Rex v Motuliki [2002] TOSC 22; CR 092 2001 (24 May 2002)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

NO.CR.92/2001

BETWEEN:

REX
Prosecution

AND:

LUTOVIKO MOTULIKI
Accused

BEFORE THE HON MR JUSTICE FORD

Counsel: Ms Tupou/Mr Sisifa for the Crown and
Mr Veikoso for the accused.

Dates of Hearing: 5, 6 December 2001, 22, 23, 29 April and
14, 23 May 2002.
Date of Judgment: 24 May 2002.

JUDGMENT

The accused faces a charge of possession of Indian hemp also known as cannabis or marijuana. It is alleged that on 26 February 2001 at Ha'ateiho he had in his possession one Indian hemp plant.

The case for the Crown is that on 26 February 2001 the police obtained a search warrant to conduct a search of the premises and dwellinghouse of Sione Fatai Motuliki at Ha'ateiho. Sione Fatai Motuliki is the accused's father. A number of police officers attended the scene. They were searching for certain items of stolen property but none of the items identified in the search warrant were located. However, one of the officers involved in the search did find a grey heavy duty plastic bucket, about the size of a conventional rubbish bucket, and in it was some soil and a growing plant later identified as Indian hemp. The bucket was found a short distance away from the dwellinghouse under a pandanus tree. It was close to an outdoor toilet on the ‘api.

Sergeant Halatanu, who was in charge of the search, explained to the court how he found the bucket. He said that while the other police officers were still inside the dwellinghouse he walked around the premises and noticed the bucket by some trees on the eastern side of the api inside the boundary fence. He wondered why it had been left there and then when he looked inside he saw that it contained a live plant. Suspecting that it might be a prohibited plant or drug he called for another police officer to inspect the contents. A police photographer then took photographs, which are always helpful to the court, and the plant was taken back to the Nuku'alofa police station and held by the exhibits officer. The plant was later analysed by Mr Siua, the pharmacist in charge of pharmacy at Vaiola hospital and he told the court, in evidence which I accept, that as a result of the test he had carried out, he was able to positively identify the suspected material as an Indian hemp plant.

Before they left the property the police had shown the plastic bucket and its contents to Sione Motuliki and he had told them that he had often seen the bucket on the property but he did not expect it to contain an Indian hemp plant. This hearsay evidence was not challenged but Sione Motuliki was not called as a witness and so I, therefore, place no reliance on the statement.

Counsel for the accused asked the police sergeant in cross-examination why he had not charged Sione Motuliki at that point. The sergeant's response was that the police had insufficient grounds to arrest him as they needed to carry out more work on the case.

It appears, although the evidence on this particular point was not free from doubt, that the ‘api in question was not, in fact, owned by Sione Motuliki but by his older brother 'Ofa who lives in New Zealand. Sione apparently looks after the property for 'Ofa. There are three buildings on the ‘api, namely a dwellinghouse, an abandoned shop and an abandoned hall. At the time of the police search those living in the dwellinghouse were Sione and his wife, their 31 year-old son, Lutoviko (who is the accused) and his wife and 7 children and their married daughter, Sela 'Olie and her husband and 3 children. There was another individual, Uiki Vea, who figured prominently in the case. He is a planter and a friend of the accused. If he did not live on the allotment, he certainly seemed to spend a good deal of time there.

When the police executed the search warrant they treated Sione Motuliki as the owner of the property. The warrant was read out to him before the search of the dwellinghouse was carried out. The accused at that stage was not at home but after he arrived home he was told by his wife that the police had conducted a search of the property and they had found a bucket containing marijuana at the back of the pandanus tree. The accused said in evidence that when his wife told him about the police visit, he decided to go and see them to find out why they had come to the property and to explain that he had no knowledge that the bucket and its contents were on the premises. He visited Nuku'alofa police station that same afternoon. The police proceeded to take a statement from him and, based on what was said in that statement, they then charged him with the offence.

Counsel for the Crown freely acknowledged that the statements made by the accused to the police formed an important part of the prosecution case. Apart from the fact that he was one of the many residents at the api, there was no other evidence linking the accused in any way to the plastic bucket and the plant. I will return shortly to the accused's statements to the police.

As in any criminal case there is no obligation on an accused person to give or call evidence. The onus remains on the Crown throughout the trial to prove every element of the offence beyond reasonable doubt and that onus does not shift. The accused is charged with possession of Indian hemp, being an offence under section 36 (b) of the Drugs and Poisons Act (CAP.79). Archbold, 2001 edition, deals with the situation where drugs are found in premises occupied by or associated in some way with an accused. After referring to the authorities, the text states (para 26.61):

"A person is in possession of something when he has knowledge of its presence and some control over it; but he would not have possession unless he either knew, or the circumstances were such that he had the opportunity, whether he availed himself of it or not, to learn or to discover in a general way, what the items were."

In this case, the accused gave and called evidence. His evidence was consistent with his statements to the police. He said that a few weeks before the police visit (the date was not specified) he had met up with an Indian man called "Pop" at the Ambassadors nightclub. They had both got drunk and passed out and Pop had ended up going back with the accused to his home and living with the family for approximately two weeks.

In his statement to the police, the accused said that the Indian hemp plant inside the plastic bucket was Pop's plant. He went on to explain that he had actually seen Pop plant the seed. He said that Pop was with Uiki Vea at the time and they were in the old hall on the allotment. The accused said that he suspected that it was a marijuana seed and he asked Pop if it was. He said that Pop's reply was that it was an Indian chilli seed and he (Pop) laughed. The accused told the court that he had not seen the bucket again after that date and he did not know that it was still on the allotment. The accused said that the seed would have been planted some 3 or 4 weeks before the police visit and Pop had stopped living with them earlier in the week of the police search. The accused said that he understood that Pop had gone back to Fiji.

The accused was cross-examined at some length but he strongly denied having any knowledge that the bucket containing the plant was still on the allotment. Crown counsel alleged that the accused knew more about the plant than he was prepared to admit and in his submissions he sought to rely in particular on the following questions and answers recorded in the police record of interview:

"Q. 16. This plant found in your place (Indian hemp) who planted it?

A. A marijuana seed planted by Pop in a bucket.

Q. 17 . . . .

Q. 18. Whereabouts in your api was this bucket placed and the police found it?

A. Pandanus plants beside the swamp.

Q. 19. How did you know that the Indian planted the marijuana?

A. I actually saw him with Uike Vea. He put soil in a dustbin and planted the seed in it.

Q. 20 Did you understand that was a marijuana seed?

A. Yes, I suspected it was a marijuana seed. I asked him and he said that it is an Indian chilli seed and he laughed.

Q. 21. Before Pop lived with you did you know what work he did?

A. Yes selling of marijuana."

Mr Veikoso submitted that the answers given to these questions do not amount of any type of confession or admission in relation to the offence with which the accused is charged and he made the point that Q.18, which the Crown relied heavily upon, is what he called a "trap question" because the accused did not own the ‘api and in his answer, he was simply repeating what had been passed on to him by his wife who had been given the information by the police. Mr Veikoso also referred to the so-called "confession" produced by the police in which the accused had said:

"I do regret that the plant was found in my place and that I am charged. I did not plant the plant but I'm being charged with it."

Counsel submitted that this statement did not amount to a confession and he stressed that his client had voluntarily gone to the police station on his own free will and that was hardly the hallmark of a guilty person.

In addition to the accused himself, Mr Veikoso called evidence from Uike Vea and from the accused's wife and married sister. Uike Vea confirmed that he had been present when Pop planted the seed and he recalled the accused asking the Indian what he was doing and Pop responding, "planting Indian chilli seeds". Mr Vea was not asked any questions about the extent of his involvement with Pop.

The witness went on to tell the court that he had been on the ‘api at the time of the police visit and he disputed the Crown's evidence that the bucket had been found by Sergeant Halatanu. Mr Vea said that he had seen a police officer in uniform beside the bucket under the pandanus tree and he named the officer as police Constable Napa'a. Uike Vea said that he knew Constable Napa'a well because they had gone to school together for five years.

The police witnesses acknowledged that there is a constable Napa'a in the police force but they were adamant that he was not present when the search warrant was executed and they deny that there was any uniformed police officer involved in the search.

The accused's 36 year-old married sister, Sela 'Olie, told the court that she and her husband have since moved to their own property but at the time of the police search they lived with her parents on the api at Ha'ateiho. Mrs 'Olie clearly recalled the police search. She said that the police officer she saw walking towards the pandanus tree first was in a police uniform and Uike Vea had told her that his name was "Napa'a". She said that she did not know the man's name herself but under cross-examination she told the court that if Constable Napa'a was brought to the court she would soon be able to tell whether it was him that she had seen.

Mrs 'Olie was not asked by either counsel any questions about the Indian man but she appeared to be a credible witness and at the end of her evidence the court raised the issue with her. It was an interesting exchange in that it appeared from the witness's reaction that she had not been briefed or warned in any way that the question may be asked. She confirmed quite spontaneously, however, what the accused had said in evidence. She told the court that the Indian man had lived at their place and he was simply known as "Pop".

The accused's 31 year-old wife gave evidence and she also told the court that Constable Napa'a had been the officer who had first discovered the bucket and he had been wearing a police uniform. Mrs Motuliki told the court that she did the cleaning up around the ‘api on a regular basis and she was certain that when she had last cleaned up the area of the ‘api when the bucket was found, which was about the week before the police visit, the bucket had not been there. She also said that she had not noticed it on any of her visits to the outside toilet nearby. Mrs 'Olie had given similar evidence. She had not seen the bucket on the allotment.

As I have said, there is no onus on an accused person to give or call evidence but in this case the evidence I have referred to was given on oath and I am bound to say that, despite the close association and relationship between the accused and his witnesses, they appeared to me to be credible and their evidence was unshaken under cross-examination.

Mr Veikoso strongly submitted that the bucket had been planted on the ‘api by Constable Napa'a. I am not prepared to make such a finding and I do not believe that the allegation is supported by the evidence. None of the witnesses said that they had seen constable Napa'a with the bucket prior to its discovery beside the pandanus tree. Given the serious nature of the allegation, however, and the indications from Mr Veikoso's earlier cross-examination of Sergeant Halatanu that the allegation would be made, it is perhaps unfortunate that the Crown did not seek to call Constable Napa'a in rebuttal to put the matter to rest.

My conclusions on the evidence as a whole is that the accused has raised more than a reasonable doubt about the Crown's case. The questions and answers from the record of interview which the Crown case really hinges upon are not sufficient, in my view, to establish the charge beyond reasonable doubt and, at the end of the day, the Crown has nothing else to fall back on. Crown counsel acknowledged in this regard that, apart from the record of interview, there is no more evidence linking the accused to the bucket and the plant than Uike Vea or any of the other residents on the property. In any event, I accept the evidence given on behalf of the accused that the plant was grown by the mysterious Indian man called Pop. Pop was obviously linked to the drug scene and whilst the accused's association with him gives rise to all sorts of suspicions, that is not a sufficient basis for establishing criminal liability.

The accused is, therefore, acquitted and discharged.

NUKU'ALOFA: 24 MAY 2002.

JUDGE