IN THE MAGISTRATE'S COURT OF NAVUA

Criminal Case : 257/2009

STATE

VS

APOLOSI KUNIKORO

For Prosecution : Sgt. Lenaitasi 
For Accused : Mr. Tawake from the Legal Aid

Judgment

[1]	The accused is charged for the offence of Found of Possession of Illicit Drugs contrary to Sec 5[a] of the Illicit Drugs Control Act. The charge reads as follows. 

Statement of Offence [a]

FOUND IN POSSESSION OF ILLICIT DRUGS:- Contrary to Section 5 (a) of the Illicit Drugs Control Act Number 9 of 2004.

Particulars of Offence [b]

APOLOSI KUNIKORO, on the 03rd day of October 2008, at Navua Town, in the Central Division, was found in possession of 1.5gramme of Illicit drugs namely Indian Hemp.

[2]	This case was started on 29 Sep 2009 and adjourned for number of times for various reasons. In the beginning the accused retained some private counsels but later applied for the Legal Aid. The hearing was started on 14 Sep 2012 and concluded on the same day. 

SUMMARAY OF EVIDENCE
PROSECUTION CASE 

[3]	The prosecution called following witnesses. 

I.	PW1 - PC 2168 Nacini – The arresting officer. 
II.	PW2 - PC Sharon- The officer who collected the Drug Report.
III.	PW3 - PC Katrina- The officer who conducted the caution interview

During the trial the following documents were also marked by the prosecution. 
I.	EX-1 - The drugs
II.	EX-2 - The statement of the PW2
III.	EX-3 - The statement of the PW3
IV.	EX-4 - The report from the Koronivo Research Station 
V.	EX-5 - Caution statement
VI.	EX-6 - Charge statement 

[4]	PC 2168 Nacini (pw1) - He said on 03/10/2008 he was on foot patrol in Navua town and saw a vehicle. The vehicle licence plate was expired and the occupants were drunk. 

The PW1 with the assistance of another officer searced the people in the vehicle and found a FMF biscuit parcel inside the jacket of the accused. In that packet there were some dried leaves and the PW1 arrested the accused and took him to the station. The PW1 identified parcel and it was marked as EX-01. 

[5]	In cross examination the PW1 said some people were drunk and acting suspiciously and he could smell marijuana inside the vehicle. The accused was searched and found the parcel inside his jacket. He submitted to the search by the PW1 and at the re-examination the PW1 said he had worked in drug cases and could recognise drugs by smell. 

[6] PC Sharon (PW2) - received the report from the Research Station and it was tendered through her as EX - 04. The report said the dried leaves were 1.5grm Indian Hemp.

[7]	PC Katrina (PW4) - interviewed the accused. The statement was marked as EX-5 and charge statement was tendered as EX-6. 

[8]	Thereafter the prosecution closed their case and from available evidence this court found that there is a prima facie case made out against the accused. The accused was given his rights and he opted to give sworn evidence. 

DEFENCE CASE 

[9]	Apolosi Kunikoro - The accused said the jacket belonged to his brother and he got it from his house. He was unaware about the drugs inside the jacket. He felt inside and took the parcel, looked inside and put it inside again. He further said the jacket belonged to his brother and they used to give it to the visitors who come in to the house. 

[10]	In cross examination the accused said he took the parcel and saw the dried leaves and thought they were dried suki. In re - examination he said the doctors have prohibited him to smoke. 

[11]	Tukalevu - He was with the accused at the time of arresting. The defence also closed their case. 

[12]	The learned defence counsel indicated that he wanted to file closing submission and the court directed him to file them in the registry. The defence has filed their submission which I have gone through carefully. 
 
THE LAW 

[13]	The accused is charged with the offence of Found of Possession of Illicit Drugs contrary to Sec 5 [a] of the Illicit Drugs Control Act. The Sec reads as follows. 

Any person who without lawful authority-

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

[14]	Therefore the prosecution needs to prove the following elements in this case. 

[a] The accused without lawful authority 

[b] Possessed the drugs 

[15]	This court is mindful that like any criminal matter the prosecution has the burden to prove this case. This was clearly described by Viscount Sankey L.C in the Woolminton v DPP [1935] A.C. It was held that 'no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law. Where the burden of proof, remains on the prosecution throughout the trial, in that circumstance, the accused need only to raise sufficient evidence to cast reasonable doubt on the issue. 

[16]	In State v LIVAI TAMANALEVU [2012] FJHC 1295; HAC 344 OF 2011S) His Lordship Justice Temo told to assessors (summing up);

The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that you must be satisfied, so that you are sure of the accused's guilt, before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt, then you must express an opinion, that he is not guilty. 

ANALYSIS OF THE EVIDENCE

[17]	In this case there is no dispute that the drugs were with the accused. The police searched him and found a parcel in his jacket. Later they found it contained the drug called Indian Hemp. 

[18]	The accused defence throughout the trial is that he was not aware about the drugs in that parcel. Even though he was aware about the parcel he thought they contained dried suki (a Fijian tobacco). 

[19]	Therefore the question to be decided in this case is whether the accused possessed the drugs. Before answering that question I think it would be prudent to look in to meaning of possession with regard to drug related offences. 

[20]	Sec 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 

[21]	In Blackstone's Criminal Practice 2006 p .832 it is stated that A person must know that he is in possession of something which is, in fact a controlled drugs. Also in p. 834 it follows that a person does not possess something of which he is completely unaware. If a drug is put in to someone's pocket without their knowledge, he is not in a possession of it (Warner v Metropolitan Police Commissioner and McNamara).
 
[22]	Lord Wilberforce in 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 of events in which it commences or ceases and by legal incidents attached to it".

[23] 	In the same case Lord Guest defined the possession by citing the Dictionary of English Law and 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 exception 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 a 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".

[24] 	After considering the law with regard to the possession as defined in the statues and the case law I will consider the evidence given by both parties. 

[25]	The accused position was that he was unaware of the contents in the parcel. He held this position throughout the trail. This was stated in his caution interview too. Therefore the police was aware about the claim but they failed to do further investigations about that. They never recorded a statement from his brother or any other family member as to the ownership of the jacket. I believe that it was a mistake made by the police. 

[26]	Also PW1 who arrested the accused admitted the parcel also contained some Fijian tobacco in addition to the drugs. This is consistent with the accused's 	evidence. The accused stated that he took the parcel out and saw the dried leaves. 
He thought they were Fijian tobacco (dried suki). 

[27]	The court also considers the accused behavior at the time of the search. He submitted to search without any objection. It is difficult to imagine someone keeping drugs in his possession as alleged in this case would let the police to search him without making any problems.

[28]	For the above mentioned reasons I find that there is a doubt created thru the evidence whether the accused knew about the content of the parcel. Like in any criminal trial that doubt would be given to the accused. Therefore I acquit the accused from this case. 

[29]	28 days to appeal. 

10/12/2012

H.S.P.Somaratne
Resident Magistrate, Navua