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Kauai v R [2023] SBCA 33; SICOA-CRAC 9006 of 2023 (13 October 2023)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. The appellant, along with Beatrice Umea, was charged with one count of attempting to export a dangerous drug, Indian Hemp, to which Part I of the Dangerous Drugs Act (Ch. 98) applied contrary to s 4(2) of the Dangerous Drugs Act.

Background

2. It was alleged that on 19 June 2019 the appellant attempted to export Indian Hemp to Kiribati.
3. Essentially, the Crown case was that the appellant packed eight packets of Indian Hemp inside a speaker in 20 cm by 20 cm plastic bags. This was taken to the airport, where Ms Umea was on check-in duty for Solomon Airlines. The appellant took the package to her, and she accepted the package as unaccompanied luggage, but tagged the package to a passenger whom she had already checked in, called Mr Chan. When the package went through screening, suspicions arose, the speaker was unscrewed, and the packets of Indian Hemp were found.
4. The trial of the appellant and Ms Umea took place in front of Chief Magistrate Emma Garo on 2, 3 and 4 December 2019. In part, the trial proceeded on the basis of agreed facts filed by the parties pursuant to s 21(2) of the Evidence Act.
5. The Chief Magistrate concluded that she was not satisfied beyond reasonable doubt that the material packed in the plastic bags was Indian Hemp, and also there had been no certificate produced to the Court, signed by a Government chemist, pursuant to s 42 of the Dangerous Drugs Act (Ch. 98). She seemed to think that filing this certificate was a mandatory requirement. On that basis, she acquitted the appellant and Ms Umea.
6. The acquittal was notwithstanding that there were agreed facts proving essential matters, including the fact that the material found was Indian Hemp. The Crown appealed.
7. Maina J concluded that the agreed facts established the content of the plastic bags was Indian Hemp and that there was no mandatory requirement for the production of a certificate under s 42 of the Dangerous Drugs Act signed by a Government chemist. He allowed the appeal, quashed the acquittals and remitted the matter to the Magistrates Court to be reheard or tried by another Magistrate.
8. The appellant appeals that decision.

Submissions

9. Three grounds are advanced, all to the same effect: that the Judge erred in law in the exercise of his appellate jurisdiction. It is unnecessary to address the principles applying to such matters, and it is sufficient to refer to Bolami v R [2011] SBCA 26 and Natei v R [2013] SBCA 14 to establish that an appellate court will only interfere if the conclusions are not supported by evidence, or are clearly wrong.
10. The only submission going to the substantive matters in the appeal was:
    • 26. It had been put to his lordship of the High Court exercising his appellate jurisdiction that: the conclusions of the learned chief magistrate were clearly supported by s 42 of the Dangerous Drugs Act (Cap. 98) and were also supported by the case of Tango v R [2004] SBHC 39; HC-CRAC-174 of 2004 (7 May 2004).
11. The respondent submitted that the Chief Magistrate had failed to properly interpret s 21(2) of the Evidence Act and s 42 of the Dangerous Drugs Act. The first submission was that there was agreed evidence that the material in the plastic bags hidden in the speaker was in fact Indian Hemp. The second was that it is not mandatory for the prosecution to produce a certificate of the government chemist as to what the drugs found were.

Discussion

12. We are in total agreement with the decision of Maina J who has correctly interpreted the relevant statutory provisions
13. The appeal requires consideration of the sections just mentioned. We turn first to s 21 of the Evidence Act 2009:
    • Admission by agreement
    • 21. (1) In a proceeding, the court may –
    • (a) with the consent of all parties, admit relevant evidence that is not otherwise admissible; and
    • (b) admit evidence offered in any form or way agreed by all parties.
    • (2) In a criminal proceeding, an accused may admit any fact that is not in dispute so as to dispense with proof of that fact.
    • (3) In a criminal proceeding, the prosecution may admit any fact that is not in dispute so as to dispense with proof of that fact. [our emphasis]
14. In this case, the agreed facts (where relevant) read:
    • Content uncovered within the speaker were marijuana dried weeds (Indian hemp) packed in eight 20 centimetre by 20 centimetre resealable plastic bags.
15. There is no evidence whatsoever that the appellant was coerced in any fashion to agree that the content of the packages was Indian Hemp. It was clearly a freely given admission. The document was signed by the appellant’s counsel. The agreed facts document was signed on 14 November 2019, well before trial. Indeed on the appeal Mr Hite conceded to us that his client had agreed to the fact that the content was Indian Hemp and had authorised him to sign the agreed facts document. There is evidence that at some stage the Indian Hemp was destroyed. However, that is completely irrelevant in the light of the agreed facts. It is also irrelevant for the purposes of this appeal.
16. Section 21(2), set out above, makes it clear that an accused may admit a fact so as to dispense with the proof of that fact. Clearly, on the face of that section, if the fact is admitted it is not necessary for the prosecution to tender any further evidence relating to it. It means nothing more is required of the prosecution in establishing the contents were Indian Hemp. The agreed fact proved that and the magistrate was required to accept it as proved without more.
17. In Gitoa v R [2014] SBCA 27, this Court stated:
    • 22. The agreed facts included a relevant admission that the homicide occurred shortly after midnight on 1 December 2001. That was evidence which his Lordship was obliged to consider. See Evidence Act 2009 s 21. It was open to his Lordship to accept it in preference to the sworn evidence as to timing.
    • 23. The agreed facts also included opinion evidence of Dr Kere that the death occurred at about 10.30 pm on 30 November 2001. That was the conclusion the doctor drew from what he was told by family members as to the time of the shooting (10.15 pm) and his examination of the body. However, unless that factual substratum was proved to be correct, the opinion evidence was irrelevant.
18. In this case it was clearly accepted by the appellant that the contents in the plastic bags hidden in the speaker were in fact Indian Hemp. There was no other evidence that would allow the Chief Magistrate to go behind that agreed fact. Unfortunately, she totally failed to consider the agreed fact that the substance was Indian Hemp and that the need to prove that was dispensed with.
19. Section 42 of the Dangerous Drugs Act (Ch. 98) reads as follows:

Certificate as evidence

42. In any proceedings under this Act the production of a certificate purporting to be signed by a Government chemist shall be prima facie evidence of the fact therein stated.
20. That section is essentially designed to aid the Court in the efficiency of disposing of its business. The certificate becomes prima facie evidence of the fact shown in it (which is usually the class or type of drug involved), and it is unnecessary to go further unless that is challenged by the defence. It is also clear that it is unnecessary, where there is an agreed fact establishing what drug is involved, to tender a s 42 certificate. All s 42 does is establish whatever is certified by the Government chemist is prima facie evidence of that fact. But in this case that prima facie evidence was not required to be tendered by the prosecution. They were entitled to rely on the agreed facts.
21. There is absolutely nothing in s 42 to suggest it is a mandatory requirement. It clearly is not.
22. The case relied on by the Magistrate, and by the appellant, in Tango v R [2004] SBHC 39 is clearly and obviously not on point. That is a case where at trial the prosecution, defence and Magistrate all assumed the content of the packet was “marijuana”. There was no positive proof of that fact, nor was it agreed, and the Magistrate could not take judicial notice of the fact it was “marijuana”. This case is entirely different. Here there is the agreed fact that clearly established the eight packets contained Indian Hemp.
23. Unfortunately, the Chief Magistrate grievously misinterpreted s 21(2) of the Evidence Act and s 42 of the dangerous Drugs Act. She has simply ignored the clear wording and meaning of those statutory provisions. This was a very serious case of misinterpretation of clear statutory provisions.
24. Because of that we reiterate. Absent very exceptional circumstances agreed facts are to be accepted by trial judges and magistrates as proof of that fact without more. S 42 Dangerous drugs does not require the prosecution to tender a certificate in all drug cases. It simply means what it says i.e. That it provides prima facie evidence of what the substance is, and, absent a challenge from the defence, is to be accepted by the trial magistrate or judge.
25. The High Court Judge correctly interpreted S 21 of the Evidence Act and s 42 of the Dangerous Drugs Act. It was always inevitable this appeal would be dismissed.
26. Leave was required for this appeal. Leave is granted but the appeal is dismissed and, as ordered by the High Court Judge, the matter is remitted to the Magistrates Court to be reheard or tried by another Magistrate.

Hansen JA, (President)
Gavara-Nanu (JA)
Lawry (JA)