ST. JOHN'S, N.L. — A Marystown man who was charged after police arrested him in a car with a brick of cocaine on the floor between his feet is no more guilty than someone whose wife might set her purse down in a vehicle near their feet the same way, his lawyer argued Tuesday.
"My wife does this with her purse every single day," defence lawyer Steve Orr argued in provincial court in St. John's, as his client, Dennis Brake, attended via video from a courtroom in Grand Bank.
Orr's point was that there is no evidence, other than the fact police had located a plastic shopping bag containing a kilogram of cocaine near Brake's feet in the front passenger side of the vehicle, to suggest Brake had control over the drugs or knew what was in the bag.
"Mr. Brake was in the presence of the bag for one minute. The bag was opaque and tied, you could only see white if you pulled it back or were sitting at the right angle," Orr told Judge Mike Madden. "There was no evidence presented that Mr. Brake knew anything, including that there was cocaine present in the bag, or that (the driver of the vehicle) was even a drug dealer."
Look at the evidence in totality, countered prosecutor John Brooks, and the only reasonable inference is that Brake was caught by police in the middle of a drug transaction.
Brake, 39, was charged with possessing cocaine for the purpose of trafficking in June 2016, after a police investigation into another man as a suspected drug dealer. Police officers had been watching the man and had seen him in Paradise, putting the cocaine in the trunk of his car before heading onto the highway and stopping at the Irving Big Stop in Goobies. They watched as the vehicle parked at the side of the gas station and Brake, who was reportedly legally employed by the man, got in. The driver got out of the car and went to the trunk before getting back in empty-handed, police officers testified. He then moved the vehicle behind a nearby tractor-trailer.
Officers said they saw the driver's legs as he got out of the car again and went back to the trunk, then returned to the driver's seat and drove the car back to its original position in the parking lot. That's when police descended on the vehicle, finding the brick of cocaine they alleged they had seen earlier in the day in a plastic bag at Brake's feet.
"Of all places, it shows up at Mr. Brake's feet," Brooks said, alleging the driver had gotten the cocaine from the trunk and transferred it to Brake while behind the trailer. One of two things happened, Brooks argued. Either the driver directly handed Brake the package, or he got back in the car and put the package at Brake's feet.
"In the small confines of a car, we would respectfully submit that Mr. Brake would have had to have seen. It would be inconceivable that he wouldn't. Why would (the driver) put the package at Mr. Brake's feet?" Brooks asked, noting the handles of the plastic bag had been in an upright position halfway up Brake's shin when police found it.
Orr is arguing for a directed verdict in Brake's case: he's asking the judge to acquit Brake on the basis that the Crown did not present enough evidence for a conviction to even be considered.
Madden is scheduled to give his decision on that application Aug. 27.
Brake was convicted of the charge after a trial in 2017, during which he testified he had not seen any bag in the car and if he had, he would have assumed it was a trash bag. When the driver had exited the car behind the trailer, Brake said, he believed he had gone to pee.
Brake was found guilty in 2017 and sentenced to two years in prison, but won a new trial when his conviction was overturned upon appeal. The province's Court of Appeal found that the trial judge had erred in finding evidence that Brake had known about the drugs and had possession of them.
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Twitter: @tara_bradbury
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