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State v Wilson - Judgment [2014] FJMC 104; Criminal Case 1174.2008 (16 June 2014)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA
Criminal Case : 1174/2008( EJ 109/2008)

STATE

VS

ALEXANDER WILSON

Sgt .Vinesh for the Prosecution
The accused absent

JUDGMENT

[1] The accused is charged in this Court for following offence

FOUND IN POSSESSION OF ILLICIT DRUGS: contrary to Section 5(a) of the Illicit Drugs Control Act No. 9 of 2004.

Particulars of Offence

ALEXANDER WILSON on the 26th day of June 2008 at Lami in the Central Division, was found in possession of 359.5 grams of Illicit Drugs namely, Indian Hemp.

[2] The accused pleaded not guilty for this charge and the hearing was conducted before Resident magistrate E Rokoika on 03rd December 2009. During the hearing the prosecution called 03 police officers as witnesses and for the defence the accused gave sworn evidence. When this case was called again on 18th May 2010 the accused was not present and the Court issued a bench warrant to arrest him. The police has failed to execute the bench warrant up to now. Therefore based on the proceedings I have decided to give judgment in this case.

SUMMARY OF EVIDENCE
THE PROSECUTION'S CASE

[3] PW1 was PC 4092 Gustav who conducted the raid on 26/06/2008 at Visari Shopping Center. Whilst searching the compound he found one black sport bag inside rubbish which contained dried leaves. The person who threw the bag was the accused. PW1 also identified the accused in the Court and the bag was marked for identification as MFI-01. In cross- examination PW1 said he did not see officers threatening the accused.

[4] PW2 was DPC 2560 Mikaelo who was the investigating officer in this case. He took the drugs to Koronivia and uplifted the report. He also conducted the caution interview of the accused. The accused was given his rights and he admitted the offence in his interview. The prosecution tendered following exhibits through PW2.

Drugs- prosecution exhibit 01

Government analyst report – prosecution exhibit 02

Caution statement – prosecution exhibit 03

In cross- examination PW2 confirmed that the accused gave all the answers in the interview.

[5] PW3 was Sgt 1111 Senioli who was the charging officer and this was marked as prosecution exhibit 04.

[6] The prosecution closed their case after that and the court gave the accused his rights and he elected to give evidence.

THE DEFENCE'S CASE
[7] The accused said on that day he woke up and took rubbish to backyard when the police approached him and assaulted him and asked about the drugs. The accused denied about them and police officer found drugs in his compound near the fence. They threatened him to admit about the drugs and because of that he admitted. In cross- examination he said he did not go for a medical check up and also did not inform the magistrate when he was produced to the Court.

THE LAW
[8] In Woolmington v DPP [1935] AC 462 it was held that

"Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt, subject [to the qualification involving the defence of insanity and to any statutory exception]. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained" (per Viscount Sankey L.C. at pp. 481-482).

[9] The standard of proof where the judge has to decide an issue of fact in a criminal case where the burden of proof is on the prosecution is proof beyond reasonable doubt (ARCHBOLD CRIMINAL PLEADING, EVIDENCE AND PRACTICE 2010 page 542).

[10] In STATE v MAHENDRA PAL CHAUDHRY HAC 137 of 2010 in his summing up his Lordship Justice Madigan defined beyond reasonable doubt in the following manner:-

"The burden of proving the case against this accused is on the Prosecution and how do they do that? By making you sure of it. Nothing less will do. This is what is sometimes called proof beyond reasonable doubt. If you have any doubt then that must be given to the accused and you will find him not guilty- that doubt must be a reasonable one however, not just some fanciful doubt. The accused does not have to prove anything to you."

[11] Now I would consider the charge. The accused is charged with one count of Found in Possession of Illicit Drugs contrary to section 5(a) of the Illicit Drugs Control Act No 09 of 2004.

[12] Section 5(a) of the Act provides :

"Any person who without lawful authority –

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

[13] Therefore the prosecution needs to prove the following elements beyond reasonable doubt :

[a] The accused

[b] Without lawful authority

[c] Possesses the drugs.

ANALYSIS OF THE EVIDENCE
[14] According to the evidence presented by the prosecution I find that the police whilst conducting a raid found drugs in the compound of the accused. The accused also admitted the drugs were found in his compound. But his defence was that he had no knowledge about that. Therefore only disputed element in this case is whether the accused possessed the drugs.

[15] The Illicit Drugs Control Act No 9 of 2004 is silent about the meaning of the possession of the drugs. But section 2 of the Crimes Decree No 44 of 2009 defines the possession in the following manner.

"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;

[16] Lord Hope in the House of Lords in Lambert [2002] 2 AC545, stated that 'there are two elements to possession. There is the physical element, and there is the mental element'.

[17] 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 its 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 to it".

[18] In State v Balaggan - [2012] FJHC 1143; HAC049.11 (31 May 2012) in the summing up his Lordship Justice Goundar said that :

"Possession is proven if the accused intentionally had the substance in her physical custody or control to the exclusion of others, except anyone who was acting in concert with her in the alleged offence.

The prosecution must also prove beyond reasonable doubt that in intentionally having such custody or control, the accused did so with the knowledge or belief that the substance was an illicit drug – not necessarily the illicit drug charged here, but a drug the possession of which is prohibited."

[19] According to PW1 he saw the accused throwing the bag to the rubbish that day. The accused did not cross- examine this witness about that.

[20] Also the accused in his caution interview said as follows:

Q10: Who gave it to you?

A: The name of the supplier is John Rocky

Q11: Did you buy those marijuana?

A: Yes

Q12: How much did you bought those 3 bags of marijuana?

A: I bought it for $400

Q13: Why did you buy those 3 bags of dried leaves of marijuana?

A: I bought it for my personal use because I also smoke marijuana

Q14: Did you also sell marijuana from your house?

A: No

Q15: Where was the marijuana when police came to your house?

A: I took the bag containing the dried leaves and hid it in the rubbish tin outside.

[21] From his caution statement I find that the accused admitted about this offence. Before the hearing he did not challenge about this statement and therefore there was no voir- dire held to decide about the admissibility. But whilst giving evidence he said he was assaulted and because of that he admitted this offence. But the interviewing officer in his evidence said that the accused was given all his rights and he gave statement voluntarily.

[22] Even in his charge statement also he admitted that he was keeping the drugs as he was in a financial difficulty. The accused did not cross- examine the charging officer and charge statement was also marked as an exhibit without any objection.

[23] The accused admitted that even though he was assaulted he did not go to hospital. Also from the court record I find that he has never informed the Court about this assault and first time he mentioned this is only on the hearing date. Based on these I find that his version about being assaulted by police officers is not credible.

[24] Therefore on the admissions made by the accused in his caution statement and charge statement which was supported by evidence of PW1 I am satisfied about the prosecution version.

[25] I find the accused is guilty for this offence and convict him accordingly.

[26] Since this court is exercising the extended jurisdiction of the High Court in this case, the parties may appeal against this judgment within 30 days with leave to the Court of Appeal.

16th June 2014

H.S.P.Somaratne
Resident Magistrate