Bibi v R (SCA 23 of 1998) [1998] SCCA 35 (9 April 1998)

O IN THE SEYCHELLES COURT OF APPEAL VINCENT 13I131 APPELLANT Versus SEyal THE REPUBLIC RESPONDENT [Before: Goburdhun, P., Silungwe & Ayoola, JJ,AJ Criminal Appeal No: 23 of 1998 Mr. A. Juliette for the Appellant Mr. R. Kanakaratne for the Respondent REASONS OF THE COURT (Delivered by Silungwe J. A) The appellant was convicted the before Supreme Court (Alleear, CJ.) of trafficking in a controlled drug, contrary to section 5 as read with section 26(1)(a) of the Misuse of Drugs Act, Cap. 133, and punishable under Section 29 of the Second Schedule thereto referred in the said Act. The allegation was that on July 29, 1997, at Le Niole, Mahe, he was found in possession of 335 grammes and 930 milligrammes of cannabis which gave rise to the rebuttable presumption of having possessed the said controlled drug for the purpose of trafficking and/or was trafficking in the said drug by doing an act preparatory to, or for the purposes of selling, giving, transporting, sending, delivering or distributing the said drug. He was sentenced to the minimum mandatory sentence of 8 years' imprisonment. The appeal, which was against conviction only, was dismissed on April 4, 1998, for reasons to be given thereafter. These are our reasons. Tt was the prosecution case that on July 29, 1997, members of the Police Drug Squad, who included Lance Corporal Veverse Rose, Police Constables Ange Michel, Danny Appasamy and Mervin Dufrene, raided a house which the apepllant was occupying at Le Niole for the purpose of searching for drugs. On arrival, Lance Corporal Rose (and other members of the Drug Squad) saw the appellant, whom he had known for more than a year, lying on a couch in an open veranda of the house that he was occupying. When Lance Corporal Rose asked the appellant whether he was Vincent Bibi, he responded: "Vincent Bibi has gone to town." Upon the officer saying: "I know you are Vincent Bibi", the appellant got up from the couch and attempted to escape but he was apprehended by Constable Ange Michel. The appellant, having been told about the police mission, was subjected to a body search which yielded nothing. However, a black and white cloth bag retrieved (in the appellant's presence) from underneath the couch where the appellant had been found lying was examined and found to contain two packages. The first package was a khaki envelope inside which were 30 small packages wrapped in clear plastic containing herbal substance. Inside the second package were 47 identical small packages. The appellant was then informed that they suspected the herbal substance to be a controlled drug and he was accordingly arrested. As the appellant was being driven to Beau Vallon Police Station, he said to Lance Corporal Rose, within the hearing of Constable Michel (who was driving a police motor vehicle): "Cool easy I had the materials for my own consumption." The entire herbal substance referred to above was taken to Dr. Gobine, a drug analyst, for examination. He took and analysed 10 random samples out of the 47 packages. Similarly, he took and analysed 10 random samples out of the 30 packages. He carried out a visual, microscopic and chemical examination of the said samples and thereafter came to the conclusion that the herbal substance was cannabis, a controlled drug. The 47 packages weighed 229 grammes and 720 milligrammes; and the 30 packages weighed 160 grammes and 210 milligrammes, making a total of 335 grammes and 930 milligrammes. The appellant's retracted statement was the subject of a trial within a trial at the end of which it was found to have been made voluntarily and was, therefore, admitted in evidence. At the close of the case for the prosecution, the appellant exercised his right of silence and called no witnesses on his own behalf. It was stated in the appellant's first ground of appeal that:- "The Learned Chief Justice erred in failing to consider and find that the Respondent had not adduced sufficient evidence to prove that the Appellant was in possession of the drugs." In support of this ground, Mr. Juliette for the appellant submitted that the couch did not belong to the appellant; that there was no evidence whatsoever to link the appellant with possession. of drugs; and that no attempt was made by the police to exclude all others from being the owner of the bag found underneath the couch. In the face of these submissions stands the clear evidence of the prosecution from the mouths of Lance Corporal Rose and Constable Michel which established that the bag containing the controlled drug was retrieved from underneath the couch on which the appellant, who was the only occupant of the house at the material time, was found lying. Moreover, when the appellant was asked if he was Vicent Bibi, he purported to be someone else and when the officer who knew him well insisted that he was the very one, the appellant tried to escape but to no avail. Further aspects that link him with the drugs in this case are his unsolicited intervention in the police vehicle that he had the (herbal) substance for his own consumption; and his retracted statement in which he confessed having taken the packaged drug home but said this was for his personal consumption, not for sale or distribution. The retracted statement was amply corroborated by at least two prosecution witnesses and, although a ground of appeal alleging lack of corroboration was initially listed, this was subsequently abandoned, In the light of all this cogent evidence, there was no merit in the submission that there was no evidence to connect the appellant with the drug, the subject of this case. The third ground of appeal alleged that "The learned Chief Justice erred in his finding that the other unanalysed package did not contain cannabis is negated." Expatiating this ground, Mr. Juliette argued that the drug analyst should have examined all the packages, not just 20 of them. He urged us to accept the view that the United Nations Guidelines, which the drug analyst applied, do not apply to herbal materials. The said Guidelines were published in 1995 by the United Nations through the United Nations International Drug Control Programme, Vienna, under the heading: "Recommended Guidelines for Quality Assurance and Good Laboratory Practices", a manual for use by national laboratories. An Introduction to the Guidelines reads in part: "The international nature of the drug abuse problem requires the speedy exchange of analytical data between laboratories and between law enforcement agencies and laboratories at the national and international levels. The development of internationally acceptable methods of detection and assay is expediting this exchange. The United Nations, through the United Nations International Drug Control Programme (UNDCP) and other bodies of the system, has been instrumental in achieving this aim. Two series of manuals, one dealing with methods of the analysis of seized materials and the other dealing with biological specimens, have been written for use by national laboratories." The following excerpts is taken from a paragraph headed "Sampling": "The principal reason for a sampling procedure is to produce correct and meaningful chemical and analysis. quantitative methods used in forensic science Because most qualitative laboratories to examine drugs require very small amounts of material, it is vital that these small amounts should be entirely representative of the from which they have been drawn. bulk Sampling should be undertaken so as to conform to the principles of analytical chemistry in national for example, as laid down, pharmacopoeias or in publications such as that of the Association of Official Analytical Chemists (AOAC). There may be situations where, for legal reasons, and the homogenization cannot be followed. Sometimes, rules of sampling normal for example, the analyst may wish to preserve some part of an exhibit as visual evidence. At other times, it may be necessary to perform separate assays on two powder items rather than combining the powders and performing a single assay on the mixture. This may happen because each has been separately exhibited by the seizing officer and the legal system within which the analyst works requires an individual result for every exhibit that is to be taken before the court. To preserve valuable resources and time and reduce the number of quantitative determinations needed, a forensic analyst should, where possible, use an approved sampling system. He or she may need to discuss individual situations with both seizing officers and legal colleagues. The simplest situation is where the submitted item consists of a single package of material. The material should be removed from its container or wrappings, placed in a clean, clear plastic bag and the net weight recorded. If appropriate, the material should be thoroughly homogenized before the chemical tests are run, although pre-homogenization process will be lengthy or if there is still some doubt as to the identity of the material. The simplest way of homogenizing a powder is to shake it thoroughly within the clear plastic bag to which it has been transferred. If the powder contains aggregates, they may be broken down by passing them through successively finer sieves, by pounding them with a mortar and pestle or by using a specially adapted commercial food mixer or food processor. Alternatively the technique of coning and quartering can be applied. If the submitted material consists of more than one package, the analyst should examine the contents of all the packages by eye and possibly by some simple colour test or thin-layer chromatography. This is done to determine if all the packages contain the same material or if one or more contain material different from that in the majority of packages. If one or more packages obviously differ in content, they should be segregated and subjected to separate analysis. Material that comes in more than one package may be sampled as follows: If there are fewer than 10 packages, sample all of them; 0 If there are 10-100 packages, randomly select 10 packages; IN THE SUPREME COURT OF SEYCHELLES VINCENT BIBI APPELLANT VERSUS THE REPUBLIC RESPONDENT Criminal Appeal No. 23 of 1997 (Before: Goburdhum P, Silungwe & Ayoola JJA) Mr. A. Juliette for the Appellant Mr. R. Kanakaratne for the Respondent JUDGMENT OF THE COURT Appeal against conviction is dismissed. Reasons to follow. Dated at Victoria, Mahe this cit--("- day of April 1998 11/ti, H. GOBURDHUN PRESIDENT A. M. SILUNGWE JUSTICE OF APPEAL Cl/ E. 0. AYOOLA JUSTICE OF APPEAL