R v Puloka [2007] TOLawRp 29; [2007] Tonga LR 175 (24 August 2007)

[2007] Tonga LR 175

IN THE SUPREME COURT OF TONGA

R

v

Puloka

Supreme Court, Nuku'alofa
Andrew J
CR 55/2006

15-17 and 22 August 2007; 24 August 2007

Criminal law – importation and possession of illicit drugs – all elements proved - guilty

The accused had pleaded not guilty to one count of importation of an illicit drug and one count of possession contrary to sections 3 and 4(a) respectively of the Illicit Drugs Control Act 2003. The accused had been a passenger on an Air Fiji flight from Fiji to Tonga on 4 February 2006. After all the passengers had passed through immigration, it was noticed that a plastic bag had not been collected from the baggage collection point and it remained inside the Customs area. The plastic bag had an Air Fiji tag on it bearing the accused's name. The accused gave sworn evidence that he had arrived late for the flight at Fiji and as he was checking in a woman approached him at the counter and asked him to take the parcel to Tonga and said not to worry about it when he arrived as someone would pick it up. He maintained that he had no knowledge that he was carrying illicit drugs. An issue arose concerning the definition of "illicit drugs" under the Illicit Drugs Control Act 2003. It was suggested that a scientific witness might be required to give evidence that the substance examined was the same as the drugs designated by their international non-proprietary names in the table to Schedule 1 of the Act.

Held:

1. Whilst there was no onus on an accused, his account of what happened was inherently improbable and simply not believable.

2. The full designation described in Schedule 1 did not have to be formally proved. Sufficient that it simply be proved by the analyst that the material included cannabis plant materials.

3. The elements of importation were: (1) that there was an importation into Tonga, of illicit drugs; (2) without lawful excuse, the proof of which shall lie on the accused; and (3) knowledge that it was an illicit drug. Goods were imported into Tonga when they were landed in Tonga for the purpose of making the goods available in Tonga, as oppoed to merely passing through -- see R v Malu [2005] Tonga LR 226.

4. The accused was found guilty on both counts.

Cases considered:

R v Malu [2005] Tonga LR 226

R v Ta'ufo'ou [2004] Tonga LR 236

Statute considered:

Illicit Drugs Control Act 2003

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

Judgment

The accused has pleaded not guilty to one count of importation of an illicit drug contrary to section 3 of the Illicit Drugs Control Act 2003 and one count of possession of an illicit drug contrary to section 4(a) of the Illicit Drugs Control Act.

The particulars of the offences are:

"That he, on or about the fourth of February 2006 at Fua'amoto, you did knowingly without lawful excuse have in his possession one large plastic bag containing cannabis weighing 1175kg.

That he, on or about fourth of February 2006 at Fua'amoto, did knowingly without lawful excuse have in his possession one large plastic bag containing cannabis weighing 1175 kg."

The essential facts are hardly in dispute. That is, that the accused was a passenger on an air Fiji flight number FJ 211 from Fiji to Tonga on the fourth of February 2006. He had checked in as cargo, his suitcase and a plastic bag containing a box. Upon arrival at Fua'amotu airport the passengers were searched by Customs. After all the passengers had passed through immigration, it was noticed that a plastic bag had not been collected from the baggage collection point and it remained there inside the customs area. The plastic bag had an Air Fiji tag on it bearing the accused's name. The accused had been checked at customs with his suitcase and nothing suspicious was located and he left the airport. A customs officer Tiuke Kata new the accused. The remaining baggage, that is the white plastic bag was passed to the Customs supervisor Vai Koaneti who became suspicious about it and it was given to the police soon after. They examined the box inside the plastic bag and they believed it was cannabis. Police officer Vaea was at the airport on this day and he was based at that time in the drugs division. He had observed the accused pass through customs and immigration and clear the airport. He knew the accused and he and other police went to the accused's house. The accused's air ticket was recovered and it had two baggage tags attached to it corresponding with the accused's suitcase and with the plastic bag. The accused denied that the plastic bag was his. They all then went to the police station at Nuku'alofa. The accused was asked if he had any objection to the box being opened and he said that he did as it was not his. The police said that the contents were clearly cannabis. Later analysis confirmed that it was in fact cannabis [although that result is challenged].

The accused gave sworn evidence. He conceded that he had brought the parcel from Fiji on this day. His evidence was that he had arrived late for the flight at Fiji and as he was checking in a woman approached him at the counter and asked him to take the parcel to Tonga and said not to worry about it when he arrived as someone would pick it up. He says he agreed to this and the parcel became part of his baggage which he checked in. On arrival in the Kingdom he says he simply collected his suitcase and left the airport. He says he did not concern himself about the plastic bag as he had been told that someone would pick it up. In cross examination he was asked about this woman and he said he did not know her nor did he know what nationality she was although "she spoke in English and had brown skin like a Tongan ". He said he was not told who was to pick it up or who he was to give it to but his understanding was that it simply was to be picked up by someone unknown and he did not concern himself about it. He said the woman had never told him who she was or the name of anyone on the box when asked if he had thought that this might have involved something illegal. He said he had never thought of that. He denied in cross examination that he hadn't picked up the parcel at the airport when he saw the police whom he knew had recognized him as he arrived and he had seen that all the passengers were being searched. He maintained that he had no knowledge that he was carrying illicit drugs.

I make the following findings of fact:

Whilst there is no onus on the accused his account of what happened is inherently improbable and simply not believable.

The accused does not appear as a naive person nor as a person with no experience of travel. To accept a parcel from an unknown person to take to another country without any information as to who it was to go to but that someone would somehow collect it, is not credible. Any reasonable person who was caught when innocently carrying someone's bag containing drugs would protest their innocence or at the least would explain what had happened. The accused did neither of those things for he denied that the bag had anything to do with him, which was untrue, and he tried to stop the bag being opened. If he had taken the bag in the belief that it would somehow be collected by an unknown person, would that not mean that a rational person would at least suspect that he was carrying something illegal. Having seen and heard the accused I do not believe his story in the circumstances of what had occurred.

More probable is that he saw the police at the airport and knew that he had been recognized and had seen that all passengers were being searched and had no option but to leave the bag where it was. When he had checked in at Fiji, he says when he was late and in a hurry, he may not have observed that the tag which was attached to the plastic bag had had his name printed on it. But that may be conjecture. The fact is that his explanation is a simple one which is not believable and having seen and observed the accused I do not accept his account as truthful.

I have no doubt that the accused was fully aware that the bag contained a supply of cannabis and that he intended that the drug should be brought into the Kingdom.

The defence submitted that the Crown has failed to prove that the material found in the plastic bag [or in the box] was in fact cannabis and submit that the analyst's report does not establish beyond reasonable doubt that the substance was cannabis.

Firstly, both the customs officer and the drugs squad officer who received the material at the airport had reason to examine the contents carefully and especially as a drugs squad officer he would know the significance of what he saw. None of those persons have had any doubt that the material was cannabis. The analyst's report has been criticised as not involving any clinical test. That may not appear in the report of Dr Pakalani but it is clear from his evidence that such a test was in fact carried out. I accept the evidence of the analyst and am satisfied beyond reasonable doubt that the material has properly been identified as cannabis. There was a microscopic, macroscopic and chemical test conducted. I am satisfied as to the expertise of Dr Pakalani in this area not only from his academic qualifications but also from his years of experience in conducting such analytical tests including the use of controls in his examination.

A further issue raised concerned the definition of illicit drugs under the illicit drugs control act. Firstly, there can be no dispute that cannabis is an illicit drug. In the case of R v Ta'ufo'ou [2004] Tonga LR 236, the point was made that in schedule 1 of the act various drugs, including cannabis are " designated by their international non-proprietary names or their names used in international conventions in force their isomers, esters or ether, and any preparations, including any such substances, are illicit drugs, unless exempted by law. "It was suggested that a scientific witness might be required to give evidence that the substance examined was the same as the one designated in the table to schedule 1 by its name, its isomers esters and ethers and by its salts. I do not think that the full designation described above has to be proved in that way. Sufficient that there simply be proof by the analyst that the material included cannabis plant materials as happened here.

The elements of the offence of possession are:

1) Physical custody and control of an illicit drug.

2) Without lawful excuse, proof of which lies on the defendant.

3) Knowledge that it was an illicit drug.

I am satisfied beyond reasonable doubt that the accused had physical custody and control of the illicit drug cannabis when he brought the material into the Kingdom and that there is no lawful excuse for so doing. Further, I am satisfied beyond reasonable doubt that he had full knowledge that he had physical custody and control of an illicit drug, cannabis.

I find the accused guilty on the charge of possession of illicit drugs and he is convicted.

The elements of importation are:

1) That there was an importation into Tonga, of illicit drugs.

2) Without lawful excuse, the proof of which shall lie on him.

3) Knowledge that it was an illicit drug.

Goods are imported into Tonga, when they are landed in Tonga for the purpose of making the goods available in Tonga, as opposed to merely passing through: see R v Malu [2005] Tonga LR 226. There is no dispute that the plastic bag and box were imported into Tonga. I am satisfied beyond reasonable doubt that the accused knew that he was importing illicit drugs and that he had intended to do so.

I find the accused guilty on the charge of importation and he is convicted accordingly.