Police v Sanfungalim [2011] PGDC 36; DC2025 (18 May 2011)

DC2025

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

DCR 294&295/2011

BETWEEN

POLICE
Informant

AND

MATHEW SANFUNGALIM & FREDDY KALI
Defendant

Madang: J. Kaumi
2011: 18th March, 21stApril, 10th 18th May

RULING ON WHETHER DEFENDENTS HAVE CASE TO ANSWER
CRIMINAL LAW-Summary offence-Dangerous Drugs Act Chapter 228, Part II, Control of Dangerous Drugs – Section 3 (1) (d)- Offence of Knowingly in Possession of Dangerous Drugs- Trial- Elements of Knowingly in Possession of Dangerous Drugs discussed

CRIMINAL LAW-Practise and Procedure-Question whether Unrepresented co-defendants have case to answer-Discussion of Relevant principles applicable-Question of law for Judge/magistrate as a tribunal of law

CRIMINAL LAW-Practise and Procedure-Rule in Rape's case-First limb-Whether there is some evidence of essential elements of the offence, if accepted, would either prove the element directly or enable it's existence to be inferred-Second limb-Although there is a case to answer, does the state of evidence provide sufficient basis of which the court ought to convict the defendant-Answering the questions posed by both limbs of Rape's case by application to each of the co-defendants

Two men pleaded not guilty to being knowingly in possession of dangerous drugs and a trial was held to determine whether or not the defence they raised was made out.

Held:
1.The principle applicable to a No case To Answer submission is well settled in this country as enunciated in the landmark case of The State v Paul Kundi Rape by O'Leary AJ;

2. First limb-is there some evidence with respect to every essential element of the offence which, if accepted, would either prove the element directly or enable its existence to be inferred?

3. This is a question of law which must be distinguished from the question of fact to be asked at the close of all of the evidence namely whether the prosecution has proved its case beyond reasonable doubt.

4. Second limb-although there is a case to answer, does the state of evidence provide sufficient basis for which the court ought to convict the defendant?

5. It must be a very clear case, where the State evidence is so dubious, or so tainted, or so obviously lacking in weight or reliability or has been so discredited in cross-examination, it is clear that no reliable tribunal could safely convict on it. The State v Roka Pep No.2 [1983] PNGLR 287, Pratt.J

6. This must be because where there is a case of insufficiency of evidence, an accused may still as a matter of law be called upon to answer it, but that there is a discretion in the judge either to withdraw the case from the jury or not. The State v Roka Pep No.2 [1983] PNGLR 287, Kaputin.J

Cases Cited

The State v Paul Kundi Rape [1976] PNGLR 96 (17 March 1976) O'Leary.AJ
The State v Roka Pep No.2 [1983] PNGLR 287 Kidu CJ, Kapi DCJ, Pratt.J and Kaputin.J
Joshua Yaip Avini and Plaridel Nony Acosta v The State [1997] PNGLR 212, Kapi DCJ, Los.J and Salika.
The State v Taurava Avaka (2000) N2024, Gavara-Nanu J;
The State v Henry Osare Kales (2001) N2115,Kirriwom.J;
The State v Tom Kakawi and Others (2002) N2229,Lenalia.J,
The State v Micheal Herman and Albert Paul (2003) N2475,Lenalia.J;
The Sate v Tolly Amindi (2004) N2683, Kandakasi.J,
State v Sange (1) [2005] N2805 (16 February 2005) Cannings.J

Legislation

Dangerous Drugs Act, Chapter 228

Abbreviations

The following abbreviations appear in the judgment
AJ Acting Justice
CJ Chief Justice
CHT Chapter
CONST Constable
COURT District Court
DCA Department of Civil Aviation
DCJ Deputy Chief Justice
F/C First Constable
J Justice
M Magistrate
N National Court
No Number
PNGLR.........Papua New Guinea Law Reports
S Section
V..................Versus
& And

TABLES

The following tables appear in the judgment.

1. WITNESSES CALLED BY THE POLICE
2. EXHIBITS

Trial

This was the trial of two co-defendants charged with being knowingly in possession of dangerous drugs.

Counsel

Police Woman Constable First Constable Doreen Able, for the Police
Defendants in person.

INTRODUCTION

1. Kaumi. M: This is a ruling after Police Prosecution closed its case in a trial of two men who pleaded not guilty to the charge of being knowingly in possession of dangerous drugs, cannabis sativa, contrary to s.3 (1) (d) of the Dangerous Drug Act, Cht 228 and raised the defence of total denial specifically that the said dangerous drugs were not in their possession when the Police discovered them. A trial was held to determine whether or not this raised defence was made out. For the want of a suitable precedent in our jurisdiction I adopt only parts of the style of outline used by Cannings.J in State v Sange ^[1] on a No case to answer submission which I consider to be precise and helpful in our jurisdiction.

BACKGROUND

2. The incident giving rise to the charge took place along the Independence Drive in Madang Town, in March 2011.The allegation in the following information:

"Mathew Sanfungalim, 20 years of age of Kambot village, Angoram, East Sepik Province and Freddy Kali, 18 years of age also of Kambot village stand charged that they.......on the 15th day of March 2011, along the Independence Drive in Madang Town had each and severally in their possession 760 grams of compressed packs of a dangerous drug, to wit, Cannabis".

3. The information was contrary to section 3 (1) (d) of the Dangerous Drug Act.

4. On 18th March 201 the defendants were arraigned and both pleaded not and adjourned to 21/04/11 for trial by Sareng.M. In April 2011 I was allocated the criminal track for drugs and on the 21/04/11 the file for this matter given to me by the registry for deliberation. Upon perusal of the file it became apparent to me that the requisite pre-trial conference had not been conducted by the arraigning magistrate on the 18/03/11 so I arraigned the co-defendants again and upon the maintenance of their respective pleas not guilty immediately conducted a pre-trial conference.

5. The Pre-Trial Conference produced these defining points:-

(i). Issue-The two co-defendants raised the defence of total denial, specifically that the drugs were not taken from their possession but 10 meters away from them;

(ii). Witnesses-The defendants to call no witnesses but give to evidence themselves in their defence; Police to call two witnesses, First Constable Giaut the arresting officer and Constable Jakeas Jevelin;

(iii). Duration- Trial was estimated to run for half a day;

(iv). Date of Trial-10th May 2011 at 9:00am;

(v). No other preliminaries were raised by either Police or the defendants;

(vi). Bail-Defendants did not make any applications for bail and as a result were remanded in custody to await trial.

6. On the 10th May 2011 the trial did not proceed as due to Police witnesses being advised to leave due to the defendants' file not prepared and furnished to court and trial further adjourned to 18th May 2011.

7. The joint trial of the two co-defendants commenced on 18 May 2011. They were arraigned and each pleaded not guilty. The prosecution called evidence in form of its two witnesses who gave sworn testimonies in the pidgin language.

8. The two co-defendants were present throughout the trial.

EVIDENCE-The Police Prosecution Case

9. The prosecution evidence consisted of two witnesses and one exhibit.

10. Table 1 lists and describes the Police witnesses in the order that they were called and indicates the days and dates of the trial on which they gave evidence.

TABLE 1 WITNESSES CALLED BY THE POLICE
NO NAME DESCRIPTION DAY DATE 2009

1. Zebedee Tekis Policeman 1 18/05/11

2. Mathew Giaut.........Arresting Officer 1 18/05/11

11. The first witness for the prosecution was Constable Tekis. In examination – in chief, he stated that he was attached to the Dog Unit in Madang for six years.

12. On Tuesday 15th 2011 he was with First Constable Giaut on a motorized patrol to the airport and as they were driving past the entrance gate to the James Barnes Complex they passed a youth walking along the road and as they continued their patrol towards to the airport they saw three persons standing on the left hand side of the road to the airport.

13. He said they looked suspicious to him so he told F/C Giaut and they turned around at the airport and drove back to the location where the three persons were standing and stopped there and F/C Giaut called out to the one carrying a bag to come over to the side where they parked.

14. This person walked towards the drivers side then walked to the front of the vehicle.

15. When this person saw him opening his door to get out of the car he threw the bag he was carrying down and ran into the settlement and so the witness chased him but was not able to catch him so he returned to the vehicle.

16. Back at the vehicle F/C Giaut told him that he found a quantity of cannabis in the bag that the man had dropped.

17. So they called the three youths that were there and put them in the vehicle and took them to the Jomba Police Station.

18. At the Police Station they took the four compressed parcels of cannabis wrapped in newspaper out of the bag and asked the three youths about these drugs but they said they did not know anything about them. They asked the three youths again about the said drugs and the three youths said the person who had run away had come and slept with them and that he wanted to come to town and they had come with him to the road but that they did not know anything about the drugs.

19. So the witness and F/C Giaut released the youth they had first passed and continued to ask the two defendants about the drugs and they maintained that they had wanted to come to town and when they searched the defendants they discovered no money in their possession and as a result the defendants were arrested.

20. That the two defendants and the person who escaped were standing together with two bags lying close to each other and when F/C Giaut called the person over the two defendants remaining standing there.

21. The witness identified the four parcels of marijuana wrapped in newspaper and they were tendered and marked as Exhibit A.

22. In cross-examination, the witness said the defendants had told them that they did not know this person but that he had slept with them.

23. The witness said that he and F/C Giaut found the drugs in the bag that had been dropped by the person who had escaped and that's why the co-defendants were arrested because this person had been standing close to them.

24. There was no re-examination and that ended Const Tekis's evidence.

25. The second witness for the prosecution was First Constable Mathew Giaut who was attached to the Dog Unit for 12 years and that he recognized the two defendants in court as the persons they had picked up on the road near the DCA settlement on 15/03/11.

26. On Tuesday 15th March 2011 at 1:30pm, he and Const Tekis were on a motorized patrol with him driving and Tekis as offside to the airport along the Independence Drive when Const Tekis spotted these two defendants and another person standing near the Yaul camp and told him that because the three looked suspicious they should stop but because they had already driven past they turned around at the airport and came back and stopped opposite them.

27. The witness called over to a person who standing with the two co-defendants to come to him but instead he walked to the front of the vehicle so he instructed Const Tekis to meet the suspect and as Tekis was opening his door the suspect dropped a blue travelers bag and ran into the Yaol camp and he gave chase but was unable to catch him.

28. So the witness checked the bag and found four compressed parcels of cannabis in it and that it was because of this reason that this person had run off and so he believed that the two defendants had knowledge of these drugs so he put them into vehicle and took them to Jomba Police Station where he cautioned and arrested the defendants for knowingly being in possession of dangerous drugs.

29. The witness took the four parcels of cannabis to the Drug Squad Office where they were weighed and found to be 760 grams then he prepared the information pertaining to the defendants' arrests and gave it to the Police Prosecutors Office.

30. The witness said he did not see the reaction of the two defendants when he called the person over as he was concentrating on him however that when they had passed them initially the three of them were laughing loudly.

31. The witness questioned the defendants and they told him that they were standing with this other person because they wanted to go to town and that he searched them and found only K0.70t in Sanfungalim's pocket.

32. That the defendants did not know this person who had come out from the Yaol camp to wait for a bus and the witness identified the four parcels of compressed marijuana.

33. In cross-examination, the witness said that he did not find the drugs on the possession of the defendants but because the person who dropped them was standing with them had ran away he arrested them.

34. The witness stated that because he did not reside with the defendants he would not know if they were relatives or not but they were standing together and that from his experience when he apprehended a person who had drugs in his possession those standing with him would know about the drugs and that it was a matter for them to explain themselves in court.

35. There was no re-examination and that ended First Constable Giaut's evidence and the police case was closed.

TABLE 2 – SUMMARY OF EXIHIBITS
Exhibit Witness Description of evidence
A Const Tekis Four parcels of marijuana wrapped in newspaper

ISSUES

(i). Principles in Rape's case

36. The principle applicable to a No case To Answer submission is well settled in this country as enunciated in the landmark case of The State v Paul Kundi Rape by O'Leary AJ ^[2] and therefore I will only reaffirm, restate and apply them with only cursory discussion as follows:-

1. First limb-is there some evidence with respect to every essential element of the offence which, if accepted, would either prove the element directly or enable its existence to be inferred? This is a question of law which must be distinguished from the question of fact to be asked at the close of all of the evidence namely whether the prosecution has proved its case beyond reasonable doubt.
   

37. If the answer to the question asked in the first limb is in the Negative because the Prosecution has failed to adduce evidence in support of one element of the offence charged so there is no case for the defendant to answer then as a matter of law the defendant must be acquitted. If the answer is in the affirmative then the question posed by the second limb should be addressed.

2. Second limb-although there is a case to answer, does the state of evidence provide sufficient basis for which the court ought to convict the defendant?
   

38. I highlight this limb by referral to comments by a subsequent National Court in Roka Pep v The State No.2 ^[3] Pratt.J

"... it must be a very clear case, where the State evidence is so dubious, or so tainted, or so obviously lacking in weight or reliability or has been so discredited in cross-examination, it is clear that no reliable tribunal could safely convict on it."

I repeat however that in my view this does not introduce any test "beyond reasonable doubt". What this test does establish is that the evidence is so obviously worthless that it may be regarded almost as no evidence at all".

and Kaputin.J

"This must be because where there is a case of insufficiency of evidence, an accused may still as a matter of law be called upon to answer it, but that there is a discretion in the judge either to withdraw the case from the jury or not".

39. If the answer to the question posed by the second limb is in the Negative, there is discretion in the court either not to call the defendant to answer the prosecution and acquit him/her or call upon the defendant to answer to the prosecution case. If the answer is in the affirmative then the trial must proceed.

40. These principles enunciated in the Rape case were confirmed by the Supreme Court in The State v Roka Pep (No.2) ^[4], Kidu CJ, Kapi DCJ, Pratt.J and Kaputin.J and Joshua Yaip Avini and Plaridel Nony Acosta v The State ^[5], Kapi DCJ, Los.J and Salika.

41. Since the confirmations by the Supreme Court of these principles the National Court has affirmed, restated and subsequently applied them in The State v Taurava Avaka ^[6], Gavara-Nanu J; The State v Henry Osare Kales ^[7],Kirriwom.J; The State v Tom Kakawi and Others ^[8],Lenalia.J; The State v Micheal Herman and Albert Paul ^[9],Lenalia.J; The Sate v Tolly Amindi ^[10], Kandakasi.J, just to name a few cases.

42. Cannings.J stated in State v Sange ^[11] on a No case to answer submission,

"Strictly speaking it is only the first limb of Rape's case that gives rise to a no case submission. However, it has become the norm to refer to and rely on both limbs when a no case submission is made (see Roka Pep (No 2) per Kidu CJ)".

(ii). Relevant Law: The Elements of the Offence

DANGEROUS DRUGS ACT 1952 CHAPTER 228

Section 3. PRODUCTION, ETC; OF DANGEROUS DRUGS

(1) A person who knowingly-

(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.

(iii).Discussion of the elements of the Offence/What elements must be proved?

43. The defendants have been charged with knowingly being in possession of a dangerous drug and the prosecution must prove beyond reasonable doubt that –

(i). a person;

(ii). knowingly;

(iii). is in possession of or conveys;

(iv). a dangerous drug or a plant or part of a plant from which a dangerous drug can be made.

APPLICATION OF RAPE'S PRINCIPLES

44. In applying the principles of Rape's case ^[12] to each of the defendants the following approach will be taken:-

(a). I will set out the evidence that has been adduced in court by Prosecution with respect to each defendant with the assumption that it is true;

(b). I will consider whether there is some evidence of each of the elements which if accepted would either prove the existence of the elements or enable its existence to be inferred. If the answer to this question is in the affirmative then the defendants have a case to answer and the second limb of Rape's case will be addressed. However if the answer is in the negative because the Prosecution has failed to adduce evidence in support of one element of the offence charged so there is no case for the defendant to answer then as a matter of law the defendant must be acquitted and there will be no need to address the second limb of Rape's case.

(c) If the answer to the question posed by the second limb is in the negative there is discretion in the court either not to call the defendant to answer the prosecution and acquit him/her or call upon the defendant to answer to the prosecution case .Issues of whether the evidence is contradictory or unreliable may be addressed here..

A. Mathew Sanfungalim-Evidence

45. Both F/C Giaut and Const Tekis state Mathew Sanfungalim was standing with the person who was carrying the blue bag containing the dangerous drugs on the afternoon of 15th March 2011.

46. When they both questioned Mathew at the Jomba Police Station about the drugs he denied any knowledge of them.

47. Is there some evidence of all the elements of the offence of knowingly being in possession of dangerous drugs that would support his conviction? There is clearly evidence of the fourth element, ie: (iv). a dangerous drug or a plant or part of a plant from which a dangerous drug can be made.

48. The evidence is clear that the four parcels of compressed cannabis that have been tendered as Exhibit A were in a blue travellers bag.

49. I now consider whether there is any evidence of the remaining elements and I ask myself, is there evidence that Mathew Sanfungalim was knowingly in possession of the four parcels of compressed cannabis that have been tendered as Exhibit A were in the blue bag?

50. I find that the evidence adduced by prosecution to court show that:-

(i). a person-Mathew Sanfungalim was not the person;

(ii). knowingly-who knowingly

(iii). is in possession of or conveys-had in his possession

(iv). a dangerous drug or a plant or part of a plant from which a dangerous drug can be made.

51. Mathew Sanfungalim was standing at the side of the road near the Yaol camp at the DCA settlement with a person who was carrying a blue traveler's bag waiting for a bus to go into Madang Town. This is all the evidence and it would neither prove the elements directly nor enable their existence to be inferred that the drugs were his.

52. In relation to Mathew Sanfungalim I find that there is no evidence on all of elements of the offence of knowingly being in possession of dangerous drugs. Having answered the question posed by the first limb of Rape's case in relation to Mathew Sanfungalim in the negative this means that he has no case to answer and as a matter of law must be acquitted. Therefore there is no need to address the question posed by the second limb of the Rape case.

B. Freddy Kali-Evidence

53. Both F/C Giaut and Const Tekis state Freddy Kali was standing with the person who was carrying the blue bag containing the dangerous drugs on the afternoon of 15th March 2011.
When they both questioned Freddy at the Jomba Police Station about the drugs he denied any knowledge of them.

54. Is there some evidence of all the elements of the offence of knowingly being in possession of dangerous drugs that would support his conviction? There is clearly evidence of the fourth element i.e. (iv). a dangerous drug or a plant or part of a plant from which a dangerous drug can be made.

55. The evidence is clear that the four parcels of compressed cannabis that have been tendered as Exhibit A were in a blue traveler's bag.

56. I now consider whether there is any evidence of the remaining elements and I ask myself, is there evidence that Freddy Kali was knowingly in possession of the four parcels of compressed cannabis that have been tendered as Exhibit A were in the blue bag?

57. I find that the evidence adduced by prosecution to court shows that:-

(i). a person-Freddy Kali was not the person;

(ii). knowingly-who knowingly

(iii). is in possession of or conveys-had in his possession

(iv). a dangerous drug or a plant or part of a plant from which a dangerous drug can be made.

58. Freddy Kali was standing with Mathew Sanfungalim at the side of the road waiting for a bus to go into Madang Town near the Yaol camp at the DCA settlement with a person who was carrying a blue traveler's bag which contained the dangerous drugs in issue. That is all and this evidence would neither prove the elements directly nor enable their existence to be inferred that the drugs were his.

59. In relation to Freddy Kali I find that there is no evidence on all of elements of the offence of knowingly being in possession of dangerous drugs. Having answered the question posed by first limb of Rape's case in relation to Freddy Kali in the negative this means that he has no case to answer and as a matter of law must be acquitted. Therefore there is no need to address the question posed by the second limb of the Rape case.

CONCLUSION

60. There is no evidence adduced to this court that either of the two co-defendants knowingly had in their possession four parcels of compressed marijuana. I therefore rule that the co-defendants do not have a case to answer and acquit them accordingly.

Police Prosecution for the State
Defendant in Person

1. [2005] N2805 (16 February 2005) Cannings.J
2. [1976] PNGLR 96 (17 March 1976) O'Leary AJ
3. [1983] PNGLR 287 Kidu CJ, Kapi DCJ, Pratt.J and Kaputin.J
4. Supra Note 3
5. [1997] PNGLR 212, Kapi DCJ, Los.J and Salika.
6. (2000) N2024, Gavara-Nanu J;
7. (2001) N2115,Kirriwom.J;
8. (2002) N2229,Lenalia.J,
9. (2003) N2475,Lenalia.J;
10. (2004) N2683, Kandakasi.J,
11. Supra Note 1
12. Supra Note 2

---

^[1] [2005] N2805 (16 February 2005) Cannings.J

^[2] [1976] PNGLR 96 (17 March 1976) O'Leary AJ

^[3] [1983] PNGLR 287 Kidu CJ, Kapi DCJ, Pratt.J and Kaputin.J

^[4] Supra Note 3

^[5] [1997] PNGLR 212, Kapi DCJ, Los.J and Salika

^[6] (2000) N2024, Gavara-Nanu J

^[7] (2001) N2115,Kirriwom.J

^[8] (2002) N2229,Lenalia.J

^[9] (2003) N2475,Lenalia.J

^[10] (2004) N2683, Kandakasi.J

^[11] Supra Note 1

^[12] . Supra Note 1