Tapal v Donald [2010] PGDC 30; DC1043 (30 July 2010)

DC1043

PAPUA NEW GUINEA
[In the District Court of Justice sitting in its Criminal Jurisdiction]

CR No 306 of 2010

BETWEEN

VINCENT TAPAL
Informant

AND

LESTA DONALD
Defendant

LIHIR: B. TASIKUL
30th July 2010

CRIMINAL LAW: Allegation of defendant had in his possession of dangerous drugs namely marijuana-Police went to where defendant alleged to be living and search the room where a bag was found to contain marijuana- defendant pleaded not guilty-hearsay evidence no connection of the bag to defendant as the owner.

CASES CITED: Nil

REFERENCE:
Dangerous Drugs Act s. 3(1) (d)

APPEARING FOR THE PROSCUTION: Senior Constable Tananga
APPEARING FOR THE DEFENDANT: In Person

REASON FOR DECISION

1. BTASIKUL: The defendant,Lesta Donald, is charged that on the 02nd day of July 2010 at Lihir did had in his possession 39 coin plastic and 150 rolls of marijuana without authorization as specified under the schedule of the Dangerous Drug Act, an offence under s.3(1) (d) of the Dangerous Drug Act.
   

The defendant pleaded not guilty.

JURISDICTION

2. Pursuant to s.20 (1) (a) of the District Court Act this court has the jurisdiction to hear and determined this charge summarily.
   

ONUS OF PROOF

3. The prosecution has the burden of proving the charge beyond reasonable doubt.
   

SUMMARY OF THE MATTER BEFORE THE COURT

4. It is alleged that around 11 am the defendant was with his friend (who has been convicted on similar charge) at Lihir main market. While they were in the market police have been monitoring their movement. After a while police went to the market and brought them to the police station. They were search at the station and drugs were found in his friend's bilum. A search was also conducted on the defendant a roll of marijuana was also found in his bilum.
   

After interrogating the defendants they deny knowledge about the drugs. However, from reliable information police proceed to where the defendant was staying. Along the way police met his aunty on the road, where she was asked to go with them to their house. At the house they question the aunty about the defendant and she shows them the room the defendant was living in.

The aunty was asked to identify the defendant's bag and she brought it to the police and a search was conducted where the drugs were found inside the bag.

5. ISSUES NOT IN DISPUTE
   

The only issue that is not in dispute is that he was with his friend at the market on that date and time as alleged by the police, and they were taken to the police station where they were search.

6. THE ISSUES IN DISPUTE
   

The defendant however, denies having a roll of marijuana in his bilum. He further denies living with her aunty at Potslaka. He also denies owning the black Anitua bag that was taken from his aunty house. The defendant also contended that he was assaulted and forces to admit to owning the bag and drugs.

7. The prosecution however, called two witnesses namely Robert John and Vincent Tapal, both are police officers.
   

Evidence of Robert John

In summary the witness testified that he was monitoring the defendant while he was in the market as he looks suspicious. He approached him and brought him to the police station. He conducted a search on the defendant and he found a small roll of marijuana in his bilum.
He was then placed in the cell awaiting further investigation.

He further told the court that, through their own investigation they received information that the defendant was staying at Potslakat with his aunty. He then proceeds to Potslakat and along the way they met the aunty on the road. She was then told to go back with them to their house.

At the house the aunty was question and she told them that the defendant was staying with her, and she showed them the room he was living. She also showed them his bag. The bag was open and search in front of the aunty and the 39 coin and 150 rolls of marijuana were found in it. The bag was brought to the station, where the defendant was showed the bag and was question about it.

Evidence of Vincent Tapal

This witness told the court the same thing as he was with the first witness. After interrogating the defendant at the station he admitted to owning the bag. He was then arrested charged.

Defendant evidences.

The defendant on the other hand testified that he just came from Rabaul two days ago. He contended that he never brought any bag with him from Rabaul. When the police search his bilum at the station he was surprised to learn that there was a roll of marijuana in his bilum.

He further testified that at the police station he was assaulted and forces to admit to having the drugs in his bilum. He was also surprised when a black bag was shown to him and was forced to admit to owning it.

8. FINDING OF FACTS
   

I have had the benefit of listening to, and observing, each witness during examination in chief and cross-examination. I have found that the two prosecution witness evidence to be convincing and supportive. However, I find that they are covering the truth about the allegation of assault against the defendant. If they did not assault the defendant, then other members probably assaulted him.

On the other hand I find the defendant is not telling the truth, the only truth is that he was assaulted by the police. I say this basically because, he mentioned this several times in court and also during cross examination, which off course was denies by the police witness. Because the defendant was not represented by a lawyer the court has a duty uphold and protect citizen's constitutional rights. I say this because the defendant has raise some issues regarding violation of his rights which I will further discuss.

9. APPLICABLE LAWS

The law in respect to drugs is specified under s.3 of the Dangerous Drug Act which states:

PRODUCTION, ETC., OF DANGEROUS DRUGS

(1) A person who knowingly–

(a) cultivates a plant from which a dangerous drug can be made; or

(b) makes a dangerous drug; or

(c) exports a dangerous drug; or

(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 by or under some other Act

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

(2) An offence against Subsection (1) is punishable on summary conviction.

10. Before discussing the elements of this charge I wish to first address the preliminary issues that have been raise in relation to violation of certain laws. According to the prosecution evidence the bag in issue was found in a room where it is alleged that the defendant was living at that time. The house is owned by the defendant's aunty.
    
11. When the aunty brought out the bag from the room she told the police that the bag belongs to the defendant. This piece of evidence however, to me is hearsay and I will not admit it as part of the prosecution evidence. With the omission of this piece of evidence there is no evidence to connect the bag to the defendant. The owner of the house is the very important witness of the prosecution but she has never been called to give evidence.
    
12. Because of this circumstance there is no proof by the prosecution that the defendant is the owner of the black bag which contains the marijuana that was found inside it. Because of that I will not further touch on to other issues as the prosecution has failed to prove beyond reasonable doubt.
    
13. I therefore found the defendant not guilty. I ordered the defendant be discharged from custody forthwith if he has no other charges pending against him. The drugs confiscated by police are destroyed as they are illegal while the money confiscated is return to the defendant.