Lasike v Rex [2012] TOCA 1; AC 11 of 2012 (12 October 2012)

IN THE COURT OF APPEAL OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY

AC 11 of 2012
[CR 285 of 2012]

BETWEEN:

LORD LASIKE
Appellant

AND:

REX
Respondent

Coram: Salmon J

Moore J

Handley J

Counsel: Mr. Harrison QC and Mr. Bloomfield for the Appellant

Mr. Kefu (Solicitor General) and Mr. Sisifa for the Respondent

Date of hearing: 5 October 2012

Date of judgment: 12 October 2012

JUDGMENT OF THE COURT

[1] This case illustrates the difficulties of defining the word possession in the varying contexts in which it is used.

[2] The appellant was convicted after a trial before a judge alone in the Supreme Court. He seeks leave to appeal against conviction on questions of mixed fact and law. The Crown does not oppose the grant of leave.

[3] The appellant was charged with possession of ammunition contrary to section 4(2) (b) of the Arms and Ammunition Act [the Act] which makes it an offence (inter alia) to possess ammunition without a licence. The judge found him guilty of possession of two live .22 bullets without holding a valid licence.

[4] The appellant was the owner of the Sandyboyz Motel and the bullets were found in a room which the court held was occupied by the appellant jointly with a woman (Sandra) who later became his wife. In reaching his decision to convict the appellant, the judge relied upon the reverse onus provisions of section 47 of the Act. That section provides as follows:

"Every person who is proved to have had in his possession or under his control anything whatever containing any arm or ammunition shall, unless the contrary is proved, be deemed to have been in possession of such arm or ammunition."

[5] The two bullets were found in a cardboard box which had been brought by Sandra to the motel some two weeks earlier. The box was on a shelf beside the bed. It was in full view of anyone entering the room. The police searched the room pursuant to a search warrant. The judge accepted the evidence of the police to the effect that the appellant told them that the room in which the bullets were found was his room. The appellant claimed that it was Sandra's room and denied that he had told the police that it was his.

[6] The cardboard box was open at the top but it was possible by pushing in the sides to hide some of the contents. The bullets were on top of the contents of the box but, when the police entered the room, could not be seen because the sides of the box had been pushed in. There was a bathroom which had access from the bedroom. It was accepted that the bathroom was not used other than for storage. Inside the bathroom was a full height cupboard. On the floor of the cupboard immediately visible once the door was opened there was a gun holster. It was not claimed that there was any direct connection between the bullets and the holster.

THE JUDGES FINDINGS

[7] As already indicated the judge accepted the evidence of the police to the effect that the appellant told them that the room in which the bullets were found was his room. The judge held that where the evidence of the police conflicted with that of the appellant he preferred that of the police. He made a similar finding in relation to the evidence of Sandra.

[8] The judge found as a fact proved beyond reasonable doubt that the room in which the box was found was a room regularly used and occupied by the appellant. He held that the box was in plain sight of anyone using the room. He found it proved beyond reasonable doubt that the appellant had the box in his possession and under his control. Mr. Harrison QC who appeared for the appellant in the hearing before us conceded that this finding was open on the facts.

[9] The judge went on to say that given his finding of fact, the second step in the two-stage process required by section 47 of the Act came into consideration. That question is whether the accused, on the balance of probabilities, has shown that he had no reason to suspect that the contents of the box contained illicit material or that he had assumed control or received possession of the box innocently and had no reasonable opportunity since receiving the box of acquainting himself with its contents. In describing the test in this way the judge was relying on the decision of the former Chief Justice Ford in R v Motuliki [2002] Tonga LR 124.

[10] The judge went on to reject the evidence of Sandra that she had no idea where the bullets came from. The judge held that this was inconsistent with what the appellant had told him. The appellant had said that Sandra told him, after the search had taken place, that her former husband had a licence to keep a .22 weapon. This fact, if accepted, provided a highly plausible explanation for the appearance of the bullets in a box received from premises occupied by the former husband.

[11] He went on to say that he thought it probable that the appellant would have come to know what was in the box, which suddenly appeared in the room and was sitting on a shelf beside the bed on the day the room was searched. He said he was not satisfied that the accused had shown that he had no reasonable opportunity to open the box and inspect its contents. He then addressed the argument that there was no reason for the accused to suspect that the box contained any illicit material. He referred to the gun holster and said that would put an innocent person on notice that something unusual had entered the room. He said it was highly unlikely that the accused did not know of the existence of the gun holster and was not put on notice of its possible ramifications.

[12] He concluded that having seen and heard the accused and his witness he did not believe his claim to know nothing of the contents of the box and that he had no reasonable opportunity to discover what those contents were. He found that the accused had not discharged the onus on the balance of probabilities, which was placed upon him by section 47 of the Act. It followed that he was satisfied that the Crown had proved that the accused was in possession of the 2 bullets in question and that being the only issue before him he must be convicted as charged.

THE ARGUMENTS IN THIS COURT

[13] The two principal contentions for the appellant were first that it appears to have been common ground, as between prosecution and defence, that a required element of the charge was knowledge on the part of the accused that the thing possessed by him was an arm or ammunition in terms of s 4 of the Act. Despite that common ground it is the contention on behalf of the appellant that the trial judge did not find that the appellant possessed the requisite knowledge of the presence of the two .22 rounds. Rather he was found guilty as a consequence of the application of the reverse onus provision of section 47.

[14] The second contention on behalf of the appellant is that the judge's application of section 47 involved a crucial legal error in that rather than holding that the section required the appellant to raise a real doubt that he was ignorant of the presence of the ammunition he was required to prove affirmatively, as the judge described it, "that he had no reason to suspect that the contents of the box contained illicit material or that he had assumed control or received possession of the box innocently and had no reasonable opportunity, since receiving the box, of acquainting himself with its contents".

[15] In our view it is clear that the prosecution did accept the burden of establishing beyond reasonable doubt that the appellant possessed the ammunition. This is apparent from the opening and closing submissions of the Crown, from the closing submissions for the defence and from an exchange between the judge and the prosecutor towards the conclusion of the Crown's closing submissions where the judge asked the prosecutor to confirm that it was the prosecution case that it needed to establish beyond reasonable doubt that the accused was aware that there were bullets inside the box. The prosecutor confirmed that that was the Crown's position.

[16] That position was confirmed at the hearing before us. Mr. Kefu told us that as a matter of practice the Crown does not rely on sections 35 and 47 of the Act and that in this case the Crown disclaimed reliance on those provisions and in particular on section 47. Mr. Kefu submitted that defence counsel heard the comments made by the judge during closing addresses on section 47 and could have claimed the right to call further evidence or make further submissions if he considered his client prejudiced by the possible application of the section.

[17] We do not accept this latter proposition. The judge did not say that he intended to apply the reverse onus and the Crown's general practice and its specific approach in this case would reasonably lead defence counsel to accept that the Crown was carrying the full burden of proof without recourse to section 47. As a matter of law the judge was of course entitled to include section 47 in his reasoning. It is a section of the Act that is intended to apply in all relevant circumstances. However in the light of the Crown's approach to the matter there has been a miscarriage of justice in that the defence has been denied the opportunity of calling additional evidence to rebut the presumption. The Crown has suggested that there is no evidence that could have been called that was not in fact called by the defence but we do not think it appropriate for us to make such an assumption.

[18] There are two further points that should be made about this aspect of the matter. The first is that in our view it is not appropriate for the Crown to effectively ignore the provisions of sections 35 and 47 of the Act. They are there for a purpose and the Crown should present its case in accordance with the provisions of the Act and it should make it clear in opening and closing submissions that it is doing so. If after having made it clear that it does rely on the provisions of the Act, the Crown elects to proceed by calling evidence which includes matters to which the reverse onus applies, that is entirely a matter for it.

[19] Secondly we wish to make reference to the judge's and the prosecution's reliance on Motuliki. It was that case that the judge and previous judges before him have relied upon in describing the burden placed upon an accused seeking to rebut the reverse onus of section 47. That case relied upon an extract from the 2001 edition of Archbold's Criminal Pleading, Evidence and Practice. As the decision itself notes the extract appears in a section dealing with the English legislation relating to drug offences. Mr Harrison advised us that the extract relied upon does not appear in the current edition of Archbold. In the later case of R v Singh [2003] Tonga LR 13 (also a case of possession of ammunition) the court pointed out the importance in possession cases of having regard to all the relevant circumstances and referred to the passage from R v Lewis 87 Cr App R 270 where May LJ said at p275:

"But as has so often been said in different contexts, particularly in criminal jurisprudence, the question of what constitutes "possession" is an illusive concept at common law. It depends so much on the circumstances of the particular case, as well as the wording and intent, for instance, of the particular statute creating the offence under consideration."

[20] In R v McNamara 87 Cr. App. R 246, the English Court of Appeal acknowledged the difficulty in expressing the concept of "possession" and in extracting the ratio from the speeches in Warner v Metropolitan Police Commissioner [1969] 2 AC 256 (the drugs case which is the source of the Archbold comment referred to in Motuliki). In para [4] of his judgment, the trial judge sets out the following passages from the judgment of Lord Lane CJ at p249 of McNamara:

First, "a man does not have possession of something which has been put into his pocket, or into his house, without his knowledge; in other words something which is "planted" on him".

Secondly, "a mere mistake as to the quality of the thing under the defendant's control is not enough to prevent him being in possession".

Thirdly, "if the defendant believes that the thing is of a wholly different nature from that which in fact it is, then the result would be otherwise".

Fourthly, "in the case of a container or box, the defendant's possession of the box leads to the strong inference that he is in possession of the contents or whatsoever is inside the box. But if the contents are quite different in kind from what he believed, he is not in possession of it".

"...the prima facie assumption is discharged if he proves (or raises a real doubt in the matter) either (a) that he was a servant or bailee who had no right to open it and no reason to suspect that its contents were illicit...or (b) that although he was the owner he had no knowledge of (including a genuine mistake as to) its actual contents or of their illicit nature and that he received them innocently and also that he had no reasonable opportunity since receiving the package of acquainting himself with its actual contents."

[21] The following comments need to be made about this passage. First it related to prosecutions under the English drugs legislation so that before applying the propositions in Tonga a comparison of that legislation with the Tongan legislation under consideration must be made. Secondly, the comment in the fourth proposition seems obviously to apply to a container in the sole possession of an accused. In the present case the container must have been in the joint possession of the appellant and Sandra which must raise further matters for consideration.

[22] Having determined that the judge's reliance on s 47 in the circumstances of this case has resulted in a miscarriage of justice we move to consider whether the conviction can stand on the basis advanced by the Crown at trial. The Crown's position was that it had been proved beyond reasonable doubt that the appellant knew of the contents of the box, including the bullets, and was therefore in possession of them. The appellant denied he had any knowledge of them. The judge made no finding that knowledge of the bullets was proved beyond reasonable doubt. He said he thought it was probable that the accused would have come to know what was in the box and that he did not believe his claim to know nothing of the contents. He found that the appellant had not discharged the onus under s 47. There being no finding that knowledge of the bullets had been proved beyond reasonable doubt the conviction cannot stand on that ground. We are confident that if the judge had been satisfied of such proof he would have so held.

[23] For the sake of clarity we emphasise that the discussion of "possession" in this judgment is in the context of the Act with its presumption and what we say applies only to offences under the Act.

CONCLUSION

[24] Having found that there has been a miscarriage of justice the question arises as to whether we should order a new trial or direct that a judgment and verdict of acquittal to be entered. The Crown's position is that the matter should be ended in this Court and that in the event of us not dismissing the appeal it would not be in the interests of justice for the Crown to re-prosecute the charge because the evidence in its entirety, from appellant and the Crown, is before the court. As already indicated we do not think that presumption can made with regard to the appellant.

[25] S 17 of the Court of Appeal Act requires us to allow the appeal where a miscarriage of justice has occurred unless it is an appropriate case for the application of the proviso which contains an exception to the general rule against double jeopardy. We do not consider that this is such a case. The Crown having failed to make out its case on the basis it elected, it would in our view be unjust for the appellant to face a retrial. Accordingly we grant leave and we allow the appeal. The conviction and sentence are set aside and we direct that a judgment and verdict of acquittal be entered in relation to the charge.

Salmon J

Moore J

Handley J