Court clarifies burden of proof

The Cayman Islands Court of Appeal has clarified how the burden of proof should be dealt with in drug cases.

The Misuse of Drugs Law says: Where it is proved beyond reasonable doubt that a person imported anything containing a controlled drug, it shall be presumed, until the contrary is proved, that the person knew that the drug was contained in the thing.

The case before the court involved a woman who brought fish in a cooler from Honduras; the fish were found to contain 5.3 kilos of cocaine. The defendant, Clarissa De Acosta, pleaded not guilty to importation on the basis that she did not know about the presence of the drug.

She was found guilty and sentenced to 14 years (Caymanian Compass, 7 January 2003).

The magistrate trying the case in Summary Court said she was satisfied that the Crown had established beyond reasonable doubt that De Acosta did import the cooler that contained the cocaine.

Under the Misuse of Drugs Law, the presumption was raised that the defendant was aware of the cocaine and there was a burden on the defendant to prove the contrary.

The magistrate said it was a settled principle that the defendant’s burden of proof was lighter then the Prosecution’s. The Prosecution must prove its case beyond reasonable doubt. The standard to be met by the defendant is on a balance of probabilities.

‘This direction should no longer be given,’ the Court of Appeal said in a ruling released earlier this month. The direction that should be given to the jury, or to the judge sitting alone, should be that the burden of proof remains on the Prosecution throughout.

If sufficient evidence is brought on behalf of the defendant to raise the issue of knowledge, it will be for the Prosecution to show beyond reasonable doubt that the defence is not made out by the evidence, the Court said.

The Court was comprised of Mr. Justice Edward Zacca, president; Mr. Justice Martin Taylor and Mr. Justice Elliott Mottley.

In Cayman’s law, presumed knowledge of the drug applies not only to importation but also possession and being concerned in importation or possession.

The law says that, where it is proved beyond reasonable doubt that a person had in his possession or custody or under his control anything containing a controlled drug, it shall be presumed, until the contrary is proved, that the person was in possession of the drug.

The judges made their comment on the burden of proof after ruling that there must be a record of what choice has been made when a charge may be tried in either the Grand Court or the Summary Court.

A retrial was ordered because there was no record that De Acosta had agreed to Summary Court, so that court did not have jurisdiction. De Acosta was on bail pending retrial. She subsequently absconded (Compass, 20 June).