State v Damwat [2007] PGDC 99; DC588 (12 July 2007)

DC588

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL JURISDICTION]

DCCr 98 OF 2007

STATE

V

DAVID DAMWAT

WEWAK: SUSAME
2007: 24TH APRIL, 06TH JUNE

CRIMINAL LAW – Dangerous Drugs Act – possession of marijuana – word knowingly amended from the offence - the amendment does not eliminate the requirement to prove guilty knowledge- the test applicable is a subjective one – possession its meaning at law – onus is on the State to prove beyond all reasonable doubt element of possession

Cases cited:
Atwell v Massey [1971] 3 All ER 881
Maxwell Arthur Schliebs v H Singh [1981] PNGLR 364
Warner v Metropolitan Commissioner of Police [1969] 2 AC 256

Reference:
Halsbury’s Laws of England 4th edition, Vol. 11(1) Criminal Law, Evidence and Procedure.

Sergeant Willie Ramiaul for the State
Defendant on his own behalf

DECISION

12th July 2007

SUSAME; - The defendant is charged for possession of marijuana weighing 1.035 kilograms under section 3(1) (d) of the Dangerous Drugs Act Ch.

FACTS

2. The defendant is an employee of Sepik Coastal Agencies in Wewak,ESP and works at the Wewak Wharf. In the morning of Saturday 3rd February 2007 he had gone down to the Wharf for duties on arrival of a passenger vessel named MV Rita from Madang. It is alleged that the defendant boarded the vessel and disembarked again with a Black Hand bag when he was spotted by an off duty police sergeant and a guard working for Guard Dog Security Service Company. As was the usual practice, the arriving passengers had to go through security search. The defendant was called upon and during the search parcels of drugs were found in the bag the defendant was carrying. Subsequently, the defendant was brought into custody and was arrested and charged.

3. There is overwhelming evidence that at the material time the defendant was in actual physical control of the hand bag when call upon by the guard and the police constable. So there cannot be any question about that fact. But, the question that one needs to ask is whether the defendant was in possession of the drugs?

LAW

The offence under section 3(1)(d) reads:

"(1)A person who-

(a)........

(b).......

(c).......

(d) is in possession of or conveys a dangerous drug or a plant or part of a plant from which a dangerous drug can be made, is guilty of an offence unless he is authorized to do so under some other Act.

Penalty: Imprisonment for a term of not less than three months and not exceeding two years."

4. It must be noted here that before the law changed the word ‘knowingly’was an important element of the offence. However in the recent amendments (refer to footnote) the word knowingly was omitted and is no longer an element of the charge.

5. So does that mean that it will not be necessary for the prosecution to prove that defendant was knowingly in possession of the drugs? That once anyone is found in possession of the prohibited drugs he is guilty of the offence. For instance is the defendant in this particular case guilty of possession because the drugs were found in the bag he was carrying?

6. Let me start my discussion on the question this way. Firstly, as a general rule every crime committed requires a mental element. That at the time the offence was committed the defendant had the necessary willful knowledge of the existence of the drugs in the bag he was carrying or conveying even though his good conscience was telling him not to. It will be necessary to prove that because the courts may fall into grave error in convicting and jailing innocent people. The test applicable to prove guilty or willful knowledge is of course a subjective one. see Atwal v Massey [1971] 3 All ER 881. So it will be necessary for the prosecution to introduce evidence of the defendants conduct before, at the time or after the offence was committed. The defendant may want to give an explanation if chooses to do so as to how he came to be in possession of the bag which had the drugs.

7. Secondly, the evidentiary burden of proving guilt of the accused person in any criminal case always rests on the State. It is the duty of the prosecution by law to prove beyond all reasonable doubt by evidence that the defendant before the court is guilty of the crime. Expression the point in another way the evidence adduced by the prosecution must not leave any slightest of doubt in the mind of the magistrate or judge who is a tribunal of fact and law that the defendant was guilty of possession. How does the law define possession?

8. "A person has a controlled drug in his possession when he has physical control or custody of a thing plus knowledge that he has it in his custody and control. He may possess a controlled drug without knowing or comprehending its nature, but he does not possess it unless he knows he has it."(Reference: HALSBURY’S LAWS OF ENGLAND 4TH EDITION, VOL.11 (1), Criminal Law, Evidence and Procedure, para 398)

9. I also refer to the case of Maxwell Arthur Schliebs v H. Singh [1981] PNGLR 364. This was an appeal from the decision of District Court convicting the appellant of the offence of possession of marijuana under s.3(1)(d)of the Act. The Appellate Court in its deliberations posed a question whether a person can be in possession of something when he is not aware of its existence or its exact nature.

*see Dangerous Drugs (Amendment Act 1990 No.23 of 1990)

10. His Honour Miles j referred to an English case of Warner v Metropolitan Police Commissioner [1969] 2 AC 256 and cited with approval Lord Wilberforce judgment at page 312.

"In all such cases, the starting point will be that the accused had physical control of something – a package, a bottle, a container – found to contain the substance. This is evidence – generally strong evidence – of possession. It calls for an explanation: the explanation will be heard and the jury must decide whether there is genuine ignorance of the presence of the substance, or such an acceptance of the package with all that it might contain, or with such opportunity to ascertain what it did contain or such guilty knowledge with regard to it as to make up a statutory possession. Of course it would not be right, or consistent with the terms of the Act, to say that the onus of showing innocent custody rests upon the accused.

The prosecution must prove the offence, and establish its ingredients. But one starts from the point that the Act itself has exempted the great majority of cases of innocent possession, so that once the prosecution has proved the fact of physical control in circumstances not covered by an exemption and something of the circumstances in which this was acquired or held, this, in the absence of explanation, may be sufficient to enable a finding of possession to be made. On the other hand the duty to submit the question of possession to the jury in this way does give the opportunity of acquittal to innocent carriers and custodians, who can put forward an explanation of the physical fact which a jury accepts."

11. Adopting the principles discussed in Warner v Metropolitan Police Commissioner (supra) one looks to see what it was in the present case defendant was said to be knowingly in possession of the drugs.

It will therefore, be necessary to analyse and discuss the evidence that has been heard.

The defendant gave an explanation of how he came by the bag. His explanation is this starting from page two of his sworn testimony.

12. "I arrived at the wharf and realized my three workmates were already on the ship unloading cargo. I got on the ship and joined them. We unloaded all the cargo from the haul. After, I felt thirsty and walked outside the ship and one of my workmate followed behind. I was not carrying any bag. I drank water and on the way back I passed a certain passenger. He asked me to help him carry his bag.

He told me to go and place it by the side as he will go and get some more of his bags on the ship. So I took his bag to the side and stood by the bag and waited for the passenger. But the passenger never returned. The security guard approached me. He came and asked me who owned the bag. I told him it belonged to a passenger. The security told me that I was a workman at the wharf and I was his witness and told me to carry the bag to be checked. So I got the bag and came across policeman Joshua Kaukudi. I put the bag down and the security guard asked Joshua if he could check the bag. Joshua gave him permission. The guard opened the bag and retrieved the parcel of marijuana. I saw that and realized I was in trouble. I looked around to see the owner of the bag but he was not around. So Joshua held my hand and told me to go to the station with him. And this is what transpired during cross-examination.

Q1. Who is the passenger who asked you to carry his bag?
A. Don’t know his name.

Q2. You know the passenger?
A. I see him on few occasions, don’t know him well.

Q3. Where does he live?
A. Not sure

Q4. Was the passenger carrying other bags and he gave you the bag?
A. He carried two bags

Q5.Why were you standing by the bag?
A. I was looking after it from being stolen.

Q6. Why did you stand behind the guard house?
A. The passenger told me to go and put the bag there.

Q7 You thought of putting the bag at the check point?
A. No."

13. Witness Jack Maru called by the defendant gave this supporting testimony. The defendant arrived and helped them unload the last five bags of potatoes. He got off the ship with the defendant with no bags. The defendant walked ahead and I followed behind. The defendant was thirsty and he went to drink water. After he drank water he walked ahead and he came across the passenger who asked the defendant to help him with his bag. The passenger had two bags. So the defendant took the bag to the guard house. Jack said when the defendant left for the guard house with the bag he walked away and didn’t know what happened after that. This is what transpired during cross-examination.

Q1. How far were you from the defendant when the passenger asked the defendant to Carry his bag?
A. 05 meters behind

Q2. What did the passenger tell the defendant?
A. He told the defendant if can assist and carry his bag because the passenger had another bag with him. So the defendant took it to the guard house, the passenger told the defendant to go put the bag by the guard house.

Q3. You know that passenger?
A. Don’t know the passenger.

Q4. Is it normal practice to assist passengers carry bags?
A. If passenger needs help we assist and look after their bags.

Evidence for the prosecution came from police sergeant Joshua Kaukudi and security guard Simon Bito.

14. The police sergeant stated that he was at the wharf that particular morning to pick up his workmate who came over from Lae on MV Rita. He stood by the small security hut inside and watched. Five minutes after the ship docked and before the passengers disembarked he saw the defendant get on board the ship. He remained standing on the same spot and saw passengers where about to be searched by the security guards. Then he saw the defendant disembarked the ship with a black bag. All the passengers by then had cued up for security search at the exit gate.

15. He observed the defendant did not join the cue instead he went over to the fence and on the side facing the Loining Plant and attempted to pass the bag over the fence to a security guard working for South Seas tuna.

16. However, the security guard became aware of the policemen’s presence and refused to take the bag. The defendant turned and saw the policeman and left the bag at the back of the guard house. The defendant walked passed the policeman and greeted him saying oi big boy. The defendant went around the back and picked up the bag again. He came over to where the policeman was and the policeman called out asking whose bag it was and why it cannot be checked by the security. The policeman asked the defendant to put the bag down and open it and walked over to him. The defendant said it was not his bag but one other passenger. The policeman called for the owner of the bag to come forward and get his bag but no one responded so he ordered the bag to be searched. The policeman opened the bag and pulled out the parcels of drugs and he asked the guards to assist him.

17. This witness gave evidence he saw the defendant go on board and later disembarked the ship with a black bag. The defendant walked over to the side where the guard house was and attempted to pass the bag over the fence to another security guard who works for South Seas Tuna Loining plant. However that security guard and the defendant became aware of the policeman’s presence. The defendant left the bag on the ground by the guard house and later walked around and picked it up again.

18. The witnesses stated he asked for the owner of the bag but no one responded so he ordered the bag to be searched. The witness stated he personally unzipped the bag and took out the parcels of drugs.

19. The security guard gave this evidence. He was with the other guards at the gate checking passengers’ baggages. He saw the police sergeant looking at the direction of the guard house in close observation. He believed something was wrong and walked over to the guard house to check. He went and saw the defendant was with the black handbag which was on the ground. He asked who owned the bag and the defendant responded he didn’t know who owned the bag. The guard asked the defendant to carry the bag to the check point to be searched which the defendant did. The defendant was ordered to put the bag down and after getting permission from the police sergeant and in the presence of the policemen and another guard the witness opened the bag and took out the parcels of marijuana.

ANALYSING THE EVIDENCE

20. The evidence given by the security guard differs in some aspect to that of the police constable. For instance the witness stated he actually walked over to the guard house where the defendant was and asked him to take the bag to the check point. He said he was the one who unzipped the bag and took out the parcels of marijuana and not the policeman. The security guards evidence in respect of the above is similar to that of the defendant’s explanation.

21. It is not clear from the policeman’s story how long after defendant boarded the vessel and later disembarked with the bag. It has also not been established whether the defendant
disembarked same time when all the passengers were getting off the vessel and when the unloading of cargoes was taking place.

22. It has also not been established how far away from the point the passengers were disembarking with their cargoes the policeman stood and observed. From his evidence it seems he was standing close to the main exit gate close to the passenger terminal and that would be approximately 100 or so meters away from the ship and where the passengers were off loading.

23. At that distance and with all the disembarking and unloading activity going on I doubt the police constable would have easily spotted the defendant getting off the vessel with the hand bag amongst the crowd of disembarking passengers. It would have been much easier to spot the defendant if the wharf area was not so crowded and free from much activity and if there had been a tip off earlier and the police were put on alert on the defendant and all his movements at that material time was being monitored closely.

24. The above assessment of the prosecutions evidence is being done in consideration of evidence that has been introduced by the defence which I have no reason to disbelieve.

25. For argument sake one may ask then what about the fact that, that particular passenger defendant was assisting did not come forward to get his bag. What about the fact that the defendant was seen bypassing the check point and attempting to pass the bag over the fence to another guard standing outside. These are evidence sufficient for the court to draw inference from and conclude that the defendant at all material time was aware of the existence of the drugs and he was aiding to convey them without being detected.

26. Well, the court has this explanation. The owner of the bag did not come forward to collect the bag simply because he became aware of the presence of the police constable and the security guard. His bag was being searched. So the obvious thing for him to do is to evade apprehension and refrain from collecting his bag. There is no evidence to suggest also that the bag with its contents belonged to the defendant. Secondly, the policeman should have acted on the spot when he sighted the defendant trying to pass the bag over the fence. Obviously that action would have created suspicion for the policeman to make immediate inquiry. Why wait. Furthermore, the defendant was aware of the presence of the police constable. As the wharf employee he knew all the passengers and bags will go through search procedures before leaving the wharf area. He would have decided against dealing with the bag with the drugs or abandoned it from being caught.

CONCLUSION

27. Now back to the question posed earlier: What convincing evidence is there that the defendant was in possession of the drugs?

28. I hold that prosecutions evidence is not convincing enough to the standard required particularly taking into account the matters I have raised in my discussions. When there is any single doubt the law requires that the court must acquit the defendant of the charge.

29. Accordingly, I must dismiss the charge against the defendant and order that his cash bail be refunded to him. The bag and the drugs are to be destroyed.

Sergeant Willie Ramiaul for the State
Defendant on his own behalf