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State v Osborne [2019] FJMC 184; Criminal Case 1046 of 2018 (24 September 2019)

IN THE RESIDENT MAGISTRATE’S COURT
AT NADI WESTERN DIVISION
CRIMINAL JURISDICTION

Criminal Case No: 1046 of 2018

BETWEEN : THE STATE

AND

SALANIETA OSBORNE

Before : NILMINI FERDINANDEZ
RESIDENT MAGISTRATE

Date of Sentence : 24^th day of September, 2019

Sergeant Francis for the Prosecution
Accused in person

JUDGMENT

1. The accused in this case, SALANIETA OSBORNE has been charged for Unlawful possession of illicit drugs namely 0.9grams of Cannabis Sativa of Indian Hemp and illicit drug.
   
2. The statement of offence and the particulars of offence are as follows;

Statement of offence

UNLAWFUL POSSESSION OF AN ILLICIT DRUG: Contrary to Section 5 (a) of the Illicit Drug Act 2004. .

Particulars of offence

SALANIETA OSBORNE on the 8^th day of September, 2018 at Nadi in the Western Division, without Lawful Excuse had in her possession 0.9grams of Cannabis Sativa of Indian Hemp and illicit drug.

3. BACK GROUND

The accused was produced in court from police custody and was charged on the 10^th of September 2018. Initially she opted to be represented by a private counsel and was represented by Ms. Nadan.

On the 24^th of September 2018 the accused pleaded not guilty for the charge and as such, the matter has been fixed for Trial.

When this case was taken up before me for the first time on the 30^th July 2019, for which date the same had been fixed for hearing by my predecessor, accused waived off her right to counsel and as such, the trial commenced. The prosecution called only the following two witnesses to give evidence at the trial.

1. DC Edward Bibi – The officer in charge of the searching team
2. WPC Nabosa Akeneta – The officer who arrested the accused
   

On the next date, which was the 8^th August 2019, the prosecution, with the consent of the accused, submitted the accused’s Caution Interview, the Charge statement and the Drug Analysts Report without calling any further witnesses, and thereafter closed its case.

Then the accused was explained her rights to give evidence, to call witnesses or to remain silent and she opted to give evidence from the witness box. After her evidence, the accused informed that she would not call any other witnesses to give evidence and as such, the trial was concluded and the case was fixed for judgment.
SUMMARAY OF EVIDENCE

4. Prosecution’s Case

4.1 PW1, DC Edward Bibi has received information that drugs were served at a house that belongs to one Laisenia Tora near Shop & Save in Namaka and with his operation team he has arrived at the said house to search the same. When he knocked on the door, a lady has opened the door and the witness has been told that she is the partner of the owner of the house. The witness while giving evidence identified the accused of this case as the said lady.
4.2 According to him, when the lady who opened the door was informed why the police were there and the search warrant was shown to her, she had allowed the police team to enter without any hesitation. The witness thought that her face looked as if she has just woken up.
4.3 Apart from her, there has not been anybody else in the house at that time and while searching her bed room, the police have found in the wardrobe 3 sachets of dried leaves wrapped in aluminium foil that was believed to be Marijuana.
4.4 When the witness has asked the accused who the owner of the dried leaves that were found was, she has answered that they belonged to her partner who has gone out of the house at that time with someone who has come from an Island.
4.5 The witness has then taken the 3 sachets into his custody, to be later handed over to the Investigating Officer at Namaka police station and has instructed the WPC to arrest the accused.
4.6 This witness admitted at the Cross Examination that the accused had stated to him when they found the drugs in the house, that they did not belong to her.

5. PW2, WPC has accompanied DC Edward Bibi, Corporal Etonia and Sgt Tevita, when the police team went to search accused’s house on the 08/09/2018.

5.1 She confirmed the evidence of PW1 that the search party entered the house after showing the search warrant to the accused.
5.2 She admitted that she has not found anything on the accused but when room was searched this witness has managed to find one sachet, 4 syringes and some loose seeds that was believed to be Marijuana in the 3^rd drawer of the built in dresses in the bed room.
5.3 When the said items were found the witness has informed the accused about them and showed them to her, and then the accused has told her that they belonged to her husband. This witness too confirmed that the accused’s husband was not at home at the time the search was done.
5.4 Thereafter, the witness has arrested the accused and has taken her to Namaka police station.
5.5 In Cross Examination, this witness too confirmed that the accused informed her that the drugs, the syringes and the loose seeds did not belonged to her but to her partner.
5.6 Replying to a question put to her by court this witness stated that there were nothing else in the drawer from which the drugs were found.

6. Since the accused did not object to the submission of the accused’s Caution Interview Statement, the Charge Sheet and the Drug Analyst’s Report to court as evidence without calling any further witnesses, the prosecution tendered the same to court and closed its case.
   

7. Defense Case

7.1 Thereafter, the accused started giving evidence under oath. She explained to court that her partner used to take Marijuana and on the particular day her husband was looking for the Marijuana before he left the house to go somewhere. He, in fact, has sought for accused’s assistance too to look for it but she was not bothered to look for it. And when her partner finally left the house she has thought that he might have found it.
7.2 She was alone at home after her partner left, so she has started watching a movie, but after sometime she has fallen asleep. Accused went on to explain how she has awakened by the knocking at the door and how the police entered her house and carried out the search.
7.3 Her evidence was very similar to the evidence of the prosecution as she too confirmed that one of the police officers found Marijuana in the cupboard and that she informed the police that it belonged to her partner when she was questioned about its ownership.
7.4 Subsequently, she was asked to close the house and to follow the police to the police station and then, the procedures with regard to recording the statement, calling for the Drug analyst’s Report and the charging has taken place.
7.5 In Cross Examination, the accused explained that she and her partner, namely Laisenia Tora have been living together for 11 years and that her partner used to take Marijuana when he was sick. She was told by him that it helps his health, so she had the knowledge that there had been times when her partner kept Marijuana at home.

8. THE LAW

The accused is charged with the offence of Unlawful Possession of Illicit Drugs contrary to Sec 5 [a] of the Illicit Drugs Control Act.

The said Section reads as follows.

Any person who without lawful authority-

(a) acquires, supplies, possesses, produces, manufactures, cultivates, uses or administers an illicit drug;
(b) (b) engages in any dealings with any other person for the transfer, transport, supply, use, manufacture, offer, sale, import or export of an illicit drug;

commits an offence.

9. The burden of p#160;and standarandard of proof in Fiji is as same as in all Common Law countries. Guidance to this legal position can be noted at Section 57 of the Crimes Act 2009, which states that ithe prosecution that bears ears the legal burden of proving every element of an offence relevant to the guilt of the person charged. As per section 58 of the Crimes Act, the legal burdeproof that lies on then the prosecution, must be discharged b reasonable doubt. It irefore fore clear that the prosecution cannot rely on the defence case to prove their e. Thence case is cons considered by court only if the court finds a case to be answered by the the accused, to see whether the accused through his case is successful in casting a reasonable doubt on the prosecution’s case. Therefore the legal burden on the prosecution to prove all elements of the charge beyond reasonable doubt shall never be shifted to the accused unless the contrary is specifically enacted in a law creating an offence.
   
10. In this case the prosecution hasn has to prove beyond reasonable doubt, the following elements to secure a conviction
    1. The substance that was found by the police was in fact illicit drugs.
    2. The drugs that were found by the police were in the possession of the accused.
    100. The accused had no authority to possess the said drugs.
         
11. In this case, the police have forwarded the samples of the substance that was found in the house where the accused was living to the Drug Analyst and it had revealed that it contained the drug called Indian Hemp. However, it is noteworthy that there was no dispute regarding the identity of the accused and that the accused never disputed the fact that the substance found by the police in her house was Marijuana, which is an illicit drug. She, in fact, wento e to explain that her partner used to use marijuana as it helps his health. Also, she did not take up the position that she had any lawful authority to possess drugs.
    
12. Her defence throughout the trial was that the drugs that were found did not belong tobut to her partner, who was also living in the same house. use. Therefore the only contested element in this case is the Possn.
    
13. Therefore, it is pr to first look into the meaning of possession with regard to drug related offences. ces.
    
14. The word Possession hasbeen defined in the&#160 Illicit Drugs Control Act 2004. However, Part 2 of thof the Crimes Decree No 44 of 2009 exp> explains that "possession", "be in poion 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

17. As can be seen from the evidence adduced by both parties that the police have not found the alleged drugs on the accused’s person but only found it in the house shared by the accused and her partner.
18. Accused’s position was that the drugs belonged to her partner and not to her. She held this position since the time the drugs were found by the police and right throughout the trial. She has stated the same even in her caution interview. Therefore the police was aware about her claim but they failed to do further investigations about it. They never recorded a statement from her partner or any other persons living in the same house as to the possession of the substance found in the house. And the accused is not jointly charged with her partner for the possession of drugs.
19. In such a situation, the prosecution has a duty to prove that the house, from where the drugs were found, was under the total control of the accused or that the accused intentionally had the substance in her house and had acted in concert with her partner regarding the drugs. The prosecution has failed in proving the same. It was decided in R v Strong and Berry [1989] L. S. Gazette, March 8, 41, CA. that a person in a car, who is only told of the presence of drugs in the car, is not thereby saddled with possession thereof
20. I also consider the accused’s behavior at the time of the search. When the searcsearch warrant was shown to her by the police, she submitted to search without any objection. It is difficult to imagine that someone keeping drugs in her possession as alleged in this case would let the police to search the house without creating any problems.
21. For the above mentioned reasons I find that the prosecution has failed to prove the contested element in this case, which is the Possessiob>There is e is a doubt created through the evidence whether the accused had the sole control over the house from where the drugs were found. Like in any criminal trial, the benefit of doubt wbe given to the accused. Thd. Therefore I acquit the accused from this case.
    

DATED at Nadi on 24th of September 2019.