[1980-1994] Van LR 158
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
CRIMINAL JURISDICTION
Criminal Case No. 8 of 1985
 
BETWEEN:
PUBLIC PROSECUTOR
AND:
LESLIE GALT/
JOSEPH ALEXANDRE ABBAS/
ROSITA WANE
Coram: Chief Justice Cooke
Counsel: Mr Dickinson, Public Prosecutor
Mr Coombe for defendants Galt and Wane
 
JUDGMENT
[CRIMINAL LAW - EVIDENCE - inferences - possession, control and custody]
The first accused, Leslie Galt, was firstly charged that on the 12th March 1985 in Vila, he had in his possession a dangerous drug, namely Cannabis. Secondly, that on the 10th March 1985 in Tanna, he supplied to Henry Toka, Cannabis and thirdly, that on the 11th March 1985 in Vila, he supplied to Joseph Alexandre Abass, Cannabis.
The second accused, Joseph Alexandre Abass, was firstly charged that on the 12th March 1985 in Vila, he had in his possession Cannabis and secondly, on or about the 12th March 1985, he permitted his premises to be used for dealing in Cannabis.
The third accused was charged that on the 12th March in Vila, she had in her possession Cannabis.
The first accused pleaded not guilty to the charges but after the prosecution had completed their case against him, he altered his plea to guilty on all the three charges against him.
The second and third accused pleaded not guilty to the charges against them.
The evidence for the prosecution consisted of a Ni-Vanuatu person named Henry Toka, working in the labour department at Tanna, who gave evidence that the first accused, when the two of them were drinking kava in Tanna told him that kava was similar to drugs and asked him if he had drugs, would he, Henry Toka, be interested. He said he passed this information to the police. Later he said on the 10th March at about 10 P.M., accused Galt gave him some Cannabis in his house - he had it in a bag. He gave him some of the plant and leaves he had in a bag - he said it was dope. At the airport when the accused left Tanna, he had a red bag with him and accused Galt told him there was dope in the bag and that it was for a friend. He, the witness, stated he gave the plant he got from the accused to the police.
Inspector John Laban Welin then gave evidence that on the 13th March 1985, he possessed a warrant to search the premises of the second accused, Abbas. That he met the accused Abbas near his office in Independence Park, the accused Galt was with him and was introduced to the Inspector by accused Abbas. He, the Inspector, explained to them he had a search warrant and they all went with some other police personnel to accused Abbas's flat. At the flat accused Abbas explained to the Inspector that his fiancée, accused Rosita Wane, was asleep in his bed and requested permission to wake her and inform her of the presence of the police, which request was granted. A search was carried out and in a cupboard in the accused Abbas's bedroom, under some clothes, was found a bag which contained leaves and stems, later proved to be Cannabis. Also, on the dressing table, among other things, were two tobacco tins which contained a substance later proved to be Cannabis. The three accused were then invited to the police station according to the Inspector. The accused Galt made a cautioned statement which I admitted in evidence as having been voluntarily made, after a voir dire. In that statement accused Galt admitted giving dried leaves of Cannabis to Henry Toka at his home at Isangel in Tanna. That he brought some with him to Vila in two separate bags for a friend. Later in his statement accused Galt said the two plastic bags containing Cannabis which he brought with him to Vila, he gave to a friend on Monday 11th March 1985.
The accused Abbas, when interviewed by the police seemingly had a statement taken by the Inspector but when given to him to read by the Inspector, he tore it up and put it in the waste paper basket. He did write a statement himself which did not contain any admission. After being cautioned, the Inspector stated that accused Abbas did state that what accused Galt and accused Rosita Wane told the police about the Cannabis could be true.
It would seem therefore that when accused Abbas stated to the Inspector that what the Inspector alleged that accused Galt and Rosita Wane said, i.e. that the accused Galt gave Cannabis to him and smoked with him and that the accused Rosita Wane prepared two joints of Cannabis and she and accused Galt and accused Abbas smoked them on the Le Lagon Golf Course; that he was admitting the offence of possession of Cannabis. Later accused Abbas on oath denied that he said that it could be true what the Inspector alleged accused Galt and Rosita Wane had said. He said the Inspector made various allegations about many different things and that he replied differently to every one. He said he stated "I said I suppose you could be right, I do not know". That at no time did he say that what he, the Inspector, was alleging by accused Galt and Rosita Wane could be true.
The Inspector then related how he brought some samples of the substance he found in the cupboard in accused Abbas's bedroom and in the tobacco tins on his dressing table in his bedroom and some of the substance he received from the police in Tanna to Mr Williams, the chemist in Australia, who carried out a test of the samples and issued a certificate certifying that all the samples were Cannabis. I admitted the certificate of Mr Williams as Exhibit 7 after rejecting an objection to its admission by Mr Coombe who represented accused Abbas and Rosita Wane. Mr Coombe submitted that the certificate had to be signed as stated in Section 13 of Joint Regulation No. 12 of 1939 (as amended). It states that "A certificate of contents purporting to be signed by or on behalf of the Government Analyst of any country approved for the purpose by Prime Minister (formerly Resident Commissioner), if it relates to any prohibited drug or to any traces of a prohibited drug etc; ... shall be admissible in any proceedings and shall be evidence of the facts stated therein". Mr Coombe stated that as the certificate was signed by the official chemist and not signed by or on behalf of the Government Analyst, it was not admissible. Under Order No. 36 of 1984 appearing in G.N. No. 31 of the 10th September 1984, the Order states - To approved Government Analyst - then it states that under Section 13 of Joint Regulation No. 12 of 1939 (as amended), the Prime Minister and Minister of Justice approves Geoffrey Clarence Williams, analytical chemist of the Australian Government, for the purpose of the said section thereof. As the certificate is signed by the said person as Gazetted and the contents of the certificate show clearly that the person had fifteen years experience as an analytical chemist, including eight years in drug analysis and stated that he was a chemist employed with the Australian Department of Science, I was satisfied that the certificate complied with the requirements of Section 13 of Joint Regulation No. 12 of 1939 and admitted it in evidence. I then clarified with the Inspector that the exhibits referred to in the certificate, i.e. Exhibit No. Reg. 20/85 came from Exhibit 1. The Cannabis found in the plastic bag in accused Abbas's bedroom, Exhibit 21/85 came from the white plastic bag from Tanna with Cannabis. Exhibit No. 22/85 came from Cannabis received from one of the tobacco tins, Exhibit 2(a). Exhibit No. 23/85 came from tobacco tin, Exhibit 2(b).
Police woman, Delphine Willie, gave evidence to the effect that she recorded the statement from accused Rosita Wane, that she cautioned her and read the statement back to her and she admitted it to be correct. I admitted the statement in evidence. Mr Coombe for accused Rosita Wane, made no objection to its admission. Accused Rosita Wane, in evidence, denied the contents of the statement when she gave evidence in her defence.
Inspector Cyprian Aru gave evidence that Henry Toka gave him a plastic bag with leaves and branches in it which he said he received from accused Galt. He, in turn, gave the plastic bag with the contents to Inspector Namaka who gave evidence that he was visiting Tanna and took the bag and contents back to Vila, locked it in his office overnight and on the 12th March, handed it to Inspector Laban.
The accused Abbas gave evidence on oath denying what Inspector Laban stated. He said that the first time he saw Exhibit 5, the white bag which the Inspector had found in the cupboards in accused's bedroom, under some clothes, was when he, the Inspector, produced it before him in the interview room at the police station. His evidence was a total denial of all that Inspector Laban stated. I found it difficult to accept the evidence of this accused. The two tobacco tins were found, according to the Inspector, on the dressing table in the bedroom, yet this accused said the first time he saw them was when they were placed on a table before him in the police station. He merely stated that the dressing table was pretty clustered as his wife (accused Rosita) had moved in with him on the 10th March. Whether the dressing table was clustered or not, I fail to see how he could avoid seeing them on the dressing table if they were there. On observing both the Inspector and the accused in the witness box, I felt satisfied that the Inspector was telling the truth and that the accused was attempting to extricate himself from a difficult situation. I did not believe his evidence. He introduced evidence in an attempt to show that practically anyone who liked could enter his flat and that it must have been one of those who entered that placed the Cannabis in the cupboard in his bedroom and the tobacco tins with Cannabis on his dressing table. Why in his bedroom and not the spare room or other parts of the house they presumably used, it is difficult to say. I am afraid I considered his explanation completely unacceptable.
Mr Dickinson, in his address to me at the end of the case, submitted that it was entirely a matter of credibility. The police gave one version, the accused the very opposite. He referred to the case of R v Frederick (1970) 1 W.R. p. 107. In that case the appellant was convicted on indictment on a charge under the Dangerous Drugs (No. 2) Regulation 1964, of unauthorised possession of approximately 307 grains of Cannabis resin. When his flat was searched, there was found in a cupboard in a passage, a television set and inside the set was a bag containing a package of 307 grains of Cannabis resin. In the flat itself there were two pipes and a tobacco pouch which contained traces of Cannabis resin. There was no evidence that these traces were so small as to amount to virtually nothing. The prosecution put their case with regard to possession, on the Cannabis resin found in the television set, and on the traces of Cannabis resin found in the pipes and tobacco pouch, contending that an inference could be drawn from those facts that the appellant had been in possession of Cannabis resin. The jury returned a general verdict of guilty. It was held on appeal that it was right to draw the inference that the jury found the appellant to have been in possession of the 307 grains and that the Court could not interfere with the verdict. Court of Appeal (Criminal Division) page 455, 1969 Vol. 53; Lord Wilberforce in Warner v Metropolitan Police Commissioner (1968) 2 AER 356 at 393 states:-
"The question to which the answer is required, and in the end the jury must answer it, is whether in the circumstances the accused should be held to have possession of the substance rather than mere control. In order to decide between these two, the jury should, in my opinion, be invited to consider all the circumstances - to use again the words of Pollock and Wrights (Possession in the Common Law (1888) p. 119). The "modes or events" by which the custody commences and the legal incident in which it is held. By these I mean relating them to typical situations, that they must consider the manner and circumstances in which the substance or something which contains it, has been received, what knowledge or means of knowledge or guilty knowledge as to the presence of the substance, or as to the nature of what has been received, the accused had at the time of receipt or thereafter up to the moment when he is found with it, his legal relation to the substance or package (including his right of access to it). On such matters as these (not exhaustively stated) they must make the decision whether, in addition to physical control, he has, or ought to have imputed to him the intention to possess, or knowledge that he does possess, what is in fact a prohibited substance. If he has this intention or knowledge, it is not additionally necessary that he should know the nature of the substance."
 
There can be no doubt that the accused Abbas had hidden in a cupboard of the wardrobe in his bedroom a bag, Exhibit 1, containing substance which an analysis proved to be Cannabis. There was also on the dressing table in his bedroom, among other things, two tobacco tins which contained a substance which an analysis proved to be Cannabis, Exhibits 2(a) and (b). Accused Abbas gave evidence on oath that he did not know Exhibit 1 was in the cupboard or that Exhibits 2(a) and (b) were on the dressing table. In one of the tins there was also a packet of cigarette paper, one paper of which was missing, which seemed to indicate that one roll of Cannabis had been made and used. As in the Frederick case where the Cannabis was found in a passage inside a television set and the prosecution based their case on possession by the appellant of the Cannabis resin found in the television set and on inferences which could be drawn from those facts and returned a verdict of guilty, which verdict the Court of appeal accepted holding that the jury were right to draw such an inference. So in this case the assessors having listened carefully to the submissions of Counsel for the prosecution and defence and my summoning up to them, did not accept the evidence of accused Abbas that he was unaware of the presence of Cannabis in his bedroom and drew a similar inference as in the Frederick case and found accused Abbas guilty of possession of Cannabis. The accused Abbas was also charged with permitting his premises to be used for the purpose of dealing in Cannabis. I found there was no evidence to substantiate that charge so acquitted him and discharged him of such offence.
With regard to Rosita Wane, she made a statement which was admitted in evidence without any objection from the defence. She did deny the contents of it when she gave evidence in Court. However, myself and the assessors were of the view that she made the statement voluntarily and accepted such and found her guilty as charged.
I agreed with the opinions of the assessors, found the two accused guilty and sentenced accused Galt and Abbas to six months imprisonment and accused Rosita Wane to two months imprisonment.
In imposing a custodial sentence on the accused I was conscious of the fact that as late as December 1984, Parliament had amended the Dangerous Drugs Regulation, increasing the fine for drug offences from 75,000FNH to 200,000VT showing clearly that they were seriously concerned with drug offences in this country and the possibility of such spreading to young Ni-Vanuatu persons. The amendment should have been a warning to the accused. I was further conscious of the appalling spread of drugs in the world. One has but to pick up a newspaper and read of the crimes perpetrated from the use of drugs. To me the only method I could use in an attempt to dissuade others from having anything to do with drugs, was to impose a custodial sentence which I did and hope it has the desired effect.
12 April 1985
FREDERICK G. COOKE
CHIEF JUSTICE