Rex v Tohifolau [2004] TOSC 17; CR 015 2002 (26 March 2004)

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

CR.15/2002

BETWEEN:

REX
Prosecution

AND:

NGALU TOHIFOLAU
Accused

BEFORE THE HON. CHIEF JUSTICE WARD

Counsel: Mr Sifia for prosecution
Mr Tu’utafaiva for accused

Date of Hearing: 21 and 22 January, 2004.
Date of Hearing on submissions: 26 February, 2004
Date of Judgment: 26 March, 2004.

JUDGMENT

The accused is charged with one count of possession of Indian hemp contrary to section 36 (b) of the Drugs and Poisons Act. The particulars of offence state:

"Ngalu Tohifolau, on or about 16th November 2001, at Tofoa, was found in possession of 55 small plastic bags containing Indian hemp leaves and 40 Indian hemp seeds."

Although the prosecution evidence described the discovery of Indian hemp during the execution of a search warrant, it did not match the circumstances as set out in the particulars. The defence has submitted that the variation is so substantial that the prosecution cannot be found to have proved the offence charged.

The Indian hemp was found during the search of the house where the accused was living with his mother. The accused was present throughout and the officers searched his room first. In a drawer in that room one of the officers found 55 empty plastic bags and, under some clothes, a single bag containing a small quantity of leaves. In the same place was an ashtray upon which was a single cigarette butt. Another officer found a further bag of leaves under the mattress. A third officer, who was not called, was said by other officers to have found "about 20" loose seeds under the bed and a small plastic bag containing two seeds.

At the time, the accused said the butt was simply from a cigarette made from Port Royal and the plastic bags had been found in the market but he admitted that the leaves and seeds were marijuana and were for his use.

The search then moved to the veranda where 14 more empty bags were found on a table. On the same table were 15 loose seeds. On a windowsill was a bongo pipe with some leaves in it and a further bag containing 1 seed was found on a washing machine nearby.

In another room of the house, one witness stated "various plastic bags" were found and one bag contained 2 seeds.

A search list was kept at the time. That list includes the 14 bags found on the veranda but describes them as containing 15 seeds. The evidence, as has been stated, was that they did not. Besides the 14 plastic bags it also includes another item stated to be, "2 empty large plastic bags, 4 empty medium plastic bags, 1 medium plastic containing 2 seeds and marijuana leaves, 1 medium bag containing 73 small bags".

The accused was interviewed by the police on 19 November 2001. He agreed that a pack of marijuana leaves and seeds were found under the bed and that they were his. The various items found in the search were then shown to him and he confirmed they had been found then. He described them, at the request of the interviewing officer, as marijuana seeds, 2 plastic bags of marijuana leaves, the half smoked marijuana roll, plastic bags which were left at home by kids. He also agreed that the seeds and the marijuana were his.

The items were taken for examination by the forensic scientist on 22 November 2001. He examined a bag containing two cigarette butts and found them to be positive for Indian hemp although there was no explanation of the origin of the second one. He also confirmed that the leaves in two plastic bags and the fragments in the bongo were also Indian hemp and similarly he examined a total of 38 seeds all of which were Indian hemp.

The accused did not give evidence or call witnesses.

Mr Tu’utafaiva for the accused asks the court to consider that the variations in the evidence of the materials examined and the wording of the indictment are so extreme that the prosecution cannot be said to have proved the case as stated in the indictment.

The case was adjourned for further submissions.

Mr Tu’utafaiva refers to clause 11 of the Constitution which includes the requirement that the indictment upon which any person is to be tried "shall clearly state the offence charged against him and the grounds for the charge". He also points out that clause 13, under a marginal heading "Charge cannot be altered", provides that "no one shall be tried on any charge but that which appears on the indictment ... for which he is being brought to trial". The clause then sets out the four main exceptions to that provision none of which are relevant to the present case.

Defence counsel submits that our law contains no specific power to amend an indictment corresponding to the provisions of the Indictments Act in England. By the terms of the recent Civil Law (Amendment) Act, the English Act can no longer apply to Tonga and the provisions of clause 11 and 13 prevent the court from considering or allowing any such amendment.

With respect to counsel, this case does not involve amendment of the indictment or an application to do so. The interesting question of whether or not there is such a power must await another day.

What is in issue here is whether, in a case where the indictment seriously misstates the allegation, it is possible for the court to convict.

There is no doubt that the indictment in this case was carelessly and inaccurately drafted. Counsel for the prosecution has a responsibility to ensure that the indictment states the offence and the grounds for the charge as accurately as possible in relation to the evidence that is to be adduced. In this case, counsel clearly failed to do so. The result is that the accused could well have misunderstood the actual nature of the charge he faced. Had counsel for the accused sought an adjournment of the hearing because the nature of the evidence as it unfolded had taken him unawares, it would have been a proper request and would, in circumstances as clear as this case, have been granted.

However, the indictment does clearly state the offence as possession of Indian hemp and the relevant statutory provision. There can be no complaint with that. The particulars also certainly refer to the possession of 40 Indian hemp seeds. The serious inaccuracies occur in relation to the circumstances in which they were found; namely, that they were packed in the 55 bags and that there were 40 seeds when only 38 were proved to have been found.

If on the evidence produced at the trial, the court is satisfied to the criminal standard that some of the matters alleged in the particulars of charge have been proved but not others, it is entitled to convict on the limited basis of those items actually proved. I cannot accept that, in any case where the evidence fails to prove every detail of the particulars, the court must acquit and cannot convict of such parts as are proved.

That is the case here. The prosecution evidence related to an additional quantity of Indian hemp which was not mentioned in the indictment. If the court finds it proved that the part charged was in the accused’s possession, it has the power to convict of that. It does not, whatever the evidence reveals as to any additional Indian hemp, have any right to convict of possession of that. In this case, so far as the difference relates to the quantity, the court can convict of the quantity charged.

The remaining details were undoubtedly misleading but they were additional information and it was not necessary to include them in the particulars of charge at all. I assume they were added to give the accused a clearer idea of the case the prosecution was presenting against him. If so, they unfortunately failed. The suggestion in the particulars of offence that the seeds were all packed in small bags is of considerable significance in relation to the possibility that the accused was dealing in the drug but the evidence does not support those particulars.

The alternative submission by counsel for the defence is that, if the court has the power to amend the indictment, it is discretionary and it should only be done where the justice of the case requires it. My finding means that, in this case, it is not necessary to amend the indictment in order to be able to convict and so it is not necessary to determine this submission.

I rule, therefore, that the case can proceed on the charge in the indictment.

On the evidence as a whole, I am satisfied beyond any doubt that the accused was in possession of 38 Indian hemp seeds on the date of the search and he is convicted of that possession. The evidence clearly establishes that only three were in plastic bags and they were certainly not in 55 bags but that does not alter the fact that the accused was in possession of those seeds.

He is convicted accordingly.

NUKU’ALOFA:26th March, 2004.

CHIEF JUSTICE