Tuesday, March 5, 2013

The Gambia: High Court Uphold Cocaine Sentencing


Cocaine bust, estimated to worth $1 billion, June 2010, Banjul

A High Court judge in Banjul Thursday ruled against an appeal filed by seven foreign nationals convicted on drug trafficking charges on October 12, 2011 by a Magistrates Court.

Justice Edrissa F. Mbai, presiding, on Feb. 28, 2013 dismissed the appeal as “lacking merit”, saying: “The conviction and sentence were lawful and that there was no reason for any interference.”

The seven appellants: Rudy Rasoel Hamid Ghazi, Juan Carlos Sanchez, Esteaban Sanchez, George Sanchez, Louis Dose Fermin, Eric Bottini and Juan Carlos Daiz, are among 12 foreigners from Africa, Europe and South America who were put on trial in The Gambia following the shock discovery of a warehouse fully stocked with cocaine – which British forensic experts said worth over one billion US dollars ($1b).  

The Banjul Magistrates Court in the tiny West African country found them guilty of being in possession of, trafficking and dealing in prohibited drugs, conspiracy, and importing fire arms and ammunition without authority and valid license, and sent them to jail on various prison sentences from 50 to 100 years and a fine of 50 million Gambian Dalasis. 

That determination, according to Justice Mbai, was based on the trial Magistrate’s bare summary of the trial proceedings, prepared three years after the trial. 

Mbai said the High Court upholds the conviction and the sentences passed by the lower court (Banjul Magistrates Court presided over by Magistrate Sheriff B. Tabally).

The judge said he is satisfied that the prosecution proved their case beyond reasonable doubt and did convict and sentence the appellants accordingly. 

“There was no need for the appellants to admit in any document or statement that they were conspiring and dealing in 2.5 tons of cocaine just as it is not necessary to find all of them at the place the drugs were found so long as the prosecution is able to establish that each and every appellant frequented the place the drugs were found,” he ruled.

Err in law

The appellants said the trial Magistrate erred in law when he overruled the no case to answer submission of then accused persons, but Justice Mbai said this ground of appeal is incompetent. 

He also holds as incompetent, the appellants query on the issue of identification, which he said was not raised during the trial.

The convicts argue in their appeal filed 9 May 2012 that their sentencing and conviction is not supported by the evidence put before the court. “The prosecution witnesses (19 of them) did not lead any evidence that points to the offence of conspiracy between the appellants,” they said.

“The trial court failed to adequately assess the evidence of the identity of the appellants and did not evaluate the identity evidence as it relates to each of the appellants,” Counsel N. M. Janneh said in an additional ground of appeal of 28 May 2012. 

The appellants counsel pointed out in the particular of error that the trial magistrate fail to adequately assess the evidence of the identity of Esteaban Zanvalla the 3rd appellant, Louis Dose Fermini the 5th appellant, Eric Bottini the 6th appellant and Juan Carlos Diaz the 7th appellant as it relates to each of them. 

The trial judge accepted the evidence of the Alkalo (village head) of Bonto Lamin Kebbeh as it relates to the identification of the above named appellants, when there was no certainty; there was no evidence of an identification parade during the investigation to ascertain the identity of the said appellants by the Alkalo, the counsel wrote.

But Judge Mbai pointed out that in the instant case; he placed emphasis more on the grounds of appeal rather than on the summary of who said what at the trial because the complete record of proceedings was before the court.

No evidence

Their counsel also argued that the 85 bags of cocaine were only discovered on 5 June 2010 by prosecution witnesses without any of the appellants present. Janneh also submitted that there is no evidence linking the appellants together in this enterprise, adding that there is absolutely no evidence supporting the conviction of all the appellants on counts 1, 2 and 3.

But, Mbai maintain that the prosecution have established that the appellants purchased the land at Bonto, financed the construction of a warehouse inside which exhibit S1 to S20 and T1 to T65 were found.

He said the prosecution further established that some of the appellants were in possession of keys to the warehouse and that they all frequented the warehouse in Bonto, village in Kombo east district of West Coast region.

Conspired

Justice Mbai said that the prosecution submitted that since it has been confirmed by the National Drug Laboratory at Kotu that what was found in the warehouse at Bonto is cocaine, the undisputable fact that the appellants frequented the place and the fact that some of them had access to the keys, they are deemed to have conspired by dealing in trafficking.

“Their association of the place link them to whatever is discovered at the warehouse just like a professed saint who frequents a harlot’s house at night only claiming to persuade her to give up her trade,” the judge said.

The appellants argued on grounds of appeal on the trial Magistrate’s non compliance with Section 170 of the Criminal Procedure Code (CPC), however, the Judge declared that the fact that the trial Magistrate did not use the word convict on the record of proceedings does not affect the validity or legality of the sentence.

“Though the trial Magistrate may not have used the word convict at the time he was passing sentence, he has nevertheless complied with the provisions of Section 170 of the CPC,” Justice Mbai said. “There is no provision in the CPC that I was referred to which says failure to comply with Section 170 of the CPC means any sentence passed shall be nullified.”

He read Section 291 of the CPC and remarked that the failure therefore to use the word conviction does not affect the legality of the sentence passed. He said the word conviction includes “a verdict which is held to warrant a judgment against the defendant as well as a verdict actually followed by judgment as the Judge at trial might postpone sentence.”

“Having considered all the issues raised in the appeal, I did not find anything on the record of proceedings or the sentence passed by the trial court to warrant me to disturb the findings of the trial Magistrate,” Justice Edrissa F. Mbai said.

He added: “I therefore dismissed the barons’ appeal for lack of merit, and I uphold the conviction and the sentence passed by the lower court.” 


Written by Modou S. Joof

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