Dovan v Public Prosecutor [1988] VULawRp 2; [1980-1994] Van LR 400 (8 March 1988)

[1980-1994] Van LR 400

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU

Appeal Case No. 1 of 1988

BETWEEN:

MICHELLE MARGUERITE DOVAN
Appellant

AND:

PUBLIC PROSECUTOR
Respondent

Coram: Cazendres and Ward JJ

JUDGMENT

[CRIMINAL LAW - EVIDENCE - admission of fresh evidence - possession of prohibited drug absolute offence - intervention by appellate court in decision of lower court.]

The Appellant appeared before the Supreme Court on 7 December 1987 charged with possession of a quantity of heroin contrary to section 2 of the Joint Regulation No. 12 of 1939. She was convicted on 23 December and sentenced to two years imprisonment.

She appeals against that conviction on four main grounds which may be summarised as:

1. That the Court misdirected itself on the question of whether the section created an offence of absolute liability.
2. That the conviction was against the weight of the evidence.
3. That the Appellant be allowed to call fresh evidence the effect of which would be to show that the chief prosecution witness had given perjured evidence at the trial.
4. That the Court did not or did not properly direct itself on the burden of proof.

The facts of the case need only be dealt with briefly.

The Appellant, worked in a bank in Port Vila, received two registered postal packages from Thailand. In each was a picture mounted on card the centre of which was removed. In the space created, each card contained four small polythene bags filled with a heroin substance. There was nothing else in the envelopes and they had the name of a Bangkok Company on the top left corner.

The Appellant had, for some time, been in correspondence with a man from New Caledonia who was at that time serving a very long gaol sentence in Bangkok for drug offences. He had told her he hoped to be released on a pardon and, although there was nothing to say the pictures came from him, the Appellant clearly believed they did as she told her friends at the bank they had been sent by her friend.

The police had already received information about the packets and kept watch on them. The Appellant received them in August but it was not until mid-October that the police went to her house, seized the packages and arrested the girl. One envelope was handed to the police by her and the other was found by them on a cupboard shelf beneath some clothing. In neither case had the pictures or their mounts been disturbed to reveal their contents.

The appellant has, throughout the case, admitted physical possession of those pictures, agreed she realised they contained something behind the pictures but denied knowledge that they were suspicious in any way. The appellant and her husband were aware of some contents that rattled in the mount but the Appellant insisted she felt it was only packing to make the rather cheap pictures look more substantial.

This Court dealt with the application to call fresh evidence first and to appreciate its significance one further matter needs to be described.

Some time after her arrest, a telephone call was received by the bank where the Appellant worked and the caller left a message for the Appellant to ring a number in France. The police made such a call using another woman to pretend to be the Appellant. Needless to say the fact of this conversation was not led by the prosecution until the defence elicited the information from Chief Inspector Laban during cross examination. He described making the call, declined to name the woman and said it was also in the presence of another officer. That other officer was not named nor was he called by the prosecution in the absence of any apparent challenge about the telephone call but one Inspector Bila had made a written statement confirming his presence at the time.

It appears that, since the trial and as a result of a complaint by the family of the Appellant, there has been an enquiry into the investigation of this case. Inspector Bila has made a further statement to the effect that he was not present at such a telephone call and only made the first statement because he was afraid of his superior officer, Laban.

The Appellant seeks to call Bila to give this evidence and suggests that if accepted by this Court, it will show Laban has lied on the matter of the telephone call at the trial and his whole evidence is therefore tainted.

The provisions of the Criminal Procedure Code give this Court wide powers to allow fresh evidence at the hearing of an appeal and we have been guided by the authority of Struik and Elsass v. the Public Prosecutor, Appeal Case No. 5 of 1985. We feel that this evidence, by the way in which it arose, would satisfy the test suggested there that it must be fresh evidence. However, we also feel that, before fresh evidence is admitted, this Court must consider it to be capable of being credible. If it is not, it will clearly be of no value. We have not seen the statements made by Bila but feel we have sufficient in the account already given to assess the question of his credibility.

The position is simply that Bila has now made two conflicting statements. By the very nature of these statements, one and possibly both are clearly untrue. It seems to this Court that it is impossible to accept Bila as a credible witness. When this was pointed out to Counsel for the Appellant, he suggested the ingenious test of calling Laban to tell the Court which of Bila's accounts was true thus proving the truth of Bila's statement by the testimony of the very witness they seek to prove a liar.

This evidence can never be credible and the application to call Bila is refused.

The first ground of appeal deals with the question of possession.

Section 2 of the Joint Regulation reads:

"The importation, sale, supply or possession in Vanuatu of the following substances and materials ... is prohibited." Listed in those substances is heroin.

In his address to the assessors, the learned Chief Justice told them to consider whether this was a case of innocent possession. He then went on to refer to the comments of Parker LCJ in the English case of Lockyer v. Gibbs (1967) 2 QB 243.

In the Lockyer case which was similar in many aspects to this case, Parker CJ said:

"It is clear that a person cannot be said to be in possession of some article which he or she does not realise is, for example in her handbag, in her room, or in some other place over which she has control."

I agree with such.

Again, I agree with further remarks of his:

"That while it is necessary to show that the accused knew that she had the articles which turned out to be a drug, it is not necessary that she should know that in fact it was a drug or a drug of a particular character."

Now let us turn to the facts and attempt to discover whether the accused knew that she had the articles which turned out to be drugs.

Counsel for the appellant urges this Court to read section 2 as not imposing absolute liability. He suggests that a comparison with section 14(1) as amended should lead to the implication that knowledge is necessary before a person can be convicted under section 2. We cannot accept that proposition. The legislature did not incorporate any reference to knowledge in section 2. On a similar provision in their legislation the English Courts have found possession of dangerous drugs to be an absolute offence. We accept the reasoning in those cases.

Applied to facts in the case under consideration here, if the trial Court found that the appellant knew the pictures contained some substance that was not part of the pictures or their mounting, she is guilty under section 2. If, on the other hand, she may have believed that the contents were nothing but packing materials and, therefore, made up part of the picture and mount, she was not guilty. That was the test applied by the learned Chief Justice and is clearly correct.

This ground of appeal fails.

The second ground of appeal is that the verdict was against the weight of the evidence and Counsel for the appellant addressed this Court eloquently with a number of arguments as to why we should consider that the evidence points equally to lack of knowledge.

The powers of the Court of Appeal under section 207 are wide and give them virtually unfettered discretion when considering an appeal. However, when exercising those powers they must act on some guiding principles.

We accept, as has been the case for some years in the English Court of Appeal, that we can and should reverse a verdict that appears in all the circumstances of the case to be unsafe or unsatisfactory. Equally we accept that, in order to do so, we may have to ask ourselves a subjective question whether we are, as was stated by Widgery LJ in R v Cooper (1968) 53 Cr App Rep 82, "content to let the matter stand as it is, or whether there is some lurking doubt in our mind which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such: it is a reaction which can be produced by the general feel of the case as the Court experiences it."

Counsel seeking no doubt to persuade us in accordance with that test, ranged widely over the evidence and many matters of conjecture based on, he said, matters notoriously well known in relation to the way drug traffickers operate. Many times this Court had to remind itself to keep to matters based on the evidence in this case.

We cannot accept that, in deciding if a verdict is unsafe or unsatisfactory, in asking ourselves if we have a lurking doubt, we can or should hear a virtual repeat of the type of arguments usually presented in Counsels' closing speech. The appeal court is not to be regarded simply as an opportunity to have a second bite at the same cherry. When it considers the evidence on appeal, it will always bear in mind that it is deprived of the clear advantage enjoyed by the trial court of having seen and heard the witnesses. That gives the lower court an opportunity to assess the demeanour of the witnesses and to hear the evidence; an advantage that is denied an appellate court bound as it is to a written record that can never be either complete or verbatim.

Thus, before it will intervene in such a case, this Court must have some ground for considering the verdict unsafe or unsatisfactory that goes beyond the simple question of whether we feel we might have come to a different conclusion if we had been the trial judge on the appearance of the written record.

In cases such as this, where the evidence on the vital question of knowledge is largely circumstantial, it is always possible to argue that the evidence points the other way. Those arguments will have been placed before and considered by the trial judge. Having considered them in the light of the witnesses he had seen and heard, he found the appellant guilty and he had proper grounds for so doing. In the absence of anything that goes beyond a plain reconsideration of the evidence we see no reason to intervene. This ground also fails.

The final ground suggests that the learned Chief Justice failed to direct himself on the burden of proof.

At the outset of his address to the assessors, he said:

"As to the facts ... you must be satisfied so that you really feel sure if the accused is guilty as charged. If so, you must find her guilty. On the other hand, you must consider whether the Prosecution have proved her guilt to your satisfaction. If they have failed to do so, you must find her `not guilty'. If you have any doubt you must give the benefit of such doubt to the accused."

Having reviewed the evidence, he returned to the topic with the following words:

"You must consider all the evidence for and against her and then decide whether you as men of the world think she was innocent or guilty of the charge against her. If you have any doubt in your minds about her guilt or innocence you must give her the benefit of the doubt."

Whilst we feel that one sentence there could be taken as suggesting that the test is either guilt or innocence and ignores the factor of uncertainty, we are satisfied that the learned Chief Justice directed himself properly and fairly on both the burden and the standard of proof.

The appeal against conviction is dismissed.

Dated at Vila this 8th day of March 1988.

L CAZENDRES
G WARD