The Tribune

By RASHAD ROLLE

Tribune Staff Reporter

rrolle@tribunemedia.net

THE Court of Appeal has upheld the convictions of two men on drug charges, rejecting claims that their trials were unfair or unsupported by evidence and reinforcing the legal weight of circumstantial proof and statutory presumptions in drug prosecutions.

In a ruling released last week, the court found that both Wenzel Stuart and Luthianos McPhee had failed to rebut the legal presumption of possession after significant quantities of cocaine were discovered in locations closely linked to them. Stuart was connected to a stash of drugs found in a residence, while McPhee was the pilot of a plane used to transport the narcotics.

The court said the trial magistrate had sufficient evidence to conclude that Stuart was the occupier of the home where the drugs were found. Personal items bearing his name — including expired passports, a savings book update form, and an affidavit of birth for his daughter — were recovered from the property. Under Section 29(6) of the Bahamas’ Dangerous Drugs Act (DDA), such evidence shifts the burden to the accused to prove that drugs found in a place they own or occupy were there without their knowledge or consent.

Stuart’s response — including telling police “no comment” and offering no credible explanation for the presence of the documents — was deemed insufficient to discharge that burden. The magistrate had also found inconsistencies in Stuart’s alibi, including conflicting accounts of a fishing trip and vague testimony from his girlfriend. One of his own witnesses corroborated police testimony that he lived at the residence, undermining his defence.

McPhee, the second appellant, was convicted after a video showed him actively offloading four heavy bags — later determined to contain more than 200 pounds of cocaine — from his small aircraft during a landing on Moore’s Island. He was the sole pilot on the flight and had only one passenger, whose name he never obtained. Prosecutors argued, and the magistrate agreed, that McPhee’s failure to ask about the nature or weight of the luggage — combined with his evasive actions after the drop-off — supported the conclusion that he was knowingly participating in a drug trafficking operation.

The magistrate described the landing scene as “chaotic” and akin to a “drug drop”. After the drop-off, McPhee flew to Treasure Cay, where police encountered him. Rather than stopping, he accelerated toward the officers, forcing them to fire warning shots. His later claim that he flew from Mayaguana, not Moore’s Island, was disproven and taken as an attempt to mislead authorities.

In affirming the conviction, the court cited the principle from DPP v Brooks that constructive possession — where an accused has control over an item even if not physically holding it — can be established through inference. The court found the evidence against McPhee, including his conduct and false statements, sufficient to conclude that he knew he was transporting drugs.

Both men had argued on appeal that the magistrate erred in assessing the facts and that the convictions were unsafe. McPhee additionally claimed that the magistrate improperly took on the role of advocate by asking whether he was aware of aviation regulations about flying after sunset.

The appellate court rejected that argument, saying the question was not improper and that no prejudice to the defence had been shown.

McPhee also challenged his sentence as excessive and argued that the magistrate wrongly inferred criminal intent from the $3,000 payment his passenger made for the charter. But the court said those issues were reasonably considered and that no error of law had been demonstrated.

“The findings of fact were reasonably made, and there is no basis for our interference,” the judges concluded.