Rex v Singh [2003] TOSC 4; CR 004 2003 (10 February 2003)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

NO.CR.4/2003

REX

-V-

JITENDRA SINGH

BEFORE THE HON. JUSTICE FORD

Counsel: Mr Sisifa for the Crown and
Mr Kengike for the accused;

Dates of hearing: 5 and 6 February 2003;
Date of judgment: 10 February 2003.

JUDGMENT

The accused, Mr Jitrandra Singh, faces one count of possession of ammunition contrary to section 4 of the Arms and Ammunition Act (CAP.39). It is alleged that on 17 November 2001 at Liahona he possessed five .22 rifle bullets without a valid licence.

The Crown's case was that at about 10 am on Saturday 17 November 2001, the police executed a search warrant in respect of Harry White's tax allotment at Liahona known as "Ha'amea". The accused was found to be the only occupant of the house on the allotment and he was made to wait outside the dwellinghouse for approximately one hour while the police located Harry White where he lived at Ha'ateiho and obtained his approval for the search to proceed. The accused co-operated totally during the search. The police did not find anything listed in the search warrant but they did find:

1. Four .22 bullets -- found in a first-aid box hanging on the wall in a passageway adjoining the lounge room.
   
2. One .22 bullet -- found among papers in a folder in the drawer of a cabinet in one of the bedrooms.
   
3. Two .22 magnum bullets -- found in an old looking bullet box in a small decorative coconut basket hanging in the lounge room close to the door.
   
4. One magazine designed for a pistol. The magazine was empty. The police armourer explained to the court that it was designed for short .22 bullets only and it was not able to take any of the bullets found during the police search.
   

The accused does not face any charges in respect of the magazine or the two .22 magnum bullets found in the coconut basket. The one charge he faces relates only to the 4 bullets found in the first-aid box and the single bullet found in a folder in a cabinet in one of the bedrooms.

Following on from the search, the accused was arrested and taken back to the police station at Nuku'alofa. He appeared before a magistrate and the police subsequently proceeded to conduct an interview with him which was recorded in a document headed "Record of Interview". Objection was taken by Mr Kengike, on various grounds, to the admissibility of the document but, after a hearing on the voir dire, I ruled that the statement did not infringe section 21 of the Evidence Act (CAP.15) and that it was, therefore, admissible.

The accused elected to give evidence on his own behalf and call other witnesses. He told the court that he came to Tonga from Fiji in 1999. He is a 28 -year-old motor mechanic by trade and he works as a mechanic in Tonga. In 2000 he befriended Harry White's son, Raymond, and he carried out mechanical work for the Whites. He said that at one point he asked Raymond if he could find a cheap flat somewhere where he could stay and Raymond responded by inviting him to move into a room in his own home at Ha'amea. The evidence was that the house on the Ha'amea allotment, now apparently owned by Raymond and his wife, had been in the White family for a great number of years. It had been owned by Harry White's father who came out from the United Kingdom in 1905. The accused moved in with the Whites in April 2001. He did not pay any rent for the use of the room but the arrangement was that he would carry out any necessary mechanical work for the Whites without charge.

In June 2001 Raymond White and his wife left to visit the USA. The court was told that they originally planned to be away for only 12 months but they have still not returned. The accused said in evidence that when the couple left, they asked him to take care of the property while they were away and they told him not touch the other three bedrooms in the house.

When the police carried out their search of the house on 17 November 2001 and found the bullets they asked the accused if he knew anything about them. He denied any knowledge of their existence.

Significantly, the police found nothing in the room occupied by the accused. One of the other rooms that the police wanted to inspect was found to be locked and the accused said that he explained to the police that he did not have a key to that particular room. The accused went on to say that it seemed to him that the police were preparing to break down the door to obtain entry to the room and so he volunteered to go around the outside of the house and climb in through the window thus giving the police access to the bedroom. Nothing was found in the locked room. The police confirmed this account although they denied that they were intending to break into the room.

Harry White was called as a witness for the accused. He is a 61 -year-old businessman. He told the court that on 17 November 2001 the police executed a search warrant over both his home in Ha'ateiho and the house on his Ha'amea tax allotment. He said that they were looking for marijuana but none was found. Mr White told the court that he had not lived in the house at Ha'amea for some 10 years but he visits the allotment at least once or twice a week and he keeps a close eye on the property. He said that he knew Raymond and his wife had left the accused in charge of the house while they were in the States.

Mr White was asked about the bullets found by the police. He said that he had no knowledge of them but he did not appear to be at all surprised over their discovery. In this regard, he explained to the court that his father had owned a .22 rifle as had he and most of his six brothers who had lived in the house at Ha'amea. He said that the .22 ammunition found by the police was "exactly" the type of ammunition that his family had used over the years. The police armourer, Lance Corporal Po'uli, confirmed in cross-examination that Harry White had previously owned a .22 rifle and he had been licensed to use the type of ammunition found during the police search.

Mr White said in evidence that he had no idea who the bullets had belonged to but he indicated that any member of his family could, for some reason, have put them where they were found in the house. Referring to the single bullet found in a folder in a cabinet in one of the bedrooms, Mr White confirmed that the cabinet had belonged to his father.

Mr White said that he had been introduced to the accused by his son , Raymond White, sometime before he (the accused) had moved into the family home and the accused had carried out some mechanical work for him. He knew the room in the house occupied by the accused and he told the court that the other three bedrooms in the house belonged to the White family and they were kept locked. Harry White confirmed that during his frequent visits to Ha'amea, he had never seen the accused with a rifle or ammunition. When asked about the small coconut basket in which the two .22 magnum bullets were found, Mr White said that the basket had been in the family for "probably 90 years" and it would have been his dad or one of his brothers who had, at some stage, put the bullets in the basket.

I found Mr White to be a completely credible witness.

Crown counsel, in submissions, relied heavily upon the answer given by the accused to one of the questions asked in the police interview. He also urged the court to apply the test for "possession" outlined in a passage from the most recent edition of Archbold, Criminal Pleading Evidence & Practice (2001). I will deal briefly with both matters.

The accused made no admissions whatsoever to the police in relation to the bullets. The question Crown counsel relies upon is question No 23. After ascertaining that from June 2001, when the Whites left for the States, and November 2001, the accused was the sole occupant of the house, the police officer conducting the interview asked:

"Q. 23. Mr Singh, it seems to me that everything in the house is yours and under your control?

A. Yes."

The police officer took that answer as an admission by the accused that the bullets were his and he then proceeded to lay the formal charge.

In cross-examination, the accused explained that his answer related to the last part of the question only. He said that he accepted that he was in control of everything while the Whites were away but he meant everything that he had seen and not "things that I had not been shown." He said that he had no idea that the bullets were in the house.

The accused appeared to me to be a truthful witness and I accept the explanation he gave in evidence. Rather surprisingly, he was not asked one single question during the interview about the bullets. If the Crown seeks to rely upon so-called admissions, the evidence would need to be much more compelling than that disclosed in the record of interview in the present case.

The reference Crown counsel made to Archbold, which he sought strongly to rely upon, was a reference to an analysis of R v Lewis 87 Cr App R 270. The relevant text states (at 26.61):

"A person is in possession of something when he has knowledge of its presence and some control over it; but he would not have possession unless he either knew, or the circumstances were such that he had the opportunity, whether he availed himself of it or not, to learn or to discover in a general way what the items were."

Crown counsel stressed the words emphasised and submitted that, as the accused was the sole occupant of the house for the three months immediately preceding the police search then he had the opportunity, whether he availed himself of it or not, to discover the ammunition. Thus, in terms of the passage quoted from Archbold, he must be held to have possession of them.

The submission downplays the significance of the immediately preceding words which require the court to have regard to all the relevant circumstances. As May L.J. said in delivering the judgment of the Court of Appeal in the Lewis case (at 275):

"But as has so often been said in different contexts, particularly in criminal jurisprudence, the question of what constitutes "possession" is an elusive 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."

An attempt to define the relevant circumstances for determining whether an accused should be held to have possession of a substance, rather than mere control, was made by Lord Wilberforce in Warner v Metropolitan Police Commission [1969] 2 AC 256, but His Lordship expressly stated that the list was not exhaustive.

Both Lewis and Warner were narcotic cases. Even an elementary study of drug cases reported in the law reports shows that they are notorious for giving rise to a plethora of factual circumstances which may make it appropriate and just for the court to impute to an accused an intention to possess or knowledge amounting to possession.

The proven facts in the present case fall well short of reaching that threshold. To establish guilt, it is not sufficient for the Crown simply to prove that the items in question were found on premises controlled by the accused. An accused cannot be said to have possession of something if he does not know that it is there at all.

It is abundantly clear to me, on the evidence, that the bullets in question in the present case had been on the premises long before the accused ever appeared on the scene and I accept his evidence that he had no knowledge whatsoever of their existence.

For these reasons, the accused is acquitted and discharged.

NUKU'ALOFA: 10 February 2003

JUDGE