Brangman has smuggling conviction quashed
A woman jailed for six years for conspiring to import cocaine has had her sentence and conviction quashed.
Walita Brangman launched an appeal in the Supreme Court that argued she was not allowed to give evidence during her trial and that her lawyer, Larry Scott, failed to establish her good character.
Acting Puisne Judge Shade Subair Williams wrote: “In my judgment, the conviction is unsafe given the court’s doubt as to whether the appellant exercised her free will in deciding not to give evidence, and that she was further expropriated of the benefit of a good character direction as it relates to propensity because of her counsel’s inaction.”
She allowed the appeal and quashed the conviction and sentence. “I shall hear the parties on whether a retrial should be ordered,” she added.
Ms Brangman, from Sandys, was convicted by magistrate Archibald Warner on July 7, 2016.
The drugs — 69.99 grams of crack — were found in a box of tamarind balls that Ms Brangman admitted importing to Bermuda and collecting from Somerset Post office. But she denied any knowledge of the drugs during police interviews.
However, Mr Warner said he was sure that she knew of the conspiracy and agreed with her boyfriend at the time, Gianni Fenaroli, to import the drugs.
He sentenced her to six years’ imprisonment on July 26, 2016.
Ms Brangman filed an amended notice of appeal on January 18 this year, on the grounds that she had ineffective counsel during her trial.
In an affidavit filed on December 27, 2017, she said Mr Scott told her not to give evidence, “as the prosecution would show me to be a liar and because I was vulnerable”.
The notice also stated that Mr Scott advised both Ms Brangman and Mr Fenaroli in the matter, even after it appeared they had competing interests. And it added that Mr Scott failed to lead evidence of Ms Brangman’s good character.
Ms Justice Williams said: “The position is this: Ms Brangman in her affidavit states that she did not give evidence because Mr Scott told her not to give evidence.
“She described herself as vulnerable in her dealings with Mr Scott and conveyed her fear that she would not have counsel’s support if she decided to give evidence.
“The appellant’s version of her interaction with Mr Scott amounts to an accusation of improper coercion.”
In an affidavit filed on November 21, 2017, Mr Scott said cross-examination by Crown counsel would have exposed Ms Brangman’s “weakness as a witness”.
He said Mr Warner granted him time to consult with Ms Brangman “before she indicated that she would not give evidence based on our advice”.
Mr Scott, who revealed that he pressed police to further question Mr Fenaroli but was told by them that he had fled the jurisdiction, added that “at no time did Brangman indicate that she was dissatisfied with my service”.
But Ms Justice Williams said Mr Scott’s affidavit made no suggestion that Ms Brangman decided not to give evidence of her own free will.
She added: “In my judgment, Mr Scott was derelict in his duty to the extent that he failed to record any kind note containing his instructions from Ms Brangman on whether she would give evidence; and a statement that the decision was made of her own free will.
“This dereliction of duty has left me with real doubt as to whether or not Ms Brangman decided not to give evidence of her own free will.”
Ms Justice Williams found that Ms Brangman “was not prejudiced during her trial by Mr Scott’s earlier representation of Mr Fenaroli”.
But she added that Mr Scott “took no steps whatsoever during the trial to establish before the learned magistrate that the appellant was of previous good character”.
She said: “The appellant was wrongly deprived by her counsel of her entitlement to establish her good character evidence before the learned magistrate.
“Consequently, she was not afforded the magistrate’s consideration that she was less likely to have committed the offence, having lived her life to 28 years of age without a previous conviction.”
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