Retrial appeal to be appealed

Defence Attorney Keith Collins has instructions to appeal the decision of Chief Justice Anthony Smellie in a case of possession of cocaine with intent to supply.

The Chief Justice gave his reasons last week for rejecting an appeal on behalf of Elon Dixon. Dixon has been before various courts since 2003, when he was charged in connection with 150.4 grams of cocaine (5.3 ounces) found in his kitchen cabinet in an empty bottle of body building supplement.

Dixon has denied possession, maintaining that he did not know the cocaine was there. A bodybuilding competitor and fireman at the time of his arrest in May 2003, he was first tried in April 2004. The court found him guilty and sentenced him to 10 years imprisonment.

He appealed to the Grand Court, where his conviction was overturned following successful arguments by Howard Hamilton QC, instructed by Mr. Collins.

The Crown appealed that decision to the Cayman Islands Court of Appeal. In July 2005, the Court ordered a retrial before a different magistrate. Dixon was found guilty and sentenced to 15 years.

This month, Mr. Hamilton and Mr. Collins took the new conviction to Grand Court.

Although the Chief Justice dismissed the appeal against conviction, he agreed with Mr. Hamilton’s argument on sentence, putting it back to 10 years.

Mr. Hamilton said it was wrong in principle that a greater sentence should be imposed on retrial than was imposed the first time. The Chief Justice said that, although that principle was not yet part of Cayman legislation, he saw no reason not to be guided by it.

In rejecting the appeal against conviction he first summarised the facts of the case and highlighted the issues the magistrate had to consider.

When police found the cocaine there were other bottles containing body building supplement and several scales. Three of the scales had cocaine residue on them. The magistrate described this as potent evidence of dealing.

The police search was prompted by observations made earlier in the morning, when a police officer saw a black car arrive at Dixon’s home. The officer reported someone from the car going to Dixon’s front door, apparently having an exchange with someone at the door, then leaving.

When that black car was stopped by police later, the driver was found to have cocaine wrapped in a manner similar to the packages found in Dixon’s cabinet.

Those facts made up a strong case for the defendant to answer. The question was whether the packages of cocaine could have been left in Dixon’s kitchen without his knowledge.

The question was narrowed even further because Dixon’s evidence was that he had taken some of the supplement the night before and he had seen no sign of the cocaine. He maintained he had gone out to Admiral’s Landing in the morning to check his property there, so he was not home when the police officer saw the apparent exchange at the front door.

The Defence raised two hypothetical propositions, the Chief Justice summarised.

One involved Dixon’s brother, described as a person with convictions for drug dealing and having unrestricted access to Dixon’s house. The brother had a red hatchback car and Dixon said he saw it parked in his driveway when he came back from Admiral’s Landing.

The second proposition was based on Dixon’s assertion that his house was always left unlocked and any of a number of persons had unrestricted access.

The Chief Justice said the magistrate appropriately made short work of the second proposition because it implied that someone dealing in an expensive illegal commodity would have left it where it would certainly be discovered.

The first proposition had taken up most of the magistrate’s time. The Chief Justice commented that disproving a hypothetical proposition can be more problematic than proving an issue of fact.

Because the burden of proof ultimately rests on the Crown, witnesses were called to speak to the alibi raised by the Defence.

A civilian witness told the court that she saw Dixon the morning of the incident. He left her company at 9 – 10 am, driving a red hatchback.

Cross-examined, she not only confirmed this but also added that Dixon had told her his brother was off Island at the time.

It was put to her that Dixon was driving a blue car that belonged to another family member. She agreed that he previously drove the blue car, but later started driving the red car.

This was an important issue, the Chief Justice said, because the police officer who witnessed the apparent exchange at Dixon’s front door said the red car was there at the time and was still there more than an hour later when Dixon was arrested.

The owner of the blue car testified for the Defence that she had been aware that Dixon drove her car the morning of his arrest. When he had returned he parked in his mother’s driveway nearby instead of his own.

The Chief Justice pointed out that the magistrate saw and heard all witnesses, so she was best placed to assess their credibility.

The Defence argued that the magistrate had failed to address an important conflict in times referred to – the civilian saying Dixon had been in her company until 9 – 10am and the officer saying the red hatchback was at Dixon’s home as early as 8.45am.

In his ruling, the Chief Justice said this discrepancy could not be of critical importance since it occurred in the context of what at best must have been approximations.

The other ground of appeal was that the magistrate, in rejecting Dixon’s account and finding him not worthy of belief, placed too much reliance on her finding that he had lied about his ownership of a cell phone found by police in his house.

That cell phone may have been relevant in Dixon’s first trial, when there was an issue of whether there had been regular contact between him and a then co-defendant. This was not an issue in the second trial; its only relevance was his insistent denial of ownership.

This was a denial he maintained until the end and the magistrate was entitled to conclude that he lied. Her further conclusion as to his lack of credibility could hardly be criticised, but in any event, it was not that finding on which she had based her conclusion of guilt.

That conclusion was properly based on the strong case for Dixon to answer, which she found had not been diminished by his own evidence or the hypothetical propositions raised by the Defence.

In his view there was no reason to interfere with the conclusion the magistrate had arrived at.