Title: Must a suspect prove his innocence?
Written by: André Beckers
Seldom do I hear a client disagree when a judge gives a verbal ruling. While saying the words “you have the right appeal this decision within 14 days” my client reacted straight away. “Just so you know I am going to appeal this decision immediately. I don’t understand it at all’.
What happened prior to the hearing? The police had thought they found a cannabis cultivation site in creation, in an outlying area. Supposedly cannabis related items had been found in a partially buried shipping container. Also a buried power generator was found. The police officers were convinced that my client was building an underground cannabis site. The container, with equipment and the power generator were confiscated. After a while the container was returned to my client. The power generator wasn’t returned to him.
The prosecutor was of the opinion that there was a situation that qualifies as a preparation of a criminal offence. This is what he accused my client of. When looking at the photo’s in the case file, I noticed that the shipping container wasn’t buried. That big noticeable object was clearly visible above the ground. The site was known to the council as a construction site. With a permit from the council my client had built a shed in an outlying area. If you apply for a building permit, you know that there will be check-ups. Would you take a risk if you were sneaking around? Another noticeable element was that there was no water supply. Cultivating cannabis without water is impossible. My client had buried the power generator against theft. That is not so weird. On construction sites power generators are often hauled of the site. Power generators are sought-after objects by thieves. In the container a lot of junk was found, but also some visible old cultivation materials. I saw old pipes, a wooden box with extraction pipes, electric cables and transformers.
It hadn’t been investigated if that old pile of junk was still functioning. It was safe to say that you couldn’t build a cannabis cultivation site with these items.
At the police station my client made a statement on the origin of the items and their fate. This statement could have easily been checked. He told the police that he had helped a befriended family when they were moving. At their farm a cannabis cultivation site had been dismantled and different items had been left behind. He had cleared these items so he could eliminate them later. Because the dumpsite was closed he had stored the items in the shipping container. He mentioned names in his statement and provided an address and a phone number. The police hadn’t taken the time to check up on this information. After reading this statement it amazed me that this case hadn’t been dismissed due to lack of proof.
To my astonishment during the trial I heard out of the mouth of the prosecutor that my client’s statement wasn’t supported by any kind of evidence. The Judge took it to the next level. He ruled that my client’s statement wasn’t credible. I felt very embarrassed. At school you are taught that a suspect doesn’t have to prove his innocence. In theory the burden of proof lies with the prosecutor. What I saw was a very big difference between theory and practice.
In Appeal I wanted to be rather safe than sorry. I decided to prove the innocence of my client. The people that the items belonged to were heard as witnesses by me in front of the judge. They came across as very reliable and credible. The statement of my client was confirmed. I showed the judges in Appeal the photos of the building that had been completed in the meantime. The container now serves as a dwelling for chickens and sheep.
The Appeal court acquitted my client of all charges. “It can’t be said that the items found were meant for cannabis cultivation, for that reason the suspect must be acquitted from all charges.” He got the power generator back. This time my client didn’t protest.
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.