Mohammed v State [2014] FJCA 216; AAU0092.2011 (12 December 2014)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT

Criminal Appeal No.AAU0092 of 2011
High Court Case No. HAC 0049 of 2008

BETWEEN:

SHEIK MOHAMMED
1st Appellant

MICHAEL ASHLEIGH CHANDRA
2nd Appellant

AND:

STATE
Respondent

Coram : Calanchini P
Gamalath JA
De Silva JA

Counsel : Mr. A. Singh for 1st Appellant
Mr. J. Savou for 2nd Appellant
Mr. V. Perera for Respondent

Date of Hearing : 18 November 2014
Date of Judgment : 12 December 2014

JUDGMENT

Calanchini P
[1] I have read the draft judgment of Gamalath JA and agree with his proposed orders.

De Silva JA
[2] I agree with the reasoning and conclusion arrived at by Gamalath JA.

Gamalath JA

The Leave to Appeal Applications

[3] The leave to appeal application of the 1st Appellant contained 14 grounds, including 3, challenging the sentence of imprisonment imposed on him by the learned trial Judge.

[4] The 2nd Appellant based his leave to appeal application on 4 grounds including a ground of appeal against the sentence.

[5] The learned single judge, having dealt with the grounds of appeal of both appellants together had held that, since except the 9 ground of appeal of the 1st Appellant, others are all related to questions of law, and, therefore, there was no requirement for leave to appeal and thus could be taken up in appeal before a full bench. In so far as ground 9 of the 1st Appellant was concerned, the learned single judge granted leave.

[6] Having carefully delved into the grounds of appeal of both appellants, I am more inclined to consider the appeals of both appellants jointly, on the following grounds of appeals:

1st Appellant – on the 4th ground of Appeal;

"The learned trial Judge misdirected himself by equating knowledge with possession and in a joint trial the judge should have considered whether the drugs formed a "common pool" from which both had right to draw at will, thus causing the trial to miscarry."

The 1st ground of appeal of the 2nd Appellant mirrors the above ground of appeal of the 1st Appellant, and can therefore be considered together.

[7] The 5th ground of appeal of the 1st Appellant was that:

"...the learned trial judge misdirected himself on Section 32 of Illicit Drug Control Act 2004 as there was uncontradicted evidence that the car did not belong to the accused and that the rear side of the vehicle could be accessed by others and as such the conviction was unsafe and miscarriage of justice resulted."

[8] The ground of appeal 2 of the 2nd Appellant is similar in substance to the above ground of appeal of the 1st Appellant and therefore, can be considered together in this appeal.

[9] The substrata of these grounds of appeal, as I understand, are as follows:-

1. that the learned trial Judge had misdirected himself on the principles involved in joint possession of "dangerous drugs" and then caused a miscarriage and;
   
2. that the learned trial judge had wrongly applied the presumption contained in Section 32 of the Illicit Drugs Control Act, 2004, in finding the appellants guilty and, therefore, there is miscarriage of justice.
   

The Facts

[10] The appellants, Sheik Mohammed and Michael Ashleigh Chandra were charged with unlawful possession of illicit drugs, contrary to Section 5(a) of the Illicit Drugs Control Act 2004. It was alleged that they jointly possessed 3,463.6 grams of marijuana.
Since the allegation against the appellants was that they had in their joint possession 3463.6 grams of marijuana, the gravamen of the charge is joint possession of illicit drugs.

[11] The trial against them started in the High Court at Lautoka. The prosecution mainly relied on the evidence of the investigating police officers and the caution statements of the appellants. A carbon copy of the government analyst report was also exhibited at the trial.

[12] In outline, the background to the case was as follows.

[13] Acting on a tip off, on 14 November 2007, between 5 and 7 pm, police arrested the appellants, who were travelling in the car bearing registration No. EX 631, at Sigatoka Town.

[14] Having searched in the car, police found nothing incriminating. However, the police brought the appellants and the vehicle to the police station for further investigation.

[15] At the police station, a further search of the car was carried out, in the presence of only the 1st Appellant, whilst the 2nd appellant was ordered to stay inside the police station.

[16] During the search, police removed the rear number plate of the car and, found 15 parcels of marijuana wrapped up in papers and stacked into the rear bumper, in a well secured manner.

[17] Such was the totality of evidence upon which the respondent relied at the trial against the Appellants.

[18] Based on the above material, the evidence against each Appellant can be itemized as follows;

[19] The 1st Appellant Sheik Mohammed:

1. He was driving the car, at the time of his arrest.
   
2. The parcels of marijuana, weighing 3,463.6 grams, were found hidden in the rear bumper of the car. Police recovered it at the Police Station.
   

100. His caution statement contains the following:
     
     1. that he moved to Omkar Road, Narere, Nasinu from Labasa, two months before the arrest.
        
     2. that the car in which marijuana was found belonged to his brother-in-law and, he had borrowed it from him.
        
     3. that this is the first time he borrowed his brother-in-law's car, and he was visiting around the area in Sigatoka, when he was arrested for this crime.
        
     4. that the 2nd appellant was his childhood friend, and they went to school together.
        
     5. that the 2nd appellant was accompanying him in the car, while they were arrested.
        
     6. that on the day they were arrested, they were cruising around the area to while away time.
        
     7. that both were arrested by the police, and brought to the police station whilst at Valley Road, Sigatoka.
        
     8. As they were arrested, they were told by Police, that they were searching for marijuana in the car.
        
     9. that he did not see the police recovering marijuana from inside of the rear buffer; however, the police informed him that they found parcels of marijuana hidden in the rear of the car.
        
     10. that all along, while the search was being carried out, the 2nd Appellant was seated inside the police station.
         

[20] The Evidence against the 2nd Appellant

The items of evidence against the 2nd Appellant are as follows:

1. that he was travelling in the car with his childhood friend, the 1st appellant, when they were arrested.
   
2. that he was keeping company with the 1st appellant and leisurely spending time together.
   

100. that he was not present while the parcel of drugs was retrieved from behind the rear buffer.
     

[21] That was the sum-total of evidence available against both Appellants and they had both denied that the parcel of marijuana belonged to either of them.

Sufficiency of Evidence

[22] In the light of this evidence, the question that remains to be asked is whether this evidence is sufficient in facts and in law to prove the ingredients of the charge of joint possession of marijuana against the Appellants?

[23] The assessors, at the conclusion of the trial, decided that the material placed before them was insufficient to find the appellants guilty. And as such, they unanimously returned a verdict of not guilty.

[24] However, the learned trial judge disagreed with this verdict of the assessors and pronounced his own judgment and convicted both appellants.

[25] In the circumstances, this Court is now required to examine the factors that the learned trial judge had relied upon in overturning the verdict of the assessors.

[26] In paragraph 16 of his summing up, the learned trial judge had stated as follows:

"What this means in our case is that the State has to prove to you, so that you are sure that the drugs in question were found on or in the vehicle and then it is for each accused, and look at each separately, to prove to you that he was not in possession. This proof is not such a high standard as that on the State; each accused must show you that it is more probable than not that he was not in possession. The test is called "in the balance of probabilities".

[27] Again in paragraph 21 of the summing up, the learned trial judge had this to say;

"if you find that one or both were in control of the car, than the drugs being found in or on the car, the accused is in possession of the drugs".

[28] Unfortunately, that was all to be found in the summing up, on the gravamen of the charge, "that the Appellant were in joint possession of 3, 374 grams of marijuana".

The Law

[29] Section 5 of Illicit Drugs Control Act 2004 is as follows:

(5) Any person who without unlawful authority –

(a) acquires, supplies, possesses, produces, manufactures, cultivates, uses or administers an illicit drug; or

(b) engages in any dealings with any other for the transfer, transport, supply, use, manufacture, offer, sale, import or export of an illicit drug;

Commits an offence and is liable on conviction to a fine not exceeding $1,000,000 or imprisonment for life or both.

[30] Since there is no definition given to the word "possession" in the Statute, in the case of Laisiasa Koroivuki v The State; ( AAU 18 of 2010; 5 March 2013) [2013] FJCA 15, it was held (per Goundar JA) that the word "possession" should be defined to be in the following manner:

"In absence of a statutory definition, the court can be guided by the English Common Law definition of the word "possession". "Possession" is proven if the accused intentionally had the drugs in his physical custody or control to the exclusion of others, except anyone who was acting in concert with him in the alleged offence (Lambert [2001] UKHL 37; [2002] 2 AC 545). Possession is also proven if the accused intentionally had the substance in some place to which he either alone or jointly with some other person acting in concert with him had access and might go to get physically or control it, (Lambert, Supra.)"

[31] As already stated earlier, the graveman of the offence in this case is that the appellants were in joint possession of marijuana that was found hidden in the car.

[32] Just as much as "possession" has not been defined in the Illicit Drugs Control Act 2004, nor that the concept of joint possession has also been defined in Act.

[33] It is therefore, important to divert the attention to find a definition for "joint possession of illicit drugs", and in doing so, it is equally important that that definition should be consonant to the definition for "possession of dangerous drugs".

[34] Considering this under the principle of "a fotiori", that if the definition for "possession" should be in accordance with the English Common Law; [Laisiasa Koroivuki v The State (supra)]; then the definition of "joint possession" should also be in accordance with the English Common Law.

[35] According to the English Common Law, in attributing criminality for being in joint possession of an illicit drug, it should be based, not only on the evidence of having the mere possession of the noxious item, but also on additional material to demonstrate that there had been extra beneficial factors that operate in furtherance of the interest of each confederate to the crime.

[36] In R. v. Searle [1971] Crim.L.R. 592 CA, it was decided as follows:-

"...the defendants were convicted of possessing a quantity of various dangerous drugs which had been found in a vehicle used by them for a touring holiday. It was alleged that they were all in joint possession of all the drugs. Possession of any particular drug could not be attributed to any particular defendant. The court held: (a) that mere knowledge of the presence of forbidden article in the hands of a confederate was 'not enough, it being impossible to equate knowledge with possession; and (b) that an appropriate direction would be to invite the jury to consider whether the drugs formed a common pool from which all had the right to draw at will, and whether there was a joint enterprise to consume drugs together, because then the possession of drugs by one in pursuance of that common enterprise might well be possession on the part of all."

[37] According to Archibald [2012], para. 27.69, pg 2526,

"An allegation of joint possession of drugs, where they have not been found on the person of any of the alleged joint possessors, entails an allegation that each had the right to say what should be done with the drugs, a right shared with the other joint possessors. Knowledge is a sine Quo non of possession, but it is not enough.

'

A person in a car, who is told of the presence of drugs in the car, is not thereby saddled with possession thereof; R v Strong and Berry [1989] L. S. Gazette, March 8, 41, CA.

It appears clear from the tenor of the court's judgment, however, that their view was that evidence of a defendant's presence in a car where drugs were found combined with evidence of knowledge of the presence of the drugs would raise a prima facie case of possession against the defendant. If the defendant was the owner or the user of the car, then, depending on all the circumstances, knowledge might be imputed".

The Summing Up on "Joint Possession"

[38] As quoted earlier, the learned trial Judge, in dealing with the subject of joint possession had only stated as follows:

"what this means in our case is that the State has to prove to you, so that you are sure that the drugs in question were found on or in the vehicle and then it is for each accused, and look at each separately, to prove to you that he was not in possession.

This proof is not to such high standard as that on the State; each accused must show you that it is more probable than not that he was not in possession. This test is called "on the balance of probabilities."

[39] I find that this direction was inadequate and does not reflect the correct position of law relating to the "principle of joint possession of dangerous drugs."

[40] As stated earlier, after refusing to accept the unanimous verdict of not guilty, the learned High Court Judge delivered his judgment on 16 August 2011.

[41] Even in the judgment the learned high court judge had not dealt with the aspect of joint possession adequately. In so far as that aspect was concerned the judgment contained only a terse reference to the following effect:

"I find beyond reasonable doubt, and it was not challenged at trial, that the first and second accused was in control of the vehicle EX 631 at all relevant times".

[42] It is difficult to find evidence to support the above assertion, for as the evidence had disclosed at trial, the 2nd Appellant was a mere passenger, who was keeping company with the 1st Appellant, who drove the car of his brother in law, in which the drugs were found by the police.

[43] The prosecution had failed to adduce any additional evidence to show that, apart from being a mere passenger who was keeping company with his childhood friend the 1st Appellant, the 2nd Appellant had any other involvement with the offence.

[44] It is incorrect in my view to equate a role played by a mere passenger of a vehicle to that of a person who wielded the control of vehicle. In that sense, as the evidence had clearly disclosed, with no ambiguity indeed, that the 1st Appellant had the car under this control when it was arrested by the police.

[45] On the other hand, in the absence of any additional evidence to establish that the drugs formed a common pool from which "he had the right to draw at will", (Searle – supra) it is incorrect, in my view to place the 2nd Appellant "on a par" with the criminality of the 1st Appellant.

[46] Applying the principles of law in deciding on joint possession the evidence against the 2nd appellant falls far short of the legal requirement to bring home a conviction against him in this case.

[47] This conclusion is further accentuated by referring to the caution statement of the 1st Appellant in which he had absolved the 2nd appellant when he admitted that the 2nd appellant was merely accompanying him when they were arrested. The prosecution had relied on the caution statement of the 1st Appellant. That fact, combined with the fact that there was total lack of evidence to prove that the 2nd appellant was deriving any personal benefit out of the joint possession of 3463.6 grams of marijuana, it would make it impossible to conclude that the evidence available was adequate to find the 2nd Appellant guilty of the charge.

Section 32 of the Illicit Drugs Control Act 2004

[48] As can be gathered with reference to the tenor of the learned trial judge's judgment and summing up, it is clear that he had relied heavily on Section 32 of the Illicit Drug Control Act 2004, in imputing criminal liability on both appellants of this appeal.

[49] Sec 32 of the Illicit Drugs Control Act 2004 states as follows,

"Where in any prosecution under this Act, it is proved that any illicit drug, controlled chemical or controlled equipment was on or in any premises, craft vehicle or animal under the control of the accused it shall be presumed until the contrary is proved that the accused was in possession of such illicit drug, controlled chemical or controlled equipment" (emphasis added)

[50] This section lays down certain preconditions to be satisfied by the prosecution, before triggering the force of the presumption.

[51] One of the most important such prerequisites would be that there should be cogent and convincing evidence to establish that, for instance, if it was a vehicle, a car, the control of it had been under the accused person.

[52] Since the word "control" has not been defined in the statute, it could be safely given the ordinary dictionary meaning which states, that control means, power, authority, command, dominance or likewise.

[53] Shroud's Judicial Dictionary of Words and Phrases, Vol. 1 defines "control", interalia, as

"The word "control" is wide enough to include many types of possession which are not commensurate with full ownership" – (per Rich. J., Johnston Fear & Kingham v Commonwealth, [1943] HCA 18; 67 C. L. R. 314)".

[54] According to the evidence of the case, there is no doubt that the 1st Appellant had been in charge of the car for a considerable period of time. There is nothing on record to demonstrate that at any time, after borrowing the car from the brother-in-law, the 1st Appellant was not in control of it. If he had at any time during the relevant period left it in the hands of another or left it unattended that could have been a matter only known to him and therefore he should have called evidence to establish that fact.

[55] To suggest that there was a possibility for an outsider to place the drugs in the car bumper is a matter that was unsupported by evidence and purely in the realm of conjecture. No court can be expected to act on such surmise.

[56] The 1st Appellant did not give evidence to explain away the allegation against him and did not place before the trial court any material to prove that the car was not in his control, after borrowing it from his brother-in-law.

[57] Therefore, I am in accord with the learned trial Judge that Section 32 presumption of the Illicit Dangerous Drugs Act 2004 places a burden upon the Appellant to rebut the evidence of the prosecution and the 1st Appellant had failed to do so in this case. Therefore his conviction should be affirmed.

[58] In view of the reasons adduced above, I do not consider there are any valid reasons for me to deal with the other grounds of appeal extensively.

[59] In so far as the 1st ground of appeal of the 1st Appellant is concerned, in the absence of any cogent material to conclude that the trial judge was acting with bias against the appellant, I see no merits to this ground. As in this case, whenever the proclivity of offenders do demonstrate a great degree of inclination to commit similar offences repeatedly, it is inevitable that they end up in being tried by the same judges, on more than one occasion. As such, in the absence of any cogent evidence to establish bias on the part of the trial Judge, it is incorrect to impute bias on the learned trial Judge.

On the Sentence

[60] The 1st Appellant has 3 live previous convictions including one for having in the possession of a large quantity of illicit drugs in Labasa, in 2009 and he is presently serving a sentence of 10 years for that conviction. The first Appellant cannot rely on character and as a matter of fact I wish to place on record that his recidivism could be, to a great extent attributed to a lack of remorse on the part of an offender and in the light of all these attendant circumstances there is no error in the sentence of imprisonment imposed on the 1st Appellant.

Conclusion

[61] The 1st Appellant's appeal is dismissed and the conviction and sentence affirmed.

[62] The 2nd Appellant's appeal is allowed. The conviction is quashed and sentence set aside.

The Orders of the Court are:

1. The 1st appellant's appeal is dismissed.
   
2. The 2nd appellant's appeal is allowed.
   

Hon. Justice W. Calanchini
PRESIDENT, COURT OF APPEAL

Hon. Justice S. Gamalath
JUSTICE OF APPEAL

Hon. Justice S. De Silva
JUSTICE OF APPEAL