- There are five important elements to the offence at hand, they are:
- (a) There must be a Defendant[2];
- (b) There must be a place in which the offence was committed[3];
- (c) There must be a date when the offence took place[4];
- (d) (i) Was Found In Possession[5]; or
(i(ii) Did Sell; dve or had sold to another ther person[6]; and
(e) That the unlawful act or omission was in contrary to section 8 (b) of the dangerous Drugs Act[7].
Burden of proof
- In all criminal cases, the burden of proof is upon prosecutions. It is their responsibility to ensure that the elements essential
to the offence at hand are met. For the case at hand, there are only two elements which Prosecutions must be able to prove to the
requisite standard, that being, elements (d) and (e).
Issues
- The issues which I must determine relates to the manner in which Mr Mika was searched and the fact that he did not knew about the
81 rolls of what was believed to be marijuana. These issues, as put by Prosecutions and Defence, are outlined as follows:
- (i) Whether the search was lawful or not; and
- (ii) Whether the defendant had knowledge of the rolls of marijuana which were placed in his bag.
Prosecution Case
- The Prosecution case is that, on the 24th of December 2019, William Mika, who is the Defendant in this case, was found in possession of marijuana.
Defence Case
- The defence case is that, on the 24th of December 2019, William Mika was selling his betel nuts and cigarettes when he was approached by one James Soro. James Soro had
asked William Mika to look after his white mobile box. Without knowing what was in the box, Mika told Soro to put the box in his
bag. Not long after Soro had left, security personals from the Solomon Islands Ports Authority came and took Mika. It was at the
office that Mika came to learn of what was in the box that Soro had given him.
Evidence
- In support of their case, Prosecutions called four witnesses. In addition to these four witnesses, the white box (P/2) in dispute
and the statement from the Botanist, Mr Myknee Sirikolo(P/1) were tendered by consent, and were marked as P/1 and P/2.
- In brief, the evidence given by the four witnesses during the evidence in chief and cross examination are as follows:
John Kiti (PW1)
- On the 24th of December 2019, he was carrying out his duties as a security officer of the Solomon Islands Ports Authority (SIPA). As a security
officer, his duty was to look after the company assets and employees. He was also tasked to prevent any illegal activities from occurring
within the area owned by SIPA. He gave examples of what he referred to as illegal activities, as, the selling of betel nuts, cigarettes,
alcohol and petrol within the areas owned by SIPA. These duties, were provided for by the SIPA handbook.
- As a security officer, his duty was to go around and warn people about the activities prohibited by SIPA. On that particular day,
it was business as usual, where a briefing session was held before work was carried out. He recalled that after the brief, he went
and picked up some officers and following that, they went and did a patrol. This patrol started from the Low Price area to the Yacht
area. When they reached the Yacht Club area, he said and I quote, “mefala lukim na oketa mummy gohet for sellem na bilnut”. Upon seeing this, he told his boys to go and tell the vendors to go and do what they were doing at their rightful places.
He said that he recognise the faces of the people he saw but he does not know their names. After that, they drove back to their office
where they stayed for some time before going out for their second patrol. The second patrol was done since they knew that after they
have warned the vendors earlier, they were still going to sell their betel nuts. The officers that accompanied him during these patrols
were, Henry Koto, Noel Davie and Ezra Mani. He further adds that he was the team leader during these two patrols
- When the second patrol was done, people were still doing what they have already been warned off earlier. Some tried to hide the items
they were selling when they saw the vehicle these officers were patrolling in, others, as he described, were guilty so they were
not able to do anything. He then said that William Mika was part of the group that he saw. Out of everyone present at that time,
Mika was the only one who looked suspicious. His suspicion was based on how Mr Mika did not seem to let go of his bag. Hence he was
asked to accompany them to their office so that they can go and have a talk there.
- Mika then hopped onto the back of vehicle used by Kiti and his colleagues, and they drove off to the office. When asked if Mika was
alone at the back of the vehicle, he said that another officer was with Mika. When they arrived at the office, Mika was dealt with
by Mr Henry Koto. Henry Koto, as stated by Kiti, is his in- charge that was why he asked Koto to deal with Mika. He further stated
that when Koto and Mika have gone into the office, all the others including himself, have gone to the leaf hut situated at the back
of the office. Hence, there was no one else in the office except for Koto and Mika.
- After a while, Koto called them to come and see a white box which he thinks contains marijuana. When asked as to who else was with
him when Koto called, he said that he was with Noel and other officers, which he did not name. When he came into the office, there
was a white box on the table, and inside that white box were rolls of what he thinks is marijuana. These rolls were placed in what
he describes as medicine plastic. As for the box, he describes it as a white box that mobiles are usually placed in. He then asked
Mika who these things belonged to and Mika said that they belonged to his cousin. When asked why they were in his bag, Mika said
that his cousin had left them with him and had gone up the Mataniko River in his boat.
- With this, he then told Koto that this was how far they can go and that they should now refer to the police. He also told Mika that
they will now go to the Central Police Station, to which Mika said was fine, since the items did not belong to him. Mika was then
transported to the Central Police Station, where his bag was handed to the police, and the rolls were removed along with some coins,
and statements were later taken.
- During cross examination, he was directed back to his answer about the duties he held and the illegal activities his role was tasked
to prevent from occurring with the SIPA premises. When asked as to the specific laws of SIPA his role was tasked to enforce, he only
said that they would usually call the vendors, not to arrest them, but to advise them against what they were doing. Since he said
they were not in the position to arrest, he was further asked if they have the power to search, and he said no. He also confirmed
that Koto was the only one present with Mika when Mika was brought into their office.
- In terms of timing, he said that the first patrol was done around 8:00am. He then confirmed that after the first patrol, they went
back and stayed a while at the office before returning for the second patrol. He estimated that they stayed for about half an hour
before returning around 11: 00am. If one was to do a basic mathematical calculation, it would be incorrect to say that from around
8:00 am to 11:00 am would only be half an hour. Mr None then referred to a statement previously given by Mr Kiti, which states that
it was at 11:49 that they went and took Mika. This statement was not tendered to the court, hence I do not know what else was mentioned
in that statement. I was told that Mr None did not agree to have all the statements tendered. On the final day of the trial, None
said that they should have tendered the statements. I then told parties that this was what they should have thought about at the
first place. Despite of this, the statements were never tendered and it is not for me to insist that these statements be tendered.
- He was further asked if there were a lot of people selling at that time and he said yes. When asked if these people were also taken
like Mika, he said that they only took the things they were selling. He further clarified that they only took what was displayed
and that things which were hidden were not taken. He agreed that when they took Mika, his bag was in the cabin and that Mika was
at the back of the vehicle. Since the vehicle they were using was a hilux, Mika was sitting right at the back. When asked if one
of the officers was holding on to Mika’s bag, he said yes. He was also asked if Mika had informed them that the items believed
to be marijuana belongs to his cousin, and he said yes.
- Again, he was shown the same statement referred to earlier, which states that it was Koto who checked Mika’s bag and he agreed.
He was then told that the evidence he gave on oath was too lengthy and covered so many things, as compared to what he stated in his
written statement. In response, he said that the Police officer who took their statement did not obtain his story properly, as a
result, he had to go back and give an additional statement.
- Mr None, told him that he now has three different stories, the recent story that he gave was in April of this year. In light of whether
he knew the items belonged to Mika’s cousin, he said when he saw them on the table, he thought they belonged to Mika, but Mika
said that they belonged to his cousin and that he was just keeping them for him. He was again referred to the statement he gave previously,
which did not say anything about the items belonging to his cousin, but that it belongs to someone else. He was also told that his
previous statement did not mention anything about keeping the items.
- It was then put to him that the box belonged to Mika’s cousin who had gone to Mika when he was selling his betel nuts and cigarettes
and had left the box with him, in response Kiti said yes. None further stated that when the cousin came, he told Mika to put the
box in his bag, Mika then replied that his bag was there and that the cousin can put the box in his bag. Meanwhile Mika does not
know what was in the box. In response to this, Kiti said that he does not know about the conversation that Mika might have had with
his cousin, since he was not present at that time.
- It was also put to him that Mika did not have the chance to see what was in the box since he was busy selling. In response, Kiti said
that when they arrived, Mika was the only one with the bag, or in his own words, the basket. He also agreed that it was at the office
that Mika came to know of what was in the box belonging to his cousin. In light of Mika believing that the box contained a mobile
phone, Kiti said he was not present.
- From my observation on this witness, I would say that he was the one who gave a detailed story of what had happened on that day and
that he was able to hold his composure all throughout. In terms of the statements referred to, and while they form part of the evidence
adduced by police, I am not in the position to refer to them since they do not form part of my records. With this, I believe that
the evidence given by Mr Kiti can be relied upon for purposes of this judgment.
Henry Koto (PW2)
- The Second witness called was Mr Henry Koto. Mr Koto gave evidence that confirmed part of what was stated by Mr John Kiti. He gave
evidence regarding the nature of his job and what he was tasked to carry out. Like John Kiti, Henry Koto was also a security officer,
however, the difference is that Koto is in-charge of Kiti. The evidence he gave during his examination in chief was that, on the
day in question, they had arrested this person who was selling marijuana, and that it was around 9:30 am. The first time they did
their patrol, they have warned this person. He further states that the person they arrested was among the group of people they have
warned earlier. When they came back during their second patrol, the same people who were already warned earlier, were still doing
what they were previously warned against. This included the person selling the marijuana. It was then that they arrested him. When
asked to explain what he meant by arrest, his answer was not very clear, since he went on to talk about how the person they arrested
did not want to hand over his things. They then suspected that there must be something in his bag.
- He confirmed that he was with John Kiti and Noel Davie, and upon this arrest, the person arrested was transported back to their office.
On their way, the person they arrested was sitting at the back of the vehicle. This part of his evidence corroborates what was stated
earlier by My Kiti. However, he stated that the when they were travelling to the office, the person whom they arrested was holding
on to his bag. This then contradicts the evidence given by Kiti, since he had stated that it was Koto who was holding the bag.
- When they arrived at the office, all the others were standing outside, and that he was the one who dealt with the person they arrested.
He then asked this person to remove what he was hiding in the bag. This person then took out a box which Koto described as a mobile
phone box. When this box was taken out, the person said to him that the marijuana belonged to his brother and that he was selling
them. It was during the time they were in the office that he came to know the name of the person they arrested, but before that,
he stated that this person was not new there. Having seen this box, he did not do anything further and later took this person to
the Central Police Station. At the Police Station, they informed the officer who was on duty at that time that they have brought
a person whom they arrested for selling marijuana.
- Since the actual box was not produced in court at that time, a photograph was shown to Mr Koto. Mr Koto then confirmed that this was
the photograph of the box he was referring to. The next day, Prosecutions tendered the exhibit through this same witness which I
marked as P/2.
- During cross examination, he was referred to a statement he had previously given to the police. He was asked to read through the statement
and was later told that there was nowhere in his previous statement that talks about the selling of marijuana. He responded by saying
how at the back of their knowledge they knew he was selling marijuana, but was interrupted by Mr None to only answer with a yes or
no. He then became silent. When asked if they have the power to arrest, he said yes. He maintained that he did not open the bag and
that it was the defendant who opened the bag. The only thing he could do was to ask that everything be displayed. In response to
the question as to whether he had asked as to who the marijuana belonged to, he said and I quote, “hem seleva na talm”. This response can imply, that the defendant as soon as the box was taken out, informed Koto that the box was not his. This
can be confirmed through the explanation he gave in response to the question that followed soon after. He said that the defendant
said that the marijuana belonged to his brother and he had given it to him for him to sell.
- He was directed to what he said in his previous statement, and he insisted that, that was what the defendant told him. It was then
put to him that what he just said in court was only formulated outside before entering the courtroom. In response, he insists that
what he has just said was what the defendant told him. He further states that this was the same story he gave to the police. Once
again, I do not know what was in the statement None was referring to, since this statement was not tendered by consent.
- It was then put to him that the marijuana does not belong to Mika, but he insists that since they were with him, then they can only
belong to him and not the brother. When it was put to him that while the mobile box was in Mika’s bag, it was not his, he insisted
that it was Mika’s and that he knew what was in it. He insists that Mika was not interrogated and that he gave the box after
he was asked to surrender what was in his bag. I find it hard to believe that a person who knew that there were prohibited items
in his bag would just easily give away the very thing that contains the prohibited items, unless he was mad crazy. Koto stated that
Mika may have given the box because he was scared considering that a warning had already been made. Regardless of this explanation,
I still do not think that it adds up.
- When asked to confirm if there were any witnesses present with him, he said that he was the only one who dealt with Mika. This same
question was paraphrased and was put to him and that no one had seen the things he was talking about and he responded that other
officers saw what happened, since they were just standing outside the door. This contradicts the answer he had just given, and what
PW1 had mentioned earlier. PW1 mentioned that they have all gone to the leaf hut while Koto dealt with Mika. He also contradicted
what Kiti had said about where the bag was when they took Mika to the office. According to him, Mika was holding his bag when he
was standing at the back of the vehicle. Kiti on the other hand, stated that Koto was the one who held the bag in the cabin, while
Mika was standing at the back of the vehicle.
- From my observation, most of the evidence given by this witness does not corroborate most of what was stated by PW1. This impeaches
his credibility as a witness, hence I am of the view that his evidence cannot be relied upon significantly.
Noel Davie (PW3)
- The third witness, was Mr Noel Davie. Davie stated that he is a security officer of the Solomon Islands Ports Authority (SIPA). Like
Kiri and Koto, he also described the nature of his job and what he was tasked to do. On the day in question, he was recalled that
he was at work. He further recalled that they were doing a patrol on their hilux, to the Yacht Club. When asked as to what had happened
when they did their patrol, he said that they did an arrest. At that time, he was with John Kiti and Henry Koto.
- Following this arrest, they took the person they arrested to the centre. He clarified that the centre is the area within SIPA where
persons arrested are usually brought to. At the centre, one of the officers dealt with the person they arrested. It was then that
he came to learn that there drugs with the person they arrested. When asked as to when this had happened, he said that it was around
8:30 am. He repeated how they travelled to the centre, where the person they arrested was standing at the back of the vehicle. In
his own words, he said, and I quote, “taem mefa tkm hem come and then oketa openim basket blo hem then me dis savve that hem garrem drug”. He further stated and I quote, “tym wea me dis savve that hem garrem drug lo basket blo hem den mefala seh, u openim basket blo u, u market lo there na so
mefala laek savve what na inside basket blo u”.
- What he stated seems confusing, since he said that when he knew that the defendant had drugs, then they told him to open his bag.
Could it mean that this witness had known long before the basket was opened, that there were drugs inside? He confirmed that it was
Koto who dealt with the defendant by way of asking him to remove his things from the bag, and that was when the drugs were removed
from the bag. He further clarified what he saw as joints of marijuana. Following this, they then called the police. When the police
arrived, they all went down to the Central Police Station.
- In cross examination, he further explained the area owned by SIPA and confirmed that the area in which the defendant was arrest, belongs
to SIPA. He confirmed most of what he stated during his evidence in chief. When asked as to where he was when Koto was dealing with
Mika, he said that he was just sitting outside. This would mean that there was no one present when Mika was handled by koto. Since
he had established earlier that the defendant was asked to open his bag, he was asked as to who had opened the bag, and he replied
that it was the defendant. First he said that he was sitting outside, now he said that it was the defendant who opened the bag. How
could he possibly know that it was the defendant who opened the bag when all along he was sitting outside?
- When it was put to him that the defendant did not know that there was marijuana and as a result gave it freely, he responded by questioning
why the defendant would not have known. When asked if he had seen the defendant giving marijuana to anyone, he said that he knew
that there was marijuana in his bag when they arrested him. This response can imply, that this witness knew from the moment the defendant
was arrested, that he had marijuana in his bag. If this is the case, then I do not know as to how he could have known about this
way before the items were discovered.
- When asked if he knew who the marijuana belonged to, he said and I quote, “ maruana ya ota search come lo bag blo hem then ota outim come lo blo hem, so sas hem stay inside bag blo hem, hem no blo anyone
moa ya”. He also said that since it was Koto who dealt with the defendant, he did not ask as to who the marijuana belonged to.
- It was finally put to him that the marijuana belonged to the defendant’s cousin, but he insists that if it belonged to his cousin
then they should have arrested the cousin.
- Regardless of all the inconsistencies arising throughout the evidence given by this three witnesses, the Prosecutor did not see the
need to re-examine them. Like PW2, most of the evidence given by this witness were inconsistent with what was raised earlier by both
PW1 and PW2. This also questions the credibility of this witness as to whether or not I should rely on his evidence.
- In overall view of these three witnesses, they seem to have also thought that if the items really belonged to someone else, then it
could have been that person, whom they could have taken or arrested, as put by PW2 and PW3. This in my view, is the responsibility
of Prosecutions to consider having this person give evidence, as was in the case of Regina v Sotere Ria.
Estrella Ilapi (PW4)
- The final witness called, was the exhibit officer, Estrella Ilapi. She only gave evidence during the examination in chief, and was
not cross examined regardless of the fact that it was the Defence who insisted that she gives evidence under oath, as informed by
Prosecutions.
- Her evidence premises on the nature of her job and how long she has been working as an exhibit officer. From my observation, this
witness was the most confused person I came across during the course of this trial. I say this based on how she responded to the
questions asked by the Prosecutor. With such level of confusion, I do not see why I should even rely on the evidence she gave.
William Mika (DW1)
- The only witness called by Defence, was the defendant, Mr William Mika himself. He states that on the day in question, he was at the
Yacht Club area. It was around 9:30 am and he was selling his betel nuts and cigarettes, as he was busy serving his customers, some
whom he referred to as his bro came to him. This person to whom he refers as his bro, came and told him to put mobile box in his
bag. He then responded by saying that his bag was there and that he can put the box in the bag. This person then put the box in DW1’s
bag and said that he was going to go to kukum market. It was only about five minutes that the security officers arrived. They came
to him and took what (dami) he was selling along with his bag.
- All along he believed that a mobile was in his bag. He was then told that if he wanted his bag back, he must accompany them to their
office. They then boarded the hilux that the security officers came in. he said that he was at the back of the hilux and that his
bag was in front. His bag had been taken from him when betel nuts were taken from him. According to him, it was Henry Koto who had
taken the bag from his side. When they reached the office, he was told to go into the office. In the office, Henry Koto was still
holding on to is bag, it was until Koto had opened the bag and had taken out his things, that he came to realise that there was marijuana
in his bag.
- When he tried to explain his side of the story, he was told not to say a single word. According to him, there was a woman in the office
when Koto was holding his bag. After that he was taken to the Central Police Station.
- In cross examination, he maintained everything he stated during the examination in chief. He was questioned on whether he did talk
when the items was discovered, and he maintained that when he saw the items, he said that thy do not belong to him, but then he was
told not to say a single word. This was further clarified during re-examination, where he stated that when he was asked as to who
the items belonged to, he answered that they belong to his bro. With the evidence adduced by DW1 and the observations I made throughout
the course of his evidence, I would say that some of the things he said corroborates what was stated by PW1. He was also consistent
all throughout the defence case. With this, I am of the view that the evidence he gave is credible to support the defence case.
Analysis
- With regards to the issues I am tasked to determine, I will first of all deal with that of knowledge of possession before dealing
with that of an unlawful search.
Knowledge of possession
- As highlighted earlier, Prosecutions contends that since William Mika was found in possession of a dangerous drug, he is liable for
the offence at hand. In their closing submission, they referred to the section creating the offence and that which provided for a
person’s liability. For purposes of this judgment, I will outline the sections highlighted as follows:
Section 8 every person—
(b) Found in possession of or selling, or who shall have given or sold, to any person any substance to which this Part of this Act
applies,
Shall be guilty of an offence against this Act[8].
- Section 39 (2) (b) of the Dangerous Drugs Act, outlines the maximum penalty that applies to those found guilty[9] of section 8 (b) of the said Act. Earlier, I had highlighted how this section was not included in the initial charge which Mika was
arraigned on. An amended charge was only filed two days before the trial in proper, which was about 3 months after Mika had been
arraigned and arrangements set to have him stand on trial. This squares down on how careless this case is prosecuted and how the
Prosecutor involved thinks that such carelessness will not be taken lightly by this court.
- They also went on by referring to section 20 of the Dangerous Drugs act, which sates:
“When any dangerous drug to which this Part of this Act applies is found in the possession of any person or kept in any place
other than the appointed store, such person or the occupier of such place, unless he can prove that such drug was obtained under
the authority of this Act, or in accordance with the prescription of a registered medical practitioner, or from a person having authority
to sell it, or was deposited there without his knowledge or consent; and also the owner of, or any person guilty of keeping, the
said dangerous drug, shall be guilty of an offence against this Act”[10].
- One of the crucial arguments in the Defence case was that of knowledge. It was submitted that William Mika, did not know that there
were rolls of marijuana in his bag. On that note, it was also argued that the manner in which William Mika was search, was done unlawfully.
- In light of possession, parties would agree with me to say that both the Dangerous Drugs Act and the Interpretations and General Provisions Act, do not provide a definition for possession. However, over the years, cases have
come to highlight the ordinary meaning of possession. An example I wish to refer to is the case of Director of Public Prosecutions v Brooks [1974], where Lord Diplock stated, and I quote:
'In the ordinary use of the word "possession", one has in one's possession whatever is, to one's own knowledge, physically in one's
custody or under one's own physical control[11].'
- The case of ' Warner v Metropolitan Police Commissioner [1968] goes on to say, and I quote:
“It was laid down that there could not be possession of a controlled drug unless the accused person knew that the 'thing' which
was alleged to contain the controlled drug is in his possession, that knowledge of the presence of the 'thing' in question was an
essential prerequisite to possession and that therefore the Crown had to prove, as part of its proof of possession of the controlled
drug, knowledge that the thing (which was in fact a controlled drug) was there. As was pointed out, and indeed had been pointed out
by Lord Parker CJ, how can you have possession of something of the existence of which you do not know?' (Emphasis added)[12]”.
- In R v Wright (1976), it is stated that: “If a person is handed a container and at the moment when he receives it does not know or suspect, and has no reason to suspect, that
it contains drugs, and if, before he has time to examine the contents, he is told to throw it away and immediately does so, he cannot,
in our opinion, be said to have been in possession of the drugs which happened to be inside the container. This so even though the
instruction to throw away the container, which he instantly obeyed, made him suspect that there was something wrong about its contents[13].'
Therefore, a person does not have the prerequisite 'knowledge' if he/she:
[i] Does not know know where the thing was[14]; and
[ii] Was not in position to fito find out[15].
- In applying the facts of this case to the casghlighted above, one would note, how Mr Mika had maintained the fact that he did not
know tnow that the substances which parties have referred to as marijuana, was in his possession. Based on these cases, it would
be correct to say that the issue regarding possession can only be proved to the requisite standard, if the person involved had known
or has knowledge. In my view, it was not for P1, PW2 and PW3 to determine, whether or not Mika has knowledge about the items found
in his bag. There are standards already put in place for the court to follow, in order to ascertain whether a person’s argument
in terms of lack of knowledge should be accepted or not
- Still on the issue of possession, there was no substantial evidence adduced by Prosecutions, to prove that Mr Mika was selling, or
had given or had sold to another person, the substances which were discovered in his bag.
- Hence, in view of the issue raised by both parties as to whether or not Mr Mika had knowledge about what was in his bag, I am left
with a significant doubt that he knew.
Whether or not the search was unlawful or not
- In his closing submission, Counsel for the Defence, Mr None emphasised on how the search conducted on his client was not done by police.
At this regard, I see fit that section 9 of the Dangerous Drugs Act be outlined in order for me to ascertain whether or not the arrest effected by PW1, PW2 and PW3 was in compliance to any arrest warranted
by Dangerous Drugs Act itself.
- Section 9 —states:
(1) Any police officer may, upon a warrant, enter any place in which there is a reasonable ground for suspicion that raw opium, Indian
hemp or coca leaf is kept or may be found so as to constitute an offence against this Act and may seize any raw opium, Indian hemp
or coca leaf found there, together with baskets, jars or packages holding the same, and apprehend and detain any person suspected
of owning the same[16].
(2) Any police officer may without warrant apprehend and detain any person carrying or conveying any raw opium, Indian hemp or coca
leaf[17].
(3) Any person apprehended under the provisions of the foregoing subsections shall be taken as soon as may be possible before the
court to be dealt with according to law[18].
I also see fit that Section 14 of the Criminal Procedure Code be outlined since it deals with the search of arrested persons.
Section 14 states. - (1) Whenever a person is arrested by a police officer or a private person, the police officer making the arrest
or to whom the private person makes over the person arrested may search such person, and place in safe custody all articles other
than necessary wearing apparel found upon him[19]:
Provided that whenever the person arrested can be legally admitted to bail and bail is furnished, such person shall not be searched
unless there are reasonable grounds for believing that he has about his person any-
(a) Stolen articles[20]; or
(b) Instruments of violence[21]; or
(c) Tools connected with the kind of offence which he is alleged to have committed[22]; or
(d) Other articles which may furnish evidence against him in regard to the offence which he is alleged to have committed[23].
- In my respective view, section 9 of the Dangerous Drugs Act, and Section 14 of the Criminal procedure Code, are somewhat silent when it comes to arrests being done by anyone other than a police
officer. From what I have recorded during the examination in chief and cross examination, I note that it was only PW1 who said that
they do not have the power to arrest and search. However, this was not the case with PW2 and PW3, since all along they seemed to
have mentioned during multiple times, the fact that they have arrested the defendant.
- In my view, since these individual do not have the power to effect an arrest at the first place, then they would not even have the
right to tell the defendant to show them what was in his bag. I note that the Defence Counsel upon cross examining PW 1, PW2 and
PW3, had raised the fact that the arrest and search carried out on his client were unlawful. Regardless of this, he still agreed
to have the exhibit taken directly from this very search, which he deemed unlawful, to be tendered to the court. He now believes
that section 9 (1) of the Constitution had been breached. Section 9 (1) of the Constitution states:
“Except with his own consent, no person shall be subjected to the search of his person or his property or the entry by others
on his premises[24]”.
- While I understand that the Defence Counsel may not have realised the effect which his consent on tendering the white box, may have,
it is still of paramount importance that the court is assisted properly. I now refer to the remarks uttered by his Lordship, Sir
Palmer, CJ, in the sentence of delivered in Regina v Mana [2006], where reference was made to sub rule 16 (5) of the Legal Practitioner’s (Professional Conduct) Rules, that states:
"A legal practitioner shall ensure that the Court is informed of any relevant decision on a point of law or any legislative provision
of which he is aware and which he considers to be relevant, whether it be for or against his contention[25]”.
- Having outlined this rule, he went on to say and I quote: “Whilst these are broad guidelines they should help counsel to determine what is permissible or not permissible in court[26]”. While this rule may only apply to legal practitioners, I believe, this should be the same principle applied by Police Prosecutors,
in their capacity as officers of the court.
- Hence having considered the provision of sections 137 and 170 of the Evidence Act 2009, with due consideration to the case of Alex v Golu [1983] PNGNC[27] and State v Popo [1987] PGNC[28], I am of the view that as a Judicial officer, I have the ultimate duty to ensure that the court runs in accordance with the rules and
principles of law. It is my view after assessing the evidence before me, that the item, which was tendered and marked as P/2, was
obtained in contrary to Section 9 of the Dangerous Drugs Act, Section 9 (1) of the Constitution, and Section 137 and 170 of the Evidence Act 2009. I bear in mind, that in applying my discretion, due consideration must also be paid towards the fundamental rights protected by
the Constitution of this country. With this, I will accept the argument advanced by Mr None to render P/2 as inadmissible.
Sections 39 (3), (6) and Section 42 of the Dangerous Drugs Act
- The sections identified above, in my view, hold significant roles when it comes to the application of the Dangerous Drugs Act. Section 39 (3) provides for the ultimate consent of the Director of Public Prosecutions[29]. An evidence of this, is the sanction to prosecute, a certificate that can only be authorised by the Director of Public Prosecutions.
Section 39 (6) provides for the time within which any proceedings for an offence under this Act is to be brought. The comply with
Section 39 (6)[30], the same sanction certificate authorised by the Director of Public Prosecution in light of Section 39 (3), would still apply.
- As far as I am concerned, Prosecution has provided me with the sanction certificate in accordance with Sections 39 (3) and 39 (6) of the Dangerous Drugs Act.
- In light of Section 42 of the Dangerous Drugs Act, I had given Prosecutions the opportunity to address what was referred to in that Section and what their view was on the case of
Tango v Regina. From my understanding, the case of Tango v Regina, is the unchallenged case that clearly outlines the application of Section 42. Unfortunately Prosecutions was not able to address the stance taken in that case, since they deprived themselves from the opportunity
of reading the case way before the matter reached the trial stage. Such failure could never have transpired at this stage, had Prosecutions
taken their time to study and balance their evidence before proceeding further.
- In her response to my enquiries about Section 42, Ms Hiroshachi, submitted that providing a letter from the Botanist was how far they
could go. When this very issue was raised in the Unreported Criminal Case of Regina v Umea and Others[31], the then Director of Public Prosecution submitted that, as long as an officer is attached to a Government department, it would be
sufficient to meet the requirements provided for, under section 42 of the Dangerous Drugs Act. In her Judgment, the Chief Magistrate drew reference to what was uttered by Kabui J, as he was then in the case of Tango v Regina, which states:
“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[32]”.
- Having highlighted the cases of Regina v Umea and others, and Tango v Regina, I for one will concur with the views shared by her Worship and His Lordship, as he was then, when they insisted that a certificate
purporting to be signed by a Government Chemist shall be prima facie evidence in this regard.
- Despite the fact that Prosecution had seem to acknowledge the wordings of section 42, they submitted that providing a statement from
the Botanist is how far they can go. In my view, the laws in question have been in force for quite some times now, had the meaning
of Section 42 be flexible in manner, then his Lordship, Judge Kabui, as he was then, would not have drawn much emphasis on the need
for a certificate to be signed by a certified Government Chemist. In this case, there is no certificate of such kind within my records.
- Once again, while the 81 rolls were believed to have contained marijuana or India hemp, I will not take judicial notice to assume
that the items were indeed marijuana or Indian hemp.
- Hence, with the evidence before me, and the findings I have come to conclude on, I must say that given the inconsistencies recorded
throughout my findings and the failure to comply with relevant [provisions herein, I highly doubt that Prosecutions has risen to
prove beyond a reasonable doubt, that Mr Mika had knowledge about the items which by now cannot be confirmed as marijuana or Indian
hemp, which were found in his bag. It is also safe to say that the manner in which Mr Mika was arrested and served were not provided
for by law, hence whatever evidence obtained during the search conducted on him must be deemed inadmissible. Further to that, Prosecutions
has also failed to comply with section 42 of the Dangerous Drugs Act.
- It is with all these findings that I am not inclined to accept the prosecution case, and hereby order as follows:
ORDER:
(1) For the count of possession of dangerous drug, I find the Defendant, William Mika, NOT GUILTY;
(2) Mr Mika is to be acquitted forthwith
(3) The white box containing the 81 rolls of an unknown substance, is to be destroyed forthwith by the Police in a manner deemed appropriate;
and
(4) Right of appeal applies.
Dated this 13th day of July 2020.
____________
THE COURT
Emily Z Vagibule-Magistrate
[1] Charge filed on the 11th of March 2020
[2] HCSI-CRC 100-03
[3] Above n 2
[4] Above n 2
[5] Gibons, “Dangerous Drugs”, Criminal Law in the Solomon Islands
[6] Above n 5
[7] Above n 5
[8] Section 8 (b) of the Dangerous Drugs Act, Cap 98
[9] Section 39 (2) (b) of the Dangerous Drugs Act, Cap 98
[10] Section 20 of the Dangerous Drugs Act, Cap 98
[11]AC 862; (1974) 59 CrAppR 185 [[1974] 2 WLR 899; [1974] 2 AllER 840; [1974] CrimLR 364]
[12] 2 AllER 356; [1969] 2 AC 256; [1969] 2 QB 256; (1968) 52 CrAppR 373]
[13] 62 CrAppR 169
[14] Above n 13
[15] Above n 13
[16] Section 9 (1) of the Dangerous Drugs Act, Cap 98
[17] Section 9 (2) of the Dangerous Drugs Act, Cap 98
[18] Section 9 (3) of the Dangerous Drugs Act, Cap 98
[19] Section 14 (1) of the Criminal Procedure Code
[20] Above n 19
[21] Above n 19
[22] Above n 19
[23] Above n 19
[24] Section 9(1) of the Constitution of the Solomon Islands
[25] 16 (5) of the Legal Practitioner’s (Professional Conduct) Rules of the Solomon Islands
[26] [2006] SBHC 145; HCSI-CRC 100 of 2003 (21 March 2006)
[27] [1983] 18; [1983] PNGLR 117; N419 (29 April 1983)
[28] [1987] PGNC 59; [1987] PNGLR 286; N611 (19 August 1987)
[29] Section 39 (3) of the Dangerous Drugs Act, Cap 98
[30] Section 39 (6) of the Dangerous Drugs Act, Cap 98
[31] Regina v Umean and Others, CRC-CMC 546 of 2019, (4th January 2020)
[32] HC-Criminal Appeal Case No. 174 OF 2004
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