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Man convicted of drug smuggling asks for reduced sentence

Omar Davy (File photograph)

A man who claimed he was kidnapped and forced to smuggle heroin to Bermuda argued his sentence should be reduced because he pleaded not guilty to the offence because of bad legal advice.

Omar Davy, 40, was sentenced to 18 years in jail after he was found guilty of the importation of $765,700 worth of heroin on a flight from Toronto in 2018.

But Elizabeth Christopher, who represented Davy at the Court of Appeal on Thursday, said he would have pleaded guilty “had he known he had no defence”.

Ms Christopher said: “Had Davy understood the law – which I think is very, very clear with respect to the defence of duress in this jurisdiction – he would not have persisted in his not guilty plea.”

Davy, from Mandeville, Jamaica, was arrested on July 10, 2018 after he was stopped for a secondary search at the airport.

Officers searched his luggage but, before he was given a body search, he ran from the airport.

CCTV footage from the customs area caught Davy take a package of heroin out of his pants and put it inside his already-searched luggage before he bolted.

Davy later claimed at his trial that the night before he was scheduled to fly to Bermuda he had been abducted in Toronto over a $24,000 debt to a Jamaican “don”.

He claimed he was choked unconscious and beaten until he agreed to take a package and that his attackers also threatened his family in Jamaica.

But a Supreme Court jury delivered a unanimous guilty verdict after just 30 minutes of deliberation.

Ms Christopher said Davy had very limited communication with his first lawyer, Susan Mulligan, about the case, or with his second lawyer, Charles Richardson.

Another lawyer, Archibald Warner, stepped in to represent Davy only days before the trial started after the defendant rejected legal advice from Mr Richardson.

Ms Christopher said he should have been told that under Bermudian law his story did not amount to duress and could not succeed.

She said Davy had told the court he agreed to take the drugs because of threats to his family in Jamaica.

But threats would only count as duress if the family members were present when the threat was made in Bermudian law.

Ms Christopher added: “I think he honestly felt he had a leg to stand on with this defence.”

She argued that Davy should get a reduced sentence because, if he had been properly advised, he would have pleaded guilty and got a shorter jail term.

Ms Christopher added that the Supreme Court had wrongly taken the unanimous verdict as a rejection of Davy’s story, rather than a view that the story did not amount to a legal defence.

But Alan Richards, for the Crown, said it was “inconceivable” that none of the lawyers had warned Davy that the defence he used was “difficult”.

He added that the alleged threats against Davy’s family would not amount to duress in a legal sense, but the alleged threats against Davy would have been – if the jury believed his “fantastical” story.

Mr Richards said that Davy’s version of events was rejected by the jury.

He added: “There was no evidence to corroborate any of the appellant’s assertions supporting his purported defence of duress.

“Despite this substantial beating he said he had received only the night before, no injuries were detected and he managed to sprint across the airport car park and evade capture.”

Mr Richards said the defendant had an uphill battle to prove that his actions were “necessary” to escape violence – which the Crown had disputed – but the defence was still open to Davy.

He added: “It may not have been a strong case, the facts supporting it may have been incredible, but that was not Mr Warner’s fault. That was the defendant’s fault.

“It’s the defendant that ultimately has to accept responsibility for his plea, which was not one of guilty.”

He added that Davy had also claimed he did not know what the contents of the package were – another legal defence that the jury rejected.

Mr Richards said: “To suggest that Mr Davy only had a trial because Mr Warner didn’t understand duress is preposterous.

“Mr Davy wasn’t only running duress. He was also running knowledge.”

A judgment will be released later.

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