Possession of drugs can be established through conduct, such as attempting to flee from law enforcement, and the voluntariness of statements made post-arrest plays a crucial role in evidence admissibility.

[1] The appellant was convicted by the High Court on a drugs trafficking charge under s 39B(1)(a) of the Dangerous Drugs Act 1952 (the Act). His appeal to the Court of Appeal was dismissed on 29 April 2009.

[2] The drugs concerned in this case was 2660 grams of cannabis, packed in three transparent plastic bags kept inside a bag, which was found on the floor mat of the front passenger seat in the car where the appellant was seated. The car was driven by one Yusmadi, who was jointly charged with the appellant but acquitted without his defence called.

[3] A cautioned statement (P38) recorded from the appellant was admitted as evidence by the trial judge after conducting a voir dire to determine its voluntariness A piece of information given by the appellant to the police during an interrogation session immediately after the appellant's arrest was also admitted as evidence pursuant to s 27 of the Evidence Act 1950 . In that information (exh P21A) the appellant told the police that he had kept three kilograms of ganja near his feet under the seat next to the driver At the trial the appellant claimed that he had given that information as a result of being roughed up by the police, that he was kicked and punched by them during the interrogation. The learned trial judge found from the evidence that there was no use of force by the police and admitted that s 27 information. The Court of Appeal in reviewing that part of the evidence found no error on the part of the learned trial judge, in accepting the version of the prosecution and rejecting the appellant's version. We agree with both findings.

[4] When the car carrying the drugs was accosted by the police at 11pm on the night of 7 August 2001, both the driver (Yusmadi) and the appellant attempted to escape. They were however immediately apprehended after a short chase and scuffle. The learned trial judge relied inter alia on this conduct of the appellant trying to escape in coming to the conclusion that the appellant had actual possession of the drugs and thereby concluding that a prima facie case against him had been proven.

[5] The Court of Appeal affirmed the finding that the appellant had mens rea possession of the drugs and concluded that the prosecution had established the element of actual possession without the aid of the presumption under s 37(d) of the Act, and thus, invoked the presumption of trafficking under s 37(da)(vi) of the Act against the appellant.

[6] Before us it was submitted by appellant's counsel that both the High Court and the Court of Appeal had misdirected themselves as to the conduct of the appellant in fleeing the scene by placing too much dependence on that evidence as a telling factor in respect of the knowledge of the appellant of the drugs at his feet. It was argued that the learned trial judge had failed to put that evidence to the maximum evaluation test in coming to that conclusion. It was contended that since the appellant was not the sole occupant of the car and that Yusmadi was in custody and control of the car it may be inferred that he, Yusmadi, was also in custody of all items in that car. Learned counsel cited the case of Gooi Loo Seng v. PP , 1993 MarsdenLR 1402 , in submitting that a miscarriage of justice had occurred when the trial judge failed to view all the evidence objectively. Learned counsel also argued that the elements of proximity to the drugs and conduct of flight can also be resolved against Yusmadi. Thus it was wrong for the learned trial judge to have concluded, based on these same two elements, that it was the appellant who was in possession of the drugs.

[7] The conduct of one suspected of an offence is a relevant fact which may be considered and evaluated by the Court in coming to a conclusion on whether the suspect perpetrated the offence. Section 8 (2) of the Evidence Act 1950 states that:-

(2) The conduct of any party, or of any agent to any party, to any suit or proceeding in reference to that sui