The charge of ‘being concerned’ in an alleged drug offence can be dealt with only in the Summary Court, the Cayman Islands Court of Appeal ruled during its recent sitting.
But that decision may not be final.
Attorney Lee Freeman has confirmed that he is applying for special leave to appeal the decision, issued in the case of Donald Knight.
The next and final level of appeal would be to the Privy Council in London.
Knight was convicted and sentenced in Summary Court in March 2004 to 14 years imprisonment for being concerned in the importation of 776.4 grams of cocaine and being concerned in the possession of that cocaine with intent to supply.
The Grand Court allowed his appeal last November and ordered a re-trial.
The Crown then appealed and the Court of Appeal, which heard arguments from Mr. Freeman and Solicitor General Cheryll Richards.
Mr. Justice Edward Zacca, president of the Court of Appeal, heard arguments along with Mr. Justice Martin Taylor and Mr. Justice Elliott Mottley. He announced their decision: the offences charged were not triable in either Summary Court or Grand Court. They were triable only in Summary Court.
The Crown’s appeal was allowed. Knight’s appeal against conviction and sentence was dismissed.
Mr. Justice Zacca said the judges would put their reasons in writing.
One argument several defence attorneys have used is that the charge of importation of a hard drug is triable in either court; therefore, they have said, being concerned in that importation should be dealt with the same way.
The Crown has stated that the elements of being concerned are distinct from the actual offence.
During argument in the Court of Appeal, the judges noted that the Misuse of Drugs Law originally made all drug offences triable in Summary Court only.
The law was subsequently amended to provide that certain specified offences involving hard drugs (such as cocaine or morphine) might be tried in either court. ‘Being concerned’ was not specifically listed.
The judges indicated that the amendment gave a choice to some defendants based on what they were accused of, but no defendants had anything taken away from them.