Court denies that man who was passed a bag of drugs by girlfriend was guilty of possession

In order for a person to be found guilty of possession of drugs found in the Dangerous Drugs Ordinance, the law requires the element of intention and free will in the manifestation of the material element of the crime. This was held by Magistrate Natasha Galea Sciberras in the case of The Police vs Redeemer Theuma on the 25th of April 2018, where the Court stated that the defendant could not be found guilty of possession of drugs because the drugs were not his nor did he intend to have them on his person.

The Court heard the plea by the plaintiff whereby police officers working at the Bormla Police Station alleged that the defendant’s girlfriend was called in for questioning in December 2011 on an unrelated case concerning relatives of hers. The woman, Ms Attard, who also spoke to the Court, admitted that she was in possession of heroin at the time that she went in for the questioning.

The plaintiff went on to describe how in a moment of panic, Ms Attard ran out to the plaintiff where she handed him the drugs. Officers who chased after her, charged the defendant with possession of illegal drugs. The Court also heard the counterclaim by the defendant who claimed that he did not know that his girlfriend was in possession of the drugs at the time of the questioning. He also immediately dropped the drugs onto the ground as soon as they were handed over to him. He therefore pleaded that he could not be found guilty of possession, since the drugs were not his nor did he intend to keep them.

The Court, in looking at the evidence, commented on how the plaintiff had not been properly afforded the guarantee to legal representation when he was being questioned in the Police Station. The Court held that although the police informed him of his right to legal representation, they did not ask him whether or not he would like to make use of this right. The Court also held that it was impossible to claim that the defendant was guilty since the formal element of the crime could not be proven by the plaintiff. He did not know that Ms Attard was in fact passing along drugs to him and also it was clear that the whole thing was caused by Ms Attard’s actions. The Court found the defendant not guilty.

Dr Malcolm Mifsud is partner Mifsud & Mifsud Advocates