Police v Carruthers [2017] WSSC 70 (29 May 2017)

THE SUPREME COURT OF SAMOA
Police v Carruthers [2017] WSSC 70

Case name:	Police v Carruthers
Citation:	[2017] WSSC 70
Ruling date:	29 May 2017
Parties:	POLICE (Prosecution) v KIM CARRUTHERS female of Vailima Accused
Submissions date(s):	22 May 2017
File number(s):
Jurisdiction:	Criminal
Place of delivery:	The Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tafaoimalo Tuala Warren
On appeal from:
Order:	For the foregoing reasons, the no case to answer submission is dismissed.
Representation:	L Sio for Prosecution R Schuster for the accused
Catchwords:	No case to answer submissions -mens rea –possession of utensil – prima facie –
Words and phrases:
Legislation cited:	Narcotics Act 1967 s.13(b)
	Crimes Act 2013 s.33
Cases cited:	Police v Chan Chui [2007] WSSC 73 (25 September 2007) Police v Toamua [2015] WSSC 50 (19 May 2015)
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

KIM CARRUTHERS female of Vailima
Accused

Counsel:
L Sio for Prosecution
R Schuster for the accused

Ruling: 29 May 2017

WRITTEN REASONS FOR RULING IN RELATION TO NO CASE TO ANSWER

Introduction

1. The accused and co-accused have been charged with one joint charge of ‘knowingly have in their possession utensil, namely, one(1) straw and seventeen (17) small plastic bags for the purpose of commission of an offence’, pursuant to section 13(b) of the Narcotics Act 1967, and section 33of the Crimes Act 2013.
2. The accused pleaded not guilty to the charge, as did the co-accused Aitken Keil.
3. At the end of the Prosecution evidence, the Defence made a submission that there is no case to answer in respect of the charge against the accused.
4. This is my ruling in relation to the submission and pertains only to the accused Kim Carruthers.
   

Evidence

5. Prosecution evidence in relation to the accused is that in the early hours of 27 May 2016, the Police executed a search of Room 10 of the Samoa Sports Lodge at Tuanaimato. They found within the bedroom of Room 10, the accused and co-accused. The room was rented by the co-accused from 25 May 2016 until the day of the search. The accused was given a chance to get dressed.
6. The Police found in the living room of Room 10 on top of a bed, which is one of two beds in the living room, 17 small plastic bags and a straw, within a small plastic bag. The plastic bags were described as similar to bags in which coffee is usually sold.
7. Police witnesses said their intelligence revealed that the accused came to the hotel room on the night of 26 May 2016. Constables Onosai and Samuelu were aware that there was a female in the room when they went in. Constable Tomasi gave evidence that he heard the name of the accused mentioned in the briefing beforehand, although he omitted it from his report. All confirm that the name of the accused was not on the search warrant.

Submissions by the Defence

8. Defence submits that the evidence presented by the Prosecution is straight forward and brief in relation to the accused.
9. The evidence is that the accused was at the scene of the incident. Constable Onosai gave evidence that through police intelligence it was discovered that the co-accused was at the premises. Constable Tomasi who said that the name of the accused was mentioned in the briefing, did not put this in his report. Constable Samuelu gave evidence that he knew their target was the co-accused and it was only when police searched that he found out the name of the accused. There is no evidence that the accused shared the room with the co-accused, in the sense of occupying it.
10. Apart from this evidence, the defence submits that there is no prosecution evidence that the accused had any knowledge of the plastic bags on bed 1, nor any evidence of constructive possession, nor any evidence of an intention to possess.
11. The Prosecution is relying on circumstantial evidence for constructive knowledge on the part of the accused. This is evidence that Defence submits is tenuous, insufficient and unreliable.
12. The Defence distinguishes the case of Police v Chan Chui [2007] WSSC 73 (25 September 2007), on the basis that the accused in this case is not in her own bedroom, nor in a hotel room which she rented.
13. Therefore on that basis, defence submits that there is no case to answer by the accused in relation to the joint charge.

Submissions by the Prosecution

14. Prosecution submits that there are two elements of the charge of possession of narcotics.
15. Evidence of the physical element is that the accused was with the co-accused inside the room within which the substances were found. They were found in plain sight on bed 1. The substances tested positive for methamphetamine. Prosecution submits that there is strong evidence of an awareness by the accused.
16. It is submitted that because they shared the same room, this is evidence of constructive possession on the part of the accused.
17. The case of Police v Chan Chui is relied upon for the submission that it is enough that she is occupying the said room and the substances were found in plain sight to establish possession.
18. Evidence of common intention Prosecution submits is drawn from the knowledge and awareness of the accused.

Law

No case to answer

19. This Court in Police v Toamua [2015] WSSC 50 (19 May 2015) set out the approach adopted and applied by this Court to a submission of no case to answer in a trial before a panel of assessors, taken from the judgment of the English Court of Appeal in R v Galbraith (1981) 73 Cr App R 124.
20. In R v Galbraith (1981) 73 Cr App R 124, p. 127 Lord Lane CJ said:

“How then should a Judge approach a submission of no case?

(1) If there is no evidence that the crime alleged has been committed by the accused, there is no difficulty. The Judge will of course stop the case.

(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example, because of inherent weaknesses or vagueness or because it is inconsistent with other evidence.

(3) Where the Judge comes to the conclusion that the Crowns evidence taken at its highest is such that a jury properly directed could not properly convict on it, it is his duty on a submission being made, to stop the case.

(4) Where however the Crown’s evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which a jury could properly come to the conclusion that the accused is guilty, then the Judge should allow the matter to be tried by the jury. There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the Judge”.

21. In the same case of Police v Toamua, Sapolu CJ said in the case of a Judge alone trial;

As this is a Judge alone trial, I would refer to Police v Sione [2001] WSSC 8 where this Court cited Auckland City Council v Jenkins [1981] 2 NZLR 363 which was concerned with committal proceedings in New Zealand before a Judge alone and a submission of no case to answer. Speight J in that case stated;

A tribunal deciding whether or not there is a case to answer must decide whether a finding of guilt could be made by a reasonable jury or a reasonable judicial officer sitting alone on the evidence thus far presented. He is ruling in fact whether it is ‘prima facie’-a well understood phrase.

22. His Honour went onto to say out of caution, both approaches in R v Galbraith and Auckland City Council v Jenkins would be considered. The same applies in this case.

Narcotics Act 1967 section 13 (b)

23. The Court of Appeal set out in the case of AG v Vai [2008] WSCA 10, the interpretation of s13(b) Narcotics Act 1967. It was said that an offence of this kind must be broken into two steps. The first requires proof that the defendant was in possession of the utensil. The second step is concerned solely with the defendant’s state of mind at the time of the possession. At this stage it is necessary to determine the purpose for which the utensil was possessed.

Possession

24. Possession has two elements. This was referred to in the case of Police v Chan Chui-Judgment [2007] WSSC (25 September 2007) in which this Court used the explanation by Hardie Boys J in R v Cox [1990] NZCA 13; [1990] 2 NZLR 275. The first is the physical element and it is actual or potential physical custody and control. The second is the mental element or the element of mens rea which is a combination of knowledge and intention: knowledge in the sense of an awareness by the accused that the utensil (in this case) is in his possession (often inferred or presumed) and the intention to exercise possession.

Discussion

25. The Prosecution evidence presented thus far in relation to the accused is to be assessed keeping in mind both approaches to a no case to answer submission, endorsed by His Honour Chief Justice Sapolu in Police v Toamua, that is:

A tribunal deciding whether or not there is a case to answer must decide whether a finding of guilt could be made by a reasonable jury or a reasonable judicial officer sitting alone on the evidence thus far presented. He is ruling in fact whether it is ‘prima facie’-a well understood phrase. A ruling that there is a prima facie<60; cas> case does not mean that of necessity if there is no evidence by way of rebuttal that a conviction must follow. It is merely that a conviction can properly follow and not be upset as being one which could not be made by a fact finding tribunal acting reasonably. In application, of course, the situation will vary between a trial where the Court has the advantage of a jury and one in a Judge Alone situation. It is easy to understand that with a jury the Judge does not know which way the twelve members will find on facts. He is merely saying that a reasonable jury, properly instructed, could draw a guilty conclusion from the material before them at the stage that the case has then reached. A little more sophistication is needed in analysing the position of the Judge Alone trial. At the stage where this matter comes for consideration the Judge is not required to ask himself. ‘If no defence evidence is given am I going to convict?’ He is not required to analyse the evidence and make a preliminary conclusion on such a hypothesis. He is entitled to defer his consideration, perhaps to re-examine the evidence, perhaps to hear further final submissions from counsel. All he is saying at that stage in ruling that there is a case to answer is that on the present state of affairs it would be open to him, after properly directing himself on law, to convict if on mature examination of the evidence he thinks proper to do so, but he is not binding himself to any conclusions as to what evidence he will in fact accept. Having made such a ruling different courses may follow. The defence may or may not call evidence. If evidence is called then that becomes part of the total material fit for consideration. If, as here, no evidence is called, then the tribunal is required to listen to such submissions as counsel may wish to make, give consideration to the evidence which has been produced, and come to a final conclusion. And even in the face of a previous ruling of an answerable case, it still may be the dismissal of the information. (Auckland City Council v Jenkins)

AND

“How then should a Judge approach a submission of no case?

(1) If there is no evidence that the crime alleged has been committed by the accused, there is no difficulty. The Judge will of course stop the case.

(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example, because of inherent weaknesses or vagueness or because it is inconsistent with other evidence.

(3) Where the Judge comes to the conclusion that the Crowns evidence taken at its highest is such that a jury properly directed could not properly convict on it, it is his duty on a submission being made, to stop the case.

(4) Where however the Crown’s evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which a jury could properly come to the conclusion that the accused is guilty, then the Judge should allow the matter to be tried by the jury. There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the Judge”.(R v Galbraith)

26. There are two elements of possession to be considered against the evidence.
27. The first is the physical element, that is, actual or potential physical custody and control.
28. Prosecution evidence which has been tendered to show potential physical custody and control is that the accused was found in the same hotel room as the accused. She arrived at the hotel room at some point on the evening of 26 May 2016. The room is a small room with evidence that the accused and co-accused had a meal in the room and then were in the bedroom of the room when the Police arrived. Room 10 is a small room. The utensils were found in the living room of Room 10.
    29. The evidence is clear. However whether it is adequate to meet the standard of proof is a different matter.
30. The second is the mental element or the element of mens rea which is a combination of knowledge and intention: knowledge in the sense of an awareness by the accused that the utensils (in this case) are in her possession (often inferred or presumed) and the intention to exercise possession.
31. Again the same evidence is relied upon by the Prosecution to establish this element.
32. Looking at knowledge first, Prosecution submits that because the accused was in the hotel room, she was aware that the utensils were in her possession.
33. In relation to intention on the part of the accused to exercise possession, Prosecution offers the same evidence for the Court to infer intention.
34. Intention is difficult to establish.
35. In Police v Kolio [1999] WSSC 46 (18 March 1999) Wilson J said of intention:

A judge is not a mind-reader and cannot look, as it were, into a person’s head to see what was in their mind at a particular time and therefore to ascertain what was their intention.

A person’s intention may rarely be directly proved. It is more often indirectly proved. On some occasions a person’s intention simply cannot be proved.

When a person’s intention is indirectly proved, it is generally from what a person says or from what a person does or from what a person says and does that a judge can come to a conclusion as to what this person intended at a particular time. It is a matter of drawing inferences from proved facts or it is a matter of properly putting two and two together in the context of circumstantial evidence.

36. There is evidence of knowledge and intention on the part of the accused, through circumstantial evidence. She was present in the same hotel room in which the substances were found. The substances tested positive for methamphetamine.
37. Therefore, there is prima facie evidence offered by the Prosecution which go to the two elements of possession. Possession is the first step of section 13(b) Narcotics Act 1967.
38. The second step of section 13(b) is concerned solely with the defendant’s state of mind at the time of the possession. At this stage it is necessary to determine the purpose for which the utensil was possessed.
39. The same Prosecution evidence is offered to infer the state of mind of the accused at the time of the possession, and the fact that the utensils tested positive for methamphetamine.
40. I have decided that there is evidence to establish that there is a prima facie case for section 13(b) of the Narcotics Act 1967.
41. This does not in any way mean that I have decided on the guilt or otherwise of the accused. As His Honour Chief Justice Sapolu said in Police v Sione [2001] WSSC 8 (14 March 2001), “at this stage the Judge is not required to analyse the evidence and make a preliminary conclusion on the hypothesis whether the accused is going to be convicted if he gives or calls no evidence”.
42. I am entitled to defer my consideration, perhaps to re-examine the evidence, perhaps to hear further final submissions from Counsel. All I am saying at this stage in ruling that there is a case to answer is that on the present state of affairs it would be open to me, after properly directing myself on the law, to convict if on mature examination of the evidence I think it proper to do so, but I am not binding myself to any conclusions as to what evidence I will in fact accept.
43. I reiterate the procedure that may now be followed according to Speight J and cited by Sapolu CJ;

The defence may or may not call evidence. If evidence is called then that becomes part of the total material fit for consideration. And even in the face of a previous ruling of an answerable case, it still may be the dismissal of the information.

Result

44. For the foregoing reasons, the no case to answer submission is dismissed.

JUSTICE TAFAOIMALO TUALA WARREN