Pendakwa Raya v AMAECHI OMEAKU

Case Significance

Illustrates that a failure to investigate a good Alcontara innocent-carrier notice can defeat proof of mens rea possession at the prima facie stage, preventing the section 37(da) presumption and warranting acquittal on trafficking charges.

This High Court decision at Kuala Lumpur, in the Criminal Division, concerns a prosecution by Pendakwa Raya (the Public Prosecutor) in which the accused faced two charges of drug trafficking under section 39B(1)(a) of the Dangerous Drugs Act 1952 (Akta Dadah Berbahaya 1952), in respect of cannabis weighing 529.1 grams and methamphetamine weighing 184.04 grams, together with a third charge of drug possession under section 39A(2) read with section 12(2) of the same Act. This judgment concerns the two trafficking charges, decided at the close of the prosecution case.

The court examined whether the prosecution had established a prima facie case on the trafficking charges. Trafficking here depended on the statutory presumption in section 37(da), which can only be invoked once mens rea possession, possession with knowledge, has first been proved. The drugs had been recovered from a car driven by the accused, which he said he had borrowed from another person who had since gone missing. The decisive feature was that the accused had, at the point of arrest, given a good and sufficient notice, in the nature of an Alcontara notice, that he was an innocent carrier unaware of the drugs, a contemporaneous account relevant under sections 6 and 8 of the Evidence Act 1950 as conduct and as part of the narrative. The raiding and investigating officer, however, did not investigate that account.

The court held that the failure to investigate the accused's contemporaneous innocent-carrier explanation offended his right to a fair trial and left the prosecution unable to establish mens rea possession, so that the section 37(da) trafficking presumption could not be invoked. Giving the accused the benefit of the doubt, the court acquitted and discharged him of both trafficking charges at the close of the prosecution case under section 180(2) read with section 180(1) of the Criminal Procedure Code, the possession charge remaining to be tried separately. The judgment is a useful illustration of the consequence, at the prima facie stage, of a failure to investigate a good Alcontara innocent-carrier notice.