Arthur v Police - Judgment 3 [1987] CKHC 1; CR 230, 231, 635.1987 (17 July 1987)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)
CR 230, 231, 635/87

IN THE MATTER
of Section 111 of the Criminal Procedure Act 1980-81

BETWEEN

EIPUATIARE ARTHUR
DEFENDANT

AND

POLICE
INFORMANT

Counsel: Mr D Sceats for Defendant
Mr S Breed for Informant

Date of Hearing: 17.7.87
Date of Decision: 17.7.87

JUDGMENT OF SPEIGHT CJ

A number of further points are argued by Mr Sceats still based on this section 111 application. For myself I do not think that I am now obliged to make additional rulings on a prima facie case for I have already admitted the evidence of Senior Sergeant Tini on the testing of the suspect material as prima facie proving it to be cannabis. There is clear evidence that the defendant had the material in her possession and I think the points being argued now are as to admissibility or weight. However the last point raised by Mr Sceats as to possession is probably also a section 111 point, namely a prima facie case that the defendant had the articles in her possession. It is clear that a person cannot have possession unless she or he knows that the content is under her control. That does not arise here but in a narcotic case it must also be shown that he or she knew that it was a sinister rather than an innocent article. There have been cases of a person who thought he had “roll your own cigarette” material and reasonably thought that that was what it was he had in possession. In this case however there is evidence from her statement that she had been alerted to the nature of the package and had collected it and opened it. When that is added to the otherwise ambiguous actions deposed to by Mr Short there is a prima facie case that she was in possession. We have then had lengthy discussions about the admissibility of the letter included in the parcel. At the moment I take the view that that letter is admissible under section 22 of the Evidence Act if and only if, the provision of sub-section 3 can be complied with to my satisfaction. That will depend upon Senior Sergeant Tini’s evidence. But that this is an admissibility point not a section 111 point. I also reserve to Mr Sceats the right to make further submission after he has had more time to consider the matters we discussed. The other question which he debated was the inference to be drawn from the letter if one accepts it as admissible. That is a question of inference for the fact finding tribunal whether judge or jury to decide. The matter can stand over until Monday morning.

SPEIGHT CJ