A St. John’s court of appeal has ordered a retrial in the case of Dennis Brake.
In 2017, Brake was convicted in provincial court in Grand Bank of possession of a kilogram of cocaine for the purposes of trafficking.
The 38-year-old from Marystown appealed the findings of the court on grounds that the judge had erred in his application of the tests for circumstantial evidence and possession, which resulted in a wrong decision on a question of law.
The appeal was heard on Oct. 25, 2018.
Brake was charged in June 2016 after a police investigation into another person led officers from the RCMP’s Burin detachment, as well as a surveillance team, to the parking lot of the Irving Big Stop in Goobies. They had been following a vehicle when it entered the parking lot. A short time later, Brake was seen getting into the driver’s side of the vehicle.
Police later stopped the vehicle and discovered a plastic bag containing what was described as a brick of cocaine in the foot well on the passenger side.
In his written decision on the appeal, Justice Charles W. White explained in determining whether or not Brake knew there was a kilogram of cocaine in the gray shopping bag, Judge Harold Porter had relied upon the expert opinion of a police officer.
“It would appear that the sequence of events (the accused) gets in the car, they drive behind the tractor trailer, (the driver) gets the cocaine from the trunk, and they drive around to the parking lot again is consistent with the supplier (the driver of the vehicle) trusting the accused to know about the presence of such a large amount of cocaine,” wrote White.
In conclusion, White wrote in some situations, a trial judge’s reasons may be capable of showing that both knowledge and control were considered and established, despite not including an explicit finding on both points.
“However, that is not the situation in the present case,” he wrote.
“Absent a finding of control, the trial judge erred in applying the legal test for possession. This is an error of law sufficient to set aside the conviction.”
While Justice Francis O’Brien concurred with the ruling, Justice Gale Welsh offered a dissenting opinion to dismiss the appeal.