Missing evidence leads to quashed drug conviction

(CNS): A Grand Court judge overturned a conviction for drug dealing on Friday morning as a result of missing evidence, among other things. Eduardo Swaby-Gutierrez was sentenced to 12 years imprisonment last October after a magistrate had found him guilty of possessing 21 grams of cocaine with intent to supply.  However, that conviction was quashed following Friday’s appeal hearing and changed to a lesser charge of possession. Swaby was given a new sentence of seven months, which amounted to the time he had already served since being convicted and the prisoner walked free from the courts. According to Swaby’s defence lawyer, the magistrate had relied on evidence that did not exist to convict him. 

During the Summary Court trial the chief magistrate, Margaret Ramsey Hale, had depended on particles of cocaine to convict Swaby of dealing. These particles were, however, never submitted for analysis or actually handed into the court as evidence. Local attorney Peter Polack, who represented Swaby in the hearing, submitted fifteen grounds of appeal, eight of which were conceded by the prosecution before the start of the appeal.

Justice Alex Henderson said that this was only the second time he had seen so many grounds of appeal on a case. Despite the number, the decision turned on the reliance placed by the former magistrate on the two items referred to in her judgment as “particles of cocaine”, which Polack noted were never submitted for analysis by the police.

Swaby and another person were arrested on 29 December 2009 after a police raid at his place of work in West Bay. The officers searched a back room, used to store stock, and were said to have found small particles of what appeared to be cocaine on a table, along with a scale, foil paper and a knife, on which police said were visible traces of the drug. Officers also found cocaine in Swaby’s truck, which at trial he said he had not used that day.

Swaby had claimed to have lent the truck to his friend. This friend had told the court in his testimony during the summary trial that while he borrowed the truck he had picked up a confessed crack addict. The addict also gave evidence and told the court that he had stolen drugs that day and said he believed he may have left the cocaine in the truck. The magistrate, had rejected all of this evidence, stating that it was unconvincing, and convicted Swaby of dealing.

However, the lead officer in the case never testified at the trial and no notes of the search made by her were available. No one at trial sought to raise the issue with the magistrate that the evidence of cocaine particles had not actually been submitted or included in the original charges. The whereabouts of the missing evidence has never been revealed, the defence attorney noted.