Supreme Court
Inferior Court Appeal No. 4 of 1981
2nd October, 1981.
Alcantara, J.

Mr. J. N. Avilez, for the Appellants
Mr. G. C. Gandhi, for the Respondent

Inferior Court Appeal - Conviction - Whether Magistrate correctly convicted the Appellants with possession of marijuana contrary to section 5 (b) of the Dangerous Drugs Ordinance - Joint possession of dangerous drugs - Elements necessary to prove joint possession.

J U D G M E N T

This is appeal from the Inferior Court for the Cayo Judicial District. The Appellants were convicted and sentenced on the 5th day of October, 1980 by the learned Magistrate of and for the following offences: -

"For that Ben Butenschoen and Deborah Butenschoen on the 25th day of September, 1980 in the Mountain Pine Ridge area in the Cayo Judicial District had in their possession a quantity of leaves, seeds and flowering tops of the Pistilate Plant Canabis Sativa about 150 lbs. from which the resin has not been extracted.

Possession of Dangerous Drugs: Contrary to section 5(b) of the Dangerous Drugs Ordinance, Chapter 85".

A fine of $450 was imposed on each with $1.00 costs or in default 4 months imprisonment.

From the said convictions both Appellants now appeal to this Court and their grounds of appeal are:

(1) The decision was unreasonable or could not be supported having regard to the evidence.

(2) The decision was erroneous in point of law.

(3) The decision was based on a wrong principle or was such that the Inferior Court viewing the circumstances could not properly have so decided.

(4) It would seem that the Learned Magistrate based his decision on knowledge while possession is the essence of the charge in question; not knowledge.

In Court, Counsel for the Appellants has combined grounds 1 and 4, thus leaving only 3 grounds of appeal.

The facts of the case are as follows: - The police found two bags, later ascertained to contain 150 lbs. of Indian Hemp, inside the house of Ben and Deborah Butenschoen, the Appellants. At the time of finding both Appellants were inside the house, the male Appellant upstairs where the bags were actually found and the female Appellant downstairs. When the Police drew the attention of the Appellants to what they had found, the male Appellant answered, "It is only herbs"; the female Appellant answered, "It is only a little bit".

Although they were not bound to offer any explanation at no time did any of them deny the presence of the bags upstairs or say that the bags did not belong to them. They were charged jointly with being in possession of 150 lbs. of dangerous drugs contrary to section 5(b) of the Dangerous Drugs Ordinance.

At the trial the female Appellant did not give evidence. The male Appellant made an unsworn statement from the dock, but did not say that the bags did not belong to him or offer any explanation as to the bags.

The question which arises for decision is whether the learned Magistrate was at liberty on the evidence to find that both Appellants were in possession of the said drugs.

Counsel for the Appellants says no and draws the attention of the court to the following authorities:

R v Irala-Prevost (1965) C.L.R. 606

R v Searle & Others (1971) C.L.R. 593

R v Smith (1966) C.L.R. 558

and to section 9 of Ordinance No. 4 of 1981.

He places strong reliance on a quotation from R v Searle which states:

"Mere knowledge of the presence of a forbidden article in the hands of a confederate was not enough: joint possession had to be established."

I agree with the above proposition, but the decision goes further; it goes on to say:

"The sort of direction which ought to have been given was to ask the jury to consider whether the drugs formed a common pool from which all had the right to draw at will, and whether there was a joint enterprise to consume drugs together because then the possession of drugs by one of them in pursuance of that common intention might well be possession on the part of them".

What this case really decided is that the direction to the jury was inadequate. If properly directed the jury would have been, on the evidence adduced, at liberty to convict, if so minded.

The case of R v Irala-Prevost is also another case of a defective summing-up. R v Smith is more helpful to the Appellants. Drugs were found in a room occupied by Defendant. The direction by the judge to the jury could be construed as saying that she must necessarily control everything in it. The Court of Criminal Appeal held that this was a wrong direction. I cannot but agree.

However in R v Smith the Defendant not only denied all knowledge of the drugs but gave evidence to that effect and to the fact that the room was used in common with other persons.

In the present case neither of the Appellants denied knowledge or the existence of the bags found and apart from the unsworn statement of the male Appellant no evidence has been given denying knowledge of the drugs. In fact the evidence at the trial points to the other direction.

Counsel for the Respondent has made a very comprehensive analysis of the law on this subject starting with Wagner v Metropolitan Police Commissioner (1968) 52 C.A.R. He has also referred me to the following:

R v Cavendish 45 C.A.R. 374

R v Peaston 69 C.A.R. 203

and to Archbold's 40th Edition paragraph 3391.

It is unnecessary for me to quote from any of these authorities. I find that the Magistrate was perfectly entitled on the evidence to draw the inference that both Appellants were in joint possession of the drugs found. He would have been at liberty to convict merely on the evidence that they were so found, though not bound to convict. He was fortified in reaching a finding of guilty by the fact that there was no denial of the existence of the bags or explanation given. In fact the answers of both Appellants to the Police were evidence he could use to reach his decision. I find that the Magistrate reached the right decision.

Although there is no appeal against sentence, I think that under the Laws of Belize I am entitled to increase or decrease the sentence imposed. I have the impression that the sentence in this case was somewhat on the low side, taking into account that the quantity found could be described as a commercial quantity. However, I shall be guided by the learned Magistrate on this occasion and will not disturb the sentence imposed.

Appeal dismissed.

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