BRIDGETOWN, Barbados, CMC—The Court of Appeal has reserved its judgment in the state’s appeal of a High Court ruling that declared a section of the Drug Abuse (Prevention and Control) Act unconstitutional.
Christopher Rogers had applied for judicial review and constitutional relief based on a challenge to Section 42(1) of the legislation after he was committed to stand trial for several drug offenses.
High Court Judge Shona Griffith ruled last year that the section is unconstitutional because it contradicts an accused person’s right to the presumption of innocence guaranteed under the Constitution.
Section 42 makes assumptions about a person’s knowledge of and possession of controlled drugs. It presumes that a person found with a controlled drug intends to supply it to another person unless they can prove otherwise, and the burden of proof is on the accused.
Rogers had been committal to stand trial on the importation, trafficking, possession, and possession within intent to supply charges, which had been premised on his captaincy of the boat on which the drugs were allegedly found.
On Monday, the attorneys representing the state made submissions before the Court of Appeal to reverse the decision to quash the committal and to interpret Section 42 to place only an evidential burden on the defendant, not a legal burden.
The state argued that the appeal would raise issues of public importance central to the enforcement of the Act, would impact persons involved in drug offenses, and might affect law enforcement personnel’s decisions regarding charges and prosecutions for alleged drug offenses.
In addition, it submitted that this could have implications for persons whose convictions involved the operation of the relevant section of the Act. It acknowledged the lengthy delay between the judgment and the filing of its appeal, saying it was not feasible to determine whether an appeal was merited until the decision was written and released to the parties.
But Trinidad-based Senior Counsel Douglas Mendes, who, along with King’s Counsel Andrew Pilgrim, is representing Rogers in the matter, argued that their client was impacted by the state’s failure to file its application to appeal the trial judge’s decision within the stipulated 28-day period following the ruling.
“He has been affected by these proceedings and continues to be affected by them,” Mendes said, adding this was due to the “dithering” of the authorities.
“If the law enforcement authorities have been having difficulty for the last year and a half because Section 42 has been declared unconstitutional, it is not the failure of the learned trial judge. It is the fault of the intended appellants.
“So you cannot come to this court and say I have special reasons for seeking an extension of time, months after the time has expired because it is affecting the law enforcement authorities when you have it within your power all along both to appeal within time but also to take certain measures to correct the situation and then say ‘well too bad Mr Rogers, you must face this whole thing all over again,’ he said.
Mendes said the state demonstrated no special reasons for extending the time to appeal against the judge’s orders and no basis for it.
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