Credgton Smith secured his freedom today, January 15, 2014 after his Attorney, Stephen Daniels, made a successful argument for the convicted man to be released on a recognisance pending an appeal of his conviction. Photo: VINO

Magistrate Dr. Velon John ruled that Smith, who was found guilty of unlawful possession of a firearm, unlawful possession of explosives, and unlawful possession of cannabis, be entered into a recognisance in the sum of $30,000 with a suitable surety.

A recognisance is considered a bond by which a person undertakes before a court or magistrate to observe some condition, especially to appear when summoned.

Following the trial, Smith was also found not guilty on the charge of unlawful possession of cannabis with intent to supply.

According to the evidence given in Court during the trial, the drugs and ammunition were found in an apartment called ‘The Pussy Cat Lounge’ at Carrot Bay, Tortola.

The Prosecution said the accused was not in the apartment at the time of the discovery made by officers of the Royal Virgin Islands Police Force (RVIPF), however, it was believed he was residing in the lounge.

Daniels argued today that during Smith’s five year wait for trial, he never once breached any of the bail conditions that were given and this should be considered in his favour.

He further noted that the period of wait and compliance with pre-trial, together combined to form a unique set of circumstances for his client’s appeal.

Among other arguments, Daniels relied on the Magistrate’s Code of Procedure Sec. 160, which states in part, “The appellant shall within seven days after the day on which he served notice of his intention to appeal, enter into a recognisance before a Magistrate with one or more sufficient sureties as the Magistrate may direct condition to appear before the Court of Appeal and to prosecute the Appeal…”

Daniels argued that having served notice of the intention to appeal seven days earlier, Smith’s release could not be considered as a condition, but instead must be seen as an operation of law. He further argued that his release could not be considered as being the same as bail.

Another part of Section 160 which was relied on reads, “and the Magistrate shall without delay transmit to the Registrar of the Court of Appeal all papers relating to such appeal together with a concise memorandum of the reasons for his decision.”

Senior Crown Counsel Valston Graham, while conceding that the defendant may have complied with all the conditions given during his pre-trial liberty, argued that any element of the presumption of innocence on the appelant's part would no longer be applicable in this instance given Smith’s conviction, hence his prior compliance cannot be considered an issue.

Graham also argued that an amendment to the latter part of the Section (quoted above) which changed the word ‘shall’ to ‘may’, meant the appellant’s recognisance was at the discretion of the Magistrate and not guaranteed.

However, Daniels cited section 157 which noted that the Magistrate would be required by law to stay the conviction and sentence of the appellant, thereby allowing him to be released to prosecute his appeal.

Smith will now have his matter heard at the first available hearing of the Court of Appeal followin the ruling by Magistrate John.