Queen v Katoa [2010] CKHC 12; CR 568 of 2009 (29 November 2010)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)

CR NO. 568/2009

QUEEN

V

TEREKIMIORA KATOA

Date: 29 November 2010

Counsel: Ms C Evans for Crown
Mr N George and Mr R Samuel for Accused

Judgment: 29 November 2010 (Delivered orally)

JUDGMENT OF GRICE J
(i) Application for leave to withdraw charges (s46 Criminal Procedure Act)
(ii) Application for discharge (s111 Criminal Procedure Act)

Solicitors:
C Evans, Crown Law, PO Box 494 Avarua, Rarotonga,
G Norman, Norman George & Associates P.C. Takuvaine, Rarotonga

[1] The accused is charged with importing into the Cook Islands a controlled drug, namely cannabis, an offence under the Narcotics and Misuse of Drugs Act 2004, ss6(1)(a) and 3(b). The charge was laid on 15 August 2009. On 27 August 2009 the accused, Mr Katoa, elected trial by jury. At the same time an Order was made for full disclosure. On 28 October 2010, the matter was adjourned for trial to commence today, 29 November.

[2] By application dated and filed on 25 November 2010, Mr Katoa applied for the charge to be dismissed under s 111 of the Criminal Procedure Act 1980-81 ("the CPA"). Under that provision the Judge has a discretion, after a perusal of the written statements tendered for the trial to direct the accused shall not be arraigned on the information laid, and direct that the accused shall be discharged. A discharge is deemed an acquittal (s 1).

[3] The groungrounds of the application for discharge are set out in the application as follows:

(a) There is no evidence that a scientific analysis has been conducted by the ESR confirming that the plant material was in fact cannabis and not Catha Edulis plants, cocoa leaf, salvia divinorun (Mexican tripping weed, Lady Salvia or the Magic Mexican mint) as these plant samples could easily be identified under the Third Schedule Part 1 of the Narcotics and Misuse of Drugs Act 2004.

(b) There is an absolute legal requirement that drugs of any kind involved in a defended trial of this kind must be analysed by the ESR in New Zealand, before the trial.

(c) The Crown has held their evidence for well over a year since August 2009 without any attempt made to send the samples to ESR for analysis.

(d) There is no precedent in the High Court of the Cook Islands permitting Police Officers to be treated as "Drug Analysis Experts" in the same way as they cannot be permitted to analyse alcohol blood specimens.

(e) The omission to have the alleged cannabis material analysed is a fatal mistake on the part of the Police, this is a major departure from their normal practice of sending the material to the ESR; they used to routinely do this and this failure is completely unacceptable.

(f) To blindly undertake a criminal trial based on an unidentified and unanalysed plant material would lead to a grave miscarriage of justice; therefore it is submitted that the charge be dismissed with costs.

The written statements tendered for the trial

[4] The Crown provided a number of statements prior to the trial. A number were unsigned waiting for the signed copies to arrive from New Zealand. There was also disclosure of a number of documents in the case. The disclosure list was filed in the High Court on 18 November 2010. It is unclear as to the date on which Mr Katoa's counsel received these documents.

[5] Of the statements on the Court file before 26 Nove#160;2010 there was lits little substantive evidence concerning the identification of cannabis. The closest was the statement of Vainenooroa Ngametua, a Detectinstable who opened the bucket in which the alleged cannabisnabis material was contained, and arranged for the cannabis to be weighed at the Hospital laboratory. He merely refers to three cannabis bags. Customs officer Stephen Tikitau Matapo, also referred to an examination on discovery of the goods plus "suspected cannabis products". He refers to a decision being made for the Police to handle the suspected drug issue while Customs handled the undeclared goods issue. Both of those statements are signed.

[6] On 26 November 2010 the Crown filed and served a signed statement of Detective Sergeant Leighton Boaza, the officer in charge who had been assigned the case in August 2010. At the time of the laying of the charges Detective Senior Sergeant Solomona Tuaiti was officer in charge of the case. It seemed that Detective Sergeant Boaza became the officer in charge in August 2010. He then requested an Exhibit contained in a box which was seized. He opened the sealed plastic bag with items inside it and from his experience he describes the material inside: "From my experience it smelled like cannabis. It looked green and dry and had a heavy smell of cannabis plant. I am able to tell the difference between hemp and cannabis. I can tell the difference between cannabis and cocoa leaf." He said he presumed that the previous officer in charge had sent the materials to New Zealand for testing and did not focus on that. On 26 November 2010 he received an application by the accused for a discharge based on no ESR identification of cannabis. The Detective Sergeant realised this was an important element of the offence and so sent it for testing by ESR and arranged for the witnesses to give evidence at the trial. Those witnesses would not be arriving until Sunday. I note that I was informed this morning, that they in fact would not be arriving until Monday night.

[7] The Crown represented by Ms Evans opposed the applin foon for discharge, and made an application pursuant to s100(1) of the Crown Proceedings Act for an Order that any evidence provided by the ESR that the controlled drug is cannabis shall be taken during the course of the trial.

[8] On the morning of the trial Ms Evans for the Crown made an application to withdraw the charges. This was opposed by Mr George for the accused, and he indicated he would pursue his application for a discharge under s111(2) of the CPA. He also sought costs from the Crown on both applications.

Application for discharge

[9] Mr George's application centred on an argument that in order to prove that the substance imported was cannabis (or other controlled drug) a certificate from an analyst who is an employee of the Institute of Environmental Science in New Zealand (ESR) and suitably qualified in the field of narcotics and drugs was required to give a certificate. If that certificate was not produced he submitted that no other evidence could provide sufficient proof that the substance was cannabis. In addition the certificate was only admissible if, at least 28 days clear days before the hearing at which the certificate is tendered, a copy is served on the accused, and the accused may, if the prosecutor is not going to call that witness, give 21 days' clear notice that the analyst is required to be called by the prosecutor.

[10] In this case clearly the 28 days' requirement could not be met. The Crown noted that the scientist, presumably the person who was giving the evidence as to the certificate, although that was not clear, was being flown out from New Zealand to give evidence. Therefore, the application of s35(4) and the requirements for notice appear to be a side issue.

[11] Neither Mr George nor Ms Evans were able to point me to any provision of the Narcotics and Misuse of Drugs Act 2004 which indicated that in order to prove an offence under s6(a) of the Act, which relates to the import of a controlled drug, that the only evidence admissible is the certificate under s35(2). Section 35(2) is a provision which allows the certificate to be admissible as sufficient evidence of (among other things) the facts stated in the certificate. However, there may be other methods of proving that the substance, the subject of the charge, is cannabis. Generally it would then be up to the jury once the matter has been put to them with evidence to assess the evidence which is proffered in support for the identification of the controlled drug.

[12] Mr George attempted to persuade me that the general provisions in relation to the evidence of experts meant that no one but a suitably qualified expert (in fact an analyst for the purpose of the definition in the Narcotics and Misuse of Drugs Act) could give any evidence on the identity of the substance, in this case cannabis. I do not accept those submissions. The provisions about expert evidence and its requirements to which he referred me are related to the qualification of an expert witness. In this case the issue was whether there were methods of proof and evidence, apart from a certificate by an ESR employee, which might identify the substance.

[13] The Crown made an application for leave to withdrawal the charges pursuant to s46 of the CPA. This provision allows withdrawal of the charges at any time and allows the Judge to make an award of costs on such withdrawal.

[14] The application for leave to withdraw the charges was made on the basis that the Crown was not in a position to proceed today. It had over the weekend apparently obtained an analysis of the controlled substance but was not in a position to either provide a certificate meeting required timeframes, nor did the Crown have the statement or evidence available of the person from ESR who would be giving further evidence identifying the substance. In those circumstances the Crown elected to withdraw the charges rather than risk the outcome of an application for discharge under s111 of the CPA.

[15] The issue then becomes a contest between whether the charges should be discharged under s111 of the CPA, which is deemed to be an acquittal, or whether leave be given to withdraw the charges under s46 of the CPA. The latter would allow the Crown to relay the charges if appropriate at a later date.

[16] The power of the Court to direct a discharge is discretionary. The CPA sets out no criteria to which the Court is to have regard in exercising that discretion. However, there are many cases where that discretion has been subject to judicial comment. In particular there are a number of New Zealand cases dealing with s347 of the Crimes Act 1961 (NZ) which contains a similar discretion for the Judge to direct a discharge of the accused.

[17] Mr George's submissions in support of the application for discharge went to, first, the unfairness of the Crown taking advantage of Mr George's pointing out the possible gap in their evidence, and then taking steps to fill that gap by having the material analysed by ESR. Secondly, Mr George submitted that it was unfair or unreasonable because of the delay, to allow the matter to be withdrawn rather than granting a discharge.

[18] Dealing with the first issue, it is for the jury to determine whether the evidence is or is not sufficient establish guilt. It is not for the Judge to predict what the jury will find. In all but the most unusual or extreme circumstances questions of credibility and weight must be determined by the jury. The question is whether as a matter of law a properly directed jury could reasonably convict. Unless the case is clear cut in favour of the accused, it should be left for the jury to decide. The Court of Appeal has dealt with these issues in a number of cases including R v Flyger[1] and Parris v A-G.[2] Reference and commentary on these cases are set out on Adams on Criminal Law.[3] In the circumstances, the evidence, including the late statement of Detective Sergeant Boaza, is sufficient in law, if accepted, to prove the case. Therefore, regardless of the application for leave to withdraw I would have refused the application for discharge on that submission.

[19] The second ground advanced by Mr George was that the prejudice accruing to the accused was such that the application for withdrawal should be refused and a discharge application granted. Mr George was unable to point to any specific prejudice. In general he pointed to the fact that it has been some 15 months since the charges were laid. Mr Katoa resides in Rarotonga. He has a security officer job. He has a wife and two children and the cost of these proceedings has caused him hardship.

[20] In this case there is no specific prejudice because of the delay in bringing the matter to trial. The Crown indicated that they have been ready to go for some time and it was a matter of finding Court time. Given what has now happened and the Crown's request for withdrawal it seems that the Crown was not ready for trial. I do not see any prejudice that would persuade me that it is unfair or unreasonable because of the delay to grant a discharge.

[21] I therefore turn to the application for leave to withdraw the information. This is a matter of balancing a number of evils. The jury panel is waiting this morning. It is clear the matter cannot proceed as the defence has not had the opportunity to see the evidence to be produced from ESR. The least the defence would be entitled to is an adjournment to consider the evidence and perhaps obtain its own evidence.

[22] In those circumstances the better option is to grant the application for leave to withdraw the charges. I do so with extreme reluctance. The Court time, particularly for jury trials, in the Cook Islands is precious. The problem here has been brought about entirely by the Crown's failure to review its case in a timely manner and seek to obtain the further evidence it now wishes to adduce. The issue was brought home to them by the defence's application for discharge. Mr George expressed his grievance at having pointed out the hole in the case and his outrage that it should be plugged by the Crown. Nevertheless, in the interests of justice a matter such as the importation of cannabis should not be treated lightly. It is a serious offence and I have found that there is evidence which if accepted may prove the case. That then becomes a matter for the jury.

[23] I do, however, wish to convey to the prosecution my concern about the failure to have the case ready to go in a timely manner. It has meant that the accused continues to have the matter hanging over him. In addition the Court timetable has been thrown into disarray by the late application for withdrawal of the charges.

[24] Mr G also sought costs in the the amount of $2,000, being, in his submission, the extra costs brought about by reason of having to argue the application for discharge and respond to the application for withdrawal of the charges. Ms Evans (with the assistance of Mr Elikana, the Crown Solicitor who happened to be in Court at the time) submitted that costs were not usually sought by an accused where informations were withdrawn. Mr George indicated that this was a special circumstance and he certainly would be pursuing his costs application under s46(2). This allows for an award of costs as the Court thinks reasonable. I consider in the circumstances a costs application for an award against the Crown is appropriate. The sum of $2,000 is too high in the circumstances. It is apparently an estimate by Mr George of his interlocutory costs. In the circumstances, however, it needs to be more than a minimal amount of costs. Accordingly I award $1,000 in favour of the accused against the Crown.

[25] Accordingly I Order:

1. The application for discharge is refused.
   
2. Leave to withdraw the charge is granted.
   

100. Costs are awarded against the Crown of $1,000.
     

C Grice J

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^[1] R v Flyger [2001] 2 NZLR 721 (NZCA).
^[2] Parris v A-G [2004] 1 NZLR 519 (NZCA)
^[3] Adams on Criminal Law (4^th Student Edition), Robertson, Brookers Limited 2005 at 532-533.