A court on Wednesday granted a man with a tainted criminal record “one last chance” after converting a conviction for aggravated drug possession to one of simple possession in a decision which marked a departure from case law.
Staino Agius, 37, whose criminal record included “a great number of offences,” had been found guilty of aggravated drug possession and recidivism by a Magistrates’ Court in March this year and was handed a 14-month effective jail term as well as a €1,500 fine.
The conviction had followed nine years of criminal proceedings stemming from another brush with the law by the accused back in October, 2009, at a time when he had allegedly been under house arrest.
Police officers had turned up for a surprise visit at the man’s Qormi residence, armed with a search and arrest warrant.
Meeting the suspect at the door, the officers had conducted a personal search of the man which had yielded two sizable bags of brownish powder and some €400 in cash. The search of the house yielded nothing else.
The man was arrested and eventually charged with aggravated heroin possession and recidivism after it had been scientifically confirmed that substance found inside his pockets was 9.9 grams of heroin, with a 9.6% purity.
The chemical expert had explained that this low purity had been due to the addition of caffeine which speeded up the decomposition of the drug.
During the proceedings, the accused had insisted that as a drug user under house arrest, he had been purchasing the drug in batches of 10 grams to furnish himself with the necessary supply.
Following a long line of case law, the Magistrates’ Court had declared that since the amount was more akin to that of aggravated possession, it was up to the accused to prove otherwise.
Since the accused had failed to prove this, bringing no evidence of his addiction, the first court had declared him guilty, sentencing him to a jail term and a fine.
However, the court of appeal, presided over by Madam Justice Consuelo Scerri Herrera, delved into whether the first court had reached ‘a safe and satisfactory’ conclusion.
In doing so Madam Justice Scerri Herrera noted that the drugs and cash found inside the accused’s pockets, unsupported by any other evidence, could not deny that this was a case of personal use.
No other paraphernalia, such as weighing scales, normally associated with trafficking, had been discovered during the search.
Disagreeing with the earlier judgment, the court declared that it was up to the prosecution to prove its case, namely that the drug was not for the accused’s personal use.
“Not every circumstance which may give rise to a suspicion is sufficient, and for this reason the court has a lurking doubt as to whether the drug was not truly for the personal use of the appellant,” Madam Justice Scerri Herrera observed.
Consequently the court revoked the judgment, declaring the accused guilty of simple possession and recidivism, thereby striking off the 14-month jail term and confirming the €1,500 fine as well as the payment of court expenses and the destruction of the drug.
Lawyers Franco Debono and Marion Camilleri were defence counsel.