R v Bowe [2003] TOLawRp 5; [2003] Tonga LR 24 (7 March 2003)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

Cr 287A/2001

R

v

Bowe

Ford J 14-18, 21-25 October 2002; 7 March 2003 Criminal law – growing and possessing hemp – definition of "growing" and "possessing" The accused was charged with one count of growing and one count of possessing Indian hemp (also known as marijuana). Initially, her husband, Alan, faced identical charges but at the conclusion of the Crown case a no case submission was upheld and Alan Bowe was acquitted.

Held:

1. There was no definition in the Act of "growing" or "possessing". To establish a charge of growing Indian hemp, the Crown must prove that the accused grew the plants; that the plants were Indian hemp and that at the time the accused took the steps she did to assist the plants to grow she knew that they were Indian hemp. "Growing" meant taking any steps intended by the accused to assist in the cultivation or development of the plants. It was not necessary for the plants to be grown to maturity. To establish a charge of possessing Indian hemp, the Crown must prove that the accused had actual or potential control of the plants and that at all material times she knew that the plants were Indian hemp.

2. The accused was not a convincing witness and her explanation was rejected.

3. The Crown succeeded in establishing all the necessary elements of each count to the required standard of proof and the accused was convicted accordingly.

Cases considered:

Karuma v The Queen [1955] AC 197

R v Honan (1991) 7 CRNZ 473

R v Sanders (1994) 3 NZLR 450 (CA)

Reg v Sang [1979] UKHL 3; [1980] AC 402

Statutes considered:

Constitution (Cap 2)

Drugs and Poisons Act (Cap 79)

Evidence Act (Cap 15)

Laws Consolidation Act 1967

Magistrates' Court Act (Cap 11)

Counsel for the Crown: Mr Kefu
Counsel for the accused: Mr Niu

Judgment

The accused is charged with one count of growing and one count of possessing Indian hemp (also known as marijuana). Initially, her husband, Alan, faced identical charges but at the conclusion of the Crown case I upheld a no case submission by Mr Niu and Alan Bowe was acquitted.

The Bowes are a New Zealand couple. They have lived in the Vava'u group of islands since 1992. Originally they operated the Bounty Bar and Cafe in Neiafu but in 1996 they began building a tourist resort on the island of Mounu which is approximately 40 minutes by boat from Neiafu. The six-acre island is leased from the Crown by a registered company, Whale Watch Vava'u Ltd. The lease runs from 22 August 1996 to 21 August 2046. The Bowes are 50% shareholders in Whale Watch Vava'u limited. The remaining 50% is owned by a local law practitioner and his wife. The resort operates under the trade name "Mounu Island Resort". The rental under the lease is $1000 per annum.

In August 2001 the Tonga Visitors Bureau organised the carrying out of the annual inspection of all tourist resorts in Vava'u. The inspection team was made up of representatives from the Fire Service, Immigration, Labour & Commerce, Police and Licensing. The team was organised and led by Falati Papani, the officer in charge of the Tonga Visitors Bureau in Vava'u.

After inspecting the tourist establishments on the main island, the team commenced carrying out its inspection of the various Island resorts in the region. This exercise began on Monday 27 August. Mr Papani had arranged for the use of a vessel and a skipper supplied by the Moorings Company.

It so happened that, at the same time, the Police Drug Squad under the command of Sergeant Tu'ihalangingie from Tongatapu was carrying out drug surveillance operations in Vava'u. Sergeant Tu'ihalangingie, along with another officer from the Drug Squad in Nuku'alofa, Constable Tu'ifua, had arrived in Neiafu on 22 August. They were assisted in their work by Corporal Tapueluelu from Neiafu.

On the morning of Monday 27 August 2001, Sgt Tu'ihalangingie contacted Mr Papani at the Visitors Bureau to see if he had any objection to Cpl Tapueluelu and Constable Tu'ifua going along with the inspection team to search for drugs on the island resorts. Mr Papani had no problems with the proposal. He explained to the court that he thought that it was most important for the Drug Squad representatives to be included in the group because he could see how the tourist business might be used as a "linkage for drugs". At the same time, he did not want people on the island resorts to know that the two men would be searching for drugs and so he proposed to simply include them in a general introduction he made at the resorts, thus, giving the impression that they were part of the normal inspection team.

The boat left Halaevalu Wharf in Neiafu at approximately 10am on the Monday morning and made straight for Foeata Island where the team carried out its first inspection which was of the Blue Lagoon Tourist Resort. The two Drug Squad officers searched the island for drugs but nothing was found.

From Foeata Island the boat sailed to Mounu. Estimates varied but it seems that the team arrived at Mounu Island sometime around 1 pm. They were met on the beach by Alan and Lyn Bowe and following a general introduction, the team made its way from the beach up to the main building on the island containing the restaurant and the Bowe's living quarters. The officials then began carrying out their inspection work.

While the introductions were being made, Cpl Tapueluelu had started to walk around the beach to the eastern side of the island. After he had walked some 50 m he decided to head in towards the centre of the island. He soon came across one of the many walking tracks and he followed it until it came to an end. After walking a further 3 or 4m through the bush he came across a clearing estimated by one of the witnesses to be about 5 m in length and 3 m in width. The Cpl then noticed what he recognised as three growing Indian hemp plants about 2 feet in height and spaced approximately 1 foot apart and a short distance away he saw two smaller Indian hemp plants some 15 cm in height; one growing in a white plastic ice cream container and the other in a black plastic bag.

At that point, the Cpl returned to the restaurant and called Constable Tu'ifua outside. He explained to the constable what he had discovered and he took him back to the clearing and told him to guard the site while he took the boat back to Neiafu to obtain a search warrant. Cpl Tapueluelu also told the leader of the inspection team, Falati Papani, what had been found. So as not to arouse suspicions, they decided to use the ruse that the boat had to return to Neiafu to obtain more fuel. Before he left the island, the Cpl instructed Constable Moala to go and assist Constable Tu'ifua in guarding the plants.

Back in Neiafu, Cpl Tapueluelu met up with Sgt Tu'ihalangingie and they proceeded to make application for a search warrant. The application and supporting affidavits were duly completed and a search warrant was obtained from the local magistrate. The lawfulness of the warrant was strongly challenged by counsel for the accused and I will need to come back to the legal issues involved in that part of the case.

Time estimates given by various witnesses differed quite significantly but it would seem that the boat arrived back at Mounu Island sometime between 4 and 5 pm that same afternoon. On this occasion, Sgt Tu'ihalangingie, who had the search warrant, accompanied Cpl Tapueluelu. When the sergeant alighted from the boat he stood on the beach and introduced himself to Alan Bowe and proceeded to read out the contents of the search warrant. The sergeant said in evidence that Alan Bowe, "was surprised -- he seemed not to believe it". He continued explaining to Alan that they were going to carry out a search of the whole of the island including the land and the buildings. At that point, Lyn Bowe appeared on the scene and Alan introduced her and then explained what the sergeant had just told him about the search warrant. The group then proceeded to move to the main building to start the search. Alan and the other constables walked with the sergeant but Mrs Bowe disappeared. The sergeant also noticed that Cpl Tapueluelu had left the group. Cpl Tapueluelu told the court that shortly after the search warrant had been read out by the sergeant on the beach, he had noticed Lynette walking very quickly in a direction away from the main building. He said that she seemed to be in a hurry and so he decided to follow her.

Back in the clearing, Constable Tu'ifua, who had had some 12 years experience in the police force, remained guarding the scene. Initially, he had been on his own but Constable Moala had later joined him. Constable Tu'ifua said that they heard the boat return to the island at about quarter past four and he and Moala took up positions concealed in the bush around the clearing but still with good views of the clearing itself. The constable went on to tell the court that a few minutes later he noticed Lyn hurrying towards the plants. She came through the bush into the clearing and stood beside the plants and was looking around. The constable said that when he saw Lyn, "sort of touching the plants" he thought that she was pulling them up and so he called out, "hold it!" and he heard Moala also call out something at the same time. Constable Tu'ifua said that Lyn was so surprised she nearly fell down. She then exclaimed, "sorry, sorry" and said to both himself and Moala, "how much money?" The witness understood by that remark that she would pay them to destroy the plants. The constable said that he did not respond to her question but he told Lyn to take her hands off the plants.

At about this point in time, Cpl Tapueluelu and Falati Papani arrived at the clearing and the Cpl began taking photographs. Constable Tu'ifua asked Lyn to touch the plants again so that the Cpl could photograph her in that position. She refused. As it transpired, the camera did not contain any film and so there were no photographs taken at the scene.

It seems from the evidence that Fire officer Mafi and Sgt Tu'ihalangingie also arrived at the clearing at about this time and Lyn was formally cautioned. Immediately after the caution, Lyn told the officers that she had come to the clearing to urinate and she asked the men to look away. Constable Tu'ifua, in evidence said, "she squatted and I turned my back but I heard her force herself to urinate."

The exact timing of Mrs Bowe's arrest was not clear from the evidence but she was allowed to return to the main building where she proceeded to prepare the evening meal for the guests. The police continued their search but found nothing further that night. At approximately 7 pm the police asked Alan for a shovel so that they could dig up the plants. Constable Tu'ifua noticed that the width of the square edged spade was exactly the same size as the width of the holes in which the tall plants had been planted.

Mrs Bowe was taken back to Neiafu that same Monday evening and kept in custody. The following morning the police returned to the island and took possession of a bag of potting mix and a bag of peat moss which were both produced as exhibits. The accused was detained in custody until Friday 31 August. She was interviewed by Sgt Tu'ihalangingie on Thursday 30 August. The record of interview and other police documents were produced in evidence.

Although Mr Niu did not require a formal hearing on the voir dire, he submitted that the record of interview obtained by the police was not given voluntarily. Counsel said that Mrs Bowe had heard the magistrate order her to be detained for eight days to enable the police to obtain a statement from her and she thought that she had no choice in the matter. Counsel also made a number of other submissions in relation to the failure of the police to release the accused on bail. I listened carefully to all the evidence touching upon this aspect of the case. In the end, the question I have to determine is whether there was any infringement of section 21 of the Evidence Act (Cap 15). I am satisfied that there was no such infringement of section 21 and it is not a case for the application of the proviso to section 22. The documentation is, therefore, admissible.

Mr Niu put the prosecution to strict proof of all the steps taken by the police in having the plants analysed. Counsel was able to demonstrate some inconsistencies in the evidence relating to the process involved in having the plants taken from Neiafu to Tongatapu for analysis but the inconsistencies were inconsequential, in my view, and I have no doubt that the Crown has established that the three tall plants were indeed Indian hemp within the meaning of section 36 of the Drugs and Poisons Act. The two smaller plants, for some reason, do not appear to have been analysed.

Perhaps fortunately for the Crown, photographs were taken at the time of all the exhibits. I say fortunately, because within days of their return to Neiafu from Tongatapu, the plants disappeared. The keeper of the exhibits, Sgt Teisina, told the court that on 12 September 2001 she had gone to the exhibits room at the police station and found that there was nothing in the containers apart from the stumps of the stems. She noticed that bits of leaf had been scattered on the floor. The witness concluded that they had been eaten by rats and she described what appeared to be rat holes in the plastic bags containing the potting mix and the peat moss. I accept the witness's explanation for the disappearance of the exhibits.

The foregoing is, of necessity, a condensed version of the Crown case but it is evidence that I accept. The complete Crown case was extensive and occupied some 8 sitting days. A number of other witnesses were called who corroborated different aspects of the evidence reviewed above. Constable Moala, who was standing watch in the clearing with Constable Tu'ifua, confirmed that when Lyn first approached the clearing, she was in a hurry. He said that she was looking around and she went straight to the plants. The constable said that he saw her bend down and she was "caressing" one of the plants and was about to pull it up when Tu'ifua yelled out to her. Moala said that, at the same time, he called out "hold on" to Lyn and walked towards her. He could see that she was surprised and the first thing she said to him was, "how much money I pay you? Say anything you want." He said that she made this remark two or three times and he responded, "it's okay Lyn, it's been a bad day for you."

Another witness for the Crown, Soane Tualau, an experienced and qualified research technical officer with the Ministry of Agriculture and Fisheries in Vava'u, gave evidence about his analysis of the plants. He told the court that when he lifted the three larger plants out of their containers, he found potting mix still attached to their roots. The mix was identical to that produced in the potting mix plastic bag. He estimated the plants to be three or four months old. He said that in his experience, the presence of the potting mix showed that the plants had been grown as seedlings and then transplanted into the ground with the addition of potting mix. I accept that evidence and I did not understand it to be seriously challenged by the accused.

Mrs Bowe elected to give evidence and a number of witnesses were called on her behalf. Not far from the clearing where the plants were found, but further back towards the main restaurant building, is what was referred to as a "shade house". Sgt Tu'ihalangingie estimated that it was some 15 m back along the track from the clearing. Originally, the shade house had been a traditional Tongan fale but the fale had apparently been damaged in a cyclone and so it had been converted into a shade house for propagating plants. Mrs Bowe told the court that over the years she would have planted hundreds of hibiscus and other plants on the island. Because the soil is sandy, she starts growing the plants in the shade house and uses potting mix for this purpose.

Mrs Bowe said that sometime prior to the visit by the police, her husband had installed an overhead sprinkler system in the shade house and the practice was that someone, normally herself, would turn on the sprinkler for about five minutes each day at around 5pm. The accused told the court that on the day in question she had gone to the shade house to turn on the sprinkler system and while she was there she found that she needed to go to the toilet. She said that she couldn't urinate at the shade house itself because of the number of men around the island and so she had walked down the track through the scrub into the clearing and then one of the policeman told her to stop and asked her what she was doing. In response she had said to the policemen, "come on guys, I need to go to the toilet, please turn around." She also described how the police wanted her to touch the plants so that they could photograph her but she had refused. She recognised the plants to be marijuana from posters she had seen.

Mrs Bowe was asked in cross-examination why she had not gone to the toilet in the main building on her way from the beach to the shade house and she replied that the toilet in the main building was flooded. She also said that she had often urinated in the area around the shade house. In her statement to the police she had said that she had urinated in the clearing "lots of times in the past" but the last occasion would have been some six months before the day of the incident.

The accused denied having any knowledge whatsoever of the existence of the Indian hemp plants. She also denied the bribery allegations and said that the police officers were lying. In cross-examination, counsel referred the accused to her statements to the police and put to her that she had not said anything in those statements about having to turn on the sprinkler system or about the toilet in the main building being flooded. She was reminded that in the record of interview the police had asked her why she had not urinated in the main building on her way through from the beach and she had answered, "don't know". She had then been asked when it was that she felt she had to urinate: "(a) in the house; (b) while you were walking to the spot; (c) when you got to the spot or (d) after you had been stopped by the police officers?" Her answer was, "none of the above, but when the police jumped up and frightened me."

It was submitted by the Crown that these inconsistent answers were significant in ascertaining where the truth of the matter lay. There was some evidence that the toilet in the main building did overflow on occasions but this evidence fell short of establishing that such a problem had occurred at the time Mrs Bowe went to the clearing.

As with any criminal case, the onus lies upon the Crown throughout to prove the various elements of each charge beyond reasonable doubt. The accused is charged with both growing and possessing Indian hemp. There is no definition in the Act of "growing" or "possessing". To establish a charge of growing Indian hemp, the Crown must prove that the accused grew the plants; that the plants were Indian hemp and that at the time the accused took the steps she did to assist the plants to grow she knew that they were Indian hemp. "Growing" in this context means taking any steps intended by the accused to assist in the cultivation or development of the plants. It is not necessary for the plants to be grown to maturity.

To establish a charge of possessing Indian hemp, the Crown must prove that the accused had actual or potential control of the plants and that at all material times she knew that the plants were Indian hemp.

Mr Niu filed extensive written submissions, comprising of some 140 paragraphs, in which he dealt in minute detail with the facts, attacking the credibility of the Crown witnesses and highlighting various inconsistencies in the Crown case. He was particularly critical of the failure of constables Tu'ifua and Moala to record the bribery allegations in their diaries and he attacked other aspects of the police written documentation. Quite properly, with some exceptions, counsel had put all the points highlighted in his submissions to the police witnesses in cross-examination and the court, therefore, had the opportunity to observe the response and demeanour of those officers under oath.

At the same time, of course, the court also had the opportunity of observing closely the accused as she gave her evidence and answered questions in a searching cross-examination. I am bound to say, as I have already indicated in my factual summary, that I did not find the accused a convincing witness and I reject her explanation for going to the clearing as unconvincing and unworthy of belief.

That, however, is not the end of the matter. Having reached such a conclusion it is still necessary for me to go back to the rest of the evidence presented in the case and ask myself whether, on the basis of that evidence, the Crown has proved guilt beyond reasonable doubt.

Whilst there is substance in a number of the points made by Mr Niu in relation to the police documentation, the overriding factor is that the officers concerned did give evidence on oath and in all the areas where it really counted, their evidence remained unshaken. I am satisfied, therefore, that the Crown has established the essential elements of each charge. I am also satisfied that the bribery allegation has been proven but, of course, the accused faces no charge in relation to that part of the evidence. Those are my conclusions on the facts.

Although he did not cite or rely upon any case law, Mr Niu went on to make extensive submissions as to the legality of the police conduct in carrying out the initial search on the island. The submissions were based upon an in-depth analysis of the relevant provisions of the Constitution and the legislation. The essence of counsel's submissions was that the initial search by the two police officers, Tapueluelu and Tu'ifua, was carried out contrary to clause 16 of the Constitution. It was also submitted that the warrant issued subsequently could not "ratify or validate the unlawful acts already committed". The conclusion counsel invited the court to draw was that, as the plants were seized as result of an illegal search, they could not be lawful evidence in the case.

The relevant provisions of clause 16 of the Constitution (Cap 2) read as follows:

"It shall not be lawful for anyone to enter forcibly the houses or premises of another or to search for anything or to take anything the property of another except according to law . . ."

The police have no general power of search and so the expression "according to law" in this context means that the right to search can only be exercised according to some lawful authority. Mr Niu submitted that there simply was no legal basis for the initial search and the warrant issued subsequently could not in any way, therefore, validate that unlawful search.

Crown counsel submitted that as the two police officers did not carry out any forcible entry to the Bowes' property then there was no breach of clause 16. He further submitted that, as drugs were found on the island, "it is in the interests of justice to hold that Tapueluelu and Tu'ifua's initial inspection of Mounu island was not unlawful," and finally he submitted that the search warrant obtained subsequently validated the initial search.

I do not consider that these submissions are sound. The use of the disjunctive conjunction "or" in the first sentence to clause 16 of the Constitution makes it clear that force does not have to be an element in the search before it can be held to be illegal. No authority was cited for the proposition that a warrant issued subsequently can validate an earlier illegal search and I am not prepared to so hold. I accept the submission made by Mr Niu that the initial search of the island by Cpl Tapueluelu and Constable Tu'ifua looking for drugs was in breach of clause 16 of the Constitution and, therefore, unlawful.

Once the plants were located, the police set about obtaining a search warrant from the local magistrate. The warrant issued was in the form prescribed pursuant to section 51 of the Magistrates' Court Act. Section 51 authorises a magistrate to issue a search warrant if, "there is reasonable grounds for believing that any property upon or in respect of which any offence has been committed is in any house or premises . . ." (emphasis added)

Mr Niu examined the history of section 51 and submitted that the words emphasised were invalid because the words in the original Act read, "which he has lost" and that wording has never been changed by Parliament. Counsel explained that, according to his research, the change to the wording of the section had been made by the Commissioner under the Laws Consolidation Act (either in 1947 on 1967) without parliamentary approval.

The difficulty with this submission is that section 8 of the Laws Consolidation Act prevents the existing wording of a statute appearing in the 1988 Revised Edition from being challenged in court. In any event, the police have special powers under section 37 of the Drugs and Poisons Act (Cap 79) to obtain a search warrant in cases involving Indian hemp. Section 37 reads:

"37. It shall be lawful for any police officer upon a warrant to enter any place in which there is reasonable cause for suspicion that Indian hemp or cocoa leaf is kept or may be found and to seize any Indian hemp or cocoa leaf found there together with baskets, jars or packages holding the same and take into custody the persons suspected of owning the same."

Mr Niu attacked section 37 and described it as unenforceable because it does not provide how the warrant is to be issued. He points out that sections 30 (1) and 42 (2) of the same Act authorise the issuance of search warrants for other purposes apart from Indian hemp and they expressly provide that the warrants are to be issued by a magistrate. Because section 37 is silent on the point, Mr Niu asks rhetorically, who did Parliament intend to give the issuing power to: "a judge? A magistrate? A minister? A police magistrate? Who?"

In R v Honan (1991) 7 CRNZ 473, where the New Zealand Court of Appeal was dealing with not dissimilar shortcoming in a statute, Cooke J. referred to the need for the courts "to give the statute a reasonable and workable interpretation." I find little merit in this particular submission made on behalf of the accused. The warrant issued by the Magistrate in the present case, which was an appropriate adaption of the Form prescribed for general search warrants, was, in my view, sufficient compliance with section 37 of the Drugs and Poisons Act to render the seizure of the plants lawful. As was stated by Fisher J. in the New Zealand Court of Appeal in R v Sanders (1994) 3 NZLR 450, 466:

"Prescribed forms must, of course, be adaptable to some degree to suit the circumstances of the individual case. Nor will it normally matter if for other reasons there are drafting variations which effect no changes of substance."

The Court of Appeal was there dealing with a prescribed form of search warrant.

The question left for determination in the present case is what is the effect of my earlier finding that the initial search carried out by the two police officers was in breach of the Constitution and, therefore, unlawful?

I do not consider that the finding affects the admissibility of the evidence relied upon in this case because, ultimately, the plants were seized pursuant to what I have found to be was a valid warrant. Although it is not necessary, therefore, for me to decide the point and I heard no argument, I incline to the view that even had the warrant not been obtained, that would still, not necessarily, have rendered the evidence inadmissible. Cross & Tapper on Evidence, 8th ed (1995) states (at 536):

"The English authorities on the admissibility of evidence procured in consequence of an illegal search are uniformly in favour of its reception although there are not many of them."

I also find the judgment of the House of Lords in Reg v Sang [1979] UKHL 3; [1980] AC 402, on this issue compelling and relevant to the situation in the Kingdom. Their lordships held that the trial judge has no discretion to refuse to admit relevant evidence on the grounds that it was obtained by improper or unfair means and they approved, with some qualification, the judgment of the Privy Council in Karuma v The Queen [1955] AC 197, which went further and held that evidence was not inadmissible even though it had been illegally obtained. It seems to me, in this regard, immaterial as to whether the illegality complained of arises through non-compliance with a constitutional provision (as in the present case) or non-compliance with some other statutory provision. The consequences should be the same. In the Karuma case, the appellant faced the death penalty for his conviction which was based on evidence obtained under an illegal search. That authority would have to be the high–water mark in testing the application of the general principle. If the Court is not going to rule the evidence inadmissible in those circumstances, why should its approach be any different when the search is illegal under a constitutional provision?

Moreover, to hold otherwise could lead to absurd situations quite out of keeping with the principal function of the police to detect offenders and bring them to justice. It would be tantamount, for example, to arguing that, had the police officers in the present case discovered two dead bodies in the bush instead of the plants, then the killer could never be brought to justice because the police had been engaged in an illegal search.

My conclusions do not, of course, mean that the victims of an illegal police search are left without remedy. In the Sang case (at 436) Lord Diplock observed:

"It is no part of a judge's function to exercise disciplinary powers over the police or prosecution as respects the way in which evidence to be used at the trial is obtained by them. If it was obtained illegally there will be a remedy in civil law . . . . What the judge at the trial is concerned with is not how the evidence sought to be adduced by the prosecution has been obtained, but with how it is used by the prosecution at the trial."

In delivering the judgment of the Court of Appeal in Sang, which was upheld by the House of Lords, Roskill LJ noted that if a police officer searched a person or a property illegally then he may be held liable for damages for trespass. In the Kingdom, there may be other remedies open to the victim resulting from the breach of his or her constitutional rights. As I have indicated, that issue was not argued before me but I raise it because it would be quite wrong for the police to proceed on the basis that clause 16 of the Constitution can be infringed with impunity.

For the reasons explained, regrettably at some length, I find that the Crown has succeeded in establishing all the necessary elements of each count to the required standard of proof and the accused is convicted accordingly.