Grand Court overturns conviction for possession with intent to supply
After hearing an appeal by Attorney Peter Polack, Justice Alexander Henderson set aside a conviction for possession of cocaine with intent to supply and substituted a conviction for simple possession of 21.6 grams of cocaine – just over three-fourths of an ounce.
Mr. Polack’s client, Eduardo Swaby-Gutierrez, received a sentence of 12 years imprisonment last October after being found guilty of the more serious charge. He had been in custody since then.
Justice Henderson asked about an appropriate penalty for simple possession. Crown Counsel Kenneth Ferguson said from his experience in Summary Court, the maximum he had seen for simple possession was 12 months. On that basis, he added, the seven months and two weeks Swaby had served would qualify him for early parole.
The judge agreed and sentenced Swaby to seven and one-half months, with time served taken into account.
One of Mr. Polack’s arguments was that there was no certificate of analysis for what had been referred to as particles of cocaine found on a table.
Swaby’s trial in Summary Court was heard by former Chief Magistrate Margaret Ramsay-Hale. In handing down her verdict, she summarised evidence that police officers went to his place of work on the night of 29 December, 2009. Swaby, 27, had closed up the West Bay shop he managed, but unlocked the door at the officers’ request.
They searched a back room, used to store stock, and found small particles of what appeared to be cocaine on a table. Also on the table, they found a scale, foil paper and a knife on which there were visible traces of what appeared to be cocaine.
A red truck was parked outside the shop. Officers looked through its window and saw on the console four transparent plastic bags of what appeared to be cocaine. Swaby acknowledged the truck was his, but said he had not used it all day. He told officers he had lent it to a friend, whom he named. Two men gave evidence in support of Swaby’s claim, but their accounts differed and the magistrate found them to be witnesses of convenience, not witnesses of truth. The presence of cocaine in Swaby’s truck raised a presumption it was his, but Swaby could rebut it. But the witnesses he called and the explanation they gave did not raise any doubt in the magistrate’s mind. She said she was satisfied Swaby had custody and control of the vehicle and she was sure he possessed the cocaine. The quantity was not consistent with possession for personal use, she pointed out.
Lisandro Almaguer, who worked in the shop with Swaby, had admitted consuming cocaine. The magistrate found him guilty of possessing the knife as a utensil for consumption. She found Swaby guilty of possessing the knife for the preparation of a controlled drug.
In his decision, Justice Henderson said the magistrate had misconceived the evidence.
“There was some trace of cocaine found on the knife, but the learned magistrate was focused upon certain white particles, which were found on a table and she inferred from the evidence incorrectly that the particles on the table had been analysed and proved to be cocaine.
“She used that inference as part of her reasoning for convicting the defendant for possession of cocaine, which was in the car [sic]. The Crown concedes that the learned magistrate erred in her appreciation of that aspect of the evidence. I am satisfied that she did and I am further satisfied that the conviction for possession with intent to supply must be set aside as a result of the error,” he said.
The core body of evidence did support a conviction for simple possession.and sentencing proceeded on that basis.
The judge advised Swaby to stay away from drugs and contemplate how close he had come to spending most of his youth in prison.
She rejected his evidence that he was not aware of the knife or the scale found in the back room of the shop. She was satisfied that the scale, the foil paper, the knife and the particles of cocaine were all recovered from the table, not from different areas of the room.
Swaby had said the gold foil found was used to wrap fireworks, which he bought in bulk and sold individually. The magistrate said that could very well be, but she accepted the evidence of a police officer who said individual portions of cocaine are often wrapped in foil.
A portion of the knife blade was encrusted with cocaine, and she had no doubt it had been used to cut the cocaine in its preparation.
She said the finding of the items in proximity in the back room supported the inference that Swaby possessed the cocaine in the truck with intent to supply it.