in the kitchen, which adjoins the porch, and he was standing by the stove.

When Charles became aware of the police, he ran to the back door and locked it, then ran towards the interior of the house.

Police gained entry through an open window and saw a young boy in the living room enjoying a plate of fish and rice. They also saw Charles standing by the stove, dishing up a plate of rice from a pot that was hot. Charles appeared to be trembling, nervous and frightened.

Mrs. McLean had the keys to the door and was about to open it for officers when another officer opened it.

A scale was found in the garbage bin next to the stove where Charles was standing. It had traces of cocaine. On searching further, cocaine was found in the freezer of the refrigerator.

McLean called a witness who said that at the time of the incident he had been living with her in an apartment elsewhere.

The magistrate said at trial that even if McLean were not sleeping at the house, there was continuity of her presence as she had clothing there. The food that was hot would have required at least 20 minutes to cook, so McLean would have had ample time to examine the contents of the freezer.

Mr. Austin-Smith had pointed out that there was no evidence Mrs. McLean had cooked the meal and no evidence she looked in the freezer. Therefore, the evidence on which the magistrate relied was really insufficient for it to be said that she was in possession of what was found in the freezer.

In response, the Crown submitted that McLean was the owner of the house and possessed the keys and was also in possession of everything in the house and had control of it.

Mr. Justice Panton pointed out that this latter submission did not find favour with the magistrate, who said there was insufficient ‘nexus’ between the defendant and the scale and therefore found her not guilty of possessing that utensil.

Mr. Austin-Smith had argued that it was inconsistent for his client to have been found not guilty for the scale which was easy to see, but guilty for the cocaine, which was not only in the freezer, but under another package.

The Grand Court judge agreed. He said there really was no sufficient evidence for possession of the cocaine to be imputed to Mrs. McLean, notwithstanding the fact that she was the owner of the premises and visited there.

It required more than being present at the time of the search for there to be possession and guilty knowledge. Perhaps the law enforcement authorities pounced a bit too early regarding this defendant if she could be thought to have been aware of activities of this nature taking place on the premises.

Merely visiting the premises would not make her criminally liable for everything found there. In the circumstances, he concluded, the appeal was allowed and a verdict of acquittal was entered.

McLean had been ordered to pay $400 toward the cost of the prosecution in Summary Court. Mr. Austin-Smith asked that this sum be returned to her.

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