Police v Nauer [2009] WSSC 25 (20 February 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

ALOSIO NAUER, male of Tanugamanono
Defendant

Counsels: Mr G. Patu for the prosecution
Mr L.T. Malifa for the defendant

Decision: 20 February 2009

DECISION OF NELSON J.

The defendant faces two charges: firstly at Tanugamanono on the 4th March 2006 he knowingly was in possession of narcotics substances namely 35 bullets of cannabis wrapped in a piece of foil and secondly that at Tanugamanono on the same date he was knowingly in possession of narcotics substances namely 18 small dried branches of cannabis leaves contrary to section 18(a) of the Narcotics Act 1967.

The police evidence is that on 23 February 2006 a search warrant was obtained from the Supreme Court to enter and search "any building, box, receptacle, premises and place of Rupino Nauer of Tanugamanono" and to "break open and search any box or receptacle therein or thereon and to seize anything in respect of which an offence has been or is suspected of having been committed, anything in respect of which there is reasonable ground to believe to be evidence of the commission of any such offence, or anything in respect of which there is reasonable ground to believe is intended to be used to commit any such offence." The offence cited in the warrant is possession of narcotics and the evidence of Detective Inspector Douglas Fereti who obtained the warrant in answers in cross examination was that it was obtained based on information received from a police informer who had procured narcotics from the house on an earlier date. The detective inspector also said they were told by the defendant he was a cousin of Rupino Nauer and they had been advised by his informer the defendant was staying with Rupino Nauer at the Tanugamanono house of Rupino Nauer.

The search was undertaken in the early morning hours approximately 6am of 4 March 2006 under the command of Detective Inspector Fereti. His evidence was that upon entering the premises another cousin of Rupino Nauer one Maua Nauer who was in the first bedroom that they came to questioned the basis of their visit and the detective inspector showed him the search warrant. The search was carried out with their consent in the course of which the defendant was discovered sleeping in another room of the house. The warrant was shown to the defendant and that room was also searched. At no time did the officers find the house owner Mr Rupino Nauer and the inspector’s evidence was they were told by the defendant that Rupino Nauer now resides in American Samoa.

Other members of the search party also gave evidence. Constable Jacinta Ioane was one of the officers who searched the back room of the house where the defendant was found. She said when they entered he was asleep with a female friend on the bed. They both appeared intoxicated from the night before. They woke them up and told them the purpose of the police visit. They asked whose room it was and the defendant told them it was his then they searched the room. She noticed in one corner of the room a pink plastic bag. She searched the bag and found inside 7 marijuana cigarettes wrapped in foil. She passed the cigarettes to Sergeant Herbet Aati a senior officer of the search party. She also found a large green back-pack inside which was marijuana leaves and cigarettes wrapped in foil. These she also passed to the sergeant without counting the contents. Also found beside the couples bed was an ashtray with what appeared to be smoked marijuana butts and she further testified there was a strong smell of marijuana in the room. After the room was searched what was discovered was relayed to the defendant who admitted that they all belonged to him. She also testified that her job was to note down in her diary what was discovered and where, which she duly did including what was found in the other rooms of the house. She denied in cross examination the suggestion that she or any other officer of the police party planted the marijuana in the defendant's room.

Sergeant Herbert Aati also gave evidence and his testimony was that he received the green and pink bags from Constable Jacinta. There is some discrepancy between his evidence and that of Constable Jacinta as he said the pink plastic bag contained marijuana cigarettes and marijuana branches whereas the green bag contained the 7 cigarettes wrapped in foil. But I am satisfied the narcotics discovered by Constable Jacinta during the search and their respective receptacles were all handed over to Sergeant Aati who was the police exhibits officer at the time for safe keeping and that the narcotics amounted to 7 bullets or "pulu" as they are commonly known in the Samoan language plus 28 bullets totalling 35 marijuana bullets together with 18 branches of dried marijuana leaves. I am further satisfied that these were labelled and given to Detective Inspector Fereti for the purposes of interviewing the defendant when the officers returned to the Apia Police Station later that morning. After the interview they were returned to the custody of the Sergeant and samples were eventually sent by the Police to the Environmental Science and Research Institute ("ESR") in Auckland New Zealand for analysis. The analysis was carried out by Senior Forensic Scientist Ms Fiona N. Matheson whose report confirming these substances to be marijuana or from the plant Cannabis Sativa L was produced as Exhibit "P-1" for the prosecution.

After the search was completed sometime after 8am that morning the defendant was taken to Apia Police Station where he was interviewed by Detective Inspector Fereti at 9.25am. My findings surrounding that interview are contained in the courts earlier judgment dated 4 September 2008. The defendants challenge to admissibility of the cautioned statement made to the police based on a failure by the detective inspector to caution and to advise the defendant of his right to counsel was dismissed but I have yet to rule upon the defendants Samoan language argument and his argument that the police failure to comply with Article 6(3) of the Constitution means the statement should be excluded. It is convenient therefore to now address those matters.

Firstly, the Samoan language argument. Here the defendant says the advice as to his right to counsel should have been delivered using the words of the Samoan text of article 6(3) of the Constitution. The argument is that there is a vast difference between the words used by the police to inform the defendant of his right to counsel and the words used in the Samoan text of article 6(3) of the Constitution.

I have considered the argument but have a number of difficulties with it. Firstly, article 6(3) applies to when a person is arrested not when he is being interviewed. Secondly, even if it does apply to an interview situation there is no constitutional statutory or common law of Samoa obligation on the police to use the words in the Samoan version of article 6(3) to notify the defendant of his right to counsel. What is required is that the words used by the police convey the meaning and essentials of the right to the defendant in an understandable form. As noted by the late Sir Robin Cooke in Attorney General v Ueti [1994] WSCA 136, 140:

"No particular words are required to be used by the police officer as long as what is said brings home to the particular accused the substance of his right to legal advice without delay. It is necessary that the accused should understand his right. If the officer reasonably considered that what he said did result in an understanding of the right by the particular accused the court will ordinarily infer in the absence of evidence to the contrary that the accused did understand his right."

The learned judge then makes reference to various case authorities and continues:

"The important point made clear in these cases is that the ultimate question is always subjective. It is whether on all the evidence before the judge asked to rule on the issue the particular accused understood that he had a right to a reasonable opportunity to obtain legal advice before any continuation of the interview."

I am satisfied the words used by the interviewing inspector were sufficient to convey to the defendant all of his constitutional rights and further that the defendant despite protestations to the contrary in his evidence understood them. There is no better proof of this than the defendants own words at the outset of the interview when he was given the standard police card to read and he replied as recorded on page one of the interview transcript:

".........Fesili: .tuuina atu le pepa o lapataiga i le ua masalomia mo le faitauina

Tali: malamalama o le pepa o mea tuai lava."

In other words I understood the paper it is the same old things.

Finally as averted to in my ruling of 4 September 2008 I am not entirely convinced the Samoan text of the Constitution is as authoritative as advanced by the defence. Article 112 confers supremacy on the English version of the Constitution in cases of conflict. And while I do acknowledge the framers of the Constitution were by and large speakers of our native tongue as is evident from the Constitutional Convention debates and that there is therefore room for arguing that the Samoan text should be the dominant version, that appears not to be what the framers of the Constitution ultimately decided. What they decided is contained in article 112 which is perhaps a recognition of the fact that legal concepts are not easily translatable into the Samoan context or language.

The remaining challenge to admissibility of the statement is the argument that the police failed to comply with article 6(3) when the defendant was arrested. Counsel accepts in his submissions that the defendant was arrested at Tanugamanono if not in fact then as a matter of de facto arrest and therefore he says he should have been advised of his article 6(3) rights at Tanugamanono before being brought to the Apia Police Station. As this aspect had not been put to the detective inspector by either counsel during the voir dire, I allowed the prosecution to recall the inspector as to the events at Tanugamanono following discovery of the narcotics.

His evidence was he was present when the defendant was shown the materials found in the bedroom and the defendant said "the materials are his, he is not lying." His further evidence was he recalled advising the defendant he was under the custody of the police because of the marijuana found beside his bed and that he was going to be taken by the police. He was also told of his right to silence and that if he says anything it should be of his own free will as well as being informed of his right to a lawyer to represent him while he was being questioned. Further he was advised as to his right to a counsel to assist him at trial.

The defendant was then taken to the police vehicle while the detective inspector appeased the rest of the family household of the house of Rupino Nauer. The police party departed and on arrival at the Apia Station the inspector thanked his staff for a job well done did a de-brief and asked them to submit their individual reports of the search. He did this before interviewing the defendant. The detective inspector conceded in cross examination that no record of what was said at Tanugamanono was made and neither was any reference to it included in the cautioned statement. But the inspector insisted that this is what occurred at Tanugamanono and as no evidence on this issue was called by the defence and the defendant did not allude to these matters in his evidence on the voir dire, the Inspector's evidence stands unchallenged. The question then is whether that evidence sufficiently shows compliance by the police with article 6(3) of the Constitution.

There is no doubt the defendant was under arrest at Tanugamanono following search of the house and discovery of the narcotics in his bedroom. If not under actual arrest then as conceded by his counsel certainly under de facto arrest. As such he was required to be informed "promptly" of the grounds of his arrest and of any charge against him pursuant to article 6(3). I am in no doubt the defendant was aware at Tanugamanono of the grounds of his arrest but even if he was not, the detective inspectors evidence was he was told it was because of the marijuana found in his bedroom, marijuana which he admitted to the officers was his. As there was no charge at that time pending against him the charge requirement of article 6(3) did not come into operation neither in my view was it necessary that the police go further and advise him as to any possible charges or whether any charges were contemplated as the investigation had yet to be completed.

That only leaves then the part in article 6(3) that the defendant "be allowed to consult a legal practitioner of his own choice without delay." Viewing the evidence as a whole I cannot say the defendant was in any way prohibited or hampered in his efforts to consult a lawyer. What the evidence shows was after his arrest after 8am that morning he was brought to the Apia Police Station and after Detective Inspector Fereti attended to de-briefing his staff he interviewed the defendant. At the start of the interview the defendant was advised as to his constitutional right for counsel to be present at the interview but he declined to exercise it. This is recorded in the cautioned statement. There is no evidence the defendant was denied his article 6(3) right to counsel or his right for counsel to be present at the time of the interview. The challenge to the admissibility of the cautioned statement fails, the cautioned statement is therefore admitted into evidence as part of the prosecution case.

The remaining prosecution witnesses dealt with the issue of chain of custody and proof of the nature of the substances seized by the Tanugamanono search. As to these matters the evidence was that the materials were handed over at Tanugamanono by Constable Jacinta to the police exhibits officer Sergeant Aati and that these materials included a rothman cigarette packet containing dried marijuana leaves plus half a joint received from another officer of the search party Constable Iosefa. As these latter materials are not the subject of any charge I need not refer to them further.

The evidence showed that the materials were labelled at the scene by the exhibits officer who placed them in a brown envelope and transported them to the Apia Police Station where later that morning he released them to the detective inspector for the purpose of interviewing the defendant. After the interview they were returned to him and he counted out the 35 marijuana bullets and 18 branches of marijuana. These he gave to Senior Constable Penitito Leafi who was responsible for sending samples for analysis in New Zealand.

Constable Leafi in his evidence confirmed receiving the materials from Sgt. Aati which he said he placed in a large brown envelope marked Police v Alosio Nauer, exhibit DS2006-61. The envelope was then locked away in the police exhibits room for some months until 12 October 2006 when the necessary New Zealand import licence was received by the police. Whereupon he removed the envelope, made samples of its contents and sent the samples by registered mail to ESR in New Zealand. At ESR the envelope was received on 17 October 2006 by a Ms J. Wilson who registered the sample and placed it in secure storage. They were subsequently removed from secure storage by Fiona Matheson who analysed the samples and prepared a report thereon Exhibit "P-1" for the prosecution. The analysis confirmed the samples of leaves and heads was plant material from the plant cannabis sativa L a prohibited narcotic under the Narcotics Act 1967. The analysis showed the plant material was in poor condition probably due to degradation over time but she says she was still able to perform the necessary tests and confirm it was cannabis.

In considering this evidence I note there is some minor inconsistency in what Constable Leafi said in cross examination that the samples were in an envelope labelled "Police v Alosio Nauer Exhibit DS2006-61" and what the ESR received which was an envelope labelled "Aloi Sio Nauer Exhibit DS2006-61." But it must be remembered not every inconsistency in such evidence is fatal. Some may lead to that result e.g. see Police v Laki Nauer [2007] WSSC 39 and some may not e.g. Police v Chan Chui [2007] WSSC 72. I also note the Constable's evidence in examination in chief on this issue was that the main envelope was labelled "Police v Alosio Nauer Exh DS2006-61" whereas the samples envelope was labelled "Alosio Nauer." Furthermore this matter took almost two years to come to trial and it is natural witnesses recollections as to details can become hazy.

I am satisfied the materials seized at Tanugamanono on 4 March 2006 were properly stored in the police exhibits room and that samples from same were sent to ESR in New Zealand on 12 October 2006, were duly received on 17 October 2006, were duly tested by the ESR and that the test report confirms they were cannabis materials. There is no reason why this report should not be accepted by the court. I am also satisfied the samples were properly analysed by the suitably qualified Ms Matheson and that her expert evidence can be safely relied upon. There is no requirement under the Narcotics Act 1967 unlike its counter part New Zealand legislation that she be registered as an expert under the Act before she can give expert testimony in drug cases in this country. Much the same as doctors, engineers or other such professional witnesses do not need to be registered as experts before they can testify in cases before the courts. It only need be established that they are experts in their particular field. As stated by Lord Cooper in Davie v Edinburgh Magistrates [1953] SC 34 at page 40 concerning the function of an expert:

"Their duty is to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions so as to enable the judge or jury to form their own independent judgment by the application of those criteria to the facts proved in evidence."

It has been established beyond reasonable doubt that the substances in question in this case were prohibited narcotics under the Narcotics Act 1967. The defendant admitted as much to the searching officers at Tanugamanono and in his cautioned statement given to the police later that morning.

As to the main issue of possession again there is ample evidence to conclude the defendant was in possession of the narcotics. He admitted the narcotics were his to members of the search party and this is further borne out by his cautioned statement where he relates how he obtained them three weeks before from one Filipaina Laititi of Faleatiu. And on the last page of his cautioned statement he says

"f: o lea sou iloa i mea uma nei na maua?

t: o mea uma na a a’u.

f: o lea le uiga o lau tala o mea uma ia a a’u?

t: o mea a a’u ia e leai ma se isi e ona na’o a’u lava.

f: mea ia o a?

t: o mariuana."

The evidence of the police is the narcotics were discovered in his bedroom at the Tanugamanono house of his cousin and that there were obvious signs of recent marijuana use in the bedroom, the smell and the ashtray contents. The inescapable conclusion is that the drugs belonged to the defendant and he was caught in possession of them by the searching officers.

The argument that he was not in possession because they were not found "on" his person cannot be accepted. That would be to impose too restrictive a meaning on the word "possession". The legal interpretation and definition the courts have accepted of possession can be divined from cases such as Police v Mariota [2003] WSSC 6; Police v Siaosi [2007] WSSC 9 and Police v Chan Chui [2007] WSSC 72. It is that the offence of possession has two ingredients that need to be established. The first is the physical element of the charge namely that actual physical custody or control of the marijuana must be proven to have been with the accused. Secondly the mental element of the charge namely that it must be shown there was an awareness on the part of the accused that the marijuana was in his possession. Such awareness can be manifested by the overt or direct words or actions of the accused or it can be inferred from his behaviour and all the surrounding circumstances. Here there can be doubt the narcotics were in the physical custody and control of the defendant and no doubt as to his awareness of the drugs. The evidence of the smell and used butts in the ashtray point to recent use of them in the defendant's bedroom. Then of course there are his own admissions of ownership of the narcotics. I am satisfied beyond reasonable doubt the defendant was therefore in possession of the narcotics as alleged in the charges.

Before giving a final conclusion however I must deal with three matters which defence counsel with his usual industriousness has raised for consideration. The first is the argument that the defendant cannot be convicted on the charges as there is no section 18(a) of the Narcotics Act 1967 as alleged in the information. The transcript of trial will show that at the outset of this case the information showed the charging sections to be "section 7 & 18(2)(a) of the Narcotics Act 1967." On the first day of trial before any evidence was called these were amended by the prosecution without objection from defence counsel to "section 7 & section 18(a) of the Narcotics Act 1967." Counsel now argues there is no offence of possession created by section 18(a) because the Narcotics Act 1967 does not have a section 18(a). He says section 8 of the Narcotics Amendment Act 2006 replaced the original sections 18(1) and 18(2) of the 1967 Act and accordingly the proper charging section should be section 8 of the Narcotics Amendment Act 2006. He argues this error cannot be saved by section 16(4) of the Criminal Procedure Act 1972 which provides:

"Except as hereinbefore provided no information shall be held to be defective for want of form or substance".

Counsel maintains this amounts to a breach of the defendants constitutional rights under articles 9(4)(a)(b)(c) & (d) and have denied his clients fair trial rights under article 9(1). Counsel also referred to article 10(1) which provides that:

"No person shall be convicted of an offence other than an offence defined by law"..

I propose to deal with counsels argument even though he did not did raise constitutional prejudice when the amendment was made before the trial proper began. The offence of possession was originally created by section 18(2)(a) of the 1967 Act which made it an offence to deal in or have possession of any narcotics. In 2006 came the Narcotics Amendment Act 2006 section 8(a) of which repealed section 18(1) of the original Act and substituted in its place a new subsection (1). Subsection 1(a) of that new subsection (1) made it an offence to deal in or have possession of any narcotics. Section 8(b) of the 2006 Amendment repealed section 18(2) of the original Act and section 8(c) made certain amendments to the proviso of the original section 18(2). The end result of all this was section 18(2) of the original Act disappeared and in its place was a new section 18(1) plus a proviso. The offence of possession now comes under section 18(1)(a) so that the amendment that should have been made by the prosecution was to change s.18 (2)(a) to s.18(1)(a). Instead they changed it to s.18(a) which as defence counsel correctly points out does not exist.

Counsel now argues that all this has prejudiced the defendant's case and is a breach of the defendant's constitutional rights under article 9. With respect I do not see how the amendment prejudices the defendant in any way. If the substance of the charges had been altered then perhaps prejudice could be claimed but the substance of the charges remain as before. They charged the defendant with possession of narcotics on 4th March 2006 at Tanugamanono contrary to the Narcotics Act 1967. That informed the defendant "promptly" as the charges were laid on 9 March 2006 and they informed him in "a language which he understands" since there is no claim he cannot understand English and they informed him "in detail of the cause and nature of the accusation against him". These are the requirements of article 9(4)(a). As to 9(4)(b) the defendant has had over two years to prepare for trial which began in September 2008. This is more than "adequate time for preparation of his defence" to the charges. As to the "facilities for his defence" there has been no complaint or evidence that he lacked these. His counsel has been given pre-trial copies of all relevant documentation in this matter, thus the requirements of article 9(4)(b) have been satisfied. He has had the assistance of competent counsel "of his own choosing" as required by article 9(4)(c) and he has had the opportunity "to examine and have examined witnesses against him" and has elected not to call evidence on his behalf as is his right. The requirements of article 9(4)(d) therefore appear to also have been satisfied. There has been up to this point no complaint of an unfair trial so I am of the view his right "to a fair and public hearing" under article 9(1) has not been denied to him.

The erroneous citation of one of the two charging sections in the charges changes none of this and I cannot see how he can claim prejudice, constitutional or otherwise. I also fail to see how if the proper amendment had been made by the prosecution at the outset the course of this trial would have been affected. As to the argument based on article 10(1) the problem with that is it only operates on a conviction and at this point in time the defendant has not yet been convicted.

The proper course to follow in my respectful view is for the court to invoke its power of amendment under section 36 of the Criminal Procedure Act 1972 to correct the obvious error. That the court can amend at any stage is clear from the words in the section "at any time during the trial." This has been held to extend to even after the prosecution and defence have closed their respective cases: see Police v Eteuati [2005] WSSC 10 and also Police v Fepuleai (unreported) 28 July 2008 a case no doubt defence counsel is fully familiar with. The charges are therefore accordingly amended so that "section 7 and section 18(a)" in the information are to read "section 7 and s.18(1)(a)". I leave it to the Attorney Generals office to consider whether the citation in the latest Consolidation of Laws in respect of section 18 of the Narcotics Act 1967 needs amendment in view of the matters I have raised in this judgment. Consolidations are a wonderful tool but accuracy is a most vital ingredient.

Counsel for the defendant has also challenged the legality of the search in this case and thereby the admissibility of the evidence discovered. If the search was illegal then all evidence obtained in relation thereto should be considered inadmissible – fruits of the poisoned tree doctrine. The challenge is firstly based on the fact that the search warrant in question was issued under section 83 of the Criminal Procedure Act 1972 which empowers the issue of general search warrants rather than section 14 of the Narcotics Act 1967 which empowers the issuing of search warrants for narcotics matters. Counsel seems to be arguing that the principle of equality of arms requires that the search warrant for this matter be brought under the Narcotics legislation rather than the more general Criminal Procedure Act provisions.

I have no issue with the principle of equality of arms. It applies in this country as part of the constitutional guarantees under article 9(4) but I struggle to see how that places an obligation on the prosecution to use the search warrant procedure of section 14 of the Narcotics Act 1967 for narcotics cases. Both procedures are available to the prosecution and there is no statutory requirement that for narcotics cases they must use the section 14 mechanism. Neither is there a prohibition in section 83 of the Criminal Procedure Act preventing the prosecution from obtaining a warrant thereunder for a narcotics search.

At the hearing counsel did refer to the application by Detective Inspector Fereti as being made under section 14 of the Narcotics Act whereas the warrant was issued under section 83 of the Criminal Procedure Act. As the application was not tendered into evidence I am unable to assess the validity of this argument and in the absence of the document it would not be appropriate that I comment on the proprietariness or otherwise of such a course of action. It would appear however in my respectful view to be a matter of little substance as the form of the application should not necessarily affect the validity of the resultant warrant. The warrant of course emanates from the court.

Counsels other ground of challenge is based on the assertion that the police had no reasonable cause for applying for the search warrant as their information came from an unidentified police informer. That reasonable cause is required is clear from the words of section 83. That the identity of police informers must be kept secret and that it is protected by the courts was recently canvassed by this court in Police v Masame [2007] WSSC 83 where the court noted:

"The rationale of the rule as it applies to police informers is plain. If their identity were liable to be disclosed in a court of law these sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime. So the public interest in preserving the anonymity of police informers has to be weighed against the public interest that information which might assist a judicial tribunal to ascertain facts relevant to an issue upon which it is required to adjudicate should not be withheld from that tribunal. By the uniform practice of the Judges which by the time of Marks v Beyfus [1890] UKLawRpKQB 125; (1980) 25 QBD 494 had already hardened into a rule of law, the balance has fallen upon the side of non-disclosure except where upon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence. In that case, and in that case only, the balance falls upon the side of disclosure."

In my respectful view information gleaned from police informers is sufficient to provide reasonable cause and justified the detective inspector's application in this case. Particularly where the informer is a reliable and cultivated source.

Counsel also took issue with the fact that the owner of the premises Mr Rupino Nauer was not present and therefore the search should have been discontinued or alternatively the warrant amended to allow a search of the defendant's room. The police evidence was clear. The house required to be searched was the house of Rupino Nauer. Police information was that the house was owned by Rupino Nauer and that the defendant his cousin was staying there. Accordingly a warrant was obtained authorizing a search of the house of Rupino Nauer. This meant all rooms of the house including the bedroom of the defendant. When the police arrived at the house they were first met by Mr Maua Nauer another cousin who questioned the basis of the police visit. The detective inspector showed him the search warrant and he consented to a search of the premises. When enquiring about the whereabouts of Rupino Nauer the police were told that he had moved to American Samoa.

The warrant authorized a search of the premises irrespective of whether the owner was there or not. It was not a warrant to search for any particular individual but a warrant to search a particular premises. This extended to all parts of the premises including the defendant's bedroom. There is nothing in any of this that violated the authority granted to search the premises and there is nothing to indicate that the warrant that was used was invalid. There is no basis for the argument that the search was an illegal search.

Before leaving this area of legality of searches as a matter of procedure I wish to endorse the comments of the Chief Justice Sapolu in the case of Masame [2007] WSSC 83 where he said;

"It is desirable as a matter of procedure that if the legality of a police search and the admissibility of evidence obtained from such search is to be challenged, such challenge should be made before the main trial. The issue of the legality of the search and the inadmissibility of the evidence obtained by such search would then be determined on the basis of a voir dire. If the search is found to be illegal and the evidence is inadmissible then that may be the end of the proceedings where the main or only evidence upon which the prosecution relies for its case is evidence obtained from the illegal search. It will not be necessary to proceed to the main trial which means a savings in costs and time. If on the other hand the search is found to be legal and the evidence is admissible those issues would have been sorted out before the main trial. They would not get mixed up with other issues that may be raised at the main trial resulting in possible confusion. Furthermore if the evidence obtained from a search is determined to be admissible at the pre-trial voir dire that may lead to an early change of plea from not guilty to guilty and so bring proceedings to an early conclusion again saving costs and time."

This is the preferred procedure and should be adopted in all cases where the legality of a search is being called into question.

Finally counsel relied in his submissions on article 7 of the Constitution concerning inhumane and degrading treatment. This was in reference to the prison cells that the defendant says he was placed in before his police interview. However as I have rejected that evidence of the defendant at the voir dire I need not address that argument.

All in all I find that the charges against you have been proven beyond reasonable doubt. Defendant is remanded on same bail conditions to 17th April 2009 for Probation Report and sentence.

JUSTICE NELSON