N2922

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CA NO 30 0F 2004

MICKEY WASSEY
Appellant

V

THE POLICE
Respondents

KIMBE: CANNINGS J
14, 27 OCTOBER 2005

APPEAL

Criminal law – particular offences – possession of dangerous drugs – marijuana – Dangerous Drugs Act, Section 3(1) – elements of offence – "knowingly" – "possession".

Appeal – District Court – need to establish substantial miscarriage of justice – District Courts Act, Section 230(2).

The appellant was convicted by the District Court on a charge of knowingly being in possession of dangerous drugs, cannabis, without authorisation, contrary to Section 3(1)(d) of the Dangerous Drugs Act Chapter No 228. The police observed the appellant sleeping on the ground in a public place and upon turning him over found beneath him a plastic rice-packet containing 111 marijuana cigarettes. The District Court sentenced him to 12 months imprisonment. He appealed on the grounds that the evidence was insufficient for a finding of guilt; the quantity of the drugs changed giving rise to suspicious circumstances; the magistrate who convicted him had convicted him of a prior charge and should have disqualified himself; and the sentence was manifestly excessive.

Held:

(1)	There was no reasonable suspicion of bias by the magistrate, who did not err by not disqualifying himself.

(2)	"Possession" of a thing requires that it be proven that the alleged possessor has some visible power or control over it.

(3)	The Dangerous Drugs (Amendment) Act No 23 of 1990 is not applicable as the amendment has never commenced operation.

(4)	A person can only "knowingly" be in possession of something if there is sufficient evidence of knowledge of the presence of it, to supply the mental element of the offence. Schliebs v Singh [1981] PNGLR 364 applied.

(5)	In the circumstances, there was insufficient evidence that the appellant had possession of the marijuana or, if he did have possession of it, that he had possession knowingly.

(6)	There was a substantial miscarriage of justice, so the appeal was allowed and the conviction and sentence quashed.

Cases cited:
The following cases are cited in the judgment:

Gath Yasi v Mesi Butu [1991] PNGLR 206
Kwame Okyere Boateng v The State [1990] PNGLR 342
Richard Cheong v Vincent Nemil [1981] PNGLR 472
Schliebs v Singh [1981] PNGLR 364
Sela Gipe v The State (2001) SC661
Warner v Metropolitan Police Commissioner [1969] 2 AC 256

APPEAL

This was an appeal against conviction and sentence on a charge of knowingly being in possession of dangerous drugs contrary to the Dangerous Drugs Act Chapter No 228.

Counsel:
G Linge for the appellant
J Kesan for respondent

CANNINGS J:

INTRODUCTION

This is an appeal against a decision of the District Court at Kimbe, constituted by Mr Joe I Voku, in which his Worship convicted the appellant of possession of dangerous drugs and sentenced him to 12 months imprisonment. 

BACKGROUND

The basic facts are not in dispute. On the night of 14 November 2003 the police were called to a place in Kimbe called "Section 10" to check out a report that there were prison escapees in the area. Officers Chris Smith and Ben Moide searched the locality. They approached three persons who looked suspicious. Two of them ran away, leaving one, a female, who was questioned. In the course of this operation they noticed another person lying on the ground face upwards. That was the appellant, who was asleep.

The police rolled him over and found beneath him a plastic rice bag, containing 111 wraps of marijuana. They took the appellant to the police station and the next day charged him with possession of marijuana.

On 14 January 2004 the matter came before the District Court. The case was prosecuted by a police prosecutor and the appellant represented himself. The appellant requested the magistrate to disqualify himself on the ground that he had decided a previous case against the appellant. That request was refused and the trial proceeded. His Worship Mr Voku convicted the appellant, as charged, and sentenced him to 12 months imprisonment. 

The appellant served his term of imprisonment at Lakiemata correctional institution from 16 January to 13 September 2004. (This apparently took into account a pre-sentence period of custody and the normal remission of one-third of the sentence under the Correctional Service Act.) 

In the meantime the appellant was aggrieved by the conviction and sentence and wanted to lodge an appeal. On 16 April 2004 Bidar AJ granted him an extension of time to appeal against his conviction and sentence. He filed a notice of appeal to the National Court on 10 September 2004. The appeal was filed at the Kimbe Registry. On 9 February 2005 a notice of entry of the appeal was filed. The appeal was heard on 14 October 2005.

By this time the appellant had served his sentence and was no longer in custody. But he was still aggrieved by his conviction and sentence and wanted the appeal to go ahead.

THE DISTRICT COURT PROCEEDINGS

Police case

There were three State witnesses. 

Reserve Constable Chris Smith testified that he was on duty with other officers on the night of 14 November 2003. He was advised by an informant that there were two escapees at the Wabag store at Section 10. He and his colleagues proceeded on foot to Bush Camp, Section 10. They saw three males and one female. One of the males shone a torch towards them and upon realising that police were approaching he and another of the males fled, leaving the female and another male, the appellant, behind. The appellant was asleep on the ground. Two officers rolled him over and underneath him found the rice plastic bag containing 111 wraps of cannabis. The witness was asked in examination-in-chief about the appellant sleeping and replied, "he appeared to be drunk with marijuana or I am not sure". In cross-examination the appellant (representing himself) asked the witness how he knew that the drugs were his and the witness replied "because you were sleeping on it". Asked why he had not told the appellant about the allegations when he woke him up the witness replied:

You were either drugged or under the influence of drugs. You could not function. You were ignorant. You could not talk. 

Reserve Constable Ben Moide testified that he was also on duty, on foot patrol, at Section 10. They came across the appellant who was lying down, fully drunk. The appellant did not know that the police were there and did not hear them. They rolled him over and found the drugs under his back. The appellant could not talk and was totally drunk. There were two other men present, who ran away; as well as a lady. In cross-examination the witness, when asked why he had not told the appellant about the drugs when he woke him up, replied: 

You did not talk. You were out altogether.

Sergeant Caspar Wakore of Kimbe police testified that he took the appellant to the station with the plastic bag containing the drugs. It was about 11.00 pm. He showed the drugs to the appellant, who looked drunk. He said the drugs did not belong to him. The next day was a Saturday and the appellant still could not talk properly. 

Defence case

The appellant relied on one witness and made a statement from the dock.

The witness was the appellant’s stepfather, Tumu Andake, a Village Court magistrate at Nahavio, near Kimbe. He testified that on the day in question he and the appellant came to court but the case was struck out. They then went to the appellant’s father’s store at Section 15, Kimbe. They bought two cartons of beer and drank, staying until 10.00 pm. They then started to walk home. On the way he walked to a store to buy cigarettes and more drinks, leaving the appellant with a couple of other people. That was about 11.00 pm. When he came back he was told by bystanders that the police had taken his son away. He assumed that they had picked him up for being drunk. He did not go to the police station that night as he thought that the police might arrest him as well. He went to the station the next morning. That is when he found out that the police had charged the appellant with possession of marijuana. 

In his statement from the dock the appellant said that he was drinking with his stepfather at Section 15. Then they went to Section 10. His father told him to wait with some boys and a lady while he went to buy smokes. He was "over drunk" so he slept. The police came and chased the other boys away. He denied all knowledge of the drugs:

I do not smoke the drugs. I am brought up in a good family. I do not take the drugs.

Reasons for decision

His Worship refused the application that he disqualify himself as he considered it unreasonable. He might have dealt with the appellant previously but that it not a cause for disqualification. He did not know the appellant or the persons he is in court with and had no personal interest in the case. 

His Worship summarised the evidence and considered that the facts were straightforward. The police approached three persons who looked suspicious. Two of them ran away, leaving one, a female, who was questioned. In the course of this operation they noticed another person lying on the ground face upwards. That was the appellant. He was drunk and asleep. The police rolled him over and found beneath him a plastic rice bag, containing not rice but 111 wraps of marijuana. They took the appellant to the police station and the next day charged him with possession of marijuana.

His Worship noted that the charge was laid under Section 3(1)(d) of the Dangerous Drugs Act, which states:

A person who knowingly … is in possession of or conveys a dangerous drug or a plant or part of a plant from which a dangerous drug can be made, is guilty of an offence unless he is authorized to do so by or under some other Act.

Penalty: Imprisonment for a term of not less than three months and not exceeding two years.

However, his Worship added that that provision had been amended by the Dangerous Drugs (Amendment) Act 1990, by deletion of the word "knowingly". That Act was certified on 29 August 1990. Therefore lack of knowledge is no longer an issue. Nor can it be regarded as a defence.

His Worship added that there was no explanation for the drugs being under the appellant. He was satisfied that the marijuana was in the possession of the appellant and convicted him as charged.

As to sentence, his Worship noted that the appellant had two prior convictions, in September 2003, for assault and threatening behaviour. He had been fined K100.00 and K50.00 respectively. The quantity of drugs in his possession was huge, with an estimated value of more than K1,000.00. A harsh punishment was warranted as selling and smoking of drugs is becoming prevalent. The appellant’s call for leniency and to be given a chance to continue his education was not considered genuine. "Drinking with and being encouraged to drink by his stepfather to drink, does not support the education claim," his Worship concluded, when sentencing the appellant to 12 months imprisonment. 

GROUNDS OF APPEAL

The notice of appeal states the following grounds:

1	That the evidences against the appellant was insufficient for a finding of guilt, and therefore a verdict of not guilty, should have been entered as it would be unsafe to do so.

2	The quantity of the drug as exhibited in court which the Appellant was alleged to have been in possession of had varied from small quantity at the start of the case to a much larger quantity in the middle of the trial, and therefore there are suspicious circumstances in which the magistrate should have noted and considered the credibility of the police witness.

3	The Magistrate who heard the case had previously convicted the appellant on another charge and was requested by the Appellant at the beginning of the trial, to discharge himself from hearing this case, however, the learned magistrate had left it open for possible likelihood of bias in going ahead and hearing the case.

4	There was no prior conviction for [a] similar offence as stated by the police prosecution and therefore the sentence was and is in the circumstances, manifestly excessive.

MAJOR ISSUES

Mr Linge, for the appellant, did not press ground No 2 strongly and I can see no merit in it. The allegation was and always has been that the appellant was in possession of 111 wraps of marijuana. The quantity never changed. I cannot detect any suspicious circumstances arising from the way the case was dealt with in the District Court. Ground No 2 is dismissed.

That leaves ground Nos 3, 1 and 4, which is the order in which I will deal with them. No 3 raises a jurisdictional issue about procedural fairness. No 1 is centred on the conviction itself. No 4 is about the sentence. They raise three major issues:

•	Did the magistrate err by not disqualifying himself?

•	Was the evidence sufficient to prove all elements of the offence?

•	Was the sentence manifestly excessive? 

APPELLANT’S SUBMISSIONS

Mr Linge argued that his Worship erred by dismissing the appellant’s concerns about the possibility of bias out of hand. The magistrate had convicted the appellant of previous charges and the appellant genuinely felt that he would not get a fair hearing. 

There was insufficient evidence to support all elements of the charge, particularly that the appellant had "possession" of the drugs. For a person to have possession of something he must be in control of it. Here the appellant had no control over the drugs. He was totally drunk, not from drugs but from drinking too much alcohol. The evidence suggested that he had no knowledge of the drugs at all but that they may have belonged to the other males around him who absconded when they saw the police coming.

The sentence of 12 months, though within the range permitted, was excessive.

RESPONDENT’S SUBMISSIONS

Mr Kesan submitted that in any appeal the appellant has the onus of demonstrating an error of law by the trial court, such that the conviction is unsafe and unsatisfactory. There must be an identifiable error, but none has been established in this case. There were no good grounds for the magistrate to disqualify himself. 

It is evident that his Worship carefully weighed the evidence. The fact that the appellant was sleeping on the rice packet containing the marijuana, coupled with him being the only person (other than the unidentified female) present at the material time, led to the conclusion that the marijuana was his and that he knowingly had possession of it. The police evidence was all sworn evidence. There was little to rebut it. His stepfather’s evidence was not helpful as he was not present at the material time. The appellant gave only an unsworn statement from the dock. There was enough evidence to prove all elements of the offence beyond reasonable doubt.

The sentence was squarely within the range, especially given the significant quantity of drugs in the appellant’s possession.

DID THE MAGISTRATE ERR BY NOT DISQUALIFYING HIMSELF?

The Supreme Court has given clear rulings in two cases on the test to be applied whenever a question of bias by a judicial officer arises in a criminal trial.

In Sela Gipe v The State (2001) SC661, Hinchliffe J, Jalina J, Sakora J, the court, relying on its earlier decision in Kwame Okyere Boateng v The State [1990] PNGLR 342, Kidu CJ, Amet J, Hinchliffe J, stated:

The test to be applied in determining whether an accused had been denied a fair trial was whether a reasonable and fair-minded person sitting in a court and knowing all the relevant facts would have a reasonable suspicion that a fair trial for the accused was not possible.

The same principle applies irrespective of whether the trial is in the National Court or the District Court. Applying that test here, the question to ask is:

•	would a reasonable and fair minded person, observing the trial of the appellant in the District Court in Kimbe, with knowledge that the presiding magistrate had a few months previously convicted the appellant of assault and threatening behaviour, reasonably suspect that a fair trial for the appellant was not possible? or, putting it in straight talk,

•	would a reasonable person think the magistrate was one-sided?

There was no suggestion that the magistrate had any personal interest in the case or that he had any personal agenda or vendetta against the appellant. He thought that he may have dealt with the appellant previously, but gave the impression that, if he did, he did not remember much about it. I do not think that a reasonable person would reasonably suspect that a fair trial was not possible or that the magistrate was one-sided. Therefore, whichever way the test is framed, the answer is clearly no.

The magistrate did not err in law by ruling against the appellant’s application. Ground No 3 is dismissed.

WAS THE EVIDENCE SUFFICIENT TO PROVE ALL ELEMENTS OF THE OFFENCE?

It is important to clearly appreciate what the elements of the offence under Section 3(1)(d) of the Dangerous Drugs Act are; especially as his Worship convicted the appellant on the basis that that section had been amended.

History of Section 3(1)(d)

My research reveals that, in fact, it has not been amended. In 1990 the Parliament enacted the Dangerous Drugs (Amendment) Act No 23 of 1990. Under that Act, the word "knowingly" was deleted from Section 3(1). However, the Act has never commenced operation. 

Making or passing an Act is one thing. Getting it to commence operation is another. It is up to the Parliament to determine the mechanism by which an Act commences operation. The Parliament can fix a specific date, which might be before or after the date on which an Act is passed. The Parliament might delegate the decision about when the Act is to commence operation to a Minister. The Parliament can decide that some parts of an Act will commence operation on one date and other parts will start on another date. Often the Act will state that it will come into operation in accordance with a notice published in the National Gazette. If the Act does not say anything on this subject, it comes into operation on the date that is certified by the Speaker in accordance with Section 110(1) of the Constitution.

The relevant provisions of Section 110 (certification as to making of laws) state:

(1)	Subject to Section 137(3) (Acts of Indemnity) and to any Act of the Parliament made for the purposes of Subsection (3), the Speaker shall certify under the National Seal, in accordance with the Standing Orders of the Parliament, that a law has been made by the Parliament and, subject to Subsection (2), the law comes into operation on the date of the certificate.

(2)	Nothing in Subsection (1) prevents a law—

(a)	being expressed to come, or to be deemed to have come, into force on a date specified by, or fixed in accordance with, law; or
(b)	being retrospective or retroactive. …

The preamble to Act No 23 of 1990 states that it is "to come into operation in accordance with a notice published in the National Gazette by the Head of State, acting with, and in accordance with, the advice of the Minister". However, no such notice has ever been published in the National Gazette. A notice of certification was published (see National Gazette No G60 of 13 September 1990). But that is not the same thing as a notice of commencement. 

All of these issues were canvassed by Doherty J in an appeal from a decision of the District Court at Lae in Gath Yasi v Mesi Butu [1991] PNGLR 206. The appeal was against a conviction of cultivating a dangerous drug without authorisation. Her Honour concluded that Act No 23 of 1990 had not commenced operation. Therefore there was no offence of cultivating a dangerous drug per se. The accused had to be shown to have knowingly cultivated a dangerous drug.

Significance of the amendment not having commenced

What does all this mean for the present case? First, I consider that his Worship erred by giving effect to Act No 23 of 1990. I hasten to add that this was an understandable error. It is to say the least an unusual state of affairs to have an Act sitting on the statute books for 14 years gathering dust like this. His Worship obviously presumed that the 1990 Act had commenced, when in fact, it had not.

Secondly, I have to decide how to deal with this point given that it was not expressly made an issue in the notice of appeal. When the appeal was heard I drew counsels’ attention to the fact that the version of the Act I had in front of me included the word "knowingly" (Selected Laws of Papua New Guinea, Government of Papua New Guinea, 2000, page 772). However, there were no submissions on the point and it was only after the hearing concluded that I came to realise its potential force. I thought about recalling the parties to address it but ultimately decided that that was not necessary and the issue could be incorporated within ground of appeal No 1. I had raised the issue and given the parties the opportunity to make submissions on it. 

Therefore I will deal with the appeal on the basis that the correct law is the unamended Section 3(1)(d); that the elements of the offence include that the accused person "knowingly" had possession of the drugs; and that the issue of whether the magistrate erred by not considering whether that element was proven, is a point of appeal within ground No 1. 

Elements of Section 3(1)(d)

For the avoidance of doubt I state that Section 3(1)(d) of the Dangerous Drugs Act states and has at all material times stated:

A person who knowingly … is in possession of or conveys a dangerous drug or a plant or part of a plant from which a dangerous drug can be made, is guilty of an offence unless he is authorized to do so by or under some other Act.

Penalty: Imprisonment for a term of not less than three months and not exceeding two years.

The elements of the offence (with the italics showing the relevant bits in the present case) are that a person:

1	knowingly;

2	is in possession of or coveys;

3	a dangerous drug or a plant from which a dangerous drug can be made; and

4	is not authorised to do so by or under some other Act.

Element Nos 3 and 4

A "dangerous drug" is defined by Section 1 of the Act to include a substance specified in the schedule. The schedule lists about a hundred substances, including cannabis and cannabis resin, which is another name for marijuana. (Concise Oxford English Dictionary, Oxford University Press, 2004.) There was no doubt that the contents of the rice-packet on which the appellant was sleeping were cannabis. Therefore element No 3 was proven. 

Likewise with element No 4. The appellant was not authorised to have any cannabis. 

That leaves elements Nos 2 and 1; and I will deal with them in that order.

Was he in "possession" of cannabis?

This word is not defined by the Dangerous Drugs Act or the Interpretation Act. However, there is a definition of "have in possession" in Section 1 of the Criminal Code, which states:

"have in possession" includes having under control in any place, whether for the use or benefit of the person of whom the term is used or of another person, whether or not another person has the actual possession or custody of the thing in question;

In Schliebs v Singh [1981] PNGLR 364, an appeal to the National Court against a conviction for knowingly being in possession of cannabis, Miles J held that though the Criminal Code definition was not necessarily applicable to other legislation, it was desirable to apply it in the interest of developing a consistent and coherent body of law. I agree. "Possession" of something means:

•	de facto possession, ie physical custody and control; or

•	constructive possession, exercised through the immediate custody of another person.

The notion of de facto possession his Honour referred to ties in with the normal and natural meaning of the word, which when used as a noun means "the state of possessing something – visible power or control, as distinct from lawful ownership". (Concise Oxford English Dictionary, Oxford University Press, 2004.)

Which of these states of affairs applied in the case of the appellant? Well, the issue of constructive possession does not arise. Either he had de facto possession or he did not. So did he have custody and control of it or visible power or control over it? A proper determination of this issue requires a full examination of the evidence. The appellant was asleep. Dead drunk. The evidence suggests that he was inebriated by alcohol, not stoned out by cannabis. He was still drunk the next morning. He was not in control of his senses. A reasonable inference, I think, to draw from this is that he was not in control of the cannabis. He did not know he was lying on it. That this was the state of affairs is supported by the other evidence adduced at the trial. When the police approached the spot where they found the appellant, one of the suspects they were looking for shone a torch in their faces and ran away. Maybe it was the suspects who planted the cannabis under the appellant. 

I conclude therefore that Mr Linge’s argument that the appellant was not in control of the cannabis and therefore could not be in possession of it, must prevail. This means that his Worship erred by finding that this element of the offence was established.

Was the appellant "knowingly" in possession?

I have already concluded that his Worship erred by not addressing this issue. He regarded the appellant’s state of knowledge as irrelevant, as it did not have to be proven. However, it is relevant. It is an element of the offence. So it is worth asking the question, on the assumption that the appellant did have possession of the cannabis: was he knowingly in possession of it?

In Schliebs v Singh Miles J called this the mental element of the offence. Relying on the judgment of the House of Lords in Warner v Metropolitan Police Commissioner [1969] 2 AC 256 his Honour explained that what the police must prove beyond reasonable doubt is ‘guilty knowledge’. Or was it a case of genuine ignorance on the part of the accused person? Could the accused be regarded as an innocent custodian? In Warner, Lord Wilberforce emphasised that the onus of showing innocent custody never rests on the accused. The prosecution must always prove the offence.

If the "knowingly" element had been dealt with properly in the District Court, the police would have faced a very difficult task to prove beyond reasonable doubt that the appellant had guilty knowledge. It seems clear that he had little knowledge of what was going on. He had been drinking beer for hours on end with his stepfather and obviously had too much to drink and fell asleep. There are all sorts of possible explanations about how he came to be sleeping on a rice-packet full of cannabis. Some innocent; others not. But given all the circumstances, it would have been quite unsafe to conclude beyond reasonable doubt that he had the guilty knowledge sufficient to satisfy this element of the offence.

The answer to the question posed – was he knowingly in possession? – is no.

Conclusion re ground of appeal no 1

This ground of appeal – that the evidence was insufficient for a finding of guilt – will therefore be upheld.

WAS THE SENTENCE MANIFESTLY EXCESSIVE?

It is not necessary to dwell on this ground of appeal except to say that if the appellant had been lawfully convicted of knowingly being in possession of 111 wraps of marijuana, a sentence of 12 months imprisonment would, in my view, not have been manifestly excessive. If you knowingly have 111 marijuana cigarettes on you, this does not look like personal consumption. It looks like trafficking. That is an important distinction to make when sentencing for drug offences (Richard Cheong v Vincent Nemil [1981] PNGLR 472, National Court, Kearney DCJ). 

The maximum penalty is two years. Twelve months is right in the middle of the range and does not appear unreasonable.

POWERS OF THE NATIONAL COURT

Section 230(2) of the District Courts Act states that an appeal against a decision of the District Court shall only be allowed if it appears to the National Court that there has been a substantial miscarriage of justice. I have upheld the primary ground of appeal. I am satisfied that the errors of law disclosed show that there has been a substantial miscarriage of justice. It follows that I will exercise the power of the National Court under Section 230(1)(c) of the District Courts Act to quash the conviction, and sentence, appealed from.

COSTS

Normally the side that loses a case such as this will get an order from the court saying that they must pay the other side’s legal costs. This is a matter for the discretion of the court. In this case I will not make an order for costs until I have heard from both sides.

JUDGMENT

The National Court makes an order in the following terms:

1	the appeal is allowed;

2	the conviction of the appellant, Mickey Wassey, by the District Court at Kimbe on 14 January 2004 on a charge of possession of dangerous drugs, contrary to Section 3(1)(d) of the Dangerous Drugs Act Chapter No 228, is quashed;

3	the sentence imposed on the appellant of 12 months is quashed;

4	the Clerk of the Distinct Court at Kimbe shall, within 7 days after the date of this order, place a copy of this order and the reasons for judgment of the National Court on the files of the District Court pertaining to these proceedings and, immediately afterwards, certify in writing to the Assistant Registrar of the National Court at Kimbe, that that has been done.

Appeal upheld; conviction and sentence quashed.
_______________________________________________________________________

Lawyer for the appellant		: 	Linge and Associates
Lawyer for the respondent		: 	Public Prosecutor