Yavala v The State [2003] FJHC 311; HAA0029J.2002B (17 February 2003)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0029 OF 2002

Between:

JEKESONI YAVALA
Appellant

- and -

THE STATE
Respondent

Mr. H. Robinson for the Appellant
Mr. J. Rabuku for the Respondent

JUDGMENT

On the 28^th of March 2002 at the conclusion of the trial of the appellant, the trial magistrate in a brief oral judgment convicted the appellant on a charge of Found in Possession of Dangerous Drug, and sentenced him to 2 years imprisonment. Detailed reasons were finally delivered in a written judgment dated 31st May 2002.

The appellant who was unrepresented at his trial appealed against both the conviction and sentence on several grounds more particularly set out in the petition of appeal and which included a ground that the appellant had no knowledge of and was therefore not >in possession= of the drugs found in his vehicle.

Learned counsel who appeared for the appellant helpfully filed a skeleton argument in which he highlighted three (3) matters which counsel submits rendered the appellant=s conviction unsafe. These were:

>1. That the learned Magistrate failed to appreciate that the prosecution had failed to establish the elements of the offence beyond reasonable doubt;

2. That the learned Magistrate had erred in convicting the appellant in that the prosecution had failed to establish beyond reasonable doubt the continuity required to prove that the drug analysed was the same drug alleged to have been found on the appellant=s possession.
   
3. That the learned Magistrate failed to adjudicate clearly on the prejudicial effect of the absence of the drugs as a necessary exhibit, on the appellant at the trial.=
   

At the hearing of the appeal counsel for the appellant submitted that in the face of the appellant=s consistent denial of any prior knowledge of the presence of the drugs in his vehicle, the prosecution=s evidence failed to establish beyond a reasonable doubt that the appellant was 'in possession= of the dangerous drug.

State Counsel in seeking to support the conviction highlighted the undisputed evidence of (1) the finding by police officers in the appellant=s vehicle, of several packages of a substance which was later analysed and found to be dried Indian Hemp leaves; (2) the fact that the appellant was driving the vehicle immediately prior to it being searched and was present at the time of the finding of the packages inside the vehicle including under the driver=s floor mat; and (3) the fact that the appellant is a registered owner of the vehicle from which the drug was recovered.

In light of the foregoing State Counsel forcefully and in my view correctly submitted, that the sole question in dispute in the case was whether or not the appellant knew that the packages that were seized from his vehicle contained dangerous drugs.

The learned trial magistrate was fully conscious of this critical issue when he wrote in his judgment (at p.55 of the record):

>PW5 PC119 Saimoni interviewed the Accused who said his truck tank was leaking and that is why he sped away from the wharf. PW5 checked the tank but it was not leaking. One might ask, why then did the Accused speed away from the Savusavu Wharf when he saw all these police officers. Did he have anything to hide?

The Accused said he did not know who left the drugs in his vehicle in his unsworn evidence.

I believe the evidence of all the prosecution witnesses and find them credible. The Accused hardly discredited their evidence ...... and I don=t believe him at all.=

It is axiomatic that in the absence of direct proof or an admission, the state of a person=s mind or extent of his knowledge is capable of being distilled from his utterances, actions, and behaviour at the relevant time.

In the present case the learned trial magistrate accepted the prosecution=s evidence that the appellant had sped away from the wharf when he first saw the police approaching and later that same day when the appellant was taxed about this in his caution interview, he had lied that his truck=s tank was leaking.

It was said by the Privy Council in Broadhurst v. R. (1964) A.C. 441:

>Save in one respect, a case in which an accused gives untruthful evidence is no different from one in which he gives no evidence at all. In either case the burden remains on the prosecution to prove the guilt of the accused. But if upon the proved facts two inferences may be drawn about the accused=s conduct or state of mind, his untruthfulness is a factor which the jury can properly take into account as strengthening the inference of guilt. What strength it has depends on the circumstances and whether there are reasons other than guilt that might account for his untruthfulness.=

Given the almost complete absence of any material cross-examination of the prosecution witnesses, the learned trial magistrate=s rhetorical question and findings were entirely appropriate. Ground (1) fails and is dismissed.

Nothing much needs to be said about grounds (2) & (3) above which appear to be based on (1) the failure to call the custodial officer who had charge of the packages recovered from the appellant=s vehicle (now deceased) and (2) the failure of the prosecution to tender or produce the actual packages in Court as an exhibit (now lost).

In this regard it must be said in fairness, that neither matter was ever raised as an issue before the trial magistrate for his determination. No objection was taken to the production of the Government Analyst=s report and, indeed, it was common ground that several packages containing dried leaves were recovered from the appellant=s vehicle in his presence, that they were subsequently analysed and found to contain dried Indian hemp leaves.

Be that as it may there was an unbroken chain of unchallenged evidence detailing the custody of the packages from the time of their initial recovery from the appellant=s vehicle and the fact of their analysis by the Government Analyst, right up till their eventual release for trial purposes when they went missing. It must be remembered that this was not a murder trial where the absence of a body might have a significant bearing, but even then, production of a dead body is never required at trial if the evidence of death is otherwise satisfactory proved.

Even if it could be said that there is some technical merit in grounds (2) & (3) (and there is none), I would have no hesitation in applying the proviso to Section 319 of the Criminal Procedure Code in holding that >no substantial miscarriage of justice has actually occurred=.

All grounds of appeal having failed, the appeal against conviction must be and is hereby dismissed. The appeal against sentence was not pursued and is also formally dismissed.

(D.V. Fatiaki)
Chief Justice

At Labasa,
17^th February, 2003.