Schliebs v Singh [1981] PGLawRp 595; [1981] PNGLR 364 (17 September 1981)

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MEDICINE - Drug offences - Knowingly in possession of dangerous drug - “Knowingly” - “Possession” - Sufficiency of evidence of knowledge - Sufficiency of evidence of scientific analysis - Proof of more than microscopic traces required - Dangerous Drugs Act 1952, s. 7.

CRIMINAL LAW - Evidence - Confessions and admissions - Records of interview - Defendant to be given real opportunity to exercise “right” to have lawyer or friend present.

Section 7 of the Dangerous Drugs Act 1952 provides that “A person shall not knowingly ... be in possession of ... a dangerous drug ...” unless authorized so to do.

On appeal against conviction and sentence on a charge of knowingly being in possession of a dangerous drug to wit cannabis without authorization under the Act and any regulations made thereunder, the evidence disclosed that during a raid police found in the appellant’s bedroom, part of a pipe consisting of a glass base and stem containing “vegetable matter”, which when subjected to scientific analysis was identified as cannabis. The appellant when interviewed by police was told of his right to have a lawyer or friend present, and immediately thereafter interviewed, from which interview it could be inferred that the appellant knew that the pipe had been used by other persons and possibly for the purpose of consumption of a drug about two months before the raid.

N1>(1) A detainee whom police wish to interview should not only be told of his right to consult and to have present a lawyer or friend, but should be given a proper chance to decide whether he wishes to exercise that right or not, and if he does, a real opportunity to exercise it in practice.

N1>(2) If the opportunity to consult a lawyer or friend is not extended confessional material obtained in an interview may be regarded as unfairly obtained, depending on circumstances, and may be excluded from admission into evidence.

N1>(3) 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).

N1>(4) A person can only be “knowingly” in possession of a dangerous drug if there is sufficient evidence of knowledge of the presence of cannabis to supply the necessary mental element to prove possession.

Warner v. Metropolitan Police Commissioner [1969] 2 A.C. 256 at p. 312 considered.

N1>(5) In order to establish the offence, it is necessary to prove more than merely microscopic traces of the particular drug in the custody of the defendant.

N1>(6) Proof of the identity of the drug should be strictly made and should include proof of:

N1>(7) In the circumstances, there was insufficient evidence from which there could be a finding that the appellant was knowingly in possession at the time of discovery and the appeal should be allowed.

This was an appeal against conviction and sentence on a charge of knowingly being in possession of a dangerous drug, to wit, cannabis, contrary to, s. 7 of the Dangerous Drugs Act 1952.

MILES J: This is an appeal against conviction and sentence in respect of a charge of possession of a dangerous drug contrary to s. 7 of the Dangerous Drugs Act 1952. The appellant was convicted in the Morobe District Court at Lae on 5th February, 1981. The information alleged that the appellant did on 16th November, 1980, knowingly have in his possession a dangerous drug as specified under the Second Schedule of the Dangerous Drugs Act to wit cannabis without authorization under the Act or any regulations made thereunder. The section under which the information was laid was s. 7 of the Dangerous Drugs (Possession) Act 1970, which Act amends the Dangerous Drugs Act 1952. The relevant parts of the section (which appear to be at variance to some extent with the information) are as follows:

(d) be in possession of or convey a dangerous drug or plant or part of a plant from which a dangerous drug can be made.

As the onus of establishing the exception lay on the appellant and no issue as to that exception was raised by the appellant at any stage, the variance between the provisions of the section and the allegations in the information are immaterial for the purpose of the present appeal.

Dangerous drug is defined to mean a substance specified in the Second Schedule to the Act. The Second Schedule includes specification of the following:

The case for the prosecution was that on 16th November, 1980, police conducted a raid on the premises occupied by the appellant at section 5 lot 15, 8th Street, Lae. There they found in a waste paper basket the wooden bowl or head of a pipe. The remainder of the pipe consisted of a glass base and stem and was found in the appellant’s bedroom. The bowl was observed by police officers to contain what is called “vegetable matter”. The pipe head and vegetable matter were subjected to scientific analysis which was proved by way of affidavit. The appellant was interviewed by police and made certain statements to them which are relied upon as admissions.

The appellant did not give evidence. There was no conflict on the oral evidence given by the police witnesses. There was no question of the magistrate being in a better position than this Court to draw conclusions of fact because questions of credibility and demeanour of witnesses were, on the state of the evidence, of no significance. Inferences to be drawn from what the witnesses had to say and from the documentary material are to be drawn by this appellate court according to its own assessment, giving due weight to the magistrate’s findings but nevertheless not shirking the responsibility of giving effect to its own conclusions once arrived at. See Lewis v. The Independent State of Papua New Guinea[dxcv]¹.

N1>The magistrate concluded that the appellant in his record of interview was lying. The reason given by the magistrate for this conclusion was that the appellant had stated that the pipe had not been used for some period of time, which period was longer than that between the date of the raid and the date of hearing. When the police gained possession of the pipe it had some liquid in the glass base, possibly water, but the pipe was completely dry by the time of the hearing. Therefore, said the magistrate, the pipe must have been used at a date later than that alleged by the appellant otherwise the water in it would have dried up by the date of seizure. Accordingly the magistrate found that the accused in his statements to the police was lying.

N1>However, as Mr. Baulch for the appellant has submitted, the magistrate overlooked the possibility and indeed likelihood that the water was simply tipped out of the base of the pipe after it came into the possession of the police. One might add that the condition of the pipe until it was dismembered just before the police raid was such that the water in the glass base was likely to have evaporated away only very slowly.

N1>The reason for the magistrate’s finding that the appellant was lying is therefore found to be erroneous and the consequences are that this Court is free to make its own findings of fact on the material before it, including a finding as to whether it can be positively asserted that the appellant was lying in his record of interview and whether the lies can be taken to corroborate other evidence.

N1>Something further needs to be said about the record of interview. A true record of interview it was not. It was a selective recording of part of a conversation between the appellant and the inspector. What is regarded usually as a most important part of such record of interview was not recorded, namely the conventional caution. Indeed the inspector forgot to give evidence of the caution in his oral testimony, although there is no dispute that the caution was administered. The interview appears to have been conducted only after the appellant was charged, at which stage of proceedings it has been said that the proper course is merely to ask the person charged if he wants to make a statement and that any questioning should be limited to clearing up any ambiguities in the statement, if any is made: R. v. Hava Kekedo[dxcvi]².

Most importantly in my view is the fact that the appellant was given no real opportunity to consult a lawyer or friend before being interviewed. The appellant was perfunctorily told of a “right” to have a lawyer or friend present and immediately after this the interrogator launched into the interview. It is meaningless to talk of such a “right” if it is not properly recognized by something more than the mouthing of a formula. In addition to being told that the “right” exists, the detainee should be given a proper chance to decide whether he wants to exercise it or not and if he does, a real opportunity to exercise it in practice. Of course this is the very sort of case in which the person in custody if given the chance to consult a lawyer was not unlikely to have done so and if he had done so might not have chosen to assist police further with their inquiries, but I have yet to hear it suggested that the opportunity to consult a lawyer should be extended only to those unlikely to exercise it. The present state of the law in any event is that there is no right to have a lawyer attend an interrogation at all: it is merely that if the opportunity to consult a lawyer or friend is not extended to the accused the confessional material may be regarded as unfairly obtained, depending on the circumstances, and may be excluded from admission into evidence.

All this however does not mean that the statements of the appellant contained in the record of interview were made involuntarily and are inadmissible, nor that the court should decide to exercise its discretion to exclude such statement from reception into evidence. That indeed is not part of the appellant’s case. But the matters just mentioned must in my view affect the weight of the record of interview as a piece of probative evidence. Far from compelling the conclusion that the appellant was lying from a sense of guilt of the offence charged, there is the strong possibility that the appellant having been charged with that offence, one likely to carry a sentence of imprisonment, and having been found in circumstances which were to say the least suspicious, was prepared to say anything which might help him in his predicament be he innocent or guilty. Hence, unless the record of interview contains clear admissions of the charge brought against him, I would think that it has to be regarded with some care.

The parts of the record of interview relied upon by the prosecution to show the appellant’s knowledge or intention in relation to possession of the drug are the questions and answers numbered 10 to 22 inclusive and 27 and 28. I do not propose to set them out. The questions and answers are quite capable of giving rise to an inference that about two months before the raid the pipe was, to the knowledge of the appellant, used by other persons and possibly for the purpose of consumption of a drug. It would further be possible to find that the appellant knew at the time he put the pipe head in the wastepaper basket that it contained or might contain the fragments of vegetable matter which were later subjected to analysis. These matters, although relevant, are peripheral to the essential question under consideration as to whether the prosecution has proved beyond reasonable doubt that the appellant was knowingly in possession of the drug on the day of the raid.

There can be no question that at the time just before the raid the appellant had been in possession of the pipe. What needs to be decided however is whether he was knowingly in possession of cannabis. The pipe and its contents, the “vegetable matter”, were both subjected to analysis and both gave a positive reaction to a test for cannabis.

Whether the pipe itself can be said to be cannabis raises itself as an interesting possibility but the prosecution case, as I understood it, was that the cannabis of which the appellant was knowingly in possession was the so called vegetable matter which constituted the contents of the pipe. Thus formulated, the case becomes one involving the well known questions as to whether a person can be in possession of something when he is not aware of its exact nature and whether a person in possession of a container can be said to be in possession of its contents of whose existence he is unaware. Some cases — and this is one of them — involve a consideration of both questions.

I trust that it is not necessary to conduct a comprehensive survey of all the cases that have dealt with these difficult questions in recent times in different countries. What we are concerned with is the construction of a piece of legislation of Papua New Guinea: there may be no exact parallel in similar legislation elsewhere. I do not propose to trace the history of the legislation in this country (and it does have some peculiar features). It is clear that the offence with which we are dealing is concerned with the possession (and also conveying) of the drug: it is wrong to read into it any implication that it is restricted to possession for the purpose of using or trafficking. Nevertheless the use of the word “knowingly” is an indication that the offence may not be proved without reference to some relevant state of the mind on the part of the accused. If the legislature had intended that a person should be deemed to be in possession where the evidence is confined to a discovery of the drug upon his person or upon premises occupied by him or in a vehicle driven by him, it would not have been very difficult to say so.

“Possession” is not defined in the Act. The phrase “have in possession” is defined in the Criminal Code and although that definition is not applicable to other legislation, it is desirable in the interest of a consistent and coherent body of judge made law (Constitution Sch. 2.4) that generally speaking it should cover the concept of possession as it relates to offences outside the Code. The definition in the Code includes what is otherwise called de facto possession (physical custody and control) and constructive possession (exercised through the immediate custody of another person) and subject to the use of the word “knowingly” it is appropriate to apply the meaning as defined in the Code to the offence under consideration.

In seeking to identify the necessary mental element in a charge of knowingly being in possession, there is no real alternative to commencing with the judgment of the House of Lords in Warner v. Metropolitan Police Commissioner[dxcvii]³. To so begin may not be strictly necessary for the purpose of determining the underlying law of Papua New Guinea according to the Constitution Sch. 2.2 because that case was concerned, like the present appeal, with the application of a statute. However it is a decision of the highest authority in the common law world, (possession being a term of common law and not only of the statute) and has been recognized as such in other countries with a similar common law background and with similar legislation. Even in Australia where a previous line of authority in Maher v. Musson[dxcviii]⁴ and Proudman v. Dayman[dxcix]⁵ led in a different direction, Warner[dc]⁶ has been given due recognition, e.g. Williams v. The Queen[dci]⁷, R. v. Aouad[dcii]⁸.

N1>The opinion of the majority of the House was reflected in the judgment of Lord Wilberforce in which the following extract appears (at p. 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 the 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.”

Adopting such an approach as this, one looks to see what it was in the present appeal of which the appellant was said to be knowingly in possession. The evidence of the police witnesses and of the analyst refer to vegetable matter but there is no reference as to quantity either by volume weight or otherwise. Obviously there was such a quantity as to enable the presence of cannabis to be detected, but as has been pointed out more than once in recent judicial pronouncements, techniques of scientific analysis are such as to render capable of identification a quantity of a particular substance that is so minute that in practical terms it may be said not to exist at all: or at least it may be so minute that it would be open to a fact finding tribunal to conclude that the person in whose control it was found did not have the requisite mental intention to prove possession on his part.

In the present appeal there is no evidence from any of the witnesses as to what quantity of vegetable matter was found in the pipe. If one looks at the material evidence comprising exhibit D, one finds a few specks of what may well be vegetable matter, but whether all of it or some of it is what the analyst describes as cannabis is impossible to say. It may be for all I know a few micrograms such as were found in R. v. Carver[dciii]⁹ to constitute really nothing at all insofar as they related to the intention of the person in whose custody they were found. No doubt possession of minute quantities may often provide evidence of possession or use at a prior time: Police v. Emirali[dciv]¹⁰, R. v. Worsell[dcv]¹¹, but the critical question is “whether there was sufficient evidence of knowledge of the presence of cannabis to supply the necessary mental element to prove possession” per Aickin J. in Williams v. The Queen[dcvi]¹².

N1>Although this is not a case in which there is positive evidence that the quantity found of the drug cannabis was microscopic, the evidence is quite consistent with that being the case. The affidavit of the analyst leaves much to be desired. If the prosecution chooses to select that method of proof, then it is stuck with any shortcomings that may emerge. The analyst should have stated his qualifications for identifying cannabis and its derivatives, the recognized method or methods used for such identification, the steps he took on the particular occasion and the results, some conclusion as to what it was in the material subjected to analysis which constituted the cannabis and in particular the quantity of cannabis identified should have been clearly stated. As it stands, the evidence is capable of meaning that the pipe itself as well as the whole of the vegetable matter constituted cannabis; it is also capable of meaning that both pipe and vegetable matter contained microscopic and unquantifiable but identifiable traces of the drug. As McKenna L.J. observed in Rocking v. Roberts[dcvii]¹³ (and his dissenting judgment was in effect approved and adopted in R. v. Carver[dcviii]¹⁴), if a person is to be convicted in these circumstances it must follow that if he puts something in a container and uses it but does not destroy the container he will continue in the eyes of the law to be in possession of the substance used so long as the container gives a positive reaction to a chemical test for the presence of that substance. This is a totally absurd result and does not assign a proper role to the mental element required to prove possession.

N1>In my view the principle involved in the present appeal in the present state of the evidence is indistinguishable from that in Williams[dcix]¹⁵: where the evidence is limited to the finding of minute traces in a container in the possession of the accused and the container has been available to be used by others in the same house, there is insufficient evidence from which the necessary knowledge at the time of finding could be inferred. In the present case, as in that case, equivocal admissions consistent with knowledge of prior possession or use of the drug — even by the accused himself — and a realization by the discovery of vegetable material that some fragments might remain, does not provide evidence of knowledge sufficient to found a finding of being knowingly in possession at the time of discovery. An acquittal must follow. The appeal will be upheld.

[dxcv][1980] P.N.G.L.R. 557.

[dxcvi]Unreported pre-Independence (1958) Supreme Court judgment No. 119 referred to in Andrew Chalmers & Weisbrot Criminal Law and Practice of Papua New Guinea (1979) at p. 362.

[dxcvii][1969] 2 A.C. 256.

[dxcviii](1934) 52 C.L.R. 100.

[dxcix](1941) 67 C.L.R. 536.

[dc][1969] 2 A.C. 256.

[dci](1978) 53 A.L.J.R. 101.

[dcii][1977] 1 N.S.W.L.R. 248.

[dciii][1978] 2 W.L.R. 872.

[dciv][1976] 2 N.Z.L.R. 476.

[dcv][1970] 1 W.L.R. 111.

[dcvii][1974] Q.B. 307.

[dcviii][1978] 2 W.L.R. 872.

Papua New Guinea Law Reports

Schliebs v Singh [1981] PGLawRp 595; [1981] PNGLR 364 (17 September 1981)

Papua New Guinea Law Reports - 1981