The Court of Appeal has rejected an appeal by the Office of the Attorney General against Hano Fuaifale in a matter involving marijuana. The decision was delivered by Justice Fisher, Justice Panckhurst and Justice Emma Aitken on 19 February. This is the ruling in full:

JUDGMENT OF THE COURT 

Introduction 

[1] This is an Attorney General appeal against a decision in which the respondent and two other defendants were acquitted upon a charge of being in joint possession of a package of marijuana.  [2] The original notice of appeal named all three as respondents. But, an amended notice was filed, by which the focus of the appeal became Hano Fuaifale (Hano) alone. 

[3] The essential basis of the appeal was that Justice Tuatagaloa was wrong in concluding as a matter of law that Hano, on the basis of his own evidence, was not in possession of the marijuana. 

The background Facts 

[4] On 21 February 2015 police officers stopped and searched a car at Tufulele. Under the driver‘s seat they located a quantity of marijuana. The driver, Sanele, said that the marijuana was his. Subsequently, he pleaded guilty to a possession charge. 

[5] Other occupants of the car were also charged. Two young men and Hano defended the possession charge. The prosecution case was that the occupants of the vehicle drove to a village, purchased marijuana and were, therefore, in joint possession of the drug. The trial Judge rejected this thesis. 

[6] The defendants gave evidence which the Judge accepted. The gist of their respective accounts was that Sanele procured the marijuana without their knowledge or involvement. However, he produced a package of the drug when the car was parked near Tufulele and handed it to Hano, who rolled a cigarette which the members of the group then smoked. A short time later they were stopped, the car was searched and the marijuana was seized from under the driver’s seat. At all relevant times Sanele was the driver, but the vehicle belonged to an associate of his. 

Was Hano in possession? 

[7] To answer this question we need to refer to the evidence given by Hano in a little more detail and, then, assess that evidence in light of the legal definition applicable to the possession of controlled drugs. 

[8] In evidence in chief Hano said the first time he saw the marijuana was when Sanele gave him the package “to roll.” He was also supplied with “rolling papers” and told to roll a cigarette. Although he was questioned by the prosecutor and the judge Hano gave no evidence concerning what he did with the package, but we infer that it was returned to Sanele and stored away under the driver’s seat. It is evident from the evidence as a whole that Sanele remained in the vehicle while Hano rolled the cigarette, which was then shared by the occupants. 

[9] The New Zealand Court of Appeal case of R v Cox [1990] 2 NZLR 275 contains this discussion at p 278: 

“Possession involves two, not three, elements. The first, often called the physical element, is actual or potential physical custody or control. The second, often described as the mental element, and which may be called the element of mens rea, is a combination of knowledge and intention: Knowledge in the sense of an awareness by the accused that the substance is in his possession (which is often to be inferred or presumed); and an intention to exercise possession. In the leading case of R v Warner [1969] 2 AC 256, Lord Morris of Borth-y-Gest expressed it this way at p289: 

“In my view, in order to establish possession the prosecution must prove that an accused was knowingly in control of something in circumstances which showed that he was assenting to being in control of it” (emphasis added). A charge of possession of a controlled drug also requires proof of knowledge by the accused that what is in his possession is a controlled drug; although he need not know its exact nature. 

We note that this passage has been referred to with approval in a number of New Zealand and Western Samoan cases. 

[10] Ms Su’a-Mailo relied on the phase “potential physical custody” as aptly describing Hano’s possession of the marijuana in this case. We do not accept this. Hano had actual possession of the marijuana in a physical sense. The drug was handed to him, he removed a sufficient amount to roll a cigarette and then returned the package to Sanele. We regard the phrase “potential physical control” as relevant where a person does not have immediate actual physical possession of an item, but nonetheless the item is in his or her possession. 

[11] For example, possessions left in a home, a car or in someone’s desk at work are within their “potential physical custody.” Provided they are aware of the item, and also intend to exercise control over it, then they are in possession of the item because both the physical and mental elements of the definition are satisfied. 

[12] The real question in this ease is not whether Hano was in physical possession of the marijuana, but whether he also intended to be in control of it. Did he intend to exercise dominion over the marijuana for the brief time he had it? In our view the answer is clearly “no”. On the evidence Sanele remained in control of the marijuana throughout. He was not only present, but in effective control of the situation. 

Conclusion

[13] For these reasons we agree with the trial judge who put the matter very succinctly: “the marijuana found under the driver’s seat of the car was in the possession and control of Sanele Suluape.”

[14] Accordingly, the appeal is dismissed. 

Honourable Justice Fisher 

Honourable Justice Panckhurst

Honourable Justice Aitken