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Papua New Guinea District Court |
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL (SUMMARY) JURISDICTION]
DCR 468/2011
BETWEEN
POLICE
Informant
AND
GABRIEL MEMSON No.1
Defendant
Madang: J. Kaumi
2011: 4th May 9th 17th 21st June 1st 8th July
VERDICT
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- Marijuana-Trial- Elements of Offence-“Knowingly” in“ Possession” of Dangerous Drugs discussed
CRIMINAL LAW-Defence of Total Denial-issue for trial-Section 3(1)(d)-Defence of “Knowingly”-“Possession”-Sufficiency of evidence of knowledge-Dangerous Drug Act 1952.
EVIDENCE -Cross-examination – Whether failure by defendant to cross-examine on case which he relies on vitiates his defence-Rule in Brown v Dunn – Whether this failure bounds the Court to accept prosecution’s uncontradicted evidence- The flexibility and variance of the Brown v Dunn rule discussed – Principle of fairness applied.
A man pleaded not guilty to being knowingly in possession of dangerous drugs and a trial was held to determine whether or not the defence of lack of knowledge he raised was made out.
Held:
(1). The element of knowledge is the mental element of the offence and Police must prove ‘guilty knowledge’. Conversely,
could the defendant be regarded as an innocent custodian for reasons of genuine ignorance on his part? Schliebs v Singh [1981] PNGLR 364 Miles. J
(2). It is desirable in the interests of consistency and coherence that the word “possession” in s.7 have the same meaning as in the Criminal Code, namely, as including de facto possession (physical custody and control) and constructive possession (exercised through the immediate custody of another person). Schliebs v Singh [1981] PNGLR 364 Miles. J
(3). A person can only be “knowingly” in possession of a dangerous drug if there is sufficient evidence of knowledge of the presence of drug to supply the necessary mental element to prove possession. Schliebs v Singh [1981] PNGLR 364 Miles. J
(4). Possession of something means de facto Possession i.e. physical custody and control or constructive possession exercised through the immediate custody of another person. Wassey v Police [2005]N2922 (27 October 2005) Cannings.J
(5). The <rule in Browne v Dunn> (which requires the accused’s principal defences to be put to the prosecution witnesses in cross-examination) requires that the gist of the proposed defence be put to the State witnesses; not that every detail be put to them. Kitawal v State [2007] SC927 (22 February 2007) Jalina J, Mogish J, Cannings J
(6). The requirements of the <rule in Browne v Dunn> vary according to the circumstances of the case and will be lessened if, in fact, prior notice of the defences or the accused’s version of events has been given to the State in some other form, eg in a record of interview that has been admitted into evidence. Kitawal v State [2007] SC927 (22 February 2007) Jalina J, Mogish J, Cannings J
(7). A defence counsel’s failure to adhere to the <rule in Browne v Dunn> does not necessarily result in the conclusion that all defences are a recent invention, unreliable and should be rejected. Kitawal v State [2007] SC927 (22 February 2007) Jalina J, Mogish J, Cannings J
(8). In order for a party’s to be considered credible, the party must have put its case to the other’s witnesses by way of cross-examination. The State v Kevin Anis (2003) N2360 Kandakasi J
(9). If a counsel intends to submit that a witness has lied, the counsel must have put it directly to the witness that he or she has lied so as to give the witness the opportunity to explain. The State v Pennias Mokei (No.1) (2004) N2606 Justice Cannings
CASES CITED
Shaw vs. the Commonwealth of Australia [1963] PNGLR 119
SCR No 1 of 1980: Re s.22A (b) of the Police Offences Act (Papua) Greville Smith J
Schliebs v Singh [1981] PNGLR 364
Supreme court Ref. No.4 of 1980 (No 2) [1982] PNGLR 65
Sidi Adevu v MVIT [1994] PNGLR 57, Kapi DCJ, Andrew J, Sakora J
Haiveta v Wingti (No.1) [1994] PNGLR 160 Sheehan J
Garitau Bonu and Rosana Bonu v The State (1997) SC528
State v Edward Toude, Walter Yogana, Tana Barinda and John Taylor Anani (16/10/01) N2298.
Bank of Hawaii (PNG) Limited vs. Papua New Guinea Banking Corporation + others [2001] N2095
In the matter of Andrew Kumbakor[2003] N2383
The State v Kevin Anis (2003) N2360 Kandakasi J
Igiseng Investment Ltd v Star West Const [2003] N2498
The State v Pennias Mokei (No.1) (2004) N2606
Wassey v Police [2005] N2922 (27 October 2005) Cannings.J
Balbal v State [2007] Sup. Ct
Kitawal v State [2007] SC927 (22 February 2007) Jalina J, Mogish J, Cannings J
Kolta Development Pty Ltd + others vs. The State + Ors N1470
OVERSEAS CASES CITED
Brown v Dunn [1893] 6R 67(HL)
R v Byczko (No 2) (1977) 17 SASR 460)
Legislation
Summary Offences Act, Chapter 264
Reference
Concise Oxford English Dictionary, Oxford University Press, 2004
Abbreviations
The following abbreviations appear in the judgment
GBB Good Behaviour Bond
J Justice
LTD Limited
M Magistrate
N National
NGO Non Government Organization
ORS Others
PICD People In Community Development
PNGLR Papua New Guinea Law Reports
SCR Supreme Court Reference
S Section
ST State
S C, SUP CT Supreme Court
UPD United Pacific Drillers
V Versus
TABLES
The following tables appear in the judgment.
1. WITNESSES CALLED BY THE POLICE
2. WITNESSES CALLED BY THE DEFENDANTS
Trial
This was the trial of a defendant charged with knowingly in possession of a dangerous drug, marijuana.
Counsel
Police Woman Constable First Constable Doreen Able, for the Police
Defendant in person.
INTRODUCTION
1. Kaumi M: This is a decision on verdict of a man who pleaded not guilty to the charge of knowingly in possession of a dangerous drug, marijuana contrary to section.3 (1) (d) of the Dangerous Drug Act. A trial was held to determine whether or not the defence he raised was made out.
BACKGROUND
(Brief Facts)
2. The incident giving rise to the charge took place at Mildas market in Madang Town, in April 2011. The allegation is that the defendant
knowingly had in his possession dangerous drugs faced the following information:
“Gabriel Memson,28 years of age of Kambot village, Angoram, East Sepik Province stands charged that he.......on the 29th day of April 2011 at the Mildas Market, in Madang Knowingly had in his possession a dangerous drug, namely (cannabis) marijuana without authorization under the schedule of the Dangerous Drug Act or regulation there under”.
The information was contrary to section 3(1)(d) of the Dangerous Drug Act.
3. I arraigned the defendant and he pleaded not guilty and so I entered a plea of not guilty and immediately conducted a pre-trial conference.
4. The Pre-Trial Conference produced these defining points:-
(i). Issue-The defendant raised a defence of total denial, specifically that he had no knowledge of the drug being in the bag it was found in and which he was carrying as it belonged to a cousin of his;
(ii). Witnesses-The defendant to call one witness to corroborate the evidence he would give in his defence; Police to call one witness, Senior Constable Nelson Mape the arresting officer;
(iii). Duration- Trial was estimated to run for half a day;
(iv). Date of Trial-9th June 2011 at 9:00am;
(v). No other preliminaries were raised by either Police or the defendants;
(vi). Bail-The court considered bail as it was within its jurisdiction to do so and noting that the prosecution had no objections to bail being granted and after giving due consideration to the pre requisite considerations under the Bail Act, the court considered the defendant to be an appropriate candidate for bail and granted him K400.00 bail according.
5. On the 9th, 17th, 21st June2011 the trial did not proceed as due to the Police being unable to transport the defendant to court due to transport problems on their part.
6. The trial of the defendant commenced on 1st July 2011. The defendant was again arraigned and he maintained his plea of not guilty. The prosecution called evidence in form of its witness who gave a sworn testimony in the pidgin language.
7. The defendant was present throughout the trial.
EVIDENCE
THE POLICE CASE
8. The Police called one witness to give oral evidence.
9. Table 1 lists and describes the Police witness in the order and indicates the days and dates of the trial on which he gave evidence.
TABLE 1 WITNESSES CALLED BY THE POLICE
NO NAME DESCRIPTION DAY DATE 2011
1. Nelson Mape Arresting Officer 1 1/07/11
10. The first witness for the prosecution was Senior Constable Nelson Mape. In examination – in chief, he stated that he worked as a policeman with Royal Papua New Guinea Constabulary and to date for 20 years and was currently attached to the Dog Unit. That in the course of his employment he had been involved in a lot of drug cases especially in the apprehension of offenders, mostly young men in possession of marijuana leading to their arrests and resultant appearances in court. That he recognized the defendant because he knew him and that his name was Gabriel Memson.
11. On Friday 29th April 2011 at around 7:00am he had locked up two boys from Wagol Settlement in the Jomba Police cell and whilst walking home past the Mildas Market saw five boys sitting there and walked to them and amongst them was the defendant.
12. And when they saw him walking up to them the defendant picked a black bag and moved away from this group and so the witness told him to come back and so he came back and the witness told him to hand over his bag so he could check it and the bag was handed over.
13. The witness opened the bag and he smelt a strong scent of marijuana and checked the contents and found books belonging to the defendant, then he checked a side pocket of the bag and saw marijuana seeds and remains of marijuana leaves and told the defendant of his discovery and told him to sit down whilst he checked the other boys and upon finding them to be clean told them to leave.
14. The witness said that he knew the defendant and that he lived at Wagol settlement and as they walked back to the Police Station asked the defendant who the bag belonged to and he replied that the bag did not belong to him.
15. At the Police Station the witness asked the defendant about the bag again because this was not the first time he had searched the very same bag whilst it was in the possession of the defendant, just a few months earlier he had searched the same bag which the defendant had in his possession near the United Pacific Drillers premises and that was why he strongly believed that the bag belonged to the defendant.
16. That at the Police station the defendant told the witness that he was working with a NGO and that this was the same thing he had told the witness when he had searched him on this earlier on at the UPD premises and that at that time he found books also in the bag belonging to the defendant and was also why he believed that the bag belonged to the defendant and that as a result he arrested him and put him in the cell.
17. That when he came upon the defendant he knew that that he had been smoking marijuana because his eyes were red and his mouth was dry.
18. The witness identified the marijuana seeds and the bits of marijuana leaves when they were shown to him and they were tendered to court and marked as Exhibit “A”.
19. When the exhibits were shown to the defendant he agreed that they were the items discovered in the bag he was carrying at the material time and did not object to their tendering as part of the evidence for the prosecution.
20. The defendant opted not cross-examine the witness and likewise prosecution did not re-examine.
21. The court had one question to ask and this how the witness knew that the books he found in the bag the defendant carrying belonged to the defendant to which he answered he knew that they belonged to the defendant because his name was written on them.
22. Neither the prosecution nor defendant had any questions arising from the courts question and this ended Senior Constable Nelson Mape’s evidence and the prosecution closed its case.
THE DEFENCE CASE
Outline
23. The court ruled that the defendant had a case to answer and explained the three options of giving evidence to the defendant and he elected to give sworn testimony.
Oral Evidence
24. Table 2 lists and describes the defense witness and indicates the days and dates of the trial on which he gave evidence.
Table 2 WITNESSES CALLED BY THE DEFENDANTS
NO NAME DESCRIPTION DAY DATE (2011)
1. Gabriel Memson Defendant 1 1/07/11
25. The first defence witness was the accused who chose to give a sworn testimony in pidgin. In examination – in chief he said he was from Kambot village in the East Sepik Province and was normally resident at Wagol Ficus and was employed by a NGO, PICD.
26. On 29th April 2011 at 7:00am he was on his way to the University Centre to check on a Grade 11 course he was doing and as he was passing the Mildas Market he met some boys whom he worked with and being their leader it was his responsibility to stop and talk to them. Then when he got up to continue on his way to the University Centre the policeman came and checked him and got the evidence in the bag and took him to the Police station and charged.
27. That he had been in custody for two months and was concerned about his education and employment and his small brother and sister whom he was responsible for and asked for the court’s mercy and asked to be placed on Probation or a GBB.
28. The prosecution opted not cross-examine the witness and likewise the defendant did not give any evidence in re-examination.
29. Upon questioning from the court as to the relevance of the defendant’s witness, he replied that this witness would be giving evidence only in relation to where he lived which the court considered would irrelevant to the pertinent issue and did not allow this witness to give evidence.
30. The defendant closed his case.
SUBMISSION BY THE DEFENDANT
31. The defendant did not make any final submission.
SUBMISSION BY THE POLICE
32. The Prosecutor did not make a final submission either but left it to the Court to make a decision on what evidence had been adduced in Court.
ISSUES
THE LAW: ELEMENTS OF THE OFFENCE
33. The defendant has been charged with being knowingly in possession of a dangerous drug under Section 3 (1) (d) of the Dangerous Drug Act 1952 Chapter 228, which states:-
Section 3. PRODUCTION, ETC; OF DANGEROUS DRUGS
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.
DISCUSSION OF ELEMENTS OF THE OFFENCE
34. The defendants have been charged with being knowingly in possession of a dangerous drug and the prosecution must prove beyond reasonable doubt that a person –
(i). knowingly;
(ii). is in possession of or conveys;
(iii).a dangerous drug or a plant or part of a plant from which a dangerous drug can be made;
(iv).is not authorized to do so by or under some other Act.
They are the elements of the offence. They are subject to four things.
35. Firstly, the offence requires the prosecution to prove that the defendant was knowingly... in possession. For the purposes of our discussion assuming a defendant does have possession of a dangerous drug, marijuana the question that highlights this element is: was he knowingly in possession of it?
36. The court is required to consider the defendant’s state of knowledge given the circumstances he was in and determine whether he would have known that the drug was in his possession. In other words the test here is of propriety of the conduct of the defendant, a subjective one.
37. The National Court case of Schliebs v Singh [1] [1981] PNGLR 364 discussed the element of knowledge in an appeal against conviction for an offence contrary to section 7(1) (predecessor of section 3 (1) (d) of Dangerous Drug Act.)1981 and which was relied on in 2005 by the National Court in the case of Wassey v Police [2] [2005] N2922 (27/10/05). It has stood the test of time and considering that it has not been overturned by a higher court since I consider it to be good law.
38. I refer to Cannings.J’s discussion of this element of knowledge in Wassey v Police [3] as follows:-
In Schliebs v Singh Miles J called this the mental element of the offence. Relying on the judgment of the House of Lords in Warner v Metropolitan Police Commissioner [1969] 2 AC 256 his Honour explained that what the police must prove beyond reasonable doubt is ‘guilty knowledge’. Or was it a case of genuine ignorance on the part of the accused person? Could the accused be regarded as an innocent custodian? In Warner, Lord Wilberforce emphasised that the onus of showing innocent custody never rests on the accused. The prosecution must always prove the offence.
39. Secondly, the prosecution must prove that the defendant was knowingly in “possession...” The word “possession” is not defined in the Dangerous Drug Act nor in the Interpretation Act however Section .1 of the Criminal Code defines it as:-
“have in possession” includes having under control in any place, whether for the use or benefit of the person of whom the term is used or of another person, whether or not another person has the actual possession or custody of the thing in question”.
40. In Schliebs v Singh Miles.J [4]held that,” It is desirable in the interests of consistency and coherence that the word “possession” in s.7 have the same meaning as in the Criminal Code, namely, as including de facto possession (physical custody and control) and constructive possession (exercised through the immediate custody of another person)”. Further that “A person can only be “knowingly” in possession of a dangerous drug if there is sufficient evidence of knowledge of the presence of drug to supply the necessary mental element to prove possession.
41.I adopt His Honour Cannings.J in Wassey v Police’s[5] discussion in relation to the element of “possession” in which he defines two types of possession and in the context of the dangerous drugs I consider it helpful in this case:-
“Possession of something means:
• de facto Possession i.e. physical custody and control; or
• constructive possession exercised through the immediate custody of another person.
The notion of de facto possession his Honour referred to ties in with the normal and natural meaning of the word, which when used as a noun means "the state of possession something – visible power or control, as distinct from lawful ownership". (Concise Oxford English Dictionary, Oxford University Press, 2004.)
Which of these states of affairs applied in the case of the appellant? Well, the issue of constructive possession does not arise. Either he had de facto possession or he did not. So did he have custody and control of it or visible power or control over it? A proper determination of this issue requires a full examination of the evidence”.
42. Thirdly, the prosecution must prove that it was a “dangerous drug” which cannabis and cannabis resin or marijuana is specified in the schedule provided for by section one of the Dangerous Drug Act.
43. Lastly, that the defendant was not authorized by or under some other Act to have the dangerous drug in his possession.
44. It is evident that the items discovered in the bag were marijuana and that he was not authorized to have them in his possession so the third and fourth elements have been established. The issues of law that arise in the present case therefore are:-
(a). Did the defendant have the drug in his “possession”? If the answer is yes, the second element is established and then the second question must be addressed. If the answer is no, then the second element of “possession” is not established and the defendant must be acquitted.
(b). Did the defendant “know” he had a dangerous drug in his possession? If the answer is yes, the first element is established and the defendant must be found guilty of knowingly being in possession of a dangerous drug without authority. If the answer is no, he must be found not guilty of knowingly being in possession of marijuana.
ASSESMENT OF EVIDENCE
45. Balbal v State [6] stated the way to receiving and determining whether or not to accept a witness and his testimony is well trodden one. Rules of evidence have much to see and do with the reception and rejection of evidence. Logic and common sense do play an important role in that, or have been noted and applied in many decisions of both this and National Court. This is an addition to any serious inconsistencies that might exist in the testimonies of the witness called by a party which makes any acceptance of the evidence difficult.
46. Igiseng Investment Ltd v Star West Const [7] stated that inconsistencies and illegal accounts indicates lack of credibility
47. In the matter of Andrew Kumbakor [8] it was held that the question of credibility does not arise in relation to the undisputed fact or admitted facts.
48. It is necessary therefore to determine which of their evidence are credible before making a finding of the relevant fact.
49. The following approach will be taken:
(i). I will address the standard of proof...
(ii). The non – contentious facts will be laid out.
(iii). Contentious Material Issues of Fact- I will assess the facts that relate to the credibility of the various witnesses.
(iv). Application of issues of law to the findings and then make a determination of the charge.
STANDARD OF PROOF
50. In any criminal trial the defendants can’t be convicted of an offence simply on the account given that is of suspicion or only a belief on the part of the tribunal of fact (the Court).
51. I t is incumbent on the Court to determine after weighing of all the evidence adduced before it and considered whether there are reasonable grounds for believing that the defendant knowingly had in his possession a dangerous drug and whose evidence is to be believed, whether it is satisfied to the required criminal standard of proof – beyond reasonable doubt – that each element of the offence exists.
52. It is settled law that the State has the onus of establishing the charge against the defendants on the required standard of proof, beyond reasonable doubt. This is particularly pertinent to the essential elements of the offence. The law requires the prosecution in every criminal case to establish each of the elements constituting an offence beyond any reasonable doubt to secure a guilty verdict and conviction. The Supreme Court in SCR No 1 of 1980: Re s.22A (b) of the Police Offences Act (Papua) [9]Greville Smith J made this clear in the terms:
“The general rule is that in criminal case it is for the prosecutor to prove, and to prove beyond reasonable doubt, every element of the alleged offence...The rule applies equally to negative elements as well as, for instance, absence of consent in cases of rape. Accordingly the Crown must prove every fact, whether affirmative, or negative, which forms an indictment of the offence.”
53. The Supreme Court judgment in Garitau Bonu and Rosana Bonu v The State [10]applied the rule that in the assessment of witnesses and or their evidence in any case, logic and common sense usually played a major part. This was also applied in the State v Edward Toude, Walter Yogana, Tana Barinda and John Taylor Anani [11]
NON CONTENTIOUS FACTS
54. The non contentious facts are:-
(a). The defendant Gabriel Memson was carrying a black bag on the 29th April 2011 at 7:00am at the Mildas Market.
(b). That this black bag contained marijuana seeds and leaves in its side pocket.
CONTENTIOUS MATERIAL ISSUES OF FACT
55. There are three contentious material issues of fact as follows:-
(a). Did the black bag containing the marijuana seeds and leaves in its side pocket which the defendant was carrying at the material time belong to his cousin?
(b). Was the defendant the owner of the black bag?
(c). Did the defendant know that there were marijuana seeds and leaves in the side pocket of the black bag he was carrying?
56. So the first contentious material issue of fact must be addressed, did the black bag containing the marijuana seeds and leaves in its side pocket which the defendant was carrying belong to his cousin.
57. The court conducted a pre trial conference on the case on the 4/05/11 immediately after the defendant pleaded not guilty to the charge when arraigned and the defendant stated that he pleaded not guilty because he did not own the black bag which contained the marijuana seeds and leaves however that it belonged to his cousin hence he did not know what was in it. When given the opportunity to cross-examine the only police witness the court naturally expected the defendant to put this aspect of his raised defence to the witness as this would be crucial to his defence and would set up the platform for the main thrust of his evidence in his defence.
58. The defendant had the right to challenge the evidence of the police witness especially on the aspect of the ownership of the bag in cross-examination and apply the ‘Brown v Dunn’ [12] rule if that was his defence. The ‘Brown v Dunn’ rule is an important rule of evidence in the trial process if for two reasons, firstly, it gives the party ‘asserting ‘certain facts the opportunity to test the opposition and secondly, it is fair to the opposition to be given equal opportunity to answer any rebuttals to their evidence. And the above two can only be achieved through the evidentiary process of cross examination or adducing evidence.
59. The ‘Brown v Dunn’ rule was canvassed by the Supreme Court in Kitawal v State [13] (Jalina J, Mogish J, Cannings J) and stated that this rule was a principle of fairness and that as a principle of evidence was adopted as part of the underlying law of Papua New Guinea for control of both civil and criminal proceedings. The Supreme Court bench went on to hold inter alia that:
(i). The <rule in Browne v Dunn> (which requires the accused’s principal defences to be put to the prosecution witnesses in cross-examination) requires that the gist of the proposed defence be put to the State witnesses; not that every detail be put to them.
(ii). The requirements of the <rule in Browne v Dunn> vary according to the circumstances of the case and will be lessened if, in fact, prior notice of the defences or the accused’s version of events has been given to the State in some other form, eg in a record of interview that has been admitted into evidence.
(iii). A defence counsel’s failure to adhere to the <rule in Browne v Dunn> does not necessarily result in the conclusion that all defences are a recent invention, unreliable and should be rejected.
60. The Supreme Court in Kitawal v State [14]stated in obiter dictum that the 'Brown v Dunn' rule is inherently flexible and its requirements vary from case to case, the principle aim being to impose fairness on the trial procedure.
61. The following situations and cases are examples of the flexibility and variance of this rule:
(i). If a witness's evidence-in-chief is "incredible or romancing" a detailed cross-examination is not necessary (R v Byczko (No 2) [15];
(i) If the examiner-in-chief traverses the opposition case thoroughly, the cross-examiner will not need to cover the same ground. An allegation may be so obviously a part of the defence case it is not necessary to formally put it to the State witnesses;
(ii) The National Court in Alan Arthur Morris v PNG Associated Industries Ltd [16](Wilson.J) held that if a counsel does not put things to a witness in cross-examination, there should be no complaint if the witness is believed;
(iii) The Supreme Court in Sidi Adevu v MVIT [17], (Kapi DCJ, Andrew J, Sakora J) held that any matters upon which it is proposed to contradict the evidence-in-chief given by a witness must normally be put to him so that he may have an opportunity of explaining the contradiction; and failure to do so may be held to imply acceptance of the evidence-in-chief;
(iv) The National Court in Haiveta v Wingti (No.1) [18]Sheehan J held that evidence not challenged should be taken to have been accepted;
(v) The National Court in The State v Kevin Anis [19]Kandakasi J held that in order for a party's to be considered credible, the party must have put its case to the other's witnesses by way of cross-examination;
(vi) Justice Cannings in the National Court case of The State v Pennias Mokei (No.1) [20]held if a counsel intends to submit that a witness has lied, the counsel must have put it directly to the witness that he or she has lied so as to give the witness the opportunity to explain.
62. In the immediate matter the defendant's failure to cross examine is significant in that firstly, it leaves the evidence of the police witness largely unchallenged and secondly it is pernicious to his defence in that he would not be able to raise as this later because it would be unfair to the police in their witness not being able to respond to the challenge if it was put to him.
63. In his evidence-in-chief the defendant did not make any mention whatsoever of this 'cousin' who was supposed to be the owner of the black bag.
64. The law is on 'he who asserts' to prove. Shaw vs. the Commonwealth of Australia [21], Supreme court Ref. No.4 of 1980 (No 2) [22], Kolta Development Pty Ltd + others vs. The State + Ors [23] and Bank of Hawaii (PNG) Limited vs. Papua New Guinea Banking Corporation + others [24]
65. All the court has before it is the evidence of Senior Constable Mape which has not been challenged by way of cross-examination.
66. What I find firstly, is that the black bag containing the marijuana seeds and leaves which the defendant was carrying did not belong to the 'cousin' of his.
67. I would answer the question in the negative for the reasons given above.
68. The second contentious material issue of fact that must be addressed is, was the defendant the owner of the black bag?
69. The evidence of Senior Constable Mape regarding his strong conviction that the black bag was owned by the defendant based on his observations was not challenged in cross-examination by the defendant and nor in his evidence-in-chief did the defendant state anything on this aspect. Senior Constable Mape in his evidence-in-chief stated that he had a few months prior to 29/04/11 at UPD checked searched this same bag which the defendant happened to be carrying at that time and found his books inside. When he searched him again on the 29/04/11 the defendant was carrying the same black bag and had books again inside with his name written on them and therefore concluded that the bag belonged to the defendant. I accept this as a logical deduction by this witness for the following reasons, firstly, I find him to be a witness of truth in that his evidence has not only been logical but consistent and in agreement with common sense and secondly, I find his demeanor in the witness box credible. Why the defendant did not challenge this witness on this crucial part of his evidence is abstruse and only God knows the reason, however my deduction is that the defendant when faced with overwhelming prosecution evidence that was been adduced to court under oath that this bag had been in his custody for months and contained books with his name written on them, his charade of a defence vanished into thin air and along with it any willingness on his part to continue his defence. I find that the defendant was the owner of the black bag containing the marijuana seeds and leaves.
70. I answer the second contentious material issue of fact in the affirmative for the above reasons.
71. I now address the third contentious material issue; did the defendant know that there were marijuana seeds and leaves in the side pocket of the black bag he was carrying?
72. There is unchallenged evidence before the court that the black bag belonged to the defendant and that he had been searched on two occasions with this same bag in his possession in an interval of a few months apart. The bag when searched contained books with his name written on it on both occasions. When given the opportunity to challenge this evidence in cross examination he did not do so and again in evidence-in-chief did not mention anything with regard to this aspect of the evidence instead choosing to ignore it completely and testify about his responsibility as a leader to talk to a group of boys at the material time, evidence which was totally irrelevant to the main issue. Going by the above it cannot be said that this is a case of genuine ignorance on part of the defendant nor could he be regarded as an innocent custodian. To the contrary the silence of the defendant on this aspect is deafening and indicative of a guilty knowledge. Senior Constable Mape described the appearance of the defendant at the material time as having red eyes, a dry mouth as a result of smoking marijuana and that the black bag had a strong smell of marijuana coming out of it when he opened it in order to search it. The circumstances of the morning of 29/04/11 do not show that the actions of the defendant to be innocent and I find there is a sufficiency of evidence indicating quite the opposite that the defendant knew that there were marijuana seeds and leaves in the side pocket of his bag that he was carrying that morning.
73. I answer the third contentious issue in the affirmative.
APPLICATION OF ISSUES OF LAW TO THE FINDINGS
74. I will now apply the issues of law to those findings.
(a). Did the defendant have the drug in his "possession"?
If the answer is yes, the second element is established and then the second question must be addressed. If the answer is no, then
the second element of "possession" is not established and the defendant must be acquitted.
There is sufficient evidence adduced before the court that the defendant did have in his possession a dangerous drug, marijuana and therefore I answer the question in the affirmative and proceed to answer the second question.
(b). Did the defendant "know" he had a dangerous drug in his possession?
If the answer is yes, the first element is established and the defendant must be found guilty of knowingly being in possession of
a dangerous drug without authority. If the answer is no, he must be found not guilty of knowingly being in possession of marijuana.
I find that there is sufficient evidence to conclude beyond reasonable doubt that the defendant had the guilty knowledge sufficient to satisfy this element of the offence of knowingly being in possession a dangerous drug, marijuana and I answer this question in the affirmative.
DETERMINATION OF THE CHARGE
74. I find that the prosecution has discharged the onus placed on it by proving all the elements of the charge of knowingly being in possession of a dangerous drug. I find that Gabriel Memson knowingly had in his possession marijuana and that at that time he was not authorized to do so by any Act.
75. I am satisfied therefore that the prosecution has proven beyond reasonable doubt that the defendant knowingly possessed marijuana whilst not being authorized to do so by any Act on the 29/04/11 at 7:00am at Mildas Market in Madang.
VERDICT
76. The order of the District Court is that Gabriel Memson is convicted of knowingly possessing marijuana whilst not being authorized to do so by any Act.
Police Prosecution for the Police
Defendant in Person
[3] Supra Note 2
[4] Supra Note 1
[5] Supra Note 1
[6] [2007] Sup.Ct
[9] [1981] PNGLR 28 Greville Smith J
[12] [1893] 6R 67 (HL)
[13] [2007] SC927 (22 February 2007) Jalina J, Mogish J, Cannings J
[14] Supra Note 13
[17] [1994] PNGLR 57, Kapi DCJ, Andrew J, Sakora J Supreme Court in Sidi Adevu v MVIT
[18] [1994] PNGLR 160 Sheehan J
[20] (2004) N2606Justice Cannings
[22] Supreme Court Ref.No.4 of 1980 (No 2) [1982] PNGLR 65
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