Dear Editor,
I have seen many persons appear in courts charged with being in possession of ‘a narcotic’ for the purpose of trafficking and after pleading not guilty, the defendant is remanded to prison, bail being refused because no special reason was advanced. If the defendant pleads guilty he or she is sentenced to a term of imprisonment (3 to 5 years).
Editor this has been the practice for several years.
I wish to submit that it is wrong and many persons have been wrongfully imprisoned by Magistrates who did not see the need to challenge the actual charges and /or have been too timid to dare to question the charges (no disrespect intended) and I am inviting all the legal minds out there who would like to offer a comment on the very topic I am about to present, without animosity.
I will copy verbatim the charge as was laid in a particular case, without naming the defendants and/or the magistrate who were involved. The charge has been dismissed.
Statement of Offence.
Possession of narcotics for the purpose of trafficking, contrary to section 5 (1) (a) (1) of the Narcotics Drug and Psychotropic Substances Act 10 of 2010. The defendant pleaded `not guilty’ and was remanded to prison, where he was until the conclusion of the trial.
I will not offer any comment on the actual wording of the charge but will certainly say that at the time of the first appearance in court to answer the said charge there was no analyst report in the file to determine that the alleged substance was, in fact, a narcotic.
Now for the legal luminaries out there and for those who saw nothing wrong with such a charge, and to the DPP for presenting the defendant with such a situation I ask, was it legally correct for such a situation to have been presented to the courts and worse yet, did the magistrate act in accordance with the law by refusing bail and remanding the defendant…on a mere suspicion?
I will agree that one can be arrested ‘on suspicion’ but no one should be charged on mere suspicion and then sent to prison based on that suspicion.
I will submit also that the learned DPP ought to ensure that files are complete, with all the pertinent details in them before anyone is brought to trial for any offence.
The same can be said for a charge of being in possession of a firearm. Unless a gun has been tested by a trained person and a report presented to the DPP no charge should be laid against anyone for being in possession of a firearm.
I wish to submit that the definition of a firearm should be taken seriously and studied by the police and the learned DPP so that they can understand that a gun cannot be deemed to be a firearm unless it has been tested to so determine. There are several definitions for a firearm but I like the one that describes a firearm as…’ a gun that discharges a projectile by the process of combustion’. Again anyone can be arrested for being in possession of a gun without being the holder of a firearm licence but no one should be charged with that as an offence unless and until the said gun has been tested by an expert to determine that it is, in fact a firearm.
No file should be presented to any court unless there is evidence that an offence has been committed. Such a file should be deemed incomplete and magistrates should refuse to act on such files. Too long this has been going on and too many persons have suffered at the hands of such incompetence and it is time this be discontinued.
Yours faithfully,
Charrandass Persaud
Attorney-at-law
