British Virgin Islands

Tuesday, Oct 20, 2020

Man files lawsuit after losing land because of 'faulty' drug case

Man files lawsuit after losing land because of 'faulty' drug case

Justice Trevor Ward has dismissed - among other other things - a claim by Kerrison Deon Smith who was seeking ‘compensation equalling market value’ for a property that he lost in Sea Cows Bay while he had an ongoing drug-related …

This is according to a written High Court judgement submitted on February 13.

Justice Ward had also dismissed Smith’s claim for ‘relief’ from local police who he said violated his ‘fundamental rights and freedoms as an individual’ (according to Section 9 of the Virgin Islands Constitution).

The High Court judge also struck out Smith’s claim for constructional relief for the law enforcers’ ‘violation’ of Section 19 (2) of the constitution. That section of the constitution states that: “Except with his or her own consent, no person shall be subjected to the search of his or her person or property or the entry by others on his or her premises.”

Justice Ward also denied Smith’s request for the removal of his conviction in the Magistrate’s Court.

However, Justice Ward stated, that once the proper documents are filed appropriately, he will proceed with Smith’s claim about Section 16 (1) of the constitution.

That section states: “If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.”

The basis of Smith’s claim about a fair and timely trial comes from the fact that he had to wait two-and-a-half years before the matter concluded. A trial never commenced over that time period.

Smith’s Magistrate’s Court case

Court documents revealed that about 2 am on July 4, 2016, the claimant (Smith) was intercepted while in a vehicle in the vicinity of Josiah’s Bay on Tortola.

He was found to be in possession of cannabis and cocaine and was subsequently arrested and brought to the East End Police Station where he was searched, and the sum of $2,466 was taken from his person.

He was then taken to the Road Town Police Station where he was detained before being charged for the unlawful possession of 0.8 grams of cannabis and an unknown amount of cocaine with intent to supply.

He was subsequently released on bail pending his appearance before the court on September 16, 2016.

On March 3, 2017, the claimant entered a guilty plea to the charge of possession of cannabis and opted to go to trial for the cocaine charge. The trial was scheduled for May 29 and 30, 2017.

The trial date was vacated on a number of occasions for various reasons. It eventually commenced on December 12, 2018, and was adjourned to January 8, 2019, and again to January 11, 2019, when the prosecution withdrew the cocaine possession charge.

On that day, the Magistrate convicted, reprimanded and discharged him (Smith).

The claimant alleges that after the cocaine charge was withdrawn, he made inquiries and wrote to the Director of Public Prosecution (DPP) on May 10, to the Commissioner of Police on May 16 and again to the DPP on May 20 to secure the release of his money that had been taken from him.

The police later wrote to him and informed him that the money was available for collection.

Claimant lost his land

The court’s documents further stated, the claimant maintains that the detention of the sum of money resulted in him being unable to pay arrears on a parcel of land at Sea Cows Bay for which he had made an initial payment to the government in April 2016.

He was supposed to make monthly payments thereafter. The unavailability of the said sum of money and the expenses associated with legal fees to defend himself in court resulted in him being unable to pay for the arrears on the property.

As of July 22, 2019, the claimant said he no longer held any interest in the property. He said as a result of the criminal case; he had lost the opportunity to own land at an affordable price as he is unable to purchase the land at market price.

Inability to open bank accounts

The claimant further mentioned that his attempts to open a bank account was hindered by what he felt was his conviction.

He said two banks had declined to open accounts for him and while he was not given any reasons for the banks’ decision apart from that it was being “reviewed by the appropriate banking regulators.”

What Smith wanted

Court documents state that Smith believed his right to a fair hearing within a reasonable time, pursuant to Section 16 (1) of the Constitution had been infringed because the criminal proceedings against him took 921 days to be disposed of and his right to privacy under Section 19 (2) of the Constitution has been breached.

His attorney Jamal Smith said his client does not contest his conviction for possession of cannabis what he challenges is the validity of Section 9 (2) of the Drugs Act that permits the search of private property, the written judgement indicated.


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