Arthur v Police - Judgment 2 [1987] CKHC 2; 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

EIPUATIRARE ARTHUR
DEFENDANT

AND

POLICE
INFORMANT

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

Date of Hearing: 17.7.87
Date of Judgment: 17.7.87

DECISION OF SPEIGHT, CJ

This is a continuation of a Section 111 application challenging whether a prima facia case exists. So far we are dealing only with the substance alleged to be in the defendant’s possession is marijuana, whether prima facia is included. I have ruled the certificate from New Zealand not to be proof because the Cooks Islands law does not have provision for the admission of certificates. However Senior Sergeant Tini’s briefs show that he had tested portion of the leaf with a narcotic identification system test kit and received a positive result. On its face that is sufficient to put the case to trial. Because none of us were familiar with this testing it was agreed in fairness to the defendant that verbal evidence be taken from Senior Sergeant Tini and to details of such a test. It appears that there is a test kit with sealed containers and acids in a variety of glass tubes. According to the instructions placing a sample and exposing it in the prescribed order to apparently separate chemicals lead to what is called a positive identification. Senior Sergeant Tini is undoubtedly a very experienced and reliable policeman but the account of the result does not depend on his skills but whether one can accept these as legal and acceptable findings. It appears that in order to assist the countries of the South Pacific which do not have modern chemical laboratories on the spot, training conference have been organised and Mr Tini has been this country’s trainee. It was obviously an organisation blessed with the approval of our government and the teaching was done by supposedly expert persons from the United States including drug enforcement officers. Although this does not attain the precision that a qualified chemist can bring nevertheless one must accept the propriety of this internationally sponsored training course. One recognises that in many countries alcohol identification for testing suspect drivers is carried out by policeman who have no knowledge of the chemical procedure inside the devices that are issues to them. The court’s duty is to satisfy itself that the procedures which have been set up have been responsibly adopted by the government in relation to its legislation. It would be a matter of great surprise if the South Pacific Commission has sponsored a system which did not stand scrutiny provided the officer concerned is trained to handle the equipment and follows the instructions. I accept the validity of this testing system. Mr Sceats has questioned Mr Tini carefully as to what he did. It is true that on the outside of the box it is described as a presumptive test. The operating instruction however advises that a certain result is a positive indication. It was also pointed out that the purple colour necessary for a positive test is obtained if the material is cannabis after the second step.

A full reading of the instruction however shows that if a purple colour is not obtained after the second step the test can be abandoned as it cannot the lead to a positive result. I take this to mean however that purple at that stage is not conclusive unless the third step is also carried out and leads to layer separation. Senior Sergeant Tini says he did this. The other point made is that the instruction says to put in 10 to 15 particles of leaf. The Sergeant does not say he put in that many because he was sharing the sample keeping some for other purposes. However I read this 10/15 as a precaution to make sure that enough is obtained to react. I do not accept the converse however that that quantity is required to necessarily give the result. Reading the pamphlet as a whole it seems one might be risking a non positive result using a small quantity. That does not mean that a small quantity depending perhaps on the strength cannot give a positive result. In my view therefore in the context on Section 111 this is prima facia evidence. For the Judge alone trial unless there is evidence to the contrary I would accept it as proof of cannabis. In a jury trial I would instruct a jury that it was entitled to accept it as proof.

SPEIGHT CJ