Title: Not entirely implausible statement
Written by: André Beckers
In March of 2016 a judge convicted a man for cultivating cannabis. He convicted the man to community services. The man agreed with this conviction. On the other hand he resolutely disagreed with the judge’s decision that he must pay over € 11.000,-. According to the judge this was the amount that he had earned by cultivating cannabis.
In Appeal I complained that the judge had wrongly put the statement of my client aside. I contended that the judge isn’t allowed to blindly trust on the naked eyed observations done by the police. They look at symptoms such as dust and calcium build-up and connect what they see to radical conclusions. You aren’t able to verify these conclusions with objective criteria. You have to rely on the knowledge and experience of the police officer.
I pointed out that scientific research was lacking and I explained how and why discoloration, dust and calcium build-up is caused and within what time frame. Must we take what the police say as the truth? How can you tell the difference between one or two previous cultivations? Only if the judge is “convinced” that the suspect has earned any money with cultivating cannabis then he can take away that money from him. But is this also allowed if there is no question of “beyond a reasonable doubt”? I would say when in doubt you can’t take away, but in reality this often goes wrong.
While processing the appeal Justice pulled a rabbit out of her hat. My client had stated that the flower pots he had used when the last cultivation site was dismantled, where left behind by the police. That was the reason that the flower pots looked old and dirty, or so he explained. The Attorney-General had evidence that my client had made an untruthful statement. They explained that they had carried out an investigation themselves. Inquiry had taught them that the police had taken everything with them during the last dismantling. “That is standard procedure. Of course the police never leaves stuff behind after dismantling a cultivation site. It is standard procedure that everything is taken.” She proved her point with a list of the goods taken during the dismantling. I looked at the list. The Appeal Court asked for my reaction. I thanked the Attorney-General for establishing the truth. I got strange looks. It has been claimed that your client is a liar, and you thank them?
On the list of the goods that where taken during the dismantling, behind ‘plants’ the amount 500 was filled in, but behind ‘plant pots’ noting was written down. With that the list of goods taken during the dismantling supported the statement of my client. ‘Do you also see that according to the list of goods taken during the dismantling the extraction pipes and the charcoal filters had been left behind?’ These things were destroyed at the scene. Coincidently I was on location to offer my services to a man who cultivates cannabis before a deposition. I took pictures of the dismantled cultivation site with my phone. On the photo’s it is clear that the police often do leave items – such as flower pots – behind. I showed the pictures to the Appeal Court.
In May of 2017 the Appeal Court dismissed the assets recovery claim. The Appeal Court ruled that my clients statement “isn’t entirely implausible.” Now that there is no evidence that my client hadn’t benefited, he didn’t have to pay.
It engages me how Judges assess statements of suspects. When does a judge determine if he finds a statement credible? Does he only do this when a statement is supported with objective evidence? In which case is a statement plausible for a Judge? Does he trust his gut feeling? And what does not entirely implausible mean? Is that like we don’t believe you but we can’t catch you in a lie? I don’t know. The most important thing is that a wrong decision has been turned around in Appeal.
Translated by Joanna McKernan. Joanna works as a Lawyer for the law firm Beckers & Bergmans in Sittard. She is a native English speaker. Joanna has a lot of experience in cannabis related civil cases.