Smith v State [2015] FJHC 210; HAA003.2015 (24 March 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No. HAA 003 of 2015

IMMANUEL SMITH

v

STATE

Counsel: Ms. M. Tarai (LAC) for appellant.
Mr. M. Delaney for the State.

Dates of hearing: 30 January and 6 March, 2015
Date of Judgment: 24 March, 2015

JUDGMENT

On the 23rd August 2012 in the Magistrate's Court at Suva the appellant was convicted of one count of possession of illicit drugs contrary to section 5(a) of the Illicit Drugs Act, 2004. It was alleged that he on the 8th March 2009 at Delainavesi, Lami was in possession of 415 grams of Indian Hemp.

2. He was sentenced on the 26th April 2013 to 3 years imprisonment with a minimum term of 2 years before being eligible for parole.

3. The appellant appeals both his conviction and sentence. The grounds of appeal against conviction are that:

1. The learned Magistrate erred in law and in fact when he convicted the appellant in view of:
   
   • (a) the conviction was unreasonable and unsupportable having regard to the evidence leading to a miscarriage of justice.
     
   • (b) the drugs in grey plastic were not found on the appellant but under the front passenger's seat.
     
   • (c) the State did not lead enough evidence that would satisfy the element that the appellant had actual or putative possession of the drugs.
     
2. "That the Magistrate erred in law and in fact when he speculated that because the appellant and one Jesoni knew each other very well and were close to each other and such closeness is readily reflective that the appellant diverted from his intended destination for which he was waiting for a bus at 3 miles and got into a taxi of Jesoni to accompany him to pick his parcel early in the morning when there was no evidence to support this contention resulting in substantial miscarriage of justice".
   

Against Sentence

1. That the Magistrate erred in principle in giving a sentence which is more than 2 years when the sentences in this category involving a quantity under 500 grams should be given a sentence less than 2 years.
   

4. The facts of the case elicited in evidence before the lower court are these:

A taxi was apprehended at Delainavesi Police Post in the early morning of 8 March 2009. In the taxi one man was sitting in the front passenger seat and this appellant in the back seat. A search of the taxi produced two parcels of suspected illicit drugs in a grey plastic bag, found under the front passenger's seat. Both passengers were arrested on suspicion of being in possession of illicit drugs.

5. The material seized was later shown by the Government Analyst to be 415 grams of "Indian Hemp".

This appellant was interviewed by Lami Police under caution. In that interview this appellant admitted that he knew there were illicit drugs in the parcel but said that they belonged to his fellow passenger in the front seat.

The Judgment and Sentence below

In an extremely well researched and well reasoned decision below, the learned Magistrate quite correctly identified the two issues that he might determine in the case. They were:

1. Did the accused have knowledge of the existence of illicit drugs in the parcel?
   
2. Was he in constructive possession of that parcel?
   

6. In examining the case law and in particular the speeches of the law Lords in Warner v. Metropolitan Police Commissioner (1969) 2 AC 256, the Magistrate came to the conclusion that in the circumstances the prosecution had proved to him beyond reasonable doubt that the accused did have knowledge of the contents of the parcel and that he was in constructive possession of it. He did not state that he was relying on the presumption of possession as provided for in section 32 of the Illicit Drugs Control Act 2004, but made his findings of possession of the principles established at common law and in consideration of the circumstantial evidence.

The Appeal

The first ground relates to the evidence produced at trial which the appellant submits is insufficient to establish "possession". He argues through his counsel that he was at no time in physical possession of the package and by his own evidence at trial, he had no idea of the contents of the parcel which his co-passenger had gone to collect. He was merely "in the presence" of the parcel which is not enough to prove possession. The evidence, he says, points to his co-passenger being in possession.

His second ground of appeal which is impossibly worded in one of the longest ungrammatical sentences ever, seems to suggest that the appellant does not agree that the circumstantial evidence established at trial was enough to lead to the irresistible inference that he was in constructive possession of the parcel. In particular he prays that it was "speculated" that the accused and the other passenger were close to each other, that it was "speculated", that the accused took a diversionary route to accompany the other man in the taxi.

The State in very well argued submissions, says that for Ground 1 the Magistrate dealt with the issue of possession in full without error of law or of fact and that his findings on this issue cannot be impugned.

With reference to the second ground, Counsel for the State argues that the facts referred to as "speculation" by the accused are facts that he himself gave at trial. He argues that the learned Magistrate in all fairness made independent findings to come to his inference from the facts adduced.

Discussion

7. "Possession" in terms of the Illicit Drugs Act 2004 is not defined and the courts must therefore resort to the common law definition expounded first in Warner (supra). As Lord Wilberforce said in his speech:

"As it is put by Pollock and Wright, possession "is defined by modes or events in which it commences or ceases and by legal incidents attached to it"".

In the Court of Appeal (Fiji) case of Koroivuki [2013] FJCA 15, AAU0018.2010 (5 March 2013) the court (per Goundar J.) said (at para 8):

"the Illicit Drugs Control Act 2004 does not define the word "possession". 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)".

These dicta were recently approved by the Court of Appeal in Sheik Mohammed and another AAU 0092 of 2011 (12 December 2014) and the definition was extended to cover joint possession when the Court said (per Gamalath JA) after examining the English cases:

"It appears clear from the tenor of the court's judgment however, that their view was that evidence of 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".

The accused had made an admission under caution in an out of court interview that he knew that the package in question contained illicit drugs. He never objected to the admissibility of the record of that interview, nor did he dispute any of the answers given therein. However in giving testimony in his own defence at trial he sought to resile from that position and he claimed that he had no idea what the package contained. Although the admissibility of the record of interview was not challenged, the Magistrate in all fairness sought to make a finding on "possession" without resorting to the inculpatory answer in the interview.

8. The prosecution sought to prove joint possession of the package in the following way:

A taxi was stopped at 7.10am at Delainavesi Police post, it was travelling from the direction of Lami. One Jesoni was in the front seat and the appellant seated behind. A search of the taxi revealed the plastic bag beneath the front passenger seat. It contained the illicit drugs in question. The accused was arrested and charged with joint possession of the package. In the unchallenged interview under caution the accused admitted knowledge of the illicit drugs but said that they belonged to Jesoni.

The accused (appellant) in his defence gave evidence to say that he was at a bus stop at Nabua at 7.10am when Jesoni [a man he knew well as a relative by marriage) stopped in a taxi and asked him to go with him to collect a parcel in Kalokolevu. There is nothing on record to say where the accused had intended to go in a bus from Nabua nor did he say why Jesoni had come to collect him at Nabua when he (Jesoni) was going to Kalokolevu.

Although the reasoned inference of the Magistrate is very unhappily worded in paragraph 3 of his judgment, it does nevertheless appear to be a perfectly logical inference to arrive at in the circumstances. This unhappy wording of the Magistrate has unfortunately been adopted by counsel for the appellant in a cumbersome and ungrammatical second ground of appeal.

The inference can be better arrived at in the following manner:

The accused/appellant was waiting at the bus stop at 3 miles (Nabua) at a very early hour in the morning. His friend a relative, Jesoni happened to stop in a taxi and asked him to go with him to collect a "parcel" at Kalokolevu. He went to a place (which must have been completely out of his way) to accompany Jesoni to get the parcel and they were then stopped at Delainavesi on their way back to Suva. The parcel was under the seat which does not establish physical control of it to either of the two and therefore in these circumstances the inference is irresistible that they were both in joint possession of the parcel.

9. The Magistrate could have relied on the answer in the caution interview to establish knowledge of the contents of the parcel and he could have also relied on the presumption of knowledge of the drugs established by s.32 of the Act, but in all fairness to the accused he chose not to rely on either these highly prejudicial but probative elements. Instead he arrived at his inference by reference to the circumstantial evidence which was also strongly prejudicial to the appellant.

The grounds of appeal against conviction relied upon by the appellant cannot be made out and the appeal against conviction dismissed.

Sentence

The accused was found to be in constructive possession of 415 grams of cannabis. He was sentenced in the lower court to a term of three years imprisonment with a minimum term before parole of two years. The authoritative case of Sulua and Chandra AAU 0093/08 sets out sentencing tariffs for the offence of possession of cannabis. Temo J. delivering the majority decision of the Court of Appeal said (at para 115 (ii)):

"Category 2: possession of 100 to 1,000gms of cannabis sativa. Tariff should be a sentence between 1 to 3 years imprisonment, with those possessing below 500 grams being sentenced to less than 2 years' and those possessing more than 500g, be sentenced to more than 2 years' imprisonment".

10. The decision in Sulua and Chandra had been handed down by the time this sentence was passed and there is no reason why it should not have been followed. The learned Magistrate certainly didn't say why he was not following the tariff guidelines. In fact the Magistrate adopted the wrong tariff for the offence, sentencing as he did to 2-4 years set by Meli Bavesi HAA 27 of 2004. Sulua & Chandra decided that Meli Bavesi is no longer good law and should not be followed.

11. The appeal against sentence must therefore succeed and pursuant to s.256(3) of the Criminal Procedure Code. I now set the sentence passed below aside and would sentence the appellant afresh.

I take a starting point of 15 months imprisonment and would add twelve months to that for the obvious pre-planning of the offence and the covert operation of an early morning operation. There were no mitigating factors advanced below because the accused/appellant had absconded before mitigation and sentence. The new sentence that the appellant should now serve is one of 30 months with a minimum term of 20 months to be served before he is eligible for parole. It is not an appropriate sentence to be suspended.

P. K. Madigan
Judge

At Suva
24 March 2015