Arthur v Police - Judgment 1 [1987] CKHC 3; 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 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 Section 111 application for a ruling that the depositions do not disclose a prima facie case. Some challenge was advanced to the handling of the material which is the substance of the charge. We are only concerned with its transit after the time it was found in the possession of Miss Arthur. Senior Sergeant Tini says that he prepared a specimen sample from the contents of the envelope and labelled it with a distinctive number to be addressed to the DSIR in Auckland for the attention of Jan Siegers. There is some evidence which in my view is unnecessary as to immediate handling of the diplomatic bag which contains the envelope. This was from Rima Ngatoa. That evidence is unnecessary if it is accepted that the plastic bag bearing a label tallies with the particulars placed on the label by Senior Sergeant Tini and are the same. The number of identified characteristics would enable the court to accept the evidence that the package that ended up at the DSIR was the same as the one Senior Sergeant Tini dispatched. The difficulty which I see arises concerning the contents of a certificate by Mr Bedford of the DSIR in Auckland. That certificate states that a plastic bag so labelled was with the DSIR and that it contained plant material and upon analysis it was found that it was cannabis. It was conceded prior to hearing in correspondence between Crown Law and the defence counsel that a sample tested by Mr Bedford was cannabis. For myself that seems to be an inaccurate request and an inaccurate concession because Mr Bedford’s certificate does not state that it was he who tested it. Be that as it may and accepting that Mr Bedford did himself carry out the chemical analysis we are still dependent upon a letter signed by Mr Bedford to state that the plant material tested was the material contained in the envelope. That is not the matter for Mr Sceats’s concession as I read the letter which was exchanged. I think there has been a misunderstanding between counsel but it could not be concluded from Mr Breed’s letter that Mr Sceats has conceded that the material which arrived at the DSIR Lab in Auckland was cannabis. One knows that that Laboratory handles a very large number of cannabis samples. One has confidence that they are careful people but unless there is some dispensation by way of admissibility of certificates one would ordinarily require a witness herself or himself to identify what was in the parcel received and to say that it was that very material which ended up in the test tube. We do not even know on the fact of this certificate whether it was Ms Siegers or Mr Bedford or somebody else who did the analysis. That difficulty is overcome in the New Zealand legislation by certificates being admissible to prove their contents. If it were not for such provision the analyst would be required to attend court and personally identify and describe every step of the examination or Section 22(3) of the Evidence Act resorted to. In that procedure the identification of that very article is the most important step. Although as I have said, one has confidence in the care with which these matters are handled, Mr Sceats gains considerable support when he says that the certificate refers to the plant material weight of 01 of a gram whereas the plant material according to the Lab technician here was of a substantially less weight than that and Senior Sergeant Tini only sent a sample specimen of the plant material. That however is only a supplementary difficulty. The problem is with the doubt that the contents of the parcel finished up in the test tube. That is dependent entirely on hearsay evidence and I do not read Mr Sceat’s concession as bridging that gap. It is a technical point probably only of appeal to and to be appreciated by lawyers. But it is a point entitled to be taken and I uphold it. That however is not the end of the matter for Senior Sergeant Tini also speaks of conducting a test himself by means of a narcotic identification test kit. That is a procedure I have not heard of before and one has some suspicion as to the reliability of the scientific examination by a layman but on the face of the record Senior Sergeant Tini claims to have established that the material was cannabis. Until such time as further consideration throws doubt on the reliability of that test it remains prima facie evidence so that I cannot at this stage grant a Section 111 application. I am prepared to hear further challenge to that prior to or at trial however as counsel may wish me to proceed.

SPEIGHT CJ