Wed | Aug 4, 2021

Court upholds ganja conviction

Published:Thursday | May 13, 2021 | 12:12 AMTanesha Mundle/Staff Reporter

The Court of Appeal has upheld the conviction of a man who had been ordered to pay $515,000 or serve two months in prison after he was found guilty of transporting 1,613 pounds of ganja.

The appellant, Allan Gardner, was taken into custody and charged after he was caught on February 14, 2012, driving a Toyota Hiace bus on Bustamante Highway in Clarendon with 30 knitted bags containing compressed ganja.

In March 2017, the appellant, after being found guilty at trial in the Clarendon Parish Court, was fined $15,000 for possession of ganja and $500,000 for dealing in ganja. Both fines attracted a 30-day sentence if it was not paid.

Gardener was also found guilty of trafficking ganja and taking preparatory steps to export ganja, but both charges were admonished and discharged.

However, he claimed he was wrongly convicted, and his lawyers filed an appeal on 21 grounds, including that the trial judge had erred in her verdict and that the charges were no longer relevant, as it is no longer illegal to have and deal in ganja. He also challenged the claim that he should have been charged for not having a licence.

NO EXCESSIVENESS

But the Court of Appeal judges, in their written judgment published earlier this month, dismissed the appeal and affirmed the term and conviction, noting that “the sentences imposed were in accordance with the law and were by no means excessive”.

The appeal was heard on November 3 of last year.

Among the grounds filed were that the integrity of the exhibits were not protected, as there was no evidence of who had custody of the exhibit from 2013 to 2016; that the chain of custody of the exhibit was not only broken but smashed; that the vegetable matter resembling ganja was never tendered or admitted as an exhibit; and that the identity of the various parcels was further compromised by the absence of proper labelling.

Gardener’s attorneys-at-law, Melford Brown and Christos Brown, however, did not argue all 21 points, but said that the evidence of the forensic analyst was not to be accepted. The defence argued, among other things, that it was improper for the parish judge to allow the forensic analyst to refresh her memory from a document that was neither seen by the court nor tendered into evidence.

The attorneys submitted that the Parish Court judge had also erred in permitting the prosecution to rely on the evidence that the knitted bags contained ganja in circumstances where they were not presented to the court and admitted into evidence.

NOT AN OFFENCE

Among their main arguments also were that it was no longer an offence to be in possession of ganja in light of the amendment, in 2015, to Section 7C of the 2012 act and that the proper charge would have been being in possession of ganja without a licence.

However, the Crown, who was represented by Crown Counsel Kathy-Ann Pyke and Okeeto DaSilva, submitted that it was not absolutely necessary for the knitted bags to be presented at the trial and that their absence was not fatal. Further, they said the appellant’s counsel did not request to see the notes.

Also, counsel averred that the forensic analyst was not required to test the entire contents in the knitted bags to conclude that they contained ganja, and that it would have been impractical to test all of the ganja.

The Crown counsel argued that it was still an offence to be in possession of, and dealing in, ganja. The amendment, they argued, only modified the offence of possession in respect to the legally allowed amount of two ounces in one’s possession.

“The weight of the evidence was against the appellant ... . The evidence adduced by the Crown was by no means unreliable,” the judges said.

tanesha.mundle@gleanerjm.com