Quantity alone can establish a ‘case to answer’
In a judgment handed down earlier this month, Chief Justice Anthony Smellie upheld the conviction of Xavier Quincy Waldron for possession of cocaine with intent to supply. The quantity involved totalled 11.72 grams or, as described in the judgment, nearly half an ounce of cocaine base.
[With a possible use of about one-tenth of a gram at a time, this amount could equal more than 100 uses.]
Waldron had pleaded guilty to simple possession of the illegal substance, but not guilty to the more serious charge of intent to supply.
The Chief Justice said Chief Magistrate Margaret Ramsay-Hale was entitled to take the view the quantity by itself required an explanation from Waldron after Crown Counsel Tricia Hutchinson closed the case against him. The quantity justified an inference of intention to supply, but Waldron could have responded with evidence persuading the magistrate that his plea to simple possession was correct.
Defence attorney Lucy Organ had argued the Chief Magistrate had taken “judicial notice” of the amount of drug as consistent with possession with intent to supply when the circumstances made it impermissible for her to do so.
Waldron was arrested in November 2008 after a police officer went into the male restroom at the Globe Bar in George Town and saw Waldron and another male. Waldron was standing there, smoking a cigarette and drinking a beer. The officer asked the men what they were doing and requested a search of their persons, as he may do under The Misuse of Drugs Law. He found two packets in Waldron’s pants front pocket; one contained a cream-coloured rocklike substance and the other a white powder resembling cocaine.
The packets were submitted for analysis and certificates stated they each contained a cocaine base, 5.40 grams and 6.32 grams.
At the close of the Crown’s case, Ms Organ argued there was no evidence of any drug paraphernalia being found, no cash to suggest sales, no evidence of a lifestyle to suggest drug dealing, and no evidence of how the drugs were normally sold. Further, there was no evidence to say Waldron was not a user, since he failed to provide a specimen of urine for testing.
Ms Organ did succeed in getting Waldron’s sentence reduced from 12 years to 10 years. The Chief Justice agreed the circumstances of the case suggested Waldron was not a seasoned dealer, but a “low level retailer”.
Ms Hutchinson had said the amount was significant and there was nothing from Waldron to suggest he was even a social user.
After the chief magistrate ruled there was a case for Waldron to answer, he gave evidence on oath. He said he had used his wages that Friday to purchase cocaine for his own use, which he described as occasional – limited to weekends, but not every weekend. He said he bought the drug in the quantity found on him because it was cheaper.
Cross-examined by Ms Hutchinson, his narrative unravelled as to how he had spent his money, and how and when he used cocaine. He agreed he told police the drugs found on him actually belonged to the other male in the restroom and that was a lie.
The chief magistrate said the lie did not mean Waldron was guilty, but it did undermine his credibility and showed him to be someone who would lie for convenience, to get out of trouble or to retaliate.
“There was no other evidence to support his claim of cocaine use: no evidence of previous convictions for cocaine use and possession and no evidence of use following this arrest, as he refused to provide a specimen of urine. In any event, the use he claims is so infrequent and casual as to make a nonsense of his reasons for being in possession of such a large amount of crack cocaine. The quantity of cocaine is, by itself, inconsistent with possession for personal use. I reject his assertion that he had it for his own use and convict him of the offence in the result,” the chief magistrate said.
In his ruling, Chief Justice Smellie also examined the concept of judicial notice, which was referred to in one ground of appeal.
Citing authorities, he said judicial notice covers the provisions of the law and the acceptance of certain facts without proof – facts that are within the sphere of everyday knowledge and experience. Judges may not act on their own private knowledge or belief, but may rely on local knowledge.
The chief magistrate had inferred in this case the quantity of cocaine was on the face of it inconsistent with personal consumption. That inference “must surely come within the bounds of what an experienced judicial officer in this jurisdiction would be able reasonably to infer from knowledge gained over the years from very many cases involving the dealing in, use and possession of illicit drugs,” Chief Justice Smellie said.
The limited extent to which she relied on her knowledge of the relationship between drug quantities and consumption was permissible for the purpose of calling on Waldron to answer the charge, which she did, the judge said. There was no finding that the amount of drug by itself was proof of intent to supply. That issue was concluded by the absence of a credible explanation from Waldron, the judge concluded.