State v Bainivalu [2009] FJMC 20; Criminal Case 628.2008 (23 September 2009)

IN THE FIRST CLASS MAGISTRATES COURT
AT NAUSORI
FIJI ISLANDS

Criminal Case No: 628 of 2008

STATE

V

TOMASI BAINIVALU

Before: Chaitanya Lakshman
Resident Magistrate

For Prosecution: Inspector Ali
Accused: Present – In person

JUDGMENT

Introduction

The accused is charged with unlawful possession of an illicit drug, contrary to Section 5 (a) of Illicit Drug Control Act, 2004. It is alleged that Tomasi Bainivalu on the 27th day of November 2008 at Nausori in the Central Division without lawful authority had in his possession 217.0 grams of Cannabis Sativa or Indian Hemp an Illicit Drug.

Justice Daniel Goundar on 19th June 2009 by virtue of Section 4 (2) of the Criminal Procedure Code, Cap 21 ordered that the Resident Magistrate be vested with the extended jurisdiction to try the offence under the Illicit Drugs Control Act 9 of 2004.

The onus in this case, as is with all criminal cases is on the prosecution to prove the case and the standard of proof is beyond reasonable doubt.

The elements of the offence that the Accused is charged with that the Prosecution needs to prove beyond reasonable doubt in this case are as follows:

(a) Tomasi Bainivalu, (the person in the charge and appearing in court – identification)

(b) On the 27th day of November 2008 at Nausori, (date and place)

(c) without lawful authority, and

(d) had in his possession 217 g of Cannabis Sativa or Indian Hemp an Illicit Drug

Prosecution Case

The first witness for the prosecution was Police SC Savenaca (Pw-1). He took oath on bible in English.

The (PW-1) evidence in Examination in Chief was as follows:

" – 3 years at Nausori Police Station

- on 27th November 2008 on duty

- on patrol at Nausori Town with other police, SC Leone and PC Pauliasi.

- At 9.30am I was located at the bus stand where western bus arrives and departs.

- Could see a Vatukaula Express bus arrive.

- Tomasi Bainivalu was on the steps of the bus.

- The bus stopped, he (the accused) got off from bus and went to the back right hand side of the bus.

- I could see him receive something from the back seat.

- He received a white bag. He saw us and started running around bus stand to Syria Park.

- He ran along main street towards Court house.

- PC Pauliasi and Leone were following him. I could see him across Dunstan Street.

- From there I crossed Ross Street.

- I went up past roundabout and end up at Rosy Heart cake shop.

- At the roundabout I could see him head towards Rosy Hearts Cake Shop.

- He was carrying a white bag in his hand. I took the bag away from his hand

- The other police officers assisted me.

- I was the 1st person to get the accused.

- Tomasi Bainivalu is present in court (witness pointed out accused in witness box)

- Since the time I joined the Police Force I know the accused. He is a well known criminal.

- I checked the bag when I caught the accused. Inside was dry leafs wrapped in foil.

- As soon as I arrested the accused I checked the bag. I saw it was marijuana.

- With help of other officers I put hand cuffs on the accused and put him in a taxi.

- White bag was handed to PC Josefa Ranuku

- I can ID the bag".

The prosecution took out a bag to ask the court if it could be identified by the witness. The accused objected to the bag being shown to the witness. The court disallowed the accused’s objection and allowed the prosecution to show the bag to the witness to identify the bag. When the bag was shown to the witness it was identified by him as the same one carried by the accused.

The witness further stated:

"- handed the bag to investigating officer, Josefa Ranuku.

- I ID the bag by the logo (Sheraton logo) on the bag as the same bag that the accused had.

- Is the same bag that had dry leafs."

The bag was marked as MF- 1.

In Cross Examination (Pw-1) responded as follows:

"Q: can you recall what happens a year ago?

A: yes

Q: what exactly were you doing a year ago at this time?

A: I was a police officer a year ago.

Q: can you recall what happens 10 months ago?

A: no.

Q: Can you recall where you were on 27th October 2008?

A: I was on beat patrol.

Q: you stated in your statement that you saw a passenger handed me an item from the back of the bus?

A: yes. I saw it.

Q: you saw passenger hand me the bag?

A: is true. I confirm it is true.

Q: where were you standing?

A: on driver side – right hand side.

Q: Can you tell the court the length of the bus from the distance you were standing to me?

A: 5 metres.

Q: from where you standing you cannot describe the item?

A: was a white bag.

Q: Did you know what was inside the bag?

A: after I opened the bag.

Q: you telling the court you can look through the bag?

A: no, cannot look through.

Q: Did you know what was inside the bag?

A: yes.

Q: do you confirm you did not know what was inside the bag?

A: I confirm I knew what was inside the bag.

Q: you also stated in your statement I was a known drug dealer?

A: yes.

Q: can you tell the court what time you saw me sell drugs?

A: most of the time you deal drugs in town.

Q: did you arrest me?

A: this is the first time I arrest you.

Q: how can you put I am a known drug dealer?

A: I was informed when I joined the force

Q: did you see me brought to the station for drug offences?

A: yes, most of the time to the station for drugs.

Q: do you ever charge me for being in possession?

A: no

Q: did you ever interview me for drugs?

A: no

Q: did you ever arrest me before 27th November 2008?

A: no

Q: Claiming in your statement that you saw me travelling in Vatukaula bus?

A: yes

Q: What was the registration of the bus?

A: do not know registration number.

Q: How can you say I was travelling in the bus you do not know the registration number of the bus?

A: I could see you on the step of the bus before the bus stopped.

Q: I put it to you that you are lying on oath?

A: no.

Q: what you were wearing?

A: I was in civilian. Cannot describe what I wore.

Q: did you before you arrest ID yourself as a police officer?

A: he knows me as a police officer. No I did not ID.

Q: what clothes I wore?

A: cannot recall

Q: how can you tell I was on the bus?

A: I saw you.

Q: you are lying?

A: no"

In Re-examination PW-1 was asked as follows:

Q: when bag was passed from passenger to accused did you know what was inside?"

A: I knew what was inside

Q: how can you say what was inside?

A: he received it in a suspicious manner. I suspected marijuana was inside.

The second prosecution witness was Constable 3020 Pauliasi (PW-2) who gave sworn evidence. In his examination in chief he stated the following:

" – One year in Nausori.

- 27th November 2008 on duty at 9am.

- Assigned with some other police to do civilian patrol in town.

- Recall other police officers, Savenaca, Iowane and Constable Tanuresh.

- 9.25 am was at Nausori bus stand with Leone.

- While we were in town we received information from reliable sources that the accused was seen in Vatukaula express bus in Korovou heading towards Nausori.

- We waited for bus at Nausori bus stand for the accused as he is a known drug dealer in Nausori.

- So while we were waiting the bus arrived. We saw the accused on the steps of the bus when bus stopped accused got off. He came to back of the bus from where he received a white bag handed to him from rear – right of the bus.

- We saw him acting suspicious. We approached him.

- As we approached him, he ran to the back of the bus stand. We gave chase. He ran from back of the bus to Main Street.

- He was carrying the white bag given to him.

- Through the main street he went to Dunstan Street. Some of uniformed officers gave chase.

- Constable Leone and I followed him. Constable Savenaca ran through Ross Street.

- We kept on following him. He was 10 metres ahead of us. He kept on running we followed him at the roundabout at Rosy Hearts from where we saw Constable Save get the accused he was with the white bag.

- We then approached them. Constable Savenaca arrested him and seized the bag.

- We kept the hand bag and searched the bag and saw dried leafs in the bag.

- From there he was escorted to Nausori Police Station he was handed to the Investigating Officer.

- We did not lose sight of him at anytime. From the time he got the bag to the time of arrest.

- No exchange of item between accused and anyone else when accused was running. If that occurred we would have seen it we were 10 metres away."

In Cross Examination (Pw-2) responded as follows:

"Q: can you recall what happens 10 months ago?

A: no

Q: can you recall where you were on 27th October 2008?

A: cannot recall

Q: is it true that you and Save were at the back of the bus?

A: yes.

Q: what you were wearing?

A: in civilian

Q: any hat?

A: cannot recall

Q: you stated in your statement you saw me receive item from passenger?

A: true

Q: where were you at this time?

A: at the back of the bus.

Q: what is the distance? Place you were standing to me?

A: 5 metres.

Q: can you describe the item that was passed?

A: white bag.

Q: Did you know what was inside the bag?

A: we did not know what was inside until it was searched.

The other responses in cross examination as follows:

"We were given information from reliable sources. We approached him. He ran away from us. We ran after him. We approached the suspect in a proper manner. The accused ran away from us."

Q: did you produce ID?

A: we did not produce ID.

Q: from back of bus you could see registration number?

A: concentrating on accused did not get registration number of bus.

Q: clothing I was wearing?

A: could not recall

Q: is it true none of us knew whose bag it was?

A: no.

Q: you stated I am known drug dealer. Did you interview me before 27th November

2008?

A: no.

Q: did you charge me?

A: no.

Q: did you ever arrest me?

A: no.

Q: do you confirm that you have not arrested me before?

A: no.

Q: a passenger inside bus handed me the item?

A: it was handed to you

Q: can you tell the court about the passenger?

A: did not have clear view of the passenger

Q: why did you not arrest the passenger?

A: we were following the accused – whose name came in the information."

There was no re-examination of PW-2.

The 3rd Prosecution witness was PC Joseva Ranuku (PW-3). PW-3 was the investigating officer of the case. He gave sworn evidence.

PW-3’s evidence in chief was as follows:

" - recall 27th November 2008. I was on duty. Was the enquiry man.

- Recall at 10 am accused (Tomasi Bainivalu) was brought to the Police Station.

- Brought in by SC Savenaca. SC Save brought accused with the drugs.

- The drugs were handed directly to me. It was handed to me after he was searched.

- The drugs were handed to me in a white bag. Dried leafs in foil.

- I filled up the analysis request and I took it to Koronivia the same day.

- Received results from Koronivia. It was positive that it was marijuana.

(bag shown) is the same bag that I received. Can identify from the logo and my initial in red. The dried leaves are still in the bag."

Prosecution applied to tender the bag and its contents as exhibits. Marked as PE-1. The bag was opened in court and contents shown to the Court and the accused.

PW-3 further gave evidence that:

" – received report from Koronivia. I handed the drugs to the government analyst."

The accused was shown the Analyst Report and he confirmed be given a copy. The Analyst’s Report was marked as PE-2. The accused did not object to the report.

PW-3 further gave evidence that:

" – after report I interviewed the accused. Interview took place at Nausori police station. Interview conducted in English.

- Gave all rights, legal and others to accused.

- Put allegation to accused.

- Accused wished to give answer in court. It was recorded."

The accused interview statement and charge sheet were tendered by Prosecution with the consent of the accused and respectively marked as PE-3 and PE-4.

PW-3 pointed out the accused in the witness box as the person charged in this case.
In Cross Examination (Pw-3) responded as follows:

"Q: did you have and read the statements of the 3 arresting officers?

A: yes.

Q: if you did read the statement they saw a passenger inside the bus hand me a bag through the bus?

A: cannot recall

Q: cannot recall their statement?

A: cannot recall the part that someone handed the drugs to the accused.

Q: how long you have been a police officer?

A: 3 years and 6 months

Q: as investigating officer is it proper that you investigate the person who handed me the bag?

A: it may be proper.

Q: did you make attempt to locate the person?

A: no

Q: did you attempt to interview the driver of the bus?

A: no attempt.

Q: did you ever before 27th November 2008 arrest me?

A: not yet.

Q: see me brought in before?

A: never.

Q: on 27th November 2008 is the 1st time to see me brought to station for drug offence?

A: yes."

There was re-examination of PW-3.

At the close of the prosecution case the court found that accused had a case to answer. The court thereafter explained to the accused Section 211 of the Criminal Procedure Code.

Defence Case

The Accused (D-1) gave unsworn evidence). His unsworn statement was as follows:

"I can recall 27th November 2008. I was being arrested for the drug offence. I was walking towards the Morris Hedstrom as I was walking I came through the bus stand to Suva buses. A passenger sitting at the back of the bus was passing a bag. He did call me and handed the bag to me.

I did not know whose bag it was and the contents. I did not know the reason he passed to me. As I was waiting for him to get off the bus 2 men approached me from the back of the bus and accused me of I donot know what. So I ran. Later on I knew that these men were police. They were in civilian clothes. Also they did not identify themselves as police when approaching.

As I was running I kept thinking this bag must be stolen by the person who handed over to me and this 2 men who were chasing may be the owner of the bag. When they arrested me I kept asking them to go and check my alibi. They refused to go."

The accused did not call any other witnesses in his defence.

The Law and the Analysis of the Evidence

The prosecution in this case needed to prove the following elements of the charge laid against the accused:

(a) Tomasi Bainivalu, (the person in the charge and appearing in court – identification)

(b) On the 27th day of November 2008 at Nausori, (date and place)

(c) without lawful authority, and

(d) had in his possession 217 g of Cannabis Sativa or Indian Hemp an Illicit Drug

The Law

Section 5 (a) of the Illicit Drugs Control Act 2004 provides that: "any person who without lawful authority acquires, supplies, possesses, produces, manufactures, cultivates uses, or administers 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."

Section 2 of the Illicit Drugs Control Act 2004 interprets "illicit drugs" means any drug listed in Schedule 1.

The Arrest

The accused was not represented in this case and conducted his trial. The legality of the arrest by the Special Constable while not raised by the accused is noted by the court and from the prosecution evidence the Court notes that the accused was arrested by Special Constable Savenaca (PW-1). SC Savenaca was assisted by other police officers following his arrest of the accused. The arrest of the accused by the SC Savenaca was without a warrant. The police received information and caught the accused after pursuing him through the streets of Nausori. Section 21 of the Criminal Procedure Code permits a "Police Officer" to carry out arrests without a warrant in certain circumstances but the Court of Appeal in Parshu Ram v. R Cr App No. 63 of 1982 held that special constables were not police officers (also discussed in Eliki Mototabua v. State [2007] AAU0016/06).

This Court further notes that in Eliki Mototabua v. State [2007] AAU0016/06 that the Court of Appeal stated that the "other provision in the Criminal Procedure Code relied upon by his Lordships giving authority to the off duty special constable to effect arrest was Section 24. That section deals with an arrest by a private citizen. Subsection (1) states:

any private person may arrest any person who in his view commits a cognizable offence, or whom he reasonably suspects of having committed a felony provided a felony has been committed.

The term "cognizable offence" is defined in section 2 of the Criminal Procedure Code as:

An offence for which a police officer may, in accordance with the first schedule or under any law for the time being in force, arrest without warrant.

The First Schedule lists the various offences under the penal code in respect of which police officer may arrest without warrant. The offences in the present case, however, is not one created under the Penal Code but the Dangerous Drugs Act. The only situation recognized in the First Schedule to the Code where a police officer ay arrest without warrant under the other law for the time being in force is when the offence is punishable by imprisonment for three years or upwards.

The offence of possession of Indian hemp, not exceeding 100g, carries a maximum sentence of 24 months imprisonment. State counsel conceded that against this background, the off duty special constable had no authority to carry out an arrest as a private person under section 24 of the Criminal Procedure Code."

This Court notes that under the Illicit Drugs Control Act 2004 the maximum penalty is a fine not exceeding $1,000,000 or life imprisonment or both. As per this Court reading of the Court of Appeal Justices decision in Eliki Mototabua, the Court finds that the Special Constable Savenaca had authority to carry out an arrest as a private citizen under section 24 of the Criminal Procedure Code. The arrest by SC Savenaca of the accused was lawful.

Identification

The identification of the accused by the prosecution witness is not in issue. PW-1, SC Savenaca and PW-2, Constable Pauliasi positively identified the accused as the one who had the bag and as the person they chased and apprehended. All along the chase both the prosecution witnesses had the accused in their sight. The accused in his unsworn evidence does not deny that he was near the bus and that he ran away from the bus.

All the events took place in broad daylight in the morning time. Both the prosecution witnesses told the court that they were 5 metres away when they saw the accused receive the bag from inside the bus and upon seeing them the accused ran away. In the chase of the accused they were no more than 10 metres away from the accused.

The court is satisfied that the prosecution has proved this element of the offence beyond reasonable doubt.
In Possession

The other element that the Prosecution needed to prove beyond reasonable doubt in proving its case against the accused was that the accused was in possession of the drugs.

In Luisa Wakeham v. State [2003] HAA0040/03S, Justice Shameem stated that "the words "found in possession" have a legal meaning. They are defined in Section 4 of the Penal Code as follows:

"(a) "be in possession of" or "have in possession" includes not only having in one’s personal possession, but also knowingly having anything in the actual possession or custody of any other person, or having anything in any place (whether belonging to or occupied by oneself or not) for the use or benefit of oneself or of any other person;

(b) if there are two or more persons and any one or more of them with the knowledge and consent of the rest has or have anything in his or their custody or possession, it shall be deemed and taken to be in the custody and possession of each and all of them."

The words "in possession" mean far more than simply having something in one’s custody and under one’s control. Although the House of Lords in Warner –v- Metropolitan Police Commissioner (1969) 2 AC 256, said that an offence of being in possession of drugs under the English Misuse of Drugs Act was an absolute offence, the speeches of their lordships defined the mental element which must be proved. Lord Pearce (at page 305) said:

"I think the term "possession" is satisfied by a knowledge only of the existence of the thing itself and not its qualities and that ignorance or mistake as to its qualities will not excuse. This would comply with the general understanding of the word ‘possess’ ......... The situation with regard to containers presents further problems. If a man is in possession of the contents of a package, prima facie his possession of the package leads to the strong inference that he is in possession of its contents. But can this be rebutted by evidence that he was mistaken as to its contents? As is in the case of goods that have been ‘planted’ in his pocket without his knowledge, so I do not think that he is in possession of contents which are quite different in kind from what he believed."

Lord Wilberforce said, at page 410:

"The question, to which an answer is required, and in the end a jury must answer it, is whether in the circumstances the accused should be held to have possession of the substance rather than mere control. In order to decide between these two the jury should be invited to consider all the circumstances ... the ‘modes or events’ by which the custody commences and the legal incident in which it is held. By these I mean, relating them to typical situations, that they must consider the manner and circumstances in which the substance, or something which contains it, has been received, what knowledge or means of knowledge or guilty knowledge as to the presence of the substance, or as to the nature of what has been received, the accused had at the time of receipt or thereafter up to the moment when he is found with it, his legal relation to the substance or package (including his right of access to it). On such matters as these ... they must make the decision whether, in addition to physical control, he has, or ought to have imputed to him, the intention to possess, or knowledge that he does possess, what is in fact a prohibited substance. If he has this intention or knowledge, it is not additionally necessary that he should know the nature of the substance."

This definition conforms with the definition of "possession" in the Penal Code. It requires proof of knowledge of the presence of the receptacle that holds the drugs. It does not require proof of knowledge of the contents of the receptacle.

In R –v- McNamara 87 Cr. App. R. 246, the Court of Appeal summarised the definition of "possession" thus (Archbold 2003, Para 26-59):

"1. A man does not have possession of something which has been put into his pocket or house without his knowledge.

2. A mistake as to the quality of the thing under the accused’s control is not a defence.

3. If the accused thought that the thing in his possession was for instance, clothing or jewellery, then he is not in possession of it.

4. If the accused is in custody of a package or box, then the inference is that he is in possession of the contents. It is for the accused to prove otherwise and he must prove that he was a servant or bailee with instructions not to open the package and that he had no reason to suspect that its contents were drugs or he had no knowledge of the nature of the contents and that he had received the package in innocence."

In Luisa Wakeham v. State [2003] HAA0040/03S, Justice Shameem stated that the Court should ask and answer the following questions in found in possession cases:

a. Was the package/bag under the accused physical control?

b. Did he know of the existence of the package/bag?

c. Did he therefore "knowingly" possess the drugs?

The court will now in turn deal with each question.

a. Was the package/bag under the accused physical control?

The prosecution witnesses, PW-1, SC Savenaca and PW-2, Constable Pauliasi saw the accused arrive in the bus (according to both accused was on the steps), get off, move to the back and receive the bag. Upon seeing them the accused ran. The Police caught the accused quite some distance from the bus stand where he received the bag, with the bag.

The accused’s unsworn evidence is that "I was walking towards the Morris Hedstrom as I was walking. I came through the bus stand to Suva buses. A passenger sitting at the back of the bus was passing a bag. He did call me and handed the bag to me.

I did not know whose bag it was and the contents. I did not know the reason he passed to me. As I was waiting for him to get off the bus 2 men approached me from the back of the bus and accused me of I donot know what. So I ran. Later on I knew that these men were police. They were in civilian clothes. Also they did not identify themselves as police when approaching.

As I was running I kept thinking this bag must be stolen by the person who handed over to me and this 2 men who were chasing may be the owner of the bag."

The accused’s version is remarkable that a person from the bus called him and handed the bag to him. He then was approached by 2 men who accused him of he does not know what and he ran. The question that this court poses is why the accused ran when he did not know what the men accused him of. What was his fear? Did he fear being caught with the bag as he knew what it contained? The only conclusion this court can draw from the action of the accused on fleeing the bus stand when he was approached by the 2 men (whom he later knew were police) was that the accused knew of the contents of the bag and did not want to be caught with the bag as it contained drugs.

The position of the accused would have been different if he would have waited with the bag and returned it to the person who had passed him the bag from inside the bag.

The court finds that the accused had physical control of the white bag that contained the drugs from the time it was passed to him from inside the bus to the moment of his arrest. The accused did not at anytime from the time he received the bag let go of the bag until his arrest. The accused was in possession of the bag.

b. Did he know of the existence of the package/bag?

The accused received the bag from inside the bus. The evidence showed that the accused knew that he was receiving a bag from inside the bus. The accused did not allege that the bag was placed or "planted" on him or that he had no idea that he had the bag. The accused knew that he had a bag. The accused ran with the bag knowing that he had the bag in his hand.

c. Did he therefore "knowingly" possess the drugs?

The court finds that the accused had physical possession of the bag and he knew of the existence of the bag.

The accused took the bag from the bus and upon seeing the prosecution witnesses (PW-1 and PW-2) who were in civilian clothing ran away from them even before they could get real close to him. The Court finds that the action of the accused in fleeing with the bag away from the civilian persons approaching him infers guilt on the part of the accused. Any reasonable person would not have acted in a similar manner if he did not know there were drugs in the bag.

If as the accused alleges that he thought the bag was stolen he should have not have ran off with the bag. All the court can conclude from the actions of the accused is that he knew that the bag contained drugs and he did not want it seen by others.

The certificate by the Government Analyst confirmed that the dried leaves she received from PC Joseva, the investigating officer of the case against the accused were dried leaves known as Cannabis Sativa weighing 217g.

The court is satisfied beyond reasonable doubt that the charge against the accused has been proved beyond reasonable doubt by the prosecution.

The court finds the accused guilty and convicts him accordingly.

Chaitanya Lakshman
Resident Magistrate
NAUSORI

23/09/09