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Republic v Kourabi [2018] KIHC 18; Criminal Case 29 of 2017 (21 May 2018)

IN THE HIGH COURT OF KIRIBATI 2018

CRIMINAL CASE NO. 29 OF 2017

(HELD ON KIRITIMATI ISLAND)

[REPUBLIC PROSECUTOR

[

BETWEEN [AND
[
[TEBAATEI KOURABI ACCUSED

Before: The Hon Chief Justice Sir John Muria

17 & 18 May 2018

Ms Pauline Beiatau for Prosecutor
Mr Reiati Temaua for Accused

JUDGMENT

Muria, CJ: The accused, Tebaatei Kourabi, has been charged with one count of Possession of Indian Hemp under section 8(b) of the Dangerous Drugs Ordinance (Cap 23). The accused pleaded Not Guilty to the charge. The prosecution called one (1) witness and the defence called one (1) witness, the accused himself.

The prosecution bears the onus of proving the guilt of the accused. Any doubt that the Court has in this case must be resolved in favour of the accused.

Section 8(b) of the Dangerous Drugs Ordinance.

It would be helpful if I set out section 8(b) which creates the offence. The provision states as follows:

“8. Every person –

(a) who knowingly cultivates opium poppy, Indian hemp or coca leaf whether for private use of otherwise; or

(b) found in possession of or selling, or who shall have given or sold, to any person any substance to which this Part applies

shall be guilty of an offence under this Ordinance.”

The prosecution must prove that the accused had in his possession the substance (Indian Hemp). The element of “possession” is central to offences under section 8(b).

THE CASE FOR PROSECUTION

The prosecution case is that the accused had been found in possession of the Indian Hemp. It is alleged that the accused who is a Fisheries Officer in the Ministry of Fisheries in Kiribati, had and kept the substance, Indian Hemp, commonly called marijuana, in his house at Tabuaeran (Fanning Island) from 20 May to 24 June 2016. It is also alleged that the accused used the marijuana by smoking it and also made some experiments with the substance. He experimented mixing the marijuana with coconut oil for use on the skin.

The police in Kiritimati Island received a tip-off from the people, and a report from the Presiding Magistrate, in Tabuaeran. Police Detective Rameteti Tawati, was sent to Tabuaeran to investigate the complaint that the accused had the prohibited substance, Indian Hemp, in his possession. A Search Warrant was also issued by the Magistrate.

Detective Tawati did not have to execute the Search Warrant because when he asked the accused about the marijuana, the accused himself took the substance from his house and gave it to Detective Tawati. The accused also handed over to Detective Tawati the experimented oil mixed with marijuana in the bottles.

The prosecution case is that the accused had in his possession the Indian Hemp or marijuana. He knew it was marijuana. He kept it and had been using it for a period of one (1) month, from 20^th May to 24^th June 2016. The accused also clearly described the effect of the drug had on him when using it.

In his statement which he willingly and voluntarily wrote himself and gave to the police, the accused stated:

“For your information there were 3 weed (marijuana) found on Tabuaeran in different times but they had a same appearance and the feeling when you used it. It square and black in colour and the wrapper on it was very thick. There was black, white and the box (cardboard) contained marijuana. The day I first found it and that the long period I was using it. It has 3 feelings when you were using it: 1, Sleepy, 2. Wandering, 3. Good thinking – use 3 swallows for 5 minutes. The other feelings were 1. Laughter, 2. Anger, 3. Frighten, 4. Foods are tasty. But these were light and you could oppose them. Date that I found it: 20/05/16 to 23/06/16. No one knows. As a government worker I surrender all the things that were illegal under the Kiribati law to those who were responsible to it. Thank you very much and that all of the information as well as marijuana.”

Ms Beiatau of Counsel for the prosecution, submitted that on the evidence before the Court, the elements of the offence have been established beyond a reasonable doubt and the charge has been made out against the accused.

THE CASE FOR THE ACCUSED

The accused’s case is that he found the substance at end of the island, in a packet. He took it and kept it. He did not know it was Indian Hemp or marijuana. He agreed he used the substance by smoking it. He agreed also that he experimented with it by mixing it with coconut oil for use on the skin.

In his own evidence-in-chief, the accused stated that when he heard that the Police obtained a Search Warrant to search his house, he was worried. He then contacted the police and later handed the marijuana and his experimented mixture to Police Detective Tawati.

Mr Temaua of Counsel for the accused submitted that before the accused can be found guilty, the prosecution must prove that the accused had in his possession the prohibited substance. Secondly, Counsel submitted that the prosecution must prove that the accused knew, at all material times, that the substance was Indian Hemp or marijuana. The third argument advanced by Mr Temaua is that in order for the accused to know that substance found in his possession was Indian Hemp or marijuana, the prosecution must show by evidence that the substance was tested and proved to be Indian Hemp or marijuana. It is suggested by Counsel for the accused that as the substance had not been tested, the accused could not be said to have known that the substance he had in his possession was Indian Hemp or marijuana.

In support of the defence case, Mr Temaua relied on the case R –v- Vaka-uta and Anor (1/4/2004) Supreme Court of Tonga Crim 143-144/2002. In that case the Supreme Court of Tonga held, inter alia, that in order to establish the offence of possession of Indian Hemp, the prosecution must prove that the accused had actual or potential control of the substance and that al all material times the accused knew that the substance was Indian Hemp.

CONSIDERATION

As always, the prosecution bears the burden of establishing the guilt of the accused beyond reasonable doubt by proving all the elements of the offence. In the present case the prosecution must prove that the accused had in his possession the Indian Hemp or marijuana between 20 May-24 June 2016. The words used in section 8(b) of the Dangerous Drugs Ordinance are “found in possession” which are not defined in the Ordinance. As a matter of common sense, one knows what he has control over or has in his possession. Thus knowledge is an essential pre-requisite to proving the element.

The prosecution, in the present case, must establish that in the period 20 May to
24 June 2016, the accused was in possession or in potential control of the Indian Hemp or marijuana and that at all material times during the period 20 May to
24 June 2016, the accused knew he had the Indian Hemp or marijuana in his possession. See Warner –v- Metropolitan Police Commissioner [1968] 2 All ER 356; [1969] 2 AC 56 [1969] 2 QB 256; (1968) 52 Cr App R 373; see also
R –v- Ashton-Rickradt [1978] All ER 173 (1977) 65 Cr App R 67; [1978] 1 WLR 37; [19777] Crim LR 424.

The case of Warner –v- Metropolitan Commissioner of Police held that there could not be possession of a controlled drug unless the accused person knew that what he had in his possession was the controlled drug.

I accept the position submitted by defence Counsel that the prosecution in the present case must prove that the accused had in his possession the prohibited substance namely the Indian Hemp or marijuana, and that at all material times between
20 May-24 June 2016, the accused knew that the substance in his possession was Indian Hemp or marijuana.

Turning to the evidence in this case, there can be no doubt whatsoever that the accused had in his possession or physical control of the substance, Indian Hemp or marijuana. The evidence of Police Detective Tawati and the accused own evidence, orally and in his own statement, confirmed that the accused found the packet containing the leaves (Indian Hemp or marijuana), kept them in his house, and used them by smoking them and experimenting with them. The accused took the substance from his house where he kept them and handed them over to Police Detective Tawati because he became worried that the police were going to search his house under a Search Warrant.

Did the accused know that the substance he had in his possession was Indian Hemp or marijuana?

It is arguable that at first, when the accused first found the substance, if they were in fact found as the accused stated, that the accused might not have known that the substance or the dried “leaves” were Indian Hemp or marijuana. However, the same cannot be said of the accused after he took his ‘find’, kept them in his house, began to use the substance and continued to do so, knowing and experiencing the benefits and effects of the ‘leaves’ after smoking them and inhaling their swallows. In the Court’s mind, there can be no doubt that the accused knew what he had in his possession in his house. He knew that the ‘leaves’ he found, kept in his house and used for one month from 20 May to 24 June 2016 were Indian Hemp or marijuana.

In his own voluntary written statement, he described the ‘leaves’ as ‘weeds’ or marijuana. He described the effects the ‘weeds’ had on him after smoking them and inhaling three (3) swallows for five (5) minutes. He further described the other feelings he experienced when using the weeds. The descriptions given could only come from a person who knew all about the substance he had in his possession.

In the present case, the accused had in his possession the substance and at all material time during the period from 20 May to 24 June 2016, he knew the leaves he found, kept in his house and used during the said period were Indian Hemp or marijuana, as commonly called.

Before leaving the matter, I need only deal with the suggestion made by
Mr Temaua of the requirement that the substance must be tested before it can be said that the substance found in the possession of the accused was Indian Hemp or marijuana. First, the offence of being found in possession of drug under section 8(b) of the Dangerous Drugs Ordinance is not premised on the requirement that the substance must be tested before the accused person can be charged under that provision. The offence of being found in possession of drugs is premised on the accused being in possession of a substance and the accused knows that the substance he has in his possession is an illegal substance. One such illegal substance is Indian Hemp.

Secondly, in the present case, the police knew the substance found in the possession of the accused was an Indian Hemp. The Police knew it was the same substance which was found and tested in the Republic –v- Joao Afonso [2016] KIHC 6 (the Joao’s case). They saw no need to have it tested again before charging the accused with having it in his possession. In any case, the accused’s descriptions as to the use, benefits and effects of the substance found in his possession, made it all the more unnecessary for the substance to be tested before ascertaining whether or not the accused knew that the substance he found was Indian Hemp.

In the present case, the evidence in support of the charge is overwhelming. The evidence clearly established beyond reasonable doubt that the accused was found in possession of an Indian Hemp and at all material times he knew that the substance he had in his possession was an Indian Hemp. The prosecution has discharged the onus of establishing the guilt of the accused.

I find the accused guilty and I convict him of the offence under section 8(b) of the Dangerous Drugs Ordinance of being found in possession of an Indian Hemp.

Dated the 21^st day of May 2016

SIR JOHN MURIA
Chief Justice