Case went to Court of Appeal twice
Primary school teacher Marius
Voiculescu’s acquittal related to his 2008 conviction for possessing ganja has
been upheld in a final judgment by the Court of Appeal.
Marius Voiculescu was convicted of
possession of a half-smoked ganja spliff in December 2008. His conviction was
overturned in December 2009, but the case went to the Court of Appeal twice
before the acquittal was upheld.
The appeals before the high court
were argued by Crown Counsel John Masters.
The Court of Appeal handed down its
final judgment last week, dismissing the Crown’s appeal and upholding the Grand
Court’s decision to acquit Mr. Voiculescu.
In 2008 Mr. Voiculescu was found
guilty of possessing ganja after an airport security guard checked his carry-on
luggage and found a pack of cigarettes with a half–smoked ganja spliff behind
the tinfoil inside.
He was fined $400 by Chief
Magistrate Margaret Ramsay-Hale plus the cost of testing and returned home to
During his trial, Mr. Voiculescu
testified that he was into his eighth year in Cayman and was the computer
teacher at George Town and John A. Cumber primary Schools. Since his arrest, he
had been suspended on half pay. At the time of his arrest, he and other
teachers were travelling to Florida to observe a school.
He said the pack of cigarettes
found by the guard was one he had picked up in the parking lot of his
apartment. At the time he had only three cigarettes left, so when he saw the
pack of cigarettes, he looked at the filters to see if they looked clean. The
pack was not sealed and appeared to have between 10 and 13 cigarettes. Between
Saturday night, when he found the cigarettes, and Monday morning, he said he
smoked seven to nine of them. He said he did not know the spliff was in the
package and that it was not his, he did not put it there, and that he did not
smoke ganja or use any illegal drugs.
Evidence included his negative
urine analysis and DNA testing of the spliff, which Mr. Voiculescu paid for.
DNA on the spliff did not match his. Analysis of the spliff showed it to be
0.129 of a gram in weight, and a mixture of ganja and tobacco.
When Justice Alex Henderson heard
the first appeal, he concluded that the case demanded a re-hearing, and the
Crown should prove its case. At the re-hearing, Crown Counsel John Masters offered
no evidence and Justice Henderson acquitted Mr. Voiculescu in December 2009.
In May 2010, Justice Henderson
again heard the appeal, with Defence Attorney Nicholas Dixey arguing that there
was insufficient evidence to justify a conviction. The judge did not hear fresh
evidence, but reviewed the magistrate’s written judgment.
A central conclusion was the
inference the magistrate drew that the smell of ganja coming from the cigarette
box was strong. But the airport guard had described the smell as unfamiliar and
made no mention of strength.
Justice Henderson also referred to
the magistrate’s note that Mr. Voiculescu “appeared fastidious in his manner,
dress and demeanour. She inferred that his story of finding, keeping and
smoking cigarettes was implausible.
“There is some force in that, but
the inference is offset by the fact (as he testified) that he was short of
cigarettes and is a committed smoker,” the judge said.
In summary, he said he should
affirm the conviction only if the evidence made him sure of guilt. To reach
that conclusion, he had to be sure that Mr. Voiculescu’s denial of knowledge
was not true. The factors he considered were the proven absence of any motive,
the fact that the presence of the spliff in the package was not obvious, and
the evidence of good character.
Justice Henderson was not sure that
Mr. Voiculescu had the requisite knowledge of the presence of the spliff. He
set aside the conviction and ordered an acquittal.
The Court of Appeal heard the
matter again on 9 August. One of the grounds argued by the Crown was that the
judge erred in holding that he should affirm the conviction only if the
evidence made him sure of Mr. Voiculescu’s guilt and in holding that he must be
sure Mr. Voiculescu’s denial of knowledge was not true.
The Court of Appeal judges agreed
with Justice Henderson’s analysis of the magistrate’s written judgment
regarding the smell emanating from the cigarette box. But, they continued, the
evidence went no further than that. “The evidence did not enable her to find as
a fact that the smell was ‘strong’ in some objective or measurable sense; it
did not enable her to find, as a fact, that it was so strong that Mr.
Voiculescu must have been aware of it.”
Mr. Voiculescu had testified he
never held the package to his nose as the guard did. The magistrate doubted
that when Mr. Voiculescu examined the cigarettes he would have held the pack at
arm’s length. But, the Court of Appeal, said, there was no evidence on which
she could disbelieve him when he said he did not bring the pack up to his nose.
In those circumstances, Justice
Henderson was entitled to take the view that the inferences drawn by the
magistrate were not supported by recorded evidence. And the inferences could
not be explained by some advantage derived from seeing and hearing the
witnesses, the Court of Appeal said.
Justice Henderson therefore
approached the appeal on the basis that issues of fact were at large.
In the Court of Appeal’s words, the
judge thought it was “unbelievable that Mr. Voiculescu (who was not a ganja
smoker) should have attempted, knowingly, to smuggle a half-smoked spliff of
ganja from Grand Cayman into the United States. Such conduct would be