Heroin highway jury: defence questions arresting police officer's testimony

The defence in the trial by jury of Herman McKay, 34, who allegedly spread half a kilo of heroin on the street after being confronted by police in August 2007, have highlighted discrepancies in the testimony given in inquiry on the case in 2009, by the constable who arrested the accused, and the testimony he gave today.

The constable today told the court how, on August 17, 2007, he had been informed that the police received confidential information that a Mercedes SUV, owned by a certain McKay, was at that moment involved in trafficking drugs in Marsa. 

McKay was shortly after intercepted in Triq is-Serkin, Marsa.

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“Around five or six people were in the street where McKay was,” the constable said, “One of my colleagues asked McKay for his ID card, and we searched his pockets and found some money.”

“McKay had a car key, which he then left on the ground. We instructed him to pick the key up, and after doing so and pressing its button, the lights of a car [the Mercedes SUV] further up the road lit up.”

The police and McKay then walked to the Mercedes and one of the policemen started to search it, the constable said. 

On attempting to open the armrest, however, McKay immediately intervened and asked that it not be forced open.

McKay then opened the armrest and took out a brown bag, containing plastic bags which appeared to be filled with a brown powder, the constable explained. 

On trying to restrain McKay, he resisted, biting one of the plastic bags and dispersing its contents on the street.

After managing to restrain McKay, the police tried to preserve the powder evidence on the street as best as they could.

“We covered the powder with newspaper, which was what we could find at the time,” the constable said, noting that they also read McKay his rights.

The constable also said that in the struggle, he had ended up covered in the powder.

Reacting to the constable’s testimony, the defence said when he had first testified in the magisterial inquiry on the case in 2009, he had not mentioned a lot of the things he mentioned today, such as the fact he was covered in power, the key issue, and the fact McKay had been read his rights, despite the fact his memory of the case should have been much better then than now, since only two years had passed since the event happened.

The defence also highlighted that in 2009, the constable had said that the scene had been preserved using cardboard, but he had now said newspapers were used.

“We used whatever we found at the time to cover it,” the constable asserted, insisting, in reply to the judge’s question on the veracity of what he was saying, that he was recounting the story truthfully as he remembered it.

“I am today going into more detail,” he replied, “While I was at the scene, both newspapers and cardboard were used to preserve the evidence.”

In the struggle, I ended up covered in the powder

The constable then clarified that, after opening the armrest, McKay had taken the bags and exited the door from the opposite door. The constable had grabbed hold of McKay and pulled him out of the car, but in the process, the accused had still managed to bite one of the bags, tearing it open.

The defence went on to ask how it was possible that all this had happened in a “split second”, as the officer had said in his 2009 testimony, with the constable insisting it had indeed happened in a very short period.

Replying to a question from the jury, the constable said he was 21 at the time of the arrest in 2007, having joined the police force in 2005 aged 19.

Testifying previous to the constable, the inspector in charge when McKay was arrested, who had been an inspector for three years in 2007, told the court that he had not gone on the scene to look at the evidence after the arrest.

The defence asked if it was normal for an inspector to not go on the scene and see what the situation was, with the inspector replying that it was not always necessary that this be done.

“Did you see any of the evidence which was exhibited,” the judge asked, receiving a reply in the negative.

 “Were you aware that a pair of flip flops were found at the scene,” the defence persisted, with the inspector saying he did not know about this.

“Money was found,” the defending lawyers continued, “Did you see the money? Did you consider carrying out tests on it?”

The inspector replied he was aware money had been found, and said it might have been shown to him, but could not say who has passed it on to him.

“How can I remember these thing after eleven years,” he complained.

The defence then asked if the inspector knew what “chain of evidence meant”.

“It means that if I get a piece of evidence and give it to someone, and then give it to someone else, these are all linked,” the inspector said, turning to the jury to explain this to them.

The defence went on to ask what had happened to McKay’s Mercedes SUV, and why it had not been presented formally to the court.

“The car was not recovered by the police,” the inspector told the court, “It was not exhibited as evidence, nor was the car’s key,” then adding that it had not been tested for evidence, nor had any fingerprints been obtained from it.

The jury continues.

Lawyers Elaine Mercieca and Justine Cilia from the office of the Attorney General are leading the prosecution. Lawyers Franco Debono and Marion Camilleri are defence counsel.