Former prison officer wins appeal for retrial
A former prison officer convicted of smuggling drugs into Westgate Correctional Facility has won a Supreme Court appeal.
Chief Justice Ian Kawaley ruled that three convictions against Art Simons should be quashed.
The judge did not dismiss the charges and ordered Simons to face a retrial in front of a different magistrate.
Simons was found guilty by magistrate Archibald Warner of possessing cannabis and cannabis resin with intent to supply, along with attempting to bring items into Westgate in contravention of prison rules.
Prosecutors alleged Simons brought the drugs into the prison in a bag of toiletries and left it in the shower area.
The drugs were found hidden in a shower gel container during a search on January 12, 2015.
Simons’s prison service partner testified that Simons told him he had brought the package in for a prisoner at the request of a girl on Parsons Road and he hoped there was nothing in it.
The partner, who was not named in the judgment, added it was not unusual for prison officers to obtain permission to bring in items such as toiletries for prisoners.
The witness said another prisoner had asked him about toiletries which another officer said he would bring.
He also testified he saw the second prison guard bring a brown bag on the evening of January 11. That guard testified that he brought his lunch to the prison in a brown bag.
Mr Warner said in his judgment that it was “improbable” that there were two packages, or that someone switched the containers.
Mr Justice Kawaley said the magistrate made no express finding about the second guard’s credibility or his possible involvement.
Mr Justice Kawaley added: “A suggestion raised by the defendant in a criminal case which, if true, would establish his innocence cannot be rejected merely because it is improbable.
“It can only be rejected if, properly analysed, it fails to raise any reasonable doubt about the defendant’s guilt. This ground of appeal succeeds. This is not because of a mere mistake in terminology.
“Rather it is because it is impossible to ascertain from the judgment on what basis the magistrate rejected the central tenets of the defence case.”
Mr Justice Kawaley issued a similar ruling on a second ground of appeal, which argued Mr Warner had not explained what was relied on to establish “guilty knowledge” of the drugs.
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