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State v Smith [2012] FJMC 201; Criminal Case 020.2010 (23 August 2012)

IN THE MAGISTRATE'S COURT
AT SUVA, FIJI

CRIMINAL CASE HAC N0: 020/2010

BETWEEN:

THE STATE
PROSECUTION

AND:

IMMANUEL SMITH
ACCUSED

BEFORE: Resident Magistrate Mr. Thushara Rajasinghe,
COUNSEL: Sgt Feroz for the Prosecution,
Accused in person,
Date of the Judgment: 23rd of August 2012.

JUDGMENT

1. The accused person Mr. Immanuel Smith is charged with the offence of "Found in Possession of illicit drugs" contrary to section 5(a) of Illicit Drugs Act No 9 of 2004. The particulars of the offence are that,
   

Immanthe uel Smith on the 8th day of March 2009 at Delainavesi Police Post, Lami in the Central Division, was found in possession of 415.0 grams of illicit drugs namely Indian Hemp".

2. The accused person pleaded not guilty for this offence, wherefore, the case was set down for hearing. During the hearing the Prosecution called four witnesses and the accused gave evidence on oaths. At the conclusion of the hearing both parties were invited to file their respective final submission for which only the prosecution filed its closing submission. The accused failed to file his closing submission within the given time period wherefore, I disregard the accused person's closing submission.
   
3. Section 5 (a) of the Illicit Drugs Act No 9 of 2004 stipulates that
   

"Any person who without lawful authority-

(a) acquires, supplies, possesses, produces, manufactures, cultivates, uses or administers an illicit drug"

4. In view of the section 5(a) of the Illicit Drugs Act No 9 of 2004, the main elements of the offence of " found in possession of illicit drugs" are
   
   1. Any Person
      
   2. Without lawful authority,
      
   3. Possesses an illicit drugs,
      
5. Bearing in mind the main elements of the offence of "found in possession of illicit drugs", I now turn to briefly review the evidence of the prosecution and the defence.
   
6. The prosecution alleges that the accused person was arrested with 415.0 grams of illicit drugs namely Indian Hemp in his possession while he was traveling with another in a taxi at the Delanivesi Police Post in the early morning of the 8th day of March 2009. The first prosecution witness (PW1) CPl 3618 Ilikimi stated in his evidence that when he was on duty at Delanivesi Police Post on the 8th day of march 2009, he received a call from Lami Police Station informing him that there was a yellow colour taxi which is coming alone the road with two passengers whom the police believed in possession of Indian Hemp. Upon receiving the information, the Cpl Ilikimi together with his fellow officers put up a road block and stopped the said yellow taxi at about 7.10a.m. in the morning. PW1 further stated that he saw an old Fijian person was driving the taxi and the accused and another person were inside the taxi. He then asked the occupants of the taxi to get off and questioned the two passengers. Subsequently he searched both passengers and then searched the taxi. Cpl Ilikimi stated that he found a gray plastic underneath the front passenger seat of the car where the other person was sitting when the car was stopped. Upon searching the said gray plastic Cpl Ilikimi found another two parcels inside it. Having concluded his search Cpl Ilikimi contacted the Lami Police Station and arrested the two passengers including the accused person. Later both of them were handed over to the Lami Police Station together with the said gray plastic which contains two parcels.
   
7. Cpl Ilikim positively identified the gray plastic and two parcels inside. Apparently a one of the parcels contains another two small parcels covered with aluminum foils and they were marked and tendered as prosecution exhibits. Moreover Cpl Ilikim positively identified the accused as one of persons he arrested in the morning of the 8th day of March 2009. Cpl Ilikimi reaffirmed in his cross examination that he found the plastic which contained two parcels from underneath of the front passenger seat.
   
8. Unaisi Kori is the second prosecution witness and she stated in her evidence that she went to the main road to collect some herbal medicine at Kolokeleve with her little daughter on the morning of this alleged incident took place. She further stated that she saw a white car was parked near the bus stop and a man was moving up and down looking for something. When she asked him the man answered her that he was looking for a bag. She then saw a man picked a parcel up and got into the car and left. She identified the accused as the man she saw on that day and the gray plastic as the parcel which the man picked.
   
9. WPC Moala is the third prosecution witness and stated that she collected the drugs from Koronivia research center and the report of the Government Analyst which she tendered as prosecution exhibit 2. She identified the parcels and the gray plastics which she uplifted from the Koronivia research center.
   
10. WPC Salote is the fourth prosecution witness who conducted the caution interview of the accused person. She stated in her evidence that she gave all rights to the accused and followed all formalities before and during the record of the caution interview. She further stated that she showed the accused the gray plastic with three parcels before the commencement of the caution interview. However in her cross examination she admits that she only showed the plastic and three parcels which were covered with aluminum foils and did not open them. Moreover she admits in her cross examination that the accused stated in his caution interview that the said dried leaves belong to other person who was arrested together with the accused and the accused only admits that he had the knowledge about the existence of illicit drugs in the parcel. WPC Salote tendered the record of the caution interview of the accused person as one of prosecution exhibits.
    
11. I now draw my attention to the caution interview of the accused person. The accused person did not challenge the admissibility of the record of his caution interview as evidence of prosecution. The accused admits that he had the knowledge that Jesoni the other person who was in the car and arrested with the accused person picked the parcel which contains illicit drugs. In view of the accused person's caution interview, I find that the accused has admitted his knowledge of the existence of the illicit drugs. However he dines the ownership of the same.
    
12. Upon conclusion of the prosecution evidence, the accused gave evidence on oaths. He stated in his evidence that he got into the taxi because Jesoni asked him to go with him while he was waiting for a bus at the bus stand. He then stated that he knew that Jesoni was going to pick a parcel but had no knowledge of the contain of the parcel. The accused maintained his position in his cross examination that he had no knowledge of the illicit drugs though he saw Jesoni picked the parcel and kept it under his seat. Moreover, the accused in his evidence on oaths stated that he did not admit his knowledge of the existence of the illicit drugs in his caution interview.
    
13. In view of the evidences presented by the prosecution and the defence during the hearing of this case, I find that the accused does not dispute the existence of the gray plastic with the two parcels therein as he admits in his caution interview and also in his evidence on oath that he knew and saw Jesoni picked the parcel and kept it under his seat in the taxi. In line with these finding the main issues to be determine in this case are,
    
    1. Whether the accused persons had the knowledge of the existence of the illicit drugs in the parcel,
       
    2. Had the accused in possession of the said parcel with the illicit drugs?
       
14. Upon considering the evidence presented by the prosecution and the defence, I now proceed to examine the laws pertaining to the issue of "possession of illicit drugs".
    
15. Section 2 of the Crimes Decree No 44 of 2009 defines the possession as ""possession", "be in Possession of" or "have in possession" includes—
    
    • (a) not only having in one's own personal possession, but also knowingly having anything in the actual possession or custody of any other person, or having anything in any place (whether belonging to or occupied by oneself or not) for the use or benefit of oneself or of any other person; and
      
    • (b) if there are two or more persons and any one or more of them with the knowledge and consent of the rest has or have anything in his or their custody or possession, it shall be deemed and taken to be in the custody and possession of each and all of them;
      
16. Lord Wilberforce in one of the most celebrated cases on the issue of "possession of illicit drugs" Warner v Metropolitan Police Commissioner ( 1969) 2 AC 256) held that " Ideally, a possessor of a thing has complete physical control over it, he has knowledge of its existence, its situation and its qualities. He has received it from a person who intends to confer possession of it and he has himself the intention to possess it exclusively of others. But these elements are seldom all present in situation with which the court have to deal, and where one or more of them is lacking, or incompletely present, it has to be decided whether the given approximation is such that possession may be held sufficiently established to satisfy the relevant rule of law. As it is put by Pollock and Wright, possession " is defined by modes or events in which it commences or ceases and by legal incidents attached o it".
    
17. Lord Guest in Warner v Metropolitan Police Commissioner (supra) defined the possession by citing the Dictionary of English Law ( Earl Jowit) (1959) stated that " Possession, the visible possibility of exercising physical control over a thing, coupled with the intention of doing so, either against all the world, or against all the world except certain persons. There are, therefore, three requisites of possession. First, there must be actual or potential physical control, secondly physical control is not possession, unless accompanied by intention, hence, if a thing is put into the hand of a sleeping person, he had not possession of it. Thirdly, the possibility and intention must be visible or evidenced by external signs, for if the thing shows no signs of being under the control of anyone, it is not possessed".
    
18. The scope of the prosecution's burden of proof on the issue of "to have in possession of illicit drugs" is widely discussed by Lord Morris in Warner v Metropolitan Police Commissioner (supra) where Lord Morris held that " I have endeavoured to set out my view as to what the Act denotes by the words " to have in his possession". So far as summery is possible my conclusion is that in a possession under section 1, it is for the prosecution to prove a) that the accused was knowingly in control of some articles or things or substance or package or container in circumstances which had enable him to know or to discover ( or could have enabled him, had he so wished, to know or to discover) what it was that he had before assuming control of it or continuing to be in control of it and b) that, whether the accused knew this or not the article or thing or substance or package or container that he had consisted of, contained a prohibited substance".
    
19. Another explanatory description of the "possession" is given by Lord Pearce in this celebrated judgment of Warner v Metropolitan Police Commissioner (supra) where Lord Pearce held that "The Act forbids possession of these drugs whether he possessed them with an innocent or guilty mind or for laudable or improper purpose is immaterial since he is not allowed to possess them. If he possessed them he is guilty. If a man has physical control or possession of a thing that is sufficient possession under the Act provided that he knows that he has the thing. But you do not possess things of whose existence you are unaware. The prosecution have here proved that he possessed the parcel, but have they proved that he possessed the contains also?. There is a very strong inference of fact in any normal case that a man who possesses a parcel also processes it's contains, an inference on which a jury would in a normal case be justified in finding possession. A man accepts the possession of a parcel normally accepts possession of the contents".
    
20. Bearing in mind the above mentioned legal precedents pertaining to the issue of "having in possession of illicit drugs" and the relevant provisions in the Crimes Decree and the illicit Drugs Act, I now turn to analyze the evidence presented during the hearing with these legal principles.
    
21. The accused person does not dispute his knowledge of the existence of the gray plastic with the parcels. However he denies his knowledge of the existence of illicit drugs inside the parcels and contended that the plastic and the parcels were belong to Jesoni with whom he was traveling at the time of their arrest.
    
22. Contrary to his evidence in oaths, the accused person admitted his knowledge of the existence of illicit drugs inside the parcels in his caution interview. The accused did not challenge the admissibility of the caution interview as prosecution evidence and neither did he contend that it was recorded in unlawful manner or fabricated. Hence I accept the record of caution interview. However I will endeavor by analyzing the evidence presented before me to further ascertain whether the accused person had knowledge of the existence of illicit drugs in the parcels.
    
23. Ms. Unaisi Kori identified the accused as the person who was standing outside the car and picked the plastic which contains illicit drugs. She is a complete stranger to the accused person and she saw him first time on that particular morning beside the bus stand along the road. Her memory of the colour of the taxi and the bag is not consistence with the actual colour of both objects. Moreover, there was no proper identification parade conducted subsequent to the arrest of the accused person. Ms Koroi identified the accused in the dock after more than three years she first encountered with the accused person for a brief moment on that morning at the bus stop. Her memory on this incident may have faded away through the passage of time.
    
24. It was held in Edwards v The Queen (2006) UKPC 29) that the "dock identification of an accused person for the first time during the course of the trial itself has been considered an unfair and unsatisfactory procedure". The first visual identification of the accused person by the witness during the course of the trial has been considered as problematic and unreliable in the domain of common law jurisdiction. In view of this position in the common law jurisdiction in relation to the dock identification of an accused person for the first time by the witness, the court has to treat such evidence of identification cautiously.
    
25. Bearing in mind the legal precedence in relation to the dock identification of the accused person for the first time during the course of trial by the witness, I am of the view that the absence of satisfactory explanation from the prosecution for not conducting a proper identification parade has raised a reasonable doubt on the evidence of identification of the accused person. The failure of conduct a proper identification parade before the accused person was charged has denied the witness to identify the accused person subsequent to this crime. Under these circumstances and the inconsistence nature of the evidence of Ms Koroi compelled me to disregard her evidence against the accused person.
    
26. The accused person in his evidence stated that he was at 3 miles, Nabua waiting for a bus when Jesoni came in the taxi and asked him to come with him to pick a parcel of him. As per evidence of Cpl Ilikimi, the two persons were arrested at around 7.10 a.m. in view of this evidence, I can presume the time when the accused was waiting at the bus halt and got into the taxi undoubtedly in the early morning of the daybreak. In view of the accused person's evidence, he was aware of the fact, that Jesoni was going to pick a parcel of him and picked it from the roadside at Korokeleve.
    
27. In view of the evidence of Cpl Ilikimi, PW3, and PW4, I am satisfied that the gray plastic and the parcels therein were ceased from the taxi in which the accused together with jesoni were traveling. The accused had the knowledge of the existence of the parcel and he admits in his cross examination that Jesoni kept it under his front passenger seat. Jesoni is accused person's brother's brother in law. I can positively form an inference that the accused person and Jesoni knew each other very well and was close to each other as such closeness is readily reflective with that the accused person diverted from his intended destination for which he was waiting for a bus at Three Miles and got into the taxi of Jesoni to accompany him to pick his parcel early in the morning at the day break. I find with comparison with the finding of Lord Morris in Warner v Metropolitan Police Commissioner (supra) the accused person was in a position to discover the substance inside the parcel if he wished to know and discover it as such his friendship with Jesoni is very close to do so. Accordingly, I am satisfied that a strong inference of fact could be drawn against the accused person that he had the knowledge of the substance inside the parcel.
    
28. Having dealt with the accused person's knowledge of the parcel and substance inside it, I now move to consider whether the accused was in actual possession of the parcel and substance inside it. The accused person denies the ownership and contended that it was belong to Jesoni.
    
29. The accused person had the knowledge of the existence of the parcel and the substance inside it. He was traveling with Jesoni in the same taxi. The parcel with illicit drugs were found underneath the front passenger seat where Jesoni was seated and accused was seated at the back seat just behind the front passenger seat.
    
30. The accused person did not provide any reasonable explanation as why he changed his mind diverting from his planned journey for which he waited for a bus at the daybreak and went with Jesoni to pick the parcel. At this point I am mindful of the fact that there is no burden on the accused to prove his innocence. However it is an established principle in common law that the inferred presumption of facts could be taken for granted until the contrary is proven by opposite party. It is noteworthy to examine what kind of explanation should be offered by the accused to rebut the presumption against him. Lord Reading CJ in Abramovitch (1914) 84 L.J.K.B 397) held that "if an explanation has been given by the accused, then it is for the jury to say whether on the whole of the evidence they are satisfied that the accused is guilty. If the jury think that the explanation given may reasonably be true, although they are not convinced that it is true, the prisoner is entitle to be acquitted, inasmuch as the crown would then have failed to discharge the burden impose upon it by our law of satisfying the jury beyond reasonable doubt of the guilt of the accused. The onus of proof is never shifted in these cases; it always remains on the prosecution".
    
31. Having considered the above mentioned judicial dicta, I inferred that the accused person failed to provide any reasonable explanation for why he got into the Jesoni's taxi. Hence I am satisfied that I could positively construct an inference that the accused had intention to go with Jesoni and pick the parcel with him. The accused person with the knowledge and consent went with Jesoni in the taxi to pick the plastic with the illicit drugs inside it. The accused then consented to keep the parcel underneath the front passenger seat where jesoni was seated. In line with these reasons, I am satisfied that the prosecution successfully proved beyond reasonable doubts that the accused person was in possession of 415.0 grams of illicit drugs namely Indian Hemp.
    
32. In conclusion, I hold that the accused persons is found guilty for the offence of "found in Possession of Illicit drugs" contrary to section 5 (a) of Illicit Drugs Act No 9 of 2004 and convict for the same.
    

On this 23rd day of August 2012.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva.