Police v Remah [2021] PGDC 41; DC5097 (17 May 2021)

DC5097

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

B. No 460 of 2021

CB No. 768 of 2021
BETWEEN

THE POLICE
Informant

AND

MANASA REMAH
Defendant

Boroko: Seth Tanei

2021: 17^th of May
      

SUMMARY OFFENCE – Knowingly in Possession of Dangerous Drug – s 3 (1)(d) – Dangerous Drugs Act1952.

PRACTICE AND PROCEDURE- Trial- Whether the Defendant knowingly had in his possession a dangerous drug – Elements of the offence discussed – Elements proven – Defendant found guilty as charged.

Cases Cited

Police v Memson No.1 [2011] PGDC 44; DC2037,
Wassey v Police [2005] PGNC 70; N2922
Police v Sanfungalim [2011] PGDC 36; DC2025.

References

Legislation

Dangerous Drugs Act 1952

Counsel

Sergeant Wilson Golina, for the Informant

Manasa Remah, the Defendant In Person

RULING ON VERDICT

17^th May 2021

S Tanei: The Defendant pleaded not guilty to one count of Knowingly in Possession of a Dangerous Drug contrary to section 3(1)(d) of the Dangerous Drugs Act 1952.

2. The matter went for trial on 7^th April 2021 and 14^th April 2021 where the Court heard and received evidence from the Prosecution as well as the Defendant.
   
3. Submissions on verdict were made on 6^th May 2021.
   
4. This is my ruling on verdict.
   

CHARGE:

5. The Police allege that on 7^th March 2021 at Gerehu, NCD, the Defendant, Manasah Remah, 25 years old, of Ponari Village, Ialibu, Southern Highlands Province did have in his possession a dangerous drug, a 1 x K5 pack of Cannabis Sativa (Marijuana) without authorisation.
   

ISSUES:

6. The Court is faced with the issue of whether the Defendant did knowingly have in his possession a dangerous drug without lawful authorization.
   

THE LAW

7. Section 3(1)(d) of the Dangerous Drugs Act 1952 provides that;
   

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.

EVIDENCE

8. Prosecution called three (3) witnesses;
   1. Roy Remah

He is the complainant in this matter. He testified that on 7^th March 2021 at around 7 am at Moale, Gerehu, he came out of his house and saw the Defendant and other boys smoking drugs near a hauswin near his house. At 8 am, he went over to the hauswin to check what they were doing and found the Defendant sleeping so he went in and picked up his bilum and removed it from the Defendant. In the bilum, he found a roll of marijuana worth around K5 to K10.

He got the bilum and then left the Defendant and went up to his house to prepare for church. When he and his family drove down, they were attacked by the Defendant along the road. The Defendant threw stones and swore at them. He was holding on to a knife and an iron rod. The Defendant hit the car’s wind shield with that iron rod. He then stopped the car and chased the Defendant on foot. The Defendant threw stones at him. He then called the Police who came and assisted him to capture and arrest the Defendant. He then gave the drug to the Police when they arrested the Defendant.

In cross-examination, it was put to the Complainant that he did not get the drugs at 9 am as the Defendant was asleep, he responded that he got the drugs earlier.

2. James White

He is an uncle of the Defendant and the Complainant. He resides at Moale, Gerehu. He says that on Sunday 7^th March 2021, he was getting ready to go to church when his nephew Roy Remah went and got the Defendant’s bilum and came and showed it to him. There were drugs in the bilum. He stated that later the Defendant went out to the road and waited for the Complainant. As the Complainant and his family drove out to church, the Defendant stood at the road with an iron rod and hit the car and broke its glass. The Complainant then went back and called the Police and the Police came and arrested the Defendant.

In cross examination, it was put to him that the Defendant did not show him the drug but he maintained that it was the Complainant who showed him the drug in the Defendant’s bilum.

100. Sergeant Keath Kita Sapu

He is the arresting officer in this case and the one who apprehended the Defendant at Moale, Gerehu on 7^th March 2021. He testified that on 7^th March 2021 at around 8 am Roy Remah called him though his mobile phone and advised him that his brother was on drugs and attacked him and his family and needed assistance. He was on duty then so he went to the location at around 9 am. When they arrived there, they saw the Complainant and his family. They went straight to the hauswin where the Defendant was sleeping in. The Complainant was in front of the hauswin. They then apprehended the Defendant and took him to the Station. He then questioned the Defendant if it was his bilum but the Defendant remained silent. At Gordons Police Station the Defendant confirmed that it was his bilum. He stated that the Defendant also confirmed to him that he did drugs and did so because his brother Roy Remah does not care about their parents. He was then arrested for being in possession of drugs when he admitted. This witness also testified that he had dealt with the Complainant and the Defendant previously on a similar incident.

During Cross Examination, he maintained that he got the bilum from the Defendant’s brother and that bilum contained the marijuana.

9. The Defendant was the only witness who gave evidence for the Defence.
   1. Manasa Remah

He denied having possession of marijuana. He testified that on 7^th March 2021, he was cleaning the road in the morning. Just then his big brother the Complainant drove by. He asked the Complainant for money but the Complainant did not give him any so he got angry and threw a stick at the car. He said the Complainant then got a rock and chased him away. He thought everything was fine so he went up to the garden dug a kaukau, cooked it, ate it and slept.

He said he was surprised when the Police came. He stated that he had a waist bag which contained a pair of scissors, a razor comb and a mirror. He denied any knowledge of the bilum containing the roll of marijuana.

In cross examination, he maintained that the bilum containing the Marijuana was not his. However, he stated that he had smoked marijuana the night before and had always smoked marijuana.

EXHIBITS

1. Exhibit P1 – Iron Rod used by Defendant to hit Complainant’s car. Tendered through witness James White.
   
2. Exhibit P2 – 1 x newspaper roll K 5 pack Marijuana. Tendered through witness Keath Kita Sapu.
   

ANALYSIS OF EVIDENCE

10. The Prosecution’s story is that the Defendant knowingly had in his possession 1 roll of marijuana worth around K 5 in his bilum on Sunday 7^th March 2021.
    
11. I find the prosecutions first witness to be reliable. He was calm and collective when he gave his testimony. He gave a detailed account of what happened on that day and answered questions with ease. I find his account of the events reliable and find him a credible witness.
    
12. The Second witness was also reliable. His testimony corroborates the story of the first witness. Although he did not actually see the Defendant with the bilum containing the marijuana, his story confirms the first witness’s story that the first witness took the bilum containing marijuana from the Defendant when he was asleep.
    
13. The Prosecution’s third witness was also impressive. His testimony was made in a calm, collective and coherent manner.
    
14. Although competent, I do not find the Defendant reliable. I question his demeanour as he kept on looking away or looked down when giving evidence. He was not confident in his answers to the Prosecution. He also admitted that he took drugs/marijuana to show his frustration to the way his brother treated his parents.
    

UNDISPUTED FACTS

15. From the evidence, the following facts turn out to be undisputed;
    
    1. On 7^th March 2021, at around 8 am at Moale, Gerehu, NCD, the Complainant got a bilum containing a roll of cannabis sativa (Marijuana) valued at around K 5 to K10 from the hauswin near the Complainant’s house which the Defendant was sleeping in.
    2. The Defendant attacked the Complainant and his family later in the morning.
    100. The Complainant chased the Defendant and the Defendant ran away but returned and slept at the hauswin near the Complainant’s house.
    4. The Police attended at the scene, went to where the Defendant was sleeping and apprehended him.
    5. The bilum containing the marijuana was given to the arresting officer who later arrested the Defendant.
       

DISPUTED FACTS

1. It was the Defendant’s bilum that contained the K5 roll of marijuana.
2. The Defendant knew that he had possession of the marijuana.
   

FINDINGS

16. In order for the Court to find the Defendant guilty of the charge of Knowingly in Possession of a Dangerous Drug it must be satisfied that the prosecution proved its case beyond reasonable doubt. That is, the Prosecution’s evidence must satisfy all the elements of the offence.
    
17. The elements of the Offence of Knowingly in Possession of a Dangerous Drug are derived from the provisions of the Dangerous Drugs Act establishing the offence. That is, section 3 (1)(d) of the Act.
    
18. From the above the following are the elements of the offence;
    1. A person
    2. who Knowingly
    100. is in possession of or conveys
    4. a dangerous drug or a plant or part of a plant from which a dangerous drug can be made,
    5. There must not be any lawful authorization
       
19. The Courts dwelt on the elements of the offence in detail in the cases of Police v Memson No.1 [2011]PGDC 44; DC2037, Wassey v Police [2005] PGNC 70; N2922 and Police v Sanfungalim [2011] PGDC 36; DC2025.
    
20. In those cases, the Courts held that knowledge and possession of the dangerous drug are very important elements of this particular offence and they must be proven beyond reasonable doubt in order to find the Defendant guilty of the offence. Also, the drug that is alleged to have been in the possession of the Defendant must be a dangerous drug within the meaning of the Dangerous Drugs Act 1952. Furthermore, there must not be any lawful authorisation for the drug to be in the Defendant’s possession
    
21. In Police v Memson No.1 [2011]PGDC 44; DC2037 and Police v Sanfungalim [2011] PGDC 36; DC2025, the Court discussed the principles established in Wassey v Police [2005] PGNC 70; N2922 and held that possession of the drug can be actual possession or constructive possession. The Court also held that the Defendant must have that guilty knowledge. That is, it must know that the substance in his possession is a dangerous drug and its related consequences.
    
22. From the elements of the offence and the evidence that came before this Court the Court must answer the following questions before it finds the Defendant guilty or not.
    
    1. Is the alleged substance a dangerous drug?
    2. Does the bag containing the roll of marijuana belong to the Defendant?
    100. If so, did the Defendant know that the Bag contained the roll of marijuana?
    4. Did he have any lawful justification for possessing the marijuana?
       
    1. Is the alleged substance a dangerous drug?
       
23. The evidence that came before this Court prove that the alleged substance is Cannabis Sativa (Marijuana). Thus, it is a dangerous drug under the meaning on the Dangerous Drug Act 1952.
    
    2. Does the bilum containing the roll of marijuana belong to the Defendant?
       
24. I answer the second question in the affirmative. I find that the bilum containing the marijuana belonged to the Defendant. This is because there is no evidence from the Defence that would suggest that the bilum belonged to another person. The Prosecution’s first witness testified that he got the bilum containing the roll of marijuana from the Defendant when the Defendant was asleep in the hauswin. This was confirmed by the Second witness who said that the First witness showed him the bilum and stated that it belonged to the Defendant. The Third Witness also testified that the Defendant admitted that it was his bilum and that he did drugs or smoke marijuana.
    
25. Although the Defendant denied owning the bilum or having it in his possession at that time, he provided no evidence to support his claim.
    
26. I find that the Defendant had in his possession the bilum containing the marijuana and that the bilum belonged to him. This is because the Defendant was the only one sleeping in the hauswin at that time and the only reasonable conclusion I can draw is that the bilum containing the roll of marijuana belonged to the Defendant.
    

c) If so, did the Defendant know that the bilum contained the roll of marijuana?

27. I find in the affirmative the third question. The evidence showed that the Defendant did know that the bilum contained the roll of marijuana. This is because during his testimony, he admitted that he had been smoking marijuana the night before. He also stated that he had been smoking marijuana before he moved to Port Moresby and have been smoking marijuana since.
    
28. I therefore find that the Defendant had knowledge of his possession of marijuana and the consequences and effects of smoking marijuana at that time.
    

d)Did he have any lawful justification for possessing the marijuana?

29. In relation to the fourth question, the Defendant provided no evidence of any lawful authorisation for him to have the drug in his possession and so I find in the negative.
    

CONCLUSION

30. I therefore find that the Prosecution has proven its case beyond reasonable doubt by satisfying all the elements of the offence.
    

VERDICT

31. The following are the formal orders of the Court;
    
    1. Manasa Remah is found guilty of the charge of Knowingly in Possession of a Dangerous Drug Cannabis Sativa (Marijuana) contrary to section 3 (1)(d) of the Dangerous Drugs Act 1952.
       
    2. The matter shall proceed to submissions on sentence.
       

Lawyer for the Informant Police Prosecutions
Lawyer for the Offender: Public Solicitor