clr/1987/1987_2_49.pdf

(3)of the Narcotic Drugs Law (Law 29/77 as amended by Law 69/83)—Forcible entry—Whether permissible— Answer to question depends on the exigencies of the execution of the wanant—The burden of proof asregardsnecessityfor a forcible entry is on the police. Search warrants—Issued under section 29

(3)of the Narcotic Drugs Law (Law 29/ 77asamended byLaw 69/83)—Forcible entry—Circumstances making such entry permissible. 49 Oueiss v.Republic

(1987)Cnminal Law—Possession of prohibited substance—Itimports knowledge of the content and a degree of control over suchsubstance—Knowledge may be inferred from the circumstancesof thecase The appellant and his fellow Lebanese Fehima Matta were convicted on two chargesinvolving possession withview tomarketingofadrugcontrolled under the Narcotics Drugs Law 29/77, namely 267 5 grams of heroin and were sentenced to 5 and 4 years' imprisonment respectively Ihey were jointly indicted and tned 5 Atsomestagebefore thecloseofthecasefortheprosecutionFehimaMatta obtained the leave of the Court andchanged her plea from one of not guilty 10 to one of guilty Thereupon the trial of the appellant was temporanly interrupted forthepurposeofsentencinghisco accused Inpassing-sentence on the said co-accused the Court took, into consideration a voluntary statementwhichshehadmadetothepolice implicatingtheappellant aswell Thetrialoftheappellant continuedaftertheimpositionofthesaidsentence 15 The complaints made by the appellant against his conviction are the following, namely (

1. a)Procedural irregulanty prejudicial to atair tnal in that notwithstanding absence of intimidation by the prosecution that his coaccused wouldbecalledasaprosecutionwitness,theCourtpassedsentence on the co-accused before the conclusion of the tnal (
2. b)Absence of specific ^ 0 warning regardingexclusionoftheevidencesolelyadmissibleagainstthecoaccused, (
3. c)Misreception of evidence, namely the suitcase containing the heroin, w,hich in accordance with the submission ot the appellant, was obtained by the Police as a result of illegal execution of a search warrant involving breach of the constitutional nght safequardedby Article 16of the " Constitution and(
4. d)111foundedinferencesdrawnbythetnalCourttakingthe caseoftheprosecution no further thanthe realm of suspicion Inthisrespect appellant submittedthat the pnmary factsdid not establisheither knowledge on hispart of the contentsof thesuitcase or the necessary control tojustifya findingof possessing The evidence adduced may be briefly summansed as follows Fehima Matta waskept by thepolice undersurveillance ataHotelinLarnaca,where she stayed On the 18 785 the appellant went to the Hotel intending tovisit Fehima Matta He tned to hide thepurpose of hisvisit His conduct aroused the suspicion of the receptionist To forestall anyattempt on the part of the 3 5 suspectedaccomplicestodisposeofor destroythenarcotics thepolice, who had obtained asearch warrant entered the room of Fehima Matta without pnor warning using a spare key and found the two accomplices locked in conversation with an open suitcase lying in front of the appellant, who hurriedly closed it The suitcasecontained asubstantial quantity of heroin 40 Held dismissingtheappeal (a)Thenormaljudicialpractice istopostpone sentenceon aco-accused who pleadsguiltytotheendofthetrial unlessthe 50 30 2 C.L.R. 5 10 15 20 25 30 35 40 Oueiss v. Republic prosecution intends to call him as a witness This is not a rule of law but reflects judicial understanding that such course is, in the normal course of events, best conducive to afair tnal Thispractice however, cannot ovemde the provisions ofsection 75 of Cap 155.which leavesconductof ajoint tnal tothetnalCourt whose discretionisverywide The phrase in the section« in any way in which may appear desirable and which isnot inconsistent with theprovisions ofthisLaw»andparticularly theword«disirable»are suggestive of the breadth of the discretion Unless the course adopted appears to have prejudiced the fair tnal of a co accused no irregulanty occurs wheie the course followediswithin the discretionof theCourt Apart from s75the tnal Court enjoys great latjtute in regulating the proceedings co-extensive in breadthwith its duty to ensure afair tnal

(2)In the absence of arule of Law or of practice foraspecificwarning, ina joint tnal, about exclusion of the evidence inadmissible against an accused, failure to make explicit reference to the matter cannot found an irregulanty unless it appears from the tenor of the judgment that evidence inadmissible against him was taken into consideration aspart of the case against him Counsel drew the attention of the Court to the case of R ν Cunewardens. 35 Cr App Rep 80 acknowledging the power of the Court in ajoint tnal to order separate trial whenever there is a risk that the jury will be unable to seqregateanddisregardinadmissible evidence againstaparticulardefendant In view of thecompositionofthe Courts tnCyprus, consistingof professional Judges,such anskisremote The value ofajoint tnalcannot bedoubted Not only it is permitted in the case of persons accused of committing the same offencefs 41(a)ofCap 155)butitisalso desirable Inthiscaseajointtnalwas fully justified

(3)A hotel room occupied for temporary stay constitutes a dwelling and attracts the protection of Article 16 of the Constitution The protection of Article 16isnotconfinedto«domicilium» but extends tothe«domus- as well ' n accordance with para 2 of Article 16 entry into a dwelling house, in deviation from the nght safeguarded by Ai-ticle 16 1, is permitted only if sanctionedby the law andthen only on the strengthofajudicial warrant The search warrant in this c se wa1".issued under the provisions of s29

(3)of the Narcotic Drugs Law Section 29

(3)envisages only one 3pecies of a wanant and makes forcible entry dependent on the exigencies of its execution The arbitersof the necessity fdt the adoption of such acourse are the officers entrusted with its execution Forcible entry does not depend on pnor specific authorisation by the Judge issuing the warrant but on the necessity arising forrecourse to it The burdenof satisfying the Court of such necessity lies with the police In thib case the suspicious conduct of the appellant as well asthe nature of what u.as suspected tobe in the possession oftheaccomplicesandtheriskofitsdestructionordisappearance justifiedthe course adopted 51

(1987)Ouetss v. Republic

(4)Possession imports knowledge of the content and a degree of control over the prohibited substance. Direct evidence of knowledge is rarely forthcoming More often, itisinferred from the circumstances of the case. particularly the connection with and actions of the accused relevant to the prohibitedarticle.Inthecircumstancesofthiscasetheinferenceofappellant's guiltwasvirtually unavoidable. 5 Appealdismissed. Casesreferredto: R. v. Wallace,23 Crim.App. Rep. 32; R. v.Cunewardens, 35Crim.App.Rep.80; 10 Dememou v. TheRepublic. 1901CLR.309; Swales v.Cox [1981] 1 AllE.R.1115; Policev.Ekdotih Eteria

(1982)2C L R 63, Policev.Georghiades

(1983)2C.L R.33. ft v.Sang [1979]2AllE.R. 1222; 15 Foumides v.TheRepublic

(1986)2C.L.R. 73; Appeal against conviction andsentence. Appeal against conviction and sentence by HenriJean Oueiss who was convicted on the 5th October, 1985atthe Assize Court of Lamaca (Criminal Case No.8557/85) on one count of the 20 offence of possessing controlled drug contrary to sections 2,3,6

(2), 30 and 31 of the Narcotic Drugs and Psychotropic Substances Law, 1977 (LawNo.29/77) and on one count of the offence of possessing controlled drugs with intent tosupply them to others contrary tosections2.3,6(D

(3), 30 and 31 oftheabove 25 Law and was sentenced by Papadopoulos, P.D.C., Constantinides, S.D.J, and Arestis, D.J. t o . five years' imprisonment onthesecond countwithnosentence beingpassed on the first count. L. Clerides withN. Cleridee, fortheappellant. 30 A. 'M. Angelides, Senior Counsel of the Republic, for the respondent. Cur,adv. vult. A. LOIZOU J.: The judgment ofthe Court willbe delivered by Mr.Justice Pikis. 52 35 2C.L.R. Ouelss v. Republic PIKIS J.: The appellant, Henri Jean Oueiss, and his fellow Lebanese Fehima Matta, were convicted by the Assize Court of Lamaca on two charges involving possession with a view to marketing a drug controlled under the Narcotic Drugs Law*, 5 namely 267.5 grams of heroin; and were sentenced to 5 and 4 years imprisonment, respectively. They werejointly indicted and tried.Onarraignmenttheypleadednotguilty,butbefore theclose of the case for the prosecution, Fehima Matta changed, with the leave of the Court, her plea to one of guilty. Thereupon, the 10 hearing of the case against appellant wastemporarily interrupted forthepurpose otsentencing his co-accused. In accordance with the printed record counsel for the prosecution referred tothe facts founding theguiltof Matta and a social inquiry report was made available to the Court shedding 15 lighton her personal circumstances and background. The material considered by the Court in passing sentence included avoluntary statement ofMattawhereshe implicated tne appellant as well. After a short recess to consider and impose sentenceontheco-accused (4yearsimprisonment)thehearingof 20 the caseagainst the accused was resumed. Reference to the trial process has been made because itisthe subject of complaint by the appellant. Consideration of the case againsttheco-accused forthepurpose ofsentence before theend of the trial constituted, in the submission of the appellant, in the 25 absence of cogent reasons justifying that course, an irregularity prejudicial to the fair trial of the appellant. The likelihood of prejudice became greater, asargued, intheabsence ofadirection reminding of the need to exclude incriminating evidence on recordsolelyadmissible againstthe co-accused of appellant. 30 Beside the H»ocedural irregularities allegedly leading to a miscarriage of justice, the conviction is also challenged on two othercounts,anevidentialinvolvingthemisreceptionof evidence and a substantive one the inferences drawn by the trial Court. Theyare;- 35 (a) Misreception of the suitcase containing the heroin inadmissible because of the illegal execution of the *Law29/77 (asamended byLaw 69/83} 53 Ptkt*J. Oneiss v. Republic

(1987)judicial search warrant involving breach of the constitutional right safeguarded by article 16 of the Constitution; and (b) theill-founded inferences drawn by thetrial Court taking the case for the prosecution nofurther than the realm of 5 suspicion*. t The appeal against the sentence of 5 years imprisonment was abandoned, no doubt on sound legal advice considering the gravity of the offence and the danger toCyprus andinternational community from the use anddistribution of narcotics.Theappeal 10 against sentence was dismissed. Counsel for the prosecution supported the conviction as procedurally and evidentially well founded, properly warranted by theprimary findings of thetrialCourt.Heargued itwas opento the Assize Court to dispose, in the exercise of its discretionary 15 powers, thecase against theco-accused before the conclusion of the proceedings, denying any prejudice was occasioned to the appellant on that account.The unwarned entry by thepoliceinto the room of Matta on the other hand, was properly made in exercise of the authority conferred on the police by the judicial 20 warrant authorising thesearch of the premises. We shall deal with the grounds of appeal elicited above, inthe sequence indicated below, dictated by the logic of their implications:(A) Procedureattrial. 25 (B) Absence of specific warning regarding exclusion of the evidence solely admissible against the co-accused. (C) Legality of the action of the police in entering the room where the narcotics were found. And (D) The inferences drawn by the trial Court. (A) Procedureat trial: In the absence of any intimationfrom the prosecution thatthe co-accused would be called as prosecution witness, it was *See. R v.Wallace.23Cnm. App Rep.,ρ32.p.35. 54 30 2 C.L.R. Oueiss v.Republic Plfcis J. improper, counsel submitted, to heed and dispose ot the case against the co-accused before the conclusion of the tnal Premature reflection upon and consideration of the case against her could not but have damaging effects on the outcome of the 5 case against the appellant, thereby prejudicing his right to a fair tnal Though counsel is right in saying that the normal judicial practice isto postpone passing sentence upon a co-accused who pleadsguiltytotheend ofthetrial,unlesstheprosecution intends tocallhimasawitness,the practice doesnot denve from anyrule 10 of law Itreflectsjudicial understanding that such course is,in the normal course of events, best conducive to a fair trial Nevertheless, the practice, irrespective of its ments, does not override or modify the provisions of s75 of the Criminal Procedure Law-Cap 155,thatexplicitlyleavesconductofajoint 15 trialtothe discretion ofthetnalCourt Thewordingofs75clearly establishes that the discretion residing with the tnal Court in this regard isverywide,vergingon absolute discretion The pertinent provisions of s 75 « in any way in which may appear desirable and which isnot inconsistent with the provisions of thisLaw»are 20 suggestive of the breadth of the discretion of the tnal Court, particularly the word «desirable» Unlessitismade toappear that the course adopted prejudiced inpoint offactthe fairtrialof acoaccused, noirregulantyoccurswherethecoursefollowed iswithin theundoubted discretion ofthe trialCourt Theprovisionsofs 75 25 apart,greatlatitudelieswiththetnalCourttoregulateproceedings before it co-extensive in breadth with the duty of the Court to ensure a fair tnal inthe interest ofjustice Thecourse adopted bythetnal Courtinthiscase was perfectly open to it though not one we would encourage Ordinanly, itis 30 best toadjourn consideration ofthe caseand passingsentenceon a co-accused untiltheend oftheday,intheinterestoftheunityof thesentencingprocess Wastheaccused inanywayprejudiced as a result ofthe course followed? Inthe submission ofthe appellant he was, especially in the absence of any record indicating that 35 evidence solely admissible against the co-accused was disregarded m the ponderation of the case for the prosecution against the appellant And this bnngs us to examination of the second ground of appeal 40 (B) Absence of specific warning regarding exclusion of the evidencesolely admissible againsl the co-accused: 55 PlltlsJ. Oueiss v. RepubUc

(1987)Fortheappellantitwasarguedtheabsenceofaspecific warning reminding the Courtof theneed to disregard evidence admitted against Matta but inadmissible against him, made the verdict unsafe; not least because the risk of such inadmissible evidence affecting the deliberations of the Court. Counsel drew our 5 attention to the case of R. v. Gunewardens*, acknowledging that one of the courses open toa trial Courtin a joint trial is toorder separate trialwhenever there isarealriskofthejury beingunable to segregate and disregard evidence inadmissible against a particular defendant.Thelikelihood of prejudice resulting onthat 10 account in Cyprus is remote in view of the composition of the Court consisting of professional judges expected by trainingand expenence to appreciate the case against each co-accused in its true evidential perspective. The differences between the composition of English andCyprus courts, andtheirimplications, 15 were notedby the High Courtinthecase of LazarisDemetriou v. Republic**. Thefollowing passage from thejudgmentofO'Brian, P., is suggestive of the differences and indicative of what can be expected of a Courtconsisting of professional Judges; «In my opinion, thisCourt, insuch cases, should imputeto 20 thetrialCourtafull andaccurateknowledge of thelaw,Unless the contraryappearedupon record.» The above statement reflects an accurate appreciation of the implications of trial before a court of professional judges. The presumption that the judges ignored evidence inadmissible 25 againsttheappellantis,inthiscase,reinforcedby thesummingup of the evidence upon which they rested the conviction of the appellant, confined to evidence solely admissible against the appellant. Counsel did acknowledge thereis norule of law orpracticeas 30 such for a specific warning, in a joint trial,about exclusion of the evidence inadmissible against a particular defendant. In the absence of such rule,failure tomake explicit reference tothefact ofexclusion cannotfoundanirregularityunlessitappearsfromthe tenor of the judgment that evidence inadmissible against the 35 accused was taken into considerationas part of the case against him. • 35 Cnm App Rep . ρ 80 '1961C.L.R 309 312. 56 2C.L.R. Oueles v.Republic PtklsJ- Onthe other hand,thevalue ofajointtrialinthe administration ofjusticecannotbedoubted. Notonlyitispermitted inthecaseof persons accused of committing the same offence (s.41(a) Cap.155)but itisdesirable too;for itenablesthe Court toresolve 5 the case in itsproper perspective as well as avoids unnecessary expense and waste ofjudicial time. Inthis case, the nature of the offences andthefactsgivingrisethereto,fullyjustified thedecision totrythem together. Wefind no meritinthisground of appeal. Before examining the remaining two grounds of appeal, it is 10 opportune to survey material evidence and the findings of the Court in order to understand and appreciate the background to the execution ofthesearchwarrantthatledtothediscovery ofthe heroin and testthesoundness of the inferences drawn bythe trial Court. 15 TheEvidenceand the FindingsoftheTrial Court: 20 25 30 35 40 The police, acting on information, kept Fehima Matta under surveillance at Cactus Hotel, Lamaca, where she stayed (Room 317 on the third floor). At about noon (18/7/85) the appellant made his appearance at the hotel intending to visit Fehima. A telephone call from Fehima to his hotel preceded the visit. On arrival appellant made every effort tohidethe purpose of hisvisit and positively triedtomisleadthe receptionist abouttheobjectof his presence therein. His conduct aroused the suspicion of the receptionistwhofollowed himtodiscoverheemergedonthethird floor, headingtowardsRoom317whereas hetoldherhispurpose was to visita friend on the second floor. When she accosted him withthediscrepancybetween theprofessed andactualpurposeof his presence in the hotel he pretended he made a mistake and headed for the staircase leading to the second floor, albeit toreemerge onthethirdfloorassoonashefelthewasunobserved. He proceeded towards Room 317 wherein he was admitted by Fehima Matta. The surreptitious movements of the appellant in the hotel added to the suspicions of the police. To forestall any attempt onthe part ofthe suspected accomplices todispose of or destroythenarcotics,theyenteredtheroomwithoutpriorwarning using,forthepurpose,asparekeyfurnished bythehotelier.Inthe judgment of the Assize Court the entry was lawful in view of the authorisation inherentinthesearch warrantauthorisingthesearch ofthe room occupied byFehima Matta;and theriskofthe search becomingabortivebyanyaction onthepartoftheoccupants.The 57 PikisJ. Ouelss v.Republic

(1987)ι events that followed confirmed both the suspicions ofthe police and the prudenceoftheaction taken. The occupants were locked in conversation with an open suitcase lying infront ofthe appellant, seemingly the subject of their conversation. Assoon asappellant noticed the entranceof 5 the police he hurriedly closed the suitcase, evidently to divert attention from it.The police seized thesuitcase and tore its lining to discover the suitcase contained a substantial quantity ofa substance they suspected, and laterwas confirmed (by laboratory examination)to be heroin.At first appellant remained speechless 10 and appeared tobe inastate of agony. Later,when he recovered hispoise, he denied knowledge orawareness ofthe contentofthe suitcase. The trial Court properly directing itself onthe inqredientsof possession requiring knowledge and adegree of control, found the appellant guilty of possession of the prohibited drug with a view todisposing ofittothird parties. 5 (C) Legality of the action of the police in entering the room where thenarcoticswere found: The legality of the forcible entry into the hotel room where 20 Mattadwelt atthetimehasbeen questioned.Being illegal,nothing recovered after entry intotheroomcouldbe admittedinevidence. Recitingawell-known dictumof theSupreme Courtof theUnited States ofAmerica* and byanalogy thereto,counsel argued that thefruitofapoisonoustreemustnecessarily fallwiththetreeitself. 25 That theentry was forcible cannot be doubted. Itis not the degree of force used that qualifies the entry as forcible but the intention andconsequential action to remove every obstacle, small orbig, irTthe wayofeniry. The English case of Swales v. Cox** puts, with- respect, the matter in perspective. The 30 application ofany energy toremove obstacles inthe way renders theentry forcible. Further,ahotel room occupied for temporary stay constitutesa dwelling house and attracts the protection of article 16 *'Lindmarfc intht? Lav.·', by LordDenning, pp.17 and18 "(198111 AIIER 1115.atlll9. 58 2C.L.R. 15 20 30 35 PlkisJ. safeguarding the inviolability of one's dwelling as a fundamental human right *.ProfessorManes/sexplains **theprotectionisnot confined to the «domicilium» but extends to the «domus» as well. Theextension of theprotectiontothedomusisconsistentwiththe treatment of therightsafeguarded by article 16 as a fundamental liberty and notanaspect of the law of tortorproperty law. Itaims toensurethatinhisprivate preserve thecitizenisfree from outside authority save as provided intheConstitutionand thensubject to conditionsspecified therein.Thecase for theappellantisthat force was used contrarytothetermsofthesearch warrant thatpermitted forcible entry onlyafter apriorrequest for admission was refused. As such,theentrywas outside theambitof para.2 of article 16that defines and regulates the circumstances under which the sanctity of the dwelling maybe breached ***• Inaccordance with para.2 of article 16 entry into a dwelling house, in deviation from the rights safeguarded by para.1, ispermittedonly ifsanctionedbythe law and then only on the strength of a duly reasoned judicial warrant. Inthis case theentry was made, according tocounsel,in breach of the authorisation of the search warrant and on that account the provisions of para.2 could not be invoked as justification for theaction of the police. 10 25 Ouelss v. Republic Relying on the decision of the Supreme Court in Police v. Georghiades**** counsel submitted that evidence recovered in consequence or as a result of aviolation of afundamental human right is inadmissible, the Court having no discretion, as under English law*****,toadmitit. The trial Court rejected the submission that the forcible entry was unauthorised by the search warrant. They ruled that the warrant having been issued under the provisions of s.29

(3)of the Narcotic Drugs Law imported authorisation to effect a forcible entry without pnor warning or request tor admission, provided lecessi.ty arose foi the adoption of such a measure in the execution of the search warrant. Counsel submitted the above interpretation of s.29

(3)is erroneous and irreconcilable with its provisions. Although he acknowledged that the search warrant 'See. ΊίολιτικόνΤύκαιον' Τορναρίτη, pp 291. 292 Σαρίπολος,p. 19. " 'Συνταγματικά Δικαιώματα', ρ 223 •**See.Police ν EkdotikiEtena '"'

(1983)2C.L.R. 33

(1982)2CLR.63 •'•"See.R ν Sang{1979}2AllΕR 1222(HL) Thepnnciple testofadmissibilityisrelevant 59 PikieJ. Ouelsev.Republic was issued for the purposes of s.29 to enable the police recover narcoticssuspected ofbeinghidden intheroom inthe occupation ofFehimaMatta,amenitytoeffect entrywithoutapriorrequestfor admission in the premises, as provided in s.30 of the Criminal Procedure Law, could only be sanctioned by specific judicial authorisation recorded inthewarrantitself.Thefactthatthesearch warrant wasgiveninaccordance withtheformatofs.30 reinforces the position that the power of the police inexecuting the warrant was limited by and was subject to the provisions of the Criminal Procedure Law.

(1987)5 Ultimately, the question turnson the interpretation ofs.29

(3)of the Narcotic Drugs Law that reproduces without noticeable differences the corresponding provisions of the Misuse ofDrugs Act 1971 (s.23

(3)).Read inEnglish, itprovides: «Section 23

(3): If a justice of the peace (or in Scotland a 15 justice of the peace, a magistrate or a sheriff) issatisfied by information on oath that there is reasonable ground for suspecting -(a)thatanycontrolled drugsare,incontravention of this Act or of any regulations made thereunder, in the possession of a person on any premises; or (

1. b)that a 20 document directlyor indirectly relatingto,orconnected with, a transactionordealingwhichwas.oranintended transaction or dealingwhich wouldifcarriedoutbe,anoffence underthis Act. or in the case of a transaction or dealing carried out or intended to be carried out in a place outside the United 25 Kingdom, an offence against the provisions of a corresponding lawinforce inthatplace,isinthepossessionof a person onanypremises, he maygrant awarrantauthorising anyconstable actingforthepolicearea inwhichthe premises are situated' at any time or times within one month from the 30 date ofthe warrant,toenter, ifneed bebyforce, the premises named in the warrant, and to search the premises and any persons found therein and, ifthere isreasonable ground for · suspecting thatan offence underthisActhasbeen committed inrelation toanycontrolled drugsfound onthepremisesorin 35 the possession of any such persons, or that a document so found is such a document as is mentioned in paragraph (
2. b)above, to seize and detain those drugs or that document, as thecase maybe.» First,s.29

(3)envisages onlyonespeciesotwarrantinvestingthe 40 police on issuance with thepowersvested therein. 60 10 2 CX.R. Ouelss v. Republic PibisJ. Second, forcible entry ismade dependent on the exigenciesof the execution ofasearch warrant,particularlynecessityarising for the adoption of such extraordinary course. The arbiters of the necessity according tothe tenor of the legislation, are the officers 5 entrusted with the execution of the warrant. The law does not in terms make forcible entry dependent on specific prior authorisation by the Judge issuing the warrant but on necessity arising for recourse to such means of entry. We agree with the Assize Court that the issue of a warrant under s.29

(3)imports 10 powertomakeforcible entryprovidedthecourseisjustifiedbythe facts as a necessary measure. The burden of satisfying the Court that need arose to effect forcible entry lies with the police. The information in the hands of the police, coupled with the surreptitiousbehaviour oftheappellant inthehotel,aswellasthe 15 nature of what was suspected to be in the possession of the accomplices, and the risk of its destruction or disappearance, justified in this case the forcible and unannounced entry of the police. While the findings made in the room confirmed their suspicionsand offered further justification fortheir action. 20 In conclusion, we find that the forcible entry into the dwelling (Room 317) was justified by the search warrant that in turn conformed to the provisions of the law providing for its issue, notably s.29

(3)of the Narcotic Drugs Law.Therefore, entry into the room didnotinvolve anyviolation oftherightsafeguarded by 25 article 16.1, as it was authorised, in accordance with para.2 of article 16, by a search warrant issued in accordance with the provisions of a law enacted in conformity to the Constitution. In viewof our decision itbecomesunnecessary todebate further the ambit of article 16.1and the range ofpersonsina dwelling house 30 inwhom therightvests. (D) Theinferences drawn bythetrial court: Wewere invitedto quash the conviction onthegroundthatthe primary facts were inconclusive oftheguiltoftheappellant.Itwas submitted they did not conclusively establish either knowledge, 35 on the part of the appellant, ofthe content of the suitcase, or the necessary control to justify a finding of possession. Possession imports, as the trial Court correctly directed itself, knowledge of thecontentandadegree ofcontrolovertheprohibited substance. Directevidence of knowledge israrelyforthcoming. Moreoften it 40 is inferred from the circumstances of the case, particularly the 61 PUdsJ. Oueiss v. Republic

(1987)connection with and actions of the accused relevant to the prohibited article. The value and significance of circumstantial evidence were debated at length in Foumides v. Republic*. The following passage is definitive of itsvalue in the judicial process and indicative of itsimplications. «... There is, indeed, no judicial predisposition against circumstantial evidence.Thefeature that distinguishesit from direct evidence isthat though individual parts of itare not in themselves conclusive oftheguiltofthe accused, thismaybe the cumulative effect of pieces of circumstantial evidence 10 strung together; provided always its causative effect is incompatible with any basis other than that of guilt of the accused.» Farfrom agreeing with thesubmission thattheprimary factsdid notwarranttheinferencesdrawnbythetrialCourt,weinclinethat 15 the inference ofguiltwasvirtuallyinescapable.Theconductofthe appellant OQ. arrival betrayed a desire to hide the fact that he intended to visit Matta. Of itself thispiece of evidence iscertainly inconclusive. Ontheotherhand,itcannotbeextricated from what followed after his arrival that throws light on the motives 20 accompanying his strange conduct on entering the hotel. The suitcase lied open in front of the appellant; the position of the suitcase between the interlocutors very much suggested that its content wasthesubject of theirconversation. The hurried closure of the suitcase by the appellant was indicative of the control he 25 exercised over it. More significantly, itsuggests that he wanted to keep itscontent out of focus and divert, ifatallpossible attention from the suitcase and its content. The evidence could properly leadtoaninference ofknowledgeonthepartoftheaccusedofthe content of the suitcase and control over it. In our judgment, the 30 inferences drawn by the trial Court were perfectly warranted by the evidence before itand findings made thereupon. Assuch we uphold them. In the end, we remain wholly unpersuaded that there is any room for interference with theverdict of the Assize Court on any 35 account. TheAppeal isdismissed '

(1986)2C.LR 73 62 5