Police v Tolova'a [2005] WSSC 50 (2 December 2005)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

ILALIO TOLOVA’A,
male of Tufulele
Defendant

Counsel: Mr K Koria for prosecution
Mr S Toailoa for the defendant

Hearing: 29 November 2005
Decision: 2 December 2005

RULING OF VAAI J

The accused is charged under section 7 Narcotics Act 1967 with knowingly having in his possession narcotics namely cannabis substances (4 green branches and leaves of marijuana). Police officers on duty at the Mulifanua wharf on the 12^th October 2002 suspected the accused who was well known to one of them, to be carrying narcotics and they searched the bag he was carrying and found 4 branches of marijuana. He told the police it was marijuana and they were his. He was then placed in a police car and taken to the Faleolo Police post where he and his bag were both handed over to Inspector Aniteru Tago who immediately questioned cautioned and advised the accused of his rights. Again the accused confirmed to Inspector the marijuana and it was given to him by a boy named Saunoaga for his (accused’s) brother Simaika of Salailua.

At the close of the prosecution case counsel for the accused moved to dismiss the charge on the ground that the evidence does not disclose a case for the accused to answer. He relied on the working of section 7 Narcotics Act which states:

“7. No person shall knowingly be in possession of or attempt to obtain possession of any narcotic unless:

(a) He is entitled to import or export that narcotic.

(b) He is licensed to deal in that narcotic.

(c) - - - - - - -

(h) He is lawfully in possession of the narcotic pursuant to an authority or supply granted or issued under section 8 or section 9 of this Act.”

Counsel for the accused submits that it is incumbent on the prosecution to eliminate the exceptions (a) to (h) of section 7 so that the elements of the charge will require the prosecution to prove possession of the narcotic and the absence of the exceptions (a) to (h) and as the prosecution has not produced evidence to show that the accused was in possession, not for any of the exceptions noted in (a) to (h) the charge should therefore be dismissed. The court has not had as in many instances of a no case to answer submission the benefit of full arguments from both counsels.

Counsel for the prosecution submits that the use of the word unless in section 7 imposes on the accused an evidential burden to prove that he was so possessed for one of the reasons in paragraphs a to h. The submission in my respectful view raises difficulty because of what was said by Lord Devlin in R v Jayasena (1970) AC 618 at 624:

“Their hardships do not understand what is meant by the phrase evidential burden of proof - - -. It is doubtless permissible to describe the requirement as a burden, and it may be convenient to call it an evidential burden. But it is confusing to call it a burden of proof, whether described as legal or evidential or by any other adjective, when it can be discharged by the production of evidence that falls short of proof.”

In R v Phillips (1991)3 NZLR 175 the New Zealand Court of Appeal had to deal inter alia with Section 6(6) of the New Zealand Misuse of Drugs Act 1975 which provides that if an accused person possess more than 28 grams of cannabis plant, then they are deemed to have possession for the purpose of supply “unless the contrary is proved.” It was argued for the accused that the expression unless the contrary is proved could be interpreted in such a way as to cast on the defence not the burden of proving anything in the sense of obtaining a finding of fact, but merely an evidential onus of tendering or pointing to some evidence which if accepted might create a reasonable doubt. In rejecting the argument the court held the section imposes a legal burden (balance of probabilities) on the accused; so that the ordinary and natural meaning of the word proof or proved as used in the section as suggested by the defence is in the court’s view:

“a strained and unnatural interpretation which even with the aid of the New Zealand Bill of Rights Act, this court would not be justified in adopting (at page 177).

Section 7 of the Narcotics Act unlike section 6(b) of the New Zealand Misuse of Drugs Act simply uses the word unless which in my view does not impose a legal burden on the accused, but merely to point to some evidence reasonably capable of raising a reasonable doubt on the issue, or, the evidential raising of an issue for the prosecution to refute beyond reasonable doubt. The language of section 7 is significantly contrasting to section 6(3) which provides a defence to a person charged with cultivating any prohibited plant or has in his possession seeds of a prohibited plant if the defendant proves:

(a) that he cultivated the prohibited plant or had in his possession the seed or a prohibited plant, as the case may be, to which the charge relates, pursuant to or in accordance with the conditions of a license granted under this Act by the Director, or

(b) that the prohibited plant, or the seed as the case may be, to which the charge relates - - - - -.

No doubt the different wording of sections 6 and 7 of the Narcotics Act is deliberate. Adopting the reasoning in R v Philips section 6 imposes a legal burden on the accused whereas section 7 does not. At the same time, section 7 does not require the prosecution, as defence counsel argued, to prove that the accused was in possession of narcotic for none of the exceptions in paragraph (g) to (h).

For the reasons given I rule there is a case to answer.

JUSTICE VAAI