Judge gives new interpretation to aggravated drug possession

A man found guilty of aggravated drug possession has had his 14-month prison term lifted at appeal stage after the judge ruled that the intent to traffic was not proven.  

Judge Consuelo Scerri Herrera found the man guilty of simple drug possession, striking off the jail term but keeping the €1,500 fine.

But the court’s decision may have a bearing on the legal interpretation of aggravated possession.

Under current legislation, people accused with aggravated possession of drugs are punished the same way as traffickers and risk life imprisonment if the case is heard in front of a judge, or a maximum of 10 years if the case is heard by the magistrates’ court.

The law also stipulates that in such cases the burden of proof is shifted onto the accused.

The way the law was being interpreted until now was that if the amount of drugs found on a person was incompatible with personal use, the burden of proof shifted to the defendant, who then had to show that it was not intended for trafficking purposes.

But all this may change after Scerri Herrera’s ruling in the case the police vs Stiano Agius. Agius had been caught with 9.92 grams of heroin while under house arrest for another drug crime in 2009.

Earlier this year, the court of magistrates had jailed him for 14 months and fined him €1,500 for aggravated possession of heroin.

Agius had appealed the sentence, arguing that there had been a mistaken interpretation of the evidence and that it was the prosecution who were obliged to prove that the drugs were intended to be trafficked.

No evidence to prove intent to sell drugs

There was no evidence that the appellant had been intending to sell the drugs and the accused had confirmed under oath that the drugs were for his own use, argued the defence.

Agius had also been under house arrest at the time and there was also a complete absence of paraphernalia linked to trafficking when he was caught, argued his lawyers.

In a judgment making many references jurisprudence, Judge Scerri Herrera observed that 9.92 grams of heroin divided into two packets, were a significant amount of drugs, but disagreed with the notion that it was up to the defendant to prove they were exclusively intended for his personal use.

“The fact that the accused chose to take the witness stand and explain that he was a heroin addict changes nothing of the onus of proof on the prosecution. The fact that from the acts nothing shows that the appellant was dependent on drugs and was under house arrest changes nothing too. The onus of proof is on the prosecution to show that this wasn’t exclusively for his personal use,” said the court.

The drugs had been found in the man’s pocket, together with €400. The court ruled that these circumstances were insufficient on their own to prove that he intended to sell or share the drugs.

“Not every circumstance that can lead to suspicion is sufficient, which is why this court has a lurking doubt about how much, in truth, these drugs were not for the appellant’s exclusive use. This doubt must weigh in favour of the appellant,” she said.

The Court of Criminal Appeal found Agius guilty only of simple possession, rather than aggravated possession, as well as of recidivism.

The punishment was therefore reduced in view of this fact, with his prison sentence being eliminated but the fine remaining in place due to his criminal record.

Lawyers Franco Debono and Amadeus Cachia were defence counsel.