Judge declines to award costs
Marius Voiculescu, the teacher found guilty last year of possessing a half-smoked ganja spliff, won his appeal against conviction on Monday after a brief hearing in Grand Court.
At the time of his arrest, in April 2008, Mr. Voiculescu was the computer teacher at George Town Primary School and John A. Cumber Primary School in West Bay. He was in his eighth year in Cayman. After his arrest, he was suspended on half pay.
He returned to Canada after his conviction.
Justice Alexander Henderson heard appeal arguments earlier this year from Defence Attorney Nicholas Dixey and Crown Counsel John Masters. He determined that he would hold a re-hearing of the matter.
The Crown’s position was that the judge had no jurisdiction to do so. Mr. Masters submitted that the court could dismiss the appeal, allow the appeal or send the case back to Summary Court.
On Monday, therefore, Mr. Masters told the court he was not applying to re-open the case and he was not calling any evidence.
With no evidence against Mr. Voiculescu, Justice Henderson allowed the appeal and quashed the conviction.
Mr. Dixey then applied for costs.
At the sentencing hearing, Defence Attorney George Keightley had reminded the court there is no legal aid for possession of ganja charges. Mr. Voiculescu paid for legal representation and expert evidence he sought in order to show his DNA was not on the ganja spliff. The total of his bills was in the region of US$30,000 (Caymanian Compass, 4 January 2009).
This week, Justice Henderson listened to arguments on costs and dismissed Mr. Dixey’s application.
He first noted the circumstances in which the ganja was found in Mr. Voiculescu’s possession.
On Monday morning, 28 April, 2008, he was travelling with other teachers. He was subjected to a random security search by airport security personnel.
The person conducting the search found a Benson and Hedges cigarette box in his bag. The box had three cigarettes and an unfamiliar smell, which prompted the security officer to examine the box further.
He observed a little bulge in the foil, which contained the cigarettes; behind the foil was a half-smoked ganja cigarette.
Mr. Voiculescu denied knowledge of the ganja. He said he had found the pack of cigarettes and a $10 note late that Saturday night in the parking lot of his apartment, next to his car. He kept the cigarettes and smoked most of them. He repeated this under oath at his trial.
‘Applications for costs are rare in this jurisdiction,’ Justice Henderson said. ‘I have not encountered one.’
He cited the laws that allow for costs, but noted there were no guidelines or practise directions. The judge said he had looked at UK law, where a comprehensive regime had been set out for the awarding of costs.
In successful appeals from a Magistrate’s Court, an order for costs should normally be made, unless there are positive reasons for not doing so, he summarised. There are acquittals in which awarding costs would not be appropriate, he noted, such as when a defendant’s own conduct has brought suspicion on himself or when the Crown has been misled into thinking the case was stronger than it actually was.
In this case, Mr. Voiculescu’s decision to cross an international border with a package he found in a parking lot and not examined fully was a rash act, which most people would not have contemplated, the judge said.
‘It is common knowledge that those who travel by air must take full responsibility for what they carry with them. Airline personnel are trained to ask each passenger questions aimed at reinforcing this civic obligation,’ Justice Henderson pointed out.
Mr. Voiculescu’s own conduct ‘brought suspicion on himself and led the Crown to think its case against him was stronger than it proved to be. That in my view is a positive reason for not awarding him his costs,’ the judge concluded.