One of two St. James men charged in relation to the seizure of more than two pounds of cocaine during a police raid in Westgate Hills in 2013 was on Friday freed of the charges following a submission from his attorney.
He is Kirk Levy, from Porto Bello, who was charged alongside Hugh Roach from Westgate Hills for possession of and dealing in two pounds and 3.24 ounces of cocaine
It is alleged that on March 6, 2013, at approximately 5:20 p.m., a police team was on an operation in Westgate Hills when Roach and Levy were seen on the front patio of Roach’s house.
Roach allegedly attempted to hide a plastic bag under his chair, but the bag was retrieved and found to contain a rectangular package with cocaine.
The two defence lawyers – attorneys-at-law Morrel Beckford and Martyn Thomas, made their submissions before presiding judge Sandria Wong-Small.
In his submission, lawyer Thomas who represents Levy, said the prosecution failed to establish the essential ingredients of the offence as it relates to his client.
“In a nutshell, the parcel that contained the prohibited substance was not seen in the custody of Mr. Levy, neither does the evidence suggests that it was at any time under his control. In addition, the evidence does not suggest that there was anything said or done by Mr. Levy at the time when the police arrived in relation to this parcel from which the court can concur that Mr. Levy has knowledge. It is for these reasons that I ask that he not be called upon to answer,” said Thomas.
Meanwhile, Beckford, who represents Roach, said the only evidence on which his client could be convicted was the evidence of Constable Omar Smith, who said he saw when Roach throw the parcel under the bench.
Beckford also pointed out that the officer never sought to retrieve the package or draw his observation to the attention of the other members of the team. He further pointed out that he never challenged or confronted the man that he saw throwing the package under the bench.
Beckford also argued that Constable Smith pointed out his observation to the investigating officer – Detective Sergeant Bernard after 3 – 5 minutes have passed, which led to the parcel being retrieved.
“After he has made his observation, he had actually gone to the two men within four feet and identified himself but failed to indicate to Mr. Roach that he had seen him thrown something, and to make any enquiries of him at all as to what he had thrown under the bench,” Beckford said.
“The mere finding of the bag on the premises where Mr. Roach resides clearly would not provide a prima facie case,” said Beckford.
Another of Beckford’s concern was the fact that Constable Smith did not indicate in his statement that he had pointed out to the officer what he had seen.
In response to Thomas’s submission, the clerk said Levy was merely having a conversation with Roach, and in light of the circumstances, the prosecution offered no further evidence against him.
In relation to Roach, the clerk said Constable Smith, in his evidence, gave an explanation as to why he did not retrieve the package at the time, and why he did not say anything to the other members.
“He said that his role was to make the premises safe, and that he was providing cover to the rest of the team,” the clerk said.
“In those circumstances, there is an explanation why he did not retrieve the package at that time and did not say anything to the other four operational team members, but as soon as the area was safe, he made his observation known to Inspector Bernard (investigating officer),” the clerk said.
Referring to Roach, the clerk then said, “He was seen in possession and he was in custody and control of the prohibited substance. I submit that Mr. Roach has a case to answer.”
After listening to the prosecution and the defence, Wong-Small said even though there were serious credibility issues, it was not manifestly unreliable so that he could not be called upon to answer. On that basis, the judge said Roach had a case to answer and set the matter for continuation on May 14. He had his bail extended until that date.