Stehlin v Police [1993] WSCA 5; 13 1993 (23 March 1993)

IN THE COURT OF APPEAL OF WESTERN SAMOA
HELD AT APIA

C.A. 13/93
BETWEEN:

SONNY STEHLIN

of Vailima.
Planter Appellant
AND

THE POLICE

of Apia
Respondent
C.A. 14/93
BETWEEN

THE ATTORNEY GENERAL

Appellant
AND

SONNY STEHLIN

Respondent

Coram: The Rt. Hon. Sir Robin Cooke, President
The Rt Hon. Sir Gordon Bisson
The Hon. Sir John Jeffries

Hearing: 23 March 1993

Counsel: R.S. Toailoa for Stehlin
M.B. Edwards for Police and Attorney-General

Judgment: 23 March 1993

JUDGMENT OF THE COURT DELIVERED BY SIR ROBIN COOKE

In April 1992 the present appellant was found in possession of a total of 10.247.5 kilograms of cannabis plant material. The total quantity was made up of 31 marijuana plants found growing on his premises, those plants being of varying heights; three piles of dried cannabis leaves were also found there; and seven marijuana cigarettes were found inside the jacket he was wearing late on a Saturday night.

The respective weights of those quantities were 10 kilograms for the plants, 243 grams for the piles of leaves and 4.5 grams for the cigarettes.

He was found guilty after trial on charges of cultivating cannabis and possession of cannabis and was sentenced to imprisonment for two and a half years on the cultivation conviction and 12 months concurrent on the possession conviction. He appeals against both the convictions and sentences.

Those discoveries by the Police followed an incident on the Saturday night when a police constable saw the accused in front of the Love Boat nightclub. He was under the influence of alcohol, in fact so much so as to be described as drunk, and he appeared to be smoking a marijuana cigarette or 'joint'.

His counsel, Mr Toailoa, has taken a number of grounds in challenging the convictions. The first of these relates to two preliminary or incidental rulings made by the Chief Justice. It appears that there is no contemporaneous note of these rulings or the reasons for them. Mr Toailoa points out that this renders compliance with the relevant regulations impracticable, his reference being to the First Schedule to the Judicature Ordinance 1961, which contains the Court of Appeal Rules. He directs attention in particular to Rule 30, relating to Criminal Appeals, whereby the Registrar is required to procure from the Supreme Court certain documents. It may well be that there has been some breach of that rule and, while the rule in question contains a reference to a copy of the reasons for judgment 'if given', it is clear that on ordinary principles as to the administration of justice reasons should be given wherever practicable. But the point has not given rise to any difficulty on the hearing of this appeal because it involves basically matters of law, including statutory interpretation, and this Court has not been embarrassed in any way in dealing on the appeal on all the questions which counsel for the appellant has desired to raise.

A suggestion that the Chief Justice should have disqualified himself from presiding at the trial arises because evidently he had been responsible for or concerned in the drafting of legislation amending the Narcotics Act to provide that the production of an analyst's certificate should be conclusive evidence of the contents of that certificate. That amending legislation was held void by a Court of Appeal differently constituted from the present Court. We can well understand that the Chief Justice thought it prudent to disqualify himself from adjudicating on an argument as to whether or not his own drafted legislation infringed the Constitution.

The position is quite different, however, as to presiding at the trial. By the time of the trial, the amending legislation had been struck down and was totally out of the case. The doctrine of disqualification for alleged bias has to be applied somewhat robustly in a jurisdiction of the size of Western Samoa. Indeed, the present tendency of case law around the world, including a recent decision of the House of Lords (R. v. Gough [1993] UKHL 1; [1993] 2 All E.R. 724), is in the direction of robustness in this kind of matter. We are satisfied that no reasonable member of the Samoan community would suspect that, because he had been involved in the drafting of a provision which was not in the event even relevant to the trial, the Chief Justice was disqualified from presiding at the trial. There was certainly no real danger of bias. The point is without foundation.

In other respects as well there appears to have been no record of any reasons that may have been given by the Chief Justice. For example, Mr Toailoa has singled out the absence of reasons for the dismissal of his objection based on the maxim generalia specialibus non derogant, to which we are about to refer more fully. Again, however, the Court has not been impeded in dealing with the point by the absence of reasons.

The point itself is this. It is said that on the night in question the present appellant was arrested and searched by a police constable. We approach the case on the footing that that was so. Counsel for the appellant then relies on the Narcotics Act 1967, s.16(1):

16. Power of arrest of person suspected of committing offence - (1) If any commissioned officer of Police, officer of Customs or inspector has reasonable cause to believe or suspect, or finds, that any person has imported into or exported from Western Samoa any narcotic in contravention of any provision of this Act, or has been concerned in such importation or exportation or is engaged in dealing in any narcotic in contravention of any such provision, or is in possession of any narcotic or other thing in contravention thereof, he may arrest that person without a warrant.

It will be noted that that subsection gives a power of arrest without warrant to any commissioned officer of Police, officer of Customs or inspector having reasonable cause to believe or suspect, or finding, certain matters or things. 'Inspector' for the purposes of that Act is an officer of the Public Service appointed as such under s.4 of the Act. We were informed from the bar that no such appointments have in fact been made. Clearly if s. 16(1) as just quoted were the only relevant provision, a police constable would not have power thereunder to make an arrest without warrant. But s. 16(1) does not stand unmodified. There is the Criminal Procedure Act 1972, s. 4(5), providing:

4. Arrest without warrant:

........

(5) Where under any enactment other than this Act any officer or person, not being a constable, has power to arrest any other person without a warrant, any constable may exercise that power in the same cases and in the same manner as that officer or person.

Mr Edwards is right in classifying that provision as an enlarging or extending one. Its manifest purpose is that where, under any Act dealing with a special subject, an express power of arrest without warrant is conferred on a person not being a constable, then any constable is to have exactly the same power. In our opinion such a case is not one for the application of the generalia specialibus maxim. The whole purpose of the legislature in enacting the extended or enlarging provision was to widen the range of persons who may exercise such powers under other specific legislation. In the end the maxim relied on for the appellant must yield to the intention of the legislature as appears from what has been enacted. We have no doubt that the intention in this instance is as we have said. An inspector appointed under the Narcotics legislation could have exercised the power of arrest without warrant. The fact that none had been appointed, assuming it to be a fact, is quite irrelevant. It is the extent of the power that matters. Similarly a Customs officer could have exercised such a power under the Narcotics Act. It follows that the constable had full authority under the combined provisions of two statutes, so that no point can be founded on the alleged unlawfulness of an arrest. It becomes unnecessary to explore various other answers made by the present respondent to the argument based on alleged unlawful arrest.

Next, we turn to what is possibly the main ground of this appeal, which is at first sight a somewhat startling proposition. The appellant called evidence to the effect that for some 16 years he has been suffering from a stomach ulcer and, although some medication has been prescribed for him, he has found it unpalatable and distressing to take. He says that the only thing that does him any good by way of alleviating the pain and discomfort of his ulcer is the smoking of cannabis. On that foundation what is argued for him is that the cultivation of cannabis and the possession of it was 'necessary' within the defence of necessity or duress of circumstances, as it is sometimes called, which has in recent years come to be established as available in criminal law in most of the major Commonwealth jurisdictions. We know of no case in any jurisdiction in which the habitual use of cannabis, still less the cultivation of substantial quantities of cannabis, has been found to be due to duress of circumstances or necessity. The Chief Justice was favourable to the defence in ruling as he did that the defence of necessity is not only available in Western Samoa generally, but should in appropriate circumstances be available to charges of cultivating or possessing cannabis. At least as far as cultivation is concerned, we have difficulty in visualising facts where that might be so.

Be that as it may, the Chief Justice found against the defence on the particular facts of this case. This Court has not the slightest doubt that he was correct to do so. There are an accumulation of reasons.

The leading authority in common law jurisdictions on the defence of necessity is now probably the judgment of Dickson J. in the Supreme Court of Canada in Parka v. R. (1984) 13 D.L.R. (4th) 1. Sapolu C.J. quoted extensively from that judgment in his own present judgment, and we extract a few phrases from Dickson J.'s reasons, as these convey the gist of the defence and the principles that lie behind it. Dickson J. says, for example, that where a defence of necessity is available, it is 'paramount over other laws, relieving obedience from the letter of the law. If it does exist, it can go no further than to justify non-compliance in urgent situations of clear and imminent peril when compliance with the law is demonstrably impossible'.

Again:

That rationale as I have indicated, is the recognition that it is inappropriate to punish actions which are normatively 'involuntary'.

A little later he poses the test:

...whether the wrongful act was truly the only realistic reaction open to the actor of whether he was in fact making what in fairness could be called a choice.

Finally, he says:

... normal human instincts cry out for action and make a counsel of patience unreasonable.

That being the flavour of the defence, with this emphasis on matters of urgency or emergency, we cannot accept that deliberately cultivating cannabis over a substantial period, perhaps even over a period of years, could possibly be said to fall within it in any circumstances that we can visualise.

One of the matters alluded to by Dickson J. was whether there was a legal way out for the defendant in the case before the Court. It may well be that in the present case there was a legal way out, for counsel on both sides are of the view that under the Narcotics legislation of Western Samoa, ss. 6 and 7 as supplemented by the Regulations made thereunder (in particular Reg. 24(a) and it may be other provisions of the Regulations), there could conceivably be certain circumstances in which the person dependent upon cannabis for the maintenance of physical health could lawfully be prescribed a controlled supply of cannabis from a duly appointed licensee. Having regard to the present policy of the administrative and medical authorities, it may be a somewhat unlikely possibility, but counsel considered that it does exist in law and we are content to accept the view that is common to them.

What is of more practical importance is that there is probably a way out in fact, as the Chief Justice pointed out. Unfortunately the appellant has continued drinking alcohol, despite medical advice that this is aggravating his ulcer. His attitude in that respect is demonstrated by his condition on the night of the incident. Had he managed to refrain from alcohol or severely limit his consumption of it, it may well be that he would have alleviated the distress caused to him by his ulcer.

A further reason why the defence cannot succeed concerns the quantity of the drug. There was a large amount grown and harvested, which in itself points towards a use other than purely personal, but more importantly there were five unused and two used joints in his pockets. We find it impossible to conclude that he was carrying this essentially for the purpose of alleviating his ulcer problem. It may be that in some measure the appellant has used cannabis to help him with the ulcer but on the evidence as a whole this Court is satisfied that it cannot be seen as the dominant reason for cultivation and possession on the occasions relevant to this case.

So there are an accumulation of reasons against the defence of necessity in this case. In other words the prosecution has negatived that defence.

We now turn to the question of sentence. Two and a half years' imprisonment is perhaps at the upper end of the range of permissible sentences for cultivation, as Mr Edwards for the respondent was disposed to concede. Nevertheless, the maximum penalty is seven years and at first sight, for as large a quantity as was cultivated here, we are not surprised at the two and a half years selected by the Chief Justice. It is said for the appellant that the sentence is out of line with one in a case which the Chief Justice has referred to from time to time as exceptional: that is the case of Police v. Aipovi Aiono (Unreported) Criminal No. S89/92. That case, where only a fine was imposed, pre-dated changes in the law whereby the prosecution has a right of appeal against conviction or sentence and we do not consider that it can be safely relied on as a precedent since that time. Apart from that case, it appears that a pattern of imprisonment is common for cannabis offences in Western Samoa, indeed for much less serious cases than the present. Everything turns on the particular circumstances. Having regard to the gravity of this particular case, we see no reason for disturbing the concurrent sentences.

An additional point made for the appellant relates to a contribution of $500 ordered by the Chief Justice to be made by him towards the costs of the prosecution in bringing from New Zealand an expert analyst to give evidence of the cannabis content of the material. Such an order is not one lightly to be made, for it may add markedly to the punishment of a defendant and may in some cases operate hardly on his family. But in the present case we find it difficult to understand why the defence put in issue whether the material was cannabis. The main defence was the alleged defence of necessity and it is hardly consistent to argue that what the accused grew has not been proved to be cannabis anyway. Counsel for the appellant accepted in argument in this Court that the opportunity of taking a technical point would have been seized upon. We have been informed from the Bar that a letter was written to him from the Attorney-General's office before trial, asking whether there would be agreement to dispensing with the need to bring an analyst from New Zealand. It seems that the request met with no response. At all events in this particular case we do not think the prosecution could possibly be criticised for taking the step that they did. The amount ordered is only a relatively small proportion of the total expenses incurred. In the special circumstances we think that an order was fully justified.

For these reasons the appeals of the defendant against convictions and sentences must be dismissed.

There is a further issue. It is raised in a appeal by the Attorney-General from the granting of bail to the defendant. On 1 October 1993 the Chief Justice granted bail for reasons which have not been recorded, but possibly represent no more than an application of the general practice in this country. In a sense the issue is academic because the appellant must now of course surrender to his bail. But, as the Attorney-General's office has asked this Court for some guidance upon a continuing practical problem, we are prepared to make some observations.

The ordinary practice in other jurisdictions, such as New Zealand, is that bail is granted after a conviction and a custodial sentence only rarely. We accept that Western Samoan circumstances are sufficiently different to justify a more liberal approach here, bearing in mind the general importance of not taking away the liberty of citizens without solid reason. But the grant of bail is still essentially a discretionary judicial decision, normally for the Judge at first instance. Matters falling to be taken into account include the likelihood or otherwise of the person convicted absconding - a matter which is usually, though not invariably, judged by the seriousness of the offence: the length of the sentence: whether there appear to be any substantial grounds of appeal: and the period expected to elapse before a Court of Appeal sits again in Western Samoa. Those are not exhaustive, but they are the kind of considerations likely to arise and are to be borne in mind in reaching a decision. We think it would be undesirable for this Court to attempt to fetter the discretion by the Chief Justice or any Judge of the Supreme Court of Western Samoa in these bail cases. We propose to attempt to give no more general guidance than is conveyed by what has just been said. We add that in this particular case the appellant might be thought somewhat fortunate to have obtained bail, bearing in mind that the grounds of appeal put forward on his behalf are not strong (to put it conservatively) and that an appeal was expected to be heard within a little more than six months, as has in fact occurred. Those observations must suffice to dispose of the appeal by the Attorney-General. The bail appeal by the Attorney-General is dismissed.

There being no objection on behalf of the Attorney-General, we make an order as requested for the appellant that the $200 lodged as security for costs may be applied towards the $500 ordered to be contributed.

Solicitors:
R.S. Toailoa, Apia, for Stehlin
Attorney-General's Office, Apia, for Crown