Ganja case needed photos, prints

Three men were found not guilty of possession of 13.49 pounds of ganja after Acting Magistrate Valdis Foldats commented on the weakness of the evidence.

‘Taking photographs, creating scale drawings and dusting for fingerprints should be the starting point for investigators,’ he said.

He delivered verdicts of not guilty for Dennis Shervin Embanks, Jerry Darl Manderson and Gressman Collin Ebanks on 7 March.

All three had pleaded not guilty to charges of possession, possession with intent to supply or being concerned with the drug, which police found in a West Bay bush clearing on 11 May, 2006.

The ganja was contained in 11 glass bottles, one plastic bag and one plastic bucket. Other items at the scene included a knife, scissors, bottle caps and duct tape.

‘There is no evidence at all of who brought the ganja to the location, how it was brought, or when it was brought,’ Mr. Foldats said. ‘There is no evidence of anyone handling the ganja exhibits. No photographs were taken of the scene. No scale drawing of the scene was provided to the court. No fingerprint evidence was adduced – it is not clear whether attempts to lift prints were made or whether the seized items were not examined.’

The magistrate said this type of evidence was not essential, ‘but where identity and possession are issues, it would certainly have been helpful.’

The main evidence in the Crown’s case came from two police officers who were on routine patrol. They saw a man beside an area of bush and they heard sounds further in the bush. They went to investigate.

The male officer said he saw Jerry and Dennis run off; Gressman was found in a clearing.

The female officer could not identify the persons fleeing, but she assisted her colleague in observing and collecting items at the scene. These included the ganja, plus a cell phone and keys belonging to Jerry Manderson.

Interview

All three men were interviewed. Jerry denied being at the scene. He agreed the cell phone and keys were his. Told that his belongings were found in the bush, Jerry said he had given his keys to another man – the one the officers first saw standing beside the area of bush. Jerry said the ganja must belong to that man.

Dennis agreed he was at the scene, but denied the ganja was his. He said he had gone there to ‘buy a draw of weed’ from Gressman.

Gressman said the ganja was not his; he had gone there ‘to ask Jerry for a draw of weed’.

Crown Counsel Tanya Lobban agreed that the statements of each defendant could not be used against the others.

The men were represented by Attorneys John Furniss, Nicholas Dixey and Ben Tonner.

Analysing the evidence, the magistrate noted that the three men were charged with possession of some of the quantities of ganja, but not others. He said he found this puzzling and wondered what the Crown’s theory was.

‘On what basis can there be a division of ownership? What evidence allows such a conclusion? What evidence ties any of the defendants to any specific exhibits?’ he asked.

In the Crown’s case against Jerry, the main issue was identity. The magistrate pointed to guidelines he must follow when identification of a suspect comes from a fleeting encounter. He had to ask how long the suspect was under observation, what was the distance, were there anything to obstruct view.

The female officer had said she could not identify the two men who fled because she could only see their backs and it had happened so fast.

The male officer said his view was not obstructed, he had a full view of Jerry’s face and whole body, and he had known Jerry for over 15 years. He admitted his sighting was a fleeting glance.

The officer said he gave chase ‘but as I got to where they ran from, I came upon Gressman Ebanks.’ The magistrate said this supported his conclusion that something was obscuring the officer’s view, since he couldn’t see Gressman until he was in the clearing.

The officer had told the court he asked Gressman why he was there and Gressman said he came to check Jerry. The officer said he then asked where was Jerry.

Concern

The magistrate said this gave him great concern since the officer had said he knew Jerry and where he lived. He asked whether the officer’s identification was constructed from this prior knowledge and the information from Gressman after a fleeting glance.

Further, there was no clear evidence where Jerry’s phone and keys had been found, whether in the bush or in the clearing, with the ganja or in the area where the officer claimed to have seen Jerry.

Jerry’s explanation of giving his property to another man was somewhat corroborated by the fact that the officers had seen that man. In the circumstances, the presence of the phone and keys was of little value as evidence.

Finally, the magistrate could not be sure that the officer’s identification of Jerry was unaffected by his prior knowledge and the subsequent information he obtained.

The evidence against Dennis was mostly that he ran from the scene. The magistrate pointed out that this was not a case in which the defendants shared living quarters or a car, when joint possession could be inferred. He said it was a natural reaction for a purchaser of drugs to flee the scene when police arrive.

Dennis admitted picking up two ten-dollar portions. He pleaded guilty to simple possession of this quantity (for which he was later fined). The magistrate said the Crown had not discharged its burden of proof regarding the other charges.

He said he was not troubled by the fact that no money was found on Gressman – perhaps the money had not yet changed hands. The issue had not been explored in Gressman’s interview.

Gressman had told officers he was standing on a piece of plywood at the scene because there was some ganja under it. He said if the police didn’t find it he would have something to smoke. The magistrate called this wishful thinking on Gressman’s part, as he was not in possession of the ganja.

The magistrate noted that the ganja under the plywood was not tied to any exhibit and this was another example of the weaknesses in the Crown’s case.

Gressman’s reason for being at the scene was plausible, the magistrate concluded. There was no evidence he handled any of the exhibits and he too was found not guilty.