Division: IN THE SUPREME COURT
Date: 1 MAY 1964
Before: OLLENNU, ACOLATSE AND APALOO JJSC
JUDGMENT OF OLLENNU JSC
Ollennu J.S.C. delivered the judgment of the court. We allowed the appeal in this case on 3 April 1964 after hearing the submissions of counsel, and now proceed to give our reasons.
The appellant was convicted by the circuit court judge, Accra, sitting with assessors, upon an indictment charging her with possessing narcotics contrary to section 47 (1) of the Pharmacy and Drugs Act, 1961,1 and was sentenced to five years’ imprisonment with hard labour. She appealed against her conviction on four grounds grouped into three which may be summarised as follows: (1) The learned circuit court judge failed to direct himself on the ingredients of the charge preferred against the appellant, and consequently erred in holding that the charge was proved; (2) The circuit court judge failed to direct himself and the assessors on the evidence of the fourth prosecution witness, and in particular failed to give proper consideration to the explanation of the appellant that the parcel found in her room was given to her by the said fourth prosecution witness for safe keeping; and (3) The circuit court judge failed to direct himself on the issue of the possession required by law to sustain the charge.
The prosecution arose in the following circumstances: Police searched the house of the appellant under a warrant between 6.30 a.m. and 7 a.m. on 27 October 1961 and found under a bed in her room a parcel “neatly wrapped up in a paper” and enclosed in a pillow case. The police broke open the paper and found it contained some plant material. This when examined by the senior government chemist on 13 June 1962, i.e. some eight months later, was described as being “mainly stems and now [the 13 June 1962] too tough owing to insufficient dryness.” When questioned as to how she came by the parcel, the appellant explained that it was brought to her for safe keeping the evening before the morning of the search by a former boy friend of hers, one Tijani Sani, the fourth prosecution witness. The appellant and other women were arrested and taken to the police station in consequence of this parcel in question and of other articles with which the appellant is not concerned. The man Tijani Sani arrived at the police station soon after the appellant and the other women arrived there in custody, and, according to him, he was asked by the police to bail the appellant and the other women then in police custody.
The appellant did not deny that the parcel was found in her room; the explanation she gave to the police and which she maintained throughout her defence was that the parcel was given to her by the fourth prosecution witness for safe keeping, and that it was in such a condition that until the police tore it open she did not know, and could not have known, what its contents were.
Arguing the first ground of appeal as summarised above, learned counsel for the appellant submitted that it is an essential ingredient of section 47 (1) of the Pharmacy and Drugs Act, 1961, under which the charge was laid, that possession of Indian hemp can only be an offence if the Indian hemp is in a condition “prepared for smoking,” and that in compliance with the terms of the said section 47 (1), the particulars of the offence on the bill of indictment alleged that the appellant “had in her possession without lawful authority a quantity of Indian hemp prepared for smoking.” Learned principal state attorney for the respondent conceded the point made on behalf of the appellant and did not seek to support the conviction on this point. The line taken by the principal state attorney is, in our view, very proper.
At the date the charge was preferred against the appellant and up to the date of her conviction, section 47
(1) of the Pharmacy and Drugs Act, 1961, read as follows:
“No person shall have in his possession without lawful excuse (proof of which shall be on him) any opium or Indian hemp which is prepared for smoking or any residue from the smoking of opium or Indian hemp.”
The most essential words in that section were, “which is prepared for smoking or any residue from the smoking of.” It means that no offence was committed by the possession of Indian hemp unless that Indian hemp is in a form prepared for smoking, or is a residue from the smoking of Indian hemp. Therefore if the prosecution failed to prove any of these two essentials, the court should acquit unless it could be shown that an alternative offence of which the person charged could be convicted was disclosed by the evidence.
In this case the prosecution went further than failing to prove that the Indian hemp was prepared for smoking; they led evidence, by the report of the government chemist, that the Indian hemp, the subject of the prosecution, had not been prepared for smoking. The learned circuit court judge failed completely to direct himself on this vital point of law, as he should. If he had, he would have dismissed the charge at the close of the case for the prosecution and thereupon have acquitted and discharged the appellant without calling upon her for her defence.
It is well to observe that the said section 47 (1) of the Act has, with effect from 17 December 1963, been amended by the Pharmacy and Drugs (Amendment) Act, 1963,2 subsection (e) and now reads as follows:
“(1) No person shall have in his possession without lawful excuse, proof of which shall be on him, any opium or Indian hemp of any species or description whatsoever or any residue from the smoking thereof.”
Therefore proof that Indian hemp is “prepared for smoking” is not now necessary to sustain a charge under the section.
We now pass on to the second and third grounds argued. Here again the principal state attorney conceded that the criticisms which counsel for the appellant made against both the summing-up of the circuit court judge to the assessors, and his own judgment in the case, are well-founded and that he could not controvert them. We entirely agree with him.
As already pointed out, the appellant, from the moment of the discovery of the parcel in her room and throughout the trial, consistently maintained that the fourth prosecution witness brought the parcel to her for safe keeping and that she did not know and could not have known its contents. This defence involved two things, (1) a choice between the assertion of the appellant, and the denial of the same by the fourth prosecution witness, and (2) the reasonable probability of the appellant’s allegation, and if reasonably probable, whether in the circumstances the physical possession of the parcel in the condition in which it was, could amount to legal possession, i.e. possession with knowledge of the nature of its contents.
A decision on the first question depends upon the view the court takes of the credibility of the witnesses who swore to the opposing facts. Where a question boils down to oath against oath, its solution does not depend upon the whim and caprice of the judge; this is particularly so in a criminal case where the decision rejects the version of the defence. To do justice, the court is under a duty to consider firstly, the version of the prosecution applying to it all the tests and principles governing the credibility and veracity of a witness; and it is only when it is satisfied that the particular prosecution witness is worthy of belief that it should move on to the second stage, i.e. the credibility of the defendant’s story; and if having so tested the defence story it should disbelieve it, move on to the third stage, i.e. whether short of believing it, the defence story is reasonably probable.
It is very regrettable that the trial circuit court judge made no reference whatever, either in the
summing-up or in his judgment, to the important prosecution witness on this issue of the defence, namely, the fourth prosecution witness, when there are so many things in the evidence of the witness himself, and in the evidence of other prosecution witnesses, (for example, the fifth prosecution witness) which raise grave doubts about the credibility of the said fourth prosecution witness. It is also most unfortunate that the only ground upon which the learned circuit court judge felt confident to reject the defence of the appellant was that “the first defence witness, her own witness, did not see the fourth prosecution witness bringing a bag or parcel to the first accused’s [appellant’s] house and therefore the first defence witness’s evidence is all a pack of lies.” This statement of the circuit court judge creates the impression that the first defence witness gave evidence that he did not see the fourth prosecution witness bringing a bag or parcel to the appellant. All that the witness said in examination-in-chief on this issue is:
“Some time in October 1961 I saw the fourth prosecution witness at the first accused’s house at about 7.30 p.m. When the fourth prosecution witness came we were playing a game of Ludo outside the house. We were using a Hurricane lamp in playing the game. As soon as the fourth prosecution witness arrived at the house he called the first accused and went with her to the verandah. They were not there for a long time when they came out.”
And in cross-examination he said:
“I had seen the fourth prosecution witness before. He came to the house at 7.30 p.m. that night. The fourth prosecution witness stood seven feet away from us while playing Ludo and called the first accused. The first accused got up and went to the fourth prosecution witness. We were still playing Ludo. I did not see whatever they were doing. I heard the first accused and the fourth prosecution witness talking on the verandah. I could not remember or hear what they exactly said. They stayed on the verandah for three minutes. I could see the verandah but not inside as there was no light on the verandah. We were using the light in playing Ludo. We played the Ludo game four times. I left the first accused’s house between 10.15 p.m. and 10.25 p.m. I left with two others called Osinor and Bodime.”
The proper inference to be drawn from this evidence is that the first defence witness was absorbed in a game of Ludo, that he only became conscious of the presence of the fourth prosecution witness in the house when he, the fourth prosecution witness, had entered the house and was already on the verandah, and that he did not see the fourth prosecution witness enter the house and was therefore not in a position to say whether or not the fourth prosecution witness brought a bag or parcel with him to the house, and as he could not see inside the verandah, there being no light on it, he was not in a position to say whether or not the fourth prosecution witness had a bag or parcel with him while he was on the verandah. Thus the grounds upon which the circuit court judge discredited the appellant and her witnesses have no existence in fact. They are mere presumptions not warranted by the evidence. According to the fourth prosecution witness he had not seen the appellant since their friendship stopped, a period of about two years, and he did not know where she had been living all that time: yet hardly had the police arrived with the appellant and the other women at the police station when he arrived there. According to him he went because a person he had never known in his life, a stranger, met him in the streets and told him his former girl friend had been taken there: a very strange co-incidence. Again although the appellant had mentioned to the police the name of the fourth prosecution witness as the person who deposited the parcel with her, and also pointed him out to the police as soon as he, the fourth prosecution witness, arrived at the police station, yet for some strange reason, not disclosed, the police requested him, the said fourth prosecution witness, who had been so accused, to stand surety for the bail of the appellant and three other women who were in custody in connection with Indian hemp offences.
It is evident that the circuit court judge erred in rejecting the case for the defence firstly, when he had not first tested the evidence of the fourth prosecution witness and found it worthy of credence, and secondly, upon matters which are not in evidence before him. In all the circumstances, the explanation given by the appellant is reasonably probable and the circuit court judge should have accepted it.
But that explanation alone will not dispose of the matter because the parcel was found in the possession of the appellant, and under section 47 (1) of the Act, possession creates absolute responsibility, so that once possession is proved, the appellant would be guilty of the offence unless she satisfied the court that she possessed it with a lawful excuse; and that takes us to the last point in the appeal.
What is the possession, proof of which, without more, makes a person guilty of an offence under the said section 47 (1), unless he proved that his possession is lawful. Upon a proper construction of the section, the possession must be possession with knowledge of the nature and quality of the article; awareness that what is possessed is “opium or Indian hemp” or “residue from the smoking of opium or Indian hemp.” Physical possession without that knowledge is no offence. Without that knowledge there is no legal possession which can support the charge. Therefore to succeed on such a charge, the prosecution must rove legal possession; that is, in addition to proving physical or constructive possession, they must go
further to lead evidence which establishes that the defendant had the requisite knowledge, or evidence from which it will be reasonable to presume that the defendant proved to be in possession well knew, or ought to have known, that the article he possessed was “opium or Indian hemp” or was “residue from smoking of opium or Indian hemp.”
Was the legal possession proved in this case? Now the only evidence as to the condition in which the parcel was when it got into the hands of the appellant is that given by the appellant herself. According to that evidence, the condition in which the police found the parcel was the same in which it was when it was handed over to the appellant the night before, i.e. when she first got possession of it. There being no other evidence on that point, the court was bound to accept it, even though it rejected the evidence of the appellant that the fourth prosecution witness was the person who delivered the parcel to her. According to the police the parcel was neatly wrapped up in paper and then enclosed in a pillow case; they had to tear the paper covering off before they were able to know what the parcel contained; that is, without undoing
the parcel they could not have known what it contained. It means then that any other person, including the appellant, who received the parcel, would, like the police, not have been able to know its contents, unless he was the person who made the parcel, or was present when it was made. Therefore, upon the evidence before the court there was no proof of legal possession such as is necessary to sustain the charge.
The circuit court judge failed to direct himself on this crucial legal point also in the case, apparently because he had rejected the evidence of the appellant that the fourth prosecution witness was the person who delivered the parcel to her. In this, the circuit court judge erred seriously. His duty is to act upon the evidence before him and to apply the law to it: the only evidence here being that whoever it was that delivered the parcel to the appellant delivered it to her in the condition in which it was when the police took possession of it. It was therefore incumbent upon the circuit court judge to consider whether the appellant, like the police, could have known of the contents of the parcel. If he had directed himself on this issue he certainly would have been driven to the only reasonable conclusion that the appellant was in exactly the same position as the police, and that it was not possible for her to know what the parcel contains until the police tore it open. The prosecution therefore failed to prove that the appellant had the legal possession which is intended in section 47 (1) of the Act to create an offence.
Thus from whatever angle it is viewed, the conviction is bad. It is for these reasons that we allowed the appeal, quashed the conviction of the appellant and the sentence passed upon her, and acquitted and discharged her.
DECISION
Appeal allowed.
S.A.B.
