Council quashes cocaine conviction

Six years after he was arrested for being concerned in the importation of cocaine, Donald King Knight has had his convictions quashed by the Privy Council.

The issue was whether Knight was entitled to be tried in Grand Court instead of being limited to Summary Court.

Attorney Lee Freeman, who piloted the appeal through the legal process, said the judgment would affect other cases of this kind, opening up the right to trial by jury and application for legal aid.

The appeal was heard on 19 December and the Privy Council handed down its judgment on Monday.

Knight, now 37, had pleaded not guilty to charges of being concerned with over one pound 11 ounces of cocaine brought to Cayman by a courier who had swallowed the drug in Jamaica. That incident occurred in February 2002, when he was in Cayman on a work permit.

Knight was convicted in 2004 after trial in Summary Court; he was sentenced to 14 years.

Mr. Freeman presented Knight’s appeal to the Grand Court, where he argued that the defendant should have been able to choose trial in Grand Court, but was denied the choice.

He won his appeal, but the Crown took the matter to the Court of Appeal. There the judges ruled that the charges of ‘being concerned’ in the importation and possession of cocaine are triable in Summary Court only.

Mr. Freeman then instructed Gary Burrell QC for arguments before the Judicial Committee of the Privy Council – the final authority in Cayman’s legal system.

As the attorneys pointed out, offences in Cayman are divided into three categories: A, offences triable in Grand Court only; B, offences triable in Grand Court that, with the consent of the prosecution and the person charged, may be tried in Summary Court; C, offences triable in Summary Court only.

The Misuse of Drugs Law states that any offence of importing or supplying a hard drug is a category B offence. Hard drugs include cocaine.

The same law further states that anyone who imports, supplies, ‘or is concerned in any such matters’ is guilty of an offence.

The Court of Appeal said that being concerned in importing was a distinct offence from importing and was not considered to be category B.

The Privy Council traced the development of the Misuse of Drugs Law since it was first enacted in 1973.

The judges also referred to Cayman’s Penal Code, which says that every person who aids and abets another person in committing an offence is deemed to have taken part in committing the offence and deemed to be guilty of the offence, and may be charged with actually committing it.

David Perry QC was instructed by Senior Crown Counsel Trevor Ward in responding to the appeal arguments. The judges noted that Mr. Perry accepted, on the alleged facts, Knight could have been charged with importing the cocaine on the basis that he had aided and abetted the courier to do so.

The Misuse of Drugs Law was amended in 1985. The Privy Council pointed out that ‘both the original and the revised versions describe various ways in which people may, in effect, participate as principals in the various offences, including importing. That is, in substance, the position even if a defendant must be specifically charged with ‘assisting’ or with ‘being concerned in’ importing.’

For that reason, the judges continued, ‘one would expect that, for the purposes of mode of trial, a defendant charged with assisting or being concerned in importing a hard drug would be treated in the same way as a defendant who is charged with importing the same hard drug.’

The judges were satisfied that a person charged with being concerned in importing cocaine is a person charged ‘with any offence of importing’ – which is a B offence and could be heard in Grand Court.

Mr. Freeman said others issues arose, along with the potential for persons convicted of ‘being concerned’ to appeal and have their matter reopened.

Grand Court, he pointed out, offers the opportunity for trial by jury or by judge alone, while in Summary Court the trial is by magistrate alone.

Another important aspect is legal aid. Mr. Freeman said it will now be available, in appropriate cases, to persons who previously would not have been entitled to it.

AG sees no fallout

Attorney General Samuel Bulgin does not see any fallout from the Privy Council’s decision that gives a person the right to choose Summary Court or Grand Court when charged with being concerned in the importation of a hard drug.

‘I doubt that there are even five,’ he said when asked about the number of convicted persons who might be affected by the decision because they were not able to choose the court they wanted to be tried in.

‘There is no possibility of their cases being reopened because there is a finality to proceedings,’ Mr. Bulgin explained. ‘If they have exhausted the local appeal process, the only right they would have is to go to the Privy Council.’

He admitted ‘It is clear we need to revisit the legislation in order to clarify the mode of trial for drug offences in general. This is part of a wider reform currently being undertaken by the Attorney General’s chambers.’