Tango v Reginam [2004] SBHC 39; HC-CRAC 174 of 2004 (7 May 2004)

HIGH COURT OF SOLOMON ISLANDS
Criminal Appeal Case No. 174 of 2004

DELILAH TANGO

-v-

REGINAM

HIGH COURT OF SOLOMON ISLANDS
(F.O. KABUI J.).

Date of Hearing: 6 May, 2004 at Gizo.
Date of Judgment: 7 May, 2004.

D. Tiqulu for the Appellant.
H. Kausimae for the Respondent.

JUDGMENT

Kabui, J.: This is an appeal filed by the appellant on 4^th May 2004 against her conviction by the Principal Magistrate Court, Gizo, on 27^th April 2004 and sentence of 4 months imprisonment passed on her that on that date. The grounds of appeal are that (i) the conviction was against the weight of evidence and (ii) the sentence of 4 months imprisonment is excessive in the circumstances of the case.

The Facts.

The facts were not in dispute.

On 17^th December 2003, the appellant with others went to the MSG building in Gizo with two boys. A Malaitan girl went to the MV. Liofangu berthed at the wharf and bought a packet of “supu” from a boy on the ship. The boy came out of the ship and called for the appellant but by that time the appellant and the Malaita girl were already in a taxi. The boy from the ship gave the “supu” to Glen Musukana who passed it on the Malaita girl in the taxi. Glen Musukana and the appellant dropped off at the KHY area. Whilst the appellant was in one of the shops, the Malaita girl run up to her and pushed something into the appellant’s pocket of the cut gean she was wearing. Just then the Police arrived and took them to the Police Station. As they were passing the Gizo Market, the appellant put her hand into her pocket for $2.00 inside her pocket and there discovered a packet of something. At the Police Station, the appellant produced that packet of something on being interviewed by the Police. The appellant was later released.

The DPP’s sanction under subsection (3) and certification under subsection (6) of section 39 of the Dangerous Drugs Act (Cap. 98) “the Act”.

The DPP had sanctioned the prosecution of the appellant under section 39 (3) of the Act. Section 39 (6) of the Act further requires the DPP to sign a certificate to confirm the date he received evidence justifying the prosecution of the offence for the purpose of section 39 (6) of the Act. The purpose of subsection (6) is that prosecution must take place within 3 months from the date on which the DPP received evidence justifying, in his opinion, to prosecute the offence upon that evidence coming to his knowledge on that certified date. There is no certification of that sort in this case under subsection (6) above.

The omission by the DPP to certify the date he decided to proceed against the appellant makes it impossible to compute the 3 months period within which he was expected to act on the evidence before him. The completion of the trial resulting in conviction and sentence shows that the DPP did decide to prosecute on sufficient evidence but the question is on what date did he make up his mind to act? This fact is important to establish that the DPP had acted within the prescribed period of 3 months there being no other specified time period under any other law for the purpose of the Act. In my view, to proceed against any person under the Act is to lay a charge against him or her. The charge against the appellant was laid on 8^th April 2004 well within the 3 months period prescribed in section 39 (6) of the Act assuming the DPP’s sanction was also the certificate certifying the date on the evidence before him he decided to proceed against the appellant. The sanction by the DPP is specific in that it recites section 39 (3) of the Act. Section 39 (6) is also specific in its intention. In my view, these two subsections cannot be reconciled to render a sanction under subsection (3) a certificate under subsection (6) of section 39 of the Act or both are the same thing. How do I proceed to rectify this omission by the DPP? I have been tempted to act under section 47 of the Magistrates’ Courts Act (Cap. 20) but the proviso thereto does not seem to allow what I had in mind. I will have to look to section 293 (1) of the Criminal Procedure Code Act (“the CPC”) for guidance, if any. In that section, I do have the power to confirm, reverse or vary the decision of the Magistrate’s Court or may remit the matter to the Magistrate’s Court. There is difficulty in resolving this issue one way or another in this case. I will not resolve it but leave it to another day. At this juncture, I wish to raise another point. The content of the packet the appellant gave to the Police was sent to Honiara for testing. The test had been carried out by one Siapu, a Police Officer, of the Drugs Unit in Honiara. The Police Officer having done the test, made a report. At the trial of the appellant, that Police Officer was not called by the Prosecution to tender the result of the test carried out by him nor was his report tendered by agreement under section 180 of the CPC. At the trial, the Prosecution, the Defence and the Magistrate all seemed to have assumed that the content of the packet was marijuana. There was no positive proof that the content of the packet was marijuana. Whilst it was the case that the appellant produced the packet to the Police containing suspected marijuana, the Police were not so sure and so they sent the packet with its content for testing in Honiara. Another point is that whilst there is a Drugs Unit in Honiara, section 42 of the Act does seem to recognise a certificate by a Government Pharmacist in terms of certifying anything in any proceedings under the Act. The end result is that there was no evidence to show that the substance inside the packet found on the body of the appellant was indeed marijuana. It was for the Prosecution to prove its case beyond reasonable doubt. The Magistrate could not and should not take judicial notice of the fact that it was marijuana that was in the packet. The Prosecution must prove that it was marijuana so as to leave no doubt in the mind of the Magistrate that an offence had been committed by the appellant being in possession of it on the relevant date. The appellant denied that she had knowledge of the fact that it was marijuana that was in her pocket because she had not seen the packet opened so as to expose the content of that packet to her eyes. That is, she denied prior knowledge that the packet contained marijuana and she was sure as a fact that it was. There was no evidence to show that she was a long time smoker of marijuana so that it could be concluded that she was familiar with that drug so that her explanation was not worthy of truth. Her caution statement and her evidence on oath are similar in describing what happened to her. The fact that the packet was found on her was according to her evidence, planted on her by the Malaita girl but was it indeed marijuana? There was no proof beyond reasonable doubt that indeed it was so as to make the appellant guilty as charged. Although PC 547 tendered the packet as Exhibit 1, it did not prove that it was marijuana without a chemical test to confirm that fact. It is also possible that the Malaita girl saw the Police coming and being scared, passed on the packet to the appellant. That doubt still exists and had not been negatived by the Prosecution at the trial. The upshot of all this is that the conviction entered by the Magistrate was inconsistent with the evidence tendered by the Prosecution so that the conviction was against the weight of the evidence and was unsafe to support the conviction entered by the Magistrate. I therefore reverse the finding by the Magistrate and quash it accordingly. The appeal is allowed. It follows therefore that the legality of the sentence of 4 months imprisonment is negatived and calls for no decision. I order that the appellant be released from prison forthwith on the rising of this Court. Her mother’s Health Book is to be returned to her today. I order accordingly.

F.O. Kabui
Puisne Judge