DC5072
PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE
CRIMINAL (SUMMARY) JURISDICTION
SUM NO. 97 OF 2021

Between:
THE POLICE
Informant

And:
JACKSON JARON
Defendant

Tari:	E. Komia
13th April 2021, and 14th April 2021

PRACTICE AND PROCEDURE – Police informant and prosecutor’s failure in compiling evidence - exhibit available at the time of the arrest and charge – police informant’s failure to provide the exhibits to police prosecutor and the court – police informant is duty bound to provide the exhibit of the crime to the prosecutor as soon as practicable – delay in providing such exhibits shall amount to the exhibit being corrupted resulting in a less stronger case.

PRACTICE AND PROCEDURE - where there is no exhibit and evidence to establish the elements of the charge, the court must rely on corroboration – exhibits that were confiscated during the time of the charge, held by police must never be taken home by any arresting officer – evidences and exhibits are to be kept in a safe place within the police station, which must be labelled and sealed for purposes of exhibit in court.

PRACTICE AND PROCEDURE – Police informants who tamper with evidence should be held accountable – such practice must not be tolerated by authorities – need for investigation into such malpractice by arresting officers – such officers can also be treated as criminals – where there is no proper records kept by police, court has the power to request the Station Commander or the Provincial Police Commander to explain the breakdown in administration of justice.

PRACTICE AND PROCEDURE – There is no exhibit in court at the trial, a voluntary partial admission of possession must be properly put to trial – where there is complete denial, no trial can succeed as there would be no exhibits, coupled with the absence of the police informant – in absence of a corroborator, documentary evidence and summary of facts and accused admissions must be reconfirmed by the and established by the prosecution during cross examination – admission during cross examination confirming provisional plea of guilty warrants finding of guilt, thereby resulting in conviction.

Held:
1.	The Court should not simply discharge an accused on the basis that the police informant is not present, as the information and the summary of fact contains the informants statement in relation to the charge, and police must prosecute despite non- existence of a police witness, if on the face of the evidence, the accused’s partial admittance corresponds to the summary of fact.

2.	A partial admittance and partial denial made by the defendant (provisional guilty plea) to a charge must be tested by the prosecution during cross examination despite lack of exhibits, as exhibits are only evidentiary materials that directly strengthen prosecution’s case, as such, in circumstances where the exhibit has not been brought into court, and the police informant is not present, the summary of fact is as good as the statement of the police informant, the prosecution must test its case in trial to ascertain the verdict of the defendant.

3.	The court after entering a provisional plea of guilty must never convict an accused, in the absence of an informant, and an exhibit, if the accused alters his provisional plea to a not guilty plea during his examination in chief (in an instance where he is not represented, his sworn statement from the witness dock), and cross examination, but where the accused admits the offence when giving his statement from the witness box, and during cross examination, the Court must convict the accused accordingly despite the absence of exhibits, and the informant.

INTRODUCTION

1.	The accused was charged with one count of being in possession of a dangerous drug, known as cannabis (marijuana), without any lawful authorisation.

FACTS

2.	The accused was arrested on 25th March 2021, and it is alleged that the accused was at that material time, in possession of 20 packs of marijuana, which were worth a total of K20 at the domestic market.

3.	He was then charged pursuant to s. 3(1)(d) of the Dangerous Drugs Act.

4.	The matter then first came before this court on 30th March 2021, and the court after being introduced the matter, went on to read the charges to the defendant, and then obtained the defendants plea.

5.	 The defendant stated that the marijuana did not belong to him. He was wearing another person’s pants and was caught by the police. He further pleaded that he neither sells, nor smokes marijuana.

6.	 The court then proceeded to enter a provisional plea of not guilty.

7.	The matter down for trial on 31st March 2021, as per the request of the police prosecutor. 

8.	When the matter returned on 31st March 2021, the court was advised by the prosecutor that there were no police personals available to escort the accused to court; thus he sought for vacation of the trial date and set the trial date to 07th April 2021.

9.	On 07th April 2021, the matter was further adjourned to 09th April 2021 for the police to prepare its witnesses and also produce the exhibits in Court. The witnesses and the exhibits were not ready as anticipated by the prosecutor, and as such, the trial date was again vacated from 09th of April to 13th April 2021. 

10.	On 13th April 2021, the prosecutor submitted to the court that the police informant who arrested the accused was attached with the Mobile Squad 03 and Mobile Squad 04 (MS 03 and MS 04) division of the Royal Papua New Guinea Constabulary Special Forces located at Mc’Gregor Barracks in Port Moresby, and they have since, returned to Port Moresby on 08th April 2021.

11.	The Court then inquired with the prosecutor on the exhibits (20 packs of marijuana) and the prosecutor simply answered that the police informants usually kept the exhibits, and provided them to the prosecutor at the time of the trial. 

12.	The court noted that the summary of fact was ready, and the accused had partially admitted to have been in possession of the twenty (20) packs of marijuana, but stated that he was not the woner of the shorts that he wore which contained the dangerous drug namely cannabis.

OTHER IMPORTANT CONSIDERATIONS

13.	On the outset, after having learnt that the exhibits were unable to be brought into court, I bluntly expressed my dissatisfaction with the explanation given by the prosecutor, that, it was a practice that the exhibits were kept by the police informant, and later given to the prosecutors at the time of the hearing date. This to my mind is an indication that there is no control and command of the process in which arrests, charges, detention, keeping of exhibition, and dialogue between the general duty constables, the criminal investigation division (CID), and the prosecution. Whether this is a simple administrative issue, or a serious problem within the command and control of the Royal Papua New Guinea constabulary in Hela Province, is an issue that is worth investigating.

14.	The process, in which a suspect is arrested, charged, detained and until the time the suspect attends court is a trait the police personals are trained with, and as such, every police personal in the country must be well acquainted with the practice. The basic process which is followed are, to my knowledge as follows:

•	The police arrests a person upon suspicion that the suspect has committed an offence or is about to commit an offence.

•	The person is then charged and information is laid against the suspect, who then becomes an accused.

•	At the time of the arrest and eventual charge, the police informant who arrests and charges the suspect must explain to the accused the charge, and decide on whether to grant the accused bail or not.

•	In minor offences like being in possession of ammunition, unlawful drugs and other summary matters, the evidences which police confiscate during the arrest, at the occurrence of the crime, must be properly labelled or tagged, and stored away in a safe or a locker, and promptly handed over to the CID and the prosecutor who are dealing with the matter, after proper information compiled, and the matter is now handed to the prosecutor to prosecute the matter in court.

•	The police informant should not keep the exhibits to himself. If he is allowed to do that, there is a high probability of the evidence being corrupted, or lost, as in this case, and it will be injustice to the people of this country.

15.	Upon my careful observation of how police keep the exhibits in Tari, it has struck me that there is no proper place within which, all the exhibits of various crimes committed are kept. This is damning on the part of the command and control in the Police Force based in Tari. How can a police informant keep an exhibit without giving it to the prosecutor or the investigating officer? This practice must stop. It is only proper that the exhibits must be properly kept safely, so that the prosecutor must be able to retrieve as and when it is required during trial.

16.	Whilst some criminal offences would need proper evidence to prove the case, some evidence such as knives used to owund another person or kill a person, bullets or live ammunitions. Guns, alcohol confiscated and other substance essential to prove an offence must be properly, and safely kept away in the police station, or exhibit locker. 

17.	This calls for a greater need for proper administrative system to be set within the police administration in Hela Province. I am minded to make an order seeking the Police Commissioners Investigation into the manner in which the police in their general duties carry out their work, and how there are proper records of exhibits, and how matters are prosecuted in Hela.    

ISSUE 

18.	Does the accused have a case to answer?

EVIDENCE

19.	I note from the above that, as it is now before this court, the prosecution’s case is on shaky grounds, and that the defendant’s case is now improved, at least on partial denial that he was not the owner of the dangerous drug. This is a matter the court has to consider, and if the defendant proves that the drug is not his, and he is not the owner of the drug, the information containing the charge must be struck out and the defendant must be discharged. Does that mean that the accused does not have a case to answer? The answer is ‘NO’. The accused definitely has a case to answer and that is based upon his partial admittance that, the police did find him in possession of the dangerous drug. His denial is not for the charge of being in possession of the dangerous drugs, rather it is that he was not the owner of the shorts which hosted the dangerous drugs.

20.	So it is conclusive that the only evidence that goes to incriminate the accused is his partial admission that the dangerous drug was in his possession when the police arrested him, but he denies owning it, and says it might belong to some other persons that he lives with. The question that yearns for an explanation is, if he wore that short, why didn’t he know whose short it was and did he blindly wear the trousers without checking what’s in it, and if he did see the dangerous drugs in the shorts pocket, why didn’t he dispose it?  Given those circumstantial evidence and reasoning based on his partial admission, the threshold question is; should this matter go to trial?

DISCUSSION

21.	After the prosecution mentioned that the exhibits were not in court, I asked them what they intended to do, and they simply said that the defendant had no case to answer, and that he should be discharged. This prompted me to then consider whether the accused can be discharged and exonerated from the offence. I became sceptical of the manner in which this matter was prosecuted and as such, I adjourned to consider the prosecutions submission.

22.	In dealing with the prosecutions application for dismissal of the charge, I will take it that it would also be an issue of whether the defendant has no case to answer.  In this case, the accused has admitted to have possession of the drugs, and did say that police did confiscate the cannabis drugs off him. In this instance, an essential element of the offence is established. The accused, being a person of 25 years, did have in his possession 20 packs of marijuana, which is a dangerous drug known as cannabis. I am therefore not of the view that the accused does not have a case to answer despite the absence of the drug and police witness, as he has admitted to the fact that he was in possession of the drug, whilst also stating that he was not the owner or had no knowledge of the drug in the trousers.

CONCLUSION
23.	The accused does have a case to answer and he must do so. I will allow the defendant to give his evidence, and later on to be cross examined by the Prosecution. 

Orders Accordingly

By the Court 
Magistrate Komia