R v Tupou [2007] TOLawRp 16; [2007] Tonga LR 97 (5 July 2007)

[2007] Tonga LR 97

IN THE SUPREME COURT OF TONGA

R

v

Tupou

Supreme Court, Nuku'alofa
Ford CJ
CR 147/04 and CR 13/2005

23 and 24 April 2007; 5 July 2007

Criminal law – charge of possession of firearm – not proved to be firearm
Criminal law – dealing with another person for the supply of illicit drugs – elements of charge proved
Evidence – evidence of accomplice should be corroborated – police officer corroborated evidence

An amendment to one of the indictments immediately prior to trial meant that the accused had been left under that particular indictment facing two charges under the Arms and Ammunition Act (Cap 39). The first was possession of arms contrary to section 4(1) and the other was possession of arms without a licence contrary to section 4(2)(b). The particulars alleged that on 25 June 2004 the accused had in his possession one semi-automatic .25 calibre pistol and the pistol was unlicensed. Under the second indictment the accused was charged with one count of dealing with another person for the supply of illicit drugs contrary to section 4(b) of the Illicit Drugs Control Act 2003. The particulars in that indictment alleged that on 31 December 2004 the accused engaged in dealing with another person for the supply of cannabis by selling five plastic bags containing cannabis leaves and seeds for $50. The defence in relation to the firearm charges was that the Crown had failed to establish that the accused had a licence to hold a pistol or that the weapon in question was a "pistol" or "arm" within the definition of section 2 of the Arms and Ammunition Act. The defence also contended that section 4(2)(b) of the Act did not create a separate offence but simply prescribed the penalty. In relation to the drug charge, defence counsel contended that the principal witness for the Crown was an accomplice and as such his evidence should have been corroborated. He also alleged that the Crown had failed to prove that the substance in question was cannabis because the analyst had simply concluded in his written report that his analysis had "strongly suggested" that the suspected items were cannabis in origin.

Held:

1. The court agreed that section 4(2)(b) did not create any separate offence and the accused was acquitted on that count laid under that section.

2. The prosecution had established beyond reasonable doubt that the accused did not hold a valid licence to possess any firearm but it had failed to prove that the firearm in question was a "pistol" or "arm" within the definition of those terms in section 2 of the Arms and Ammunition Act. The accused was acquitted on the count of possession.

3. Section 126 of the Evidence Act (Cap 15) required the evidence of the accomplice to be corroborated but there was corroborating evidence from one of the police officers.

4. The oral evidence given by the analyst expanded on the contents of his written report and was sufficient to prove beyond reasonable doubt that the substance in question was cannabis. The accused was convicted accordingly on the drug charge.

Statutes considered:

Arms and Ammunition Act (Cap 39)

Evidence Act (Cap 15)

Illicit Drugs Control Act 2003

Counsel for the Crown: Mr Sisifa
Counsel for the accused: Mr Tu'utafaive

Judgment

The charges

[1] The accused is facing charges under two separate indictments. By agreement, all the charges were heard together. Under the first indictment, CR No 147/04, the accused was charged with one count of possession of cannabis contrary to section 4(a) of the Illicit Drugs Control Act 2003 and two separate counts under the Arms and Ammunition Act (Cap 39). The first charge under the Arms and Ammunition Act was possession of arms contrary to section 4(1) and the other was possession of arms without a licence contrary to section 4(2)(b). Immediately prior to the trial the prosecutor announced that the Crown would be offering no evidence in respect of count 1, the cannabis charge, and the accused was discharged accordingly. Under the first indictment, in other words, the accused was left facing the two charges under the Arms and Ammunition Act. Those offences were alleged to have occurred on the 25th of June 2004. The particulars alleged that on that day the accused had in his possession one semi-automatic .25 calibre pistol and the pistol was not licensed.

[2] Under the second indictment, CR No.13/05, the accused was charged with one count of dealing with another person for the supply of illicit drugs contrary to section 4(b) of the the Illicit Drugs Control Act 2003. The offence was alleged to have occurred on the 31st of December 2004. The particulars allege that on that day at Ha'ateiho the accused engaged in dealing with another person for the supply of cannabis by selling five plastic bags containing cannabis leaves and seeds to a Paipa Koloa for $50.

Case for the Crown

[3] Police witnesses gave evidence about how, pursuant to a warrant, they carried out a search of the accused's residence at Ha'ateiho on 25 June 2004 searching for drugs and other unlawful items. In one of the rooms, which was described as a type of store room, an officer found, inside a vacuum cleaner, a handgun wrapped in red cloth together with a plastic bag containing what appeared to be illicit drugs.

[4] While the search was being carried out the officer in charge, Inspector Naufahu, was standing with the accused in one of the rooms watching what was going on. When the items were found, both the inspector and the accused walked into the store room and the inspector leaned over to examine the inside of the vacuum cleaner. As he did so the accused, who was standing behind him, told the inspector in a voice which the other officers could hear, not to confiscate the items and he would give them some money.

[5] One of the police officers was questioned about this incident in cross examination and it was put to him that if words to that effect had been said then the accused should have been charged with bribery. The officer responded that he was not charged with that offence because he had not completed the act of bribery.

[6] That was virtually the extent of the prosecution evidence in relation to the charges under the Arms and Ammunition Act. An officer who keeps the official record of firearms told the court that the accused's name was "not on the register". The pistol in question was not produced as an exhibit and it is not known if the accused made any statement to the police in relation to these particular charges. If he did, they were not produced.

[7] The charge relating to the five plastic bags of cannabis arose out of an incident on New Year's Eve 2004. One of the police officers involved in executing the search warrant on the 25th of June, Corporal Mateialona, told the court that on the evening of the 31st of December 2004 he was in a police vehicle driving down Taufa'ahau Road heading towards the airport. As they were passing through Ha'ateiho, the officer noticed a person coming from the direction of the accused's home who was acting suspiciously and appeared to be hiding something in his pocket when he saw the police vehicle. When the police vehicle stopped, the officer noticed the suspect, later identified as Paipa Koloa, throw what he was holding under the police van. The officer retrieved what had been thrown away. He told the Court that what he found were five small plastic bags containing a substance which he said was later identified as cannabis. The bags in question together with their contents were produced as exhibits in the case.

[8] Paipa Koloa was called as a witness for the Crown. He told the court that on the evening in question he and a friend had gone to the accused's home to buy some cannabis. When they arrived at Ha'ateiho, the friend, who was supposed to go and make the purchase, apparently got "scared" and so Koloa went into the accused's home while the friend drove away to turn the car around.

[9] Koloa told the court that he did not know the accused but he went to the door and asked for him by name and the person who answered the door identified himself as Sioeli Tupou, the accused. Koloa said that the accused asked him how many he wanted and when he asked for five packets, the accused gave him five packets for which he paid $10 per packet. Koloa identified the accused in court as the person he dealt with on the night in question. He also explained that he, Koloa, had been charged with possession of cannabis and had pleaded guilty and been dealt with.

[10] One of the witnesses called for the Crown was Siale'uvea Finau, Senior Medical Laboratory Technician at Viola Hospital. On 10 and 11 of January 2005 Mr Finau carried out an analysis of the contents of the five small plastic bags and he told the court that, as a result of the tests he conducted, he had no doubt that the substance contained in each bag was cannabis.

[11] Mr Finau was cross-examined skillfully and at some length on the tests he had carried out and on the contents of a written report of those tests dated 11 January 2005 which he had produced to the court.

[12] As was his right, the accused elected not to give or call evidence.

Submissions and conclusions
CR 147/04

Count 3

[13] Mr Tu'utafaiva first dealt with Count 3 in indictment CR 147/04. He submitted that section 4(2)(b) of the Arms and Ammunition Act (Cap 39) did not, in fact, create any separate offence but it simply prescribed the penalty for an offence under section 4(1) of the Act. The relevant provisions state:

"4. (1) No person shall possess, use or carry any arm or ammunition except under a licence in respect of each arm and such ammunition so possessed, used or carried and in accordance with the prescribed conditions of such licence.

(2) Any person who shall possess, use or carry any arm or ammunition without such licence shall be guilty of an offence and shall be liable on conviction in respect of every such arm or the total amount of ammunition so possessed, used or carried

(a) if the offence was committed in a prohibited area, to imprisonment for a term not exceeding 10 years;

(b) if the offence was committed elsewhere, to imprisonment for a term not exceeding five years."

[14] Mr Tu'utafaiva's submission in relation to the charge under section 4(2)(b) is plainly correct and I do not understand Crown counsel to contend otherwise. The accused is accordingly acquitted on this count.

Count 2

[15] Count 2 is the charge of possession of arms contrary to section 4 (1) of the Arms and Ammunition Act. The particulars allege that on or about 25 une 2006, the accused had in his possession "1 semi automatic .25 calibar (sic) pistol."

[16] In relation to this count, Mr Tu'utafaiva submitted, first, that there was no evidence that the pistol in question was not licensed. In this regard, counsel referred to the evidence of the police officer in charge of the registration of firearms and noted that all he said on the subject was that he found "no card" under the name of the accused. The relevant part of the transcript reads as follows:
(In chief)

"Q. You are the Registrar of Arms?

A. Yes.

Q. Had you checked to see if the accused had a permit for arms?

A. I checked and his name was not on the register."

In cross-examination the witness was asked:

"Q. The record you checked to see if the accused was licensed, is it a book? A. No, a card.

[17] In response to the submission by defence counsel, Mr Sisifa submitted that the officer concerned had, "confirmed to the court that the accused has no licence whatsoever to possess any arm or pistol." I am prepared to accept that a permit in this context is the same as a licence. Indeed, defence counsel conceded as much in his question in cross-examination. The prosecution has established beyond reasonable doubt that the accused did not hold a valid licence to possess any arm.

[18] Defence counsel went further in his submissions, however, and contended that the prosecution had failed to establish that the pistol in question was a "pistol" or "arm" within the definition of those terms in the Act. The definitions contained in section 2 of the Act read as follows:

"arm" means any lethal barrelled weapon of any description from which any shot, bullet or other missile can be discharged, or which can be adapted for the discharge of any such shot, bullet or other missile, and any weapon of whatever description designed or adapted for the discharge of any noxious liquid, gas or other thing dangerous to persons, and includes any component part of any such weapon, and any accessory to any such weapon designed or adapted to diminish the noise or flesh caused by firing a weapon, but does not include articles designed or adapted solely to discharge spears for spearing fish;

"pistol" means an arm or other weapon of any description from which any shot, bullet or other missile can be discharged and of which the length of barrel not including any revolving arm, detachable or magazine breach does not exceed 230 millimetres."

[19] Mr Tu'utafaiva submitted in relation to the definition of "arm" that there was no evidence that, "any shot, bullet or other missile can be discharged" from the pistol in question. In relation to the definition of "pistol", which is the terminology used in the indictment, Mr Tu'utafaiva submitted that there was no evidence that the length of the barrel on the pistol in question, "including any revolving, detachable or magazine breach, did not exceed 230 millimetres.

[20] Crown counsel accepted that there was no evidence touching on either of these matters but, in relation to the "discharge" issue, Mr Sisifa submitted that it was not necessary for the Crown to prove that the arm or pistol had "discharged any shot, bullet or other missile". In relation to the definition of "pistol" Mr Sisifa submitted that it could be seen from the photograph of the pistol in question that the length of its barrel did not exceed 230 millimetres.

[21] In relation to the first point, whether or not the pistol in question had "discharged" any shot, bullet or missile is not the issue. The issue is whether the weapon is capable of discharging any shot, bullet or missile. In relation to the second point, it is not up to the court to make guesses or draw inferences as to the length of the barrel of the pistol in question from a less than perfect photograph of the weapon taken from a rather unusual angle. The prosecutor had the police arms officer in the witness stand and the evidence now being quite properly challenged by defence counsel could very easily have been elicited from the Arms Officer through a few simple questions in examination in chief. As I have said, many times it seems, it is not up to the Court to patch up holes or weaknesses in the prosecution case. When definitions are provided in relevant legislation then one of the prosecutor's duties is to ensure that the evidence adduced satisfies the requirements of those definitions. That function is axiomatic.

[22] Although this is not the place for lessons on advocacy, in the hope that the simple point I have been endeavouring to make will eventually filter through, I say this. A prosecutor should not make any assumptions other than that he or she will need to prove every essential element of the charge. In preparation for the hearing, a prosecutor should carefully consider all relevant aspects of the case and in particular the essential elements needed to be established before the offence is proved, including under this head any relevant definitions. He or she should then make a checklist of those essential matters and tick them off as they are dealt with. I say no more on this point.

[23] For the reasons stated, defence counsel's submissions are upheld in relation to this count and, again, the accused is acquitted and discharged.

CR 13/2005

[24] This indictment relates to the one count of supplying an illicit drug, namely five plastic bags containing cannabis leaves and seeds. In relation to this charge, Mr Tu'utafaiva's first submission was that Paipa Koloa, who was a crucial Crown witness, was an accomplice and as such his evidence should have been corroborated but it was not. Section 126 of the Evidence Act (Cap 15) provides:

"An accused person shall not be convicted upon the testimony of an accomplice unless it is corroborated in some material particular by other evidence."

[25] Mr Sisifa in response submitted, first, that Mr Koloa's evidence was corroborated by his subsequent admission to one of the police officers in the police motor vehicle that he had bought the cannabis from the accused in his residence. With respect, that is simply another allegation from the same accomplice. An accomplice cannot corroborate his own evidence. Confirmation of the evidence of a witness is worthless coming from the witness himself.

[26] Mr Sisifa is on stronger grounds, however, in his second submission that the evidence of Mr Koloa was corroborated by the evidence of police officer, Mapu Mateialona, who told the court that his suspicions were aroused when he noticed Paipa Koloa on the road coming from the direction of the accused's home at Ha'ateiho.

[27] To amount to corroboration, there must be evidence admissible in itself from an independent source which confirms in some material respect not only that the offence has been committed but that it was committed by the accused. In all the circumstances, I am prepared to accept that Corporal Mateialona's evidence in this regard does corroborate Mr Koloa's evidence in a "material particular" within the meaning of section 126 of the Evidence Act.

[28] Mr Tu'utafaiva's second submission in relation to this charge was that the substance found in the five plastic packets had not been proved beyond reasonable doubt to be cannabis. He noted that the analyst, Mr Finau, in his written report had concluded that the evidence obtained from his investigation and analysis "strongly suggest" that the suspected items were cannabis in origin. Defence counsel accepted that the analyst had carried out three tests on the suspected material, namely, a chemical test, a macroscopic test and a microscopic test. He submitted, however, that although the analyst appears to have relied upon a combination of the three test results, there was no record in his written report as to what he actually observed during the macroscopic and microscopic examinations. Finally, defence counsel submitted that the analyst had conceded that there were other plants which could give positive results to certain of his tests.

[29] In response, Mr Sisifa acknowledged the shortcomings in the analyst's written report but submitted that in his sworn evidence before the court, Mr Finau had clearly established beyond reasonable doubt that the suspected material was indeed cannabis.

[30] As I indicated earlier, the analyst was subjected to a lengthy and very thorough cross-examination by Mr Tu'utafaiva. I listened with particular care to the witness's evidence because in another case before me sometime ago, involving the same counsel, Mr Finau had conceded to the court that the words "strongly suggest", which appeared in his written report, could mean that there was a residual doubt about the nature of the substance.

[31] In the present case, the witness had obviously prepared his evidence carefully and I was impressed with his detailed response to Mr Tu'utafaiva's close questioning in cross-examination. Mr Finau described in considerable detail the procedures he had gone through in relation to each test and he explained that if any of the three tests he had conducted had produced a negative result then further testing would have been required before he could say positively that the substance was cannabis. On this occasion, however, each of the three tests he described had produced a positive result to cannabis and that was sufficient to satisfy him beyond any doubt that the product was indeed cannabis.

[32] In relation to the point made about the capacity of other plants to produce a positive test result in certain circumstances, the analyst explained that in such an event, the macroscopic and microscopic tests would have been able to differentiate them because of the very distinctive hair structure of cannabis plants which, again, the witness explained in some detail. I accept that evidence. On this occasion I found the witness well-prepared and totally credible. In saying that, however, I make the comment that Mr Finau would be well advised in future to include more details in his written reports. Such information could well be persuasive in enabling defence counsel to properly advise clients in relation to their pleas.

[33] The Crown has succeeded in establishing beyond reasonable doubt all the essential elements of this charge and the accused is convicted accordingly.