Rex v Fifita [2004] TOSC 21; CR 030-032 2002 (20 May 2004)

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

NO.CR.30-32/2002

REX

-v-

1.SIONE TAVALU FIFITA
2.SIONE FINAU FIFITA

BEFORE HIS HON. MR. JUSTICE FORD

Counsel: Mr Sisifa for the Crown and
Ms Mangisi for the accused.

Date of hearing:13,14 April and 14 May, 2004.
Date of judgment:20 May, 2004.

JUDGMENT

Each accused has the same first name and surname. They are first cousins. To avoid any confusion, therefore, I will refer to them in this judgment by their respective second names -- Tavalu and Finau. They each are charged with one count of possession of Indian hemp, contrary to sections 36 (b) and 43 (2) of the Drugs and Poison Act (CAP.79).

The case for the Crown is that on Saturday 17 November 2001, the police, acting pursuant to a warrant, carried out a search of a residential property in Hofoa belonging to Tavalu's father, Manoa Fifita. It transpired that Manoa and his wife had gone to the USA in December 2000 and had left Tavalu, their eldest son, in charge of their house property at Hofoa.

The police officers who carried out the search arrived at the property at approximately 9:10 a.m.. It was apparent that a party had taken place at the premises the previous night. Rubbish and firework remnants were found in an area in front of the garage together with a number of empty small plastic bags which were collected and produced as exhibits in the case. They were virtually identical to two other plastic bags found during the search which, the government analyst reported, contained Indian hemp.

When the police arrived at the premises, Tavalu was not at home but two officers were instructed to drive into Nuku'alofa and collect him from his workplace. In the meantime, the police had found occupants, some of whom had to be woken, in various rooms inside the house. They were all ushered outside onto the concrete driveway at the front of the garage where they remained until Tavalu arrived back at the house and the warrant was read out.

Lance Corporal Mafua told the court how he had gone into a room at the back of the garage and the first person he had seen was the second accused, Finau, who was still asleep. Cpl Mafua said that he woke Finau and took him out to the driveway in front of the garage where he proceeded to search him. In one of the pockets of the shorts Finau was wearing, the police officer found a small plastic bag containing a substance which he immediately recognised as marijuana. The officer said that he asked Finau if the substance was marijuana or drugs and he replied, "yes". He then asked him when he had received it and Finau replied that it had been made up the night before.

The plastic bag and its contents were produced as an exhibit. The government analyst, Viliami Pakalani of Viola Hospital, gave evidence identifying the "fragmented leaves" found inside the bag as marijuana which, he told the court, was simply another name for Indian hemp. The analyst also noted in his report that there were two seeds inside the plastic bag but he told the court that he found it unnecessary to analyse them. I will need to come back to the evidence about the seeds.

Another police officer, Constable Fehoko, told the court that after the search warrant had been read out and all the police officers had removed everything from their pockets, he and two other officers proceeded to carry out the search of the room Finau had been sleeping in. The Constable described how during that search he had found another plastic bag containing marijuana in the pocket of some trousers lying on the floor inside a wardrobe. He said that he asked Finau who the pants belonged to but he did not know.

It transpired that another person had been sleeping in that same room but, for some reason that was not apparent from the evidence, the other person was not identified by any of the witnesses nor, apparently, had he been asked at the time if the trousers had belonged to him. The government analyst confirmed that the substance found inside the plastic bag was also Indian hemp.

The evidence was that a full search was carried out of every other room in the house but nothing else of significance was found apart from two aluminium foils wrapped up in the shape of cigarettes which contained a substance identified by the analyst as Indian hemp. The aluminium foils were located in a bench drawer below the kitchen sink.

Finau was charged with possession of the Indian hemp in the plastic bag found in the pocket of the shorts he was wearing. Tavalu was charged with possession of the Indian hemp found inside the pocket of the trousers in the wardrobe and the two aluminium foils found in the kitchen drawer.

Neither accused gave evidence but two witnesses were called on their behalf.

The first witness, 23-year-old Luisa Sini, worked in the Sama restaurant in Nuku'alofa at the time of the incident. She knew the accused Tavalu who worked at JSP Motor Parts across a road from the restaurant. There was a suggestion, but it is unclear from the evidence, that Tavalu or his father may have had something to do with the restaurant as well.

In all events, Luisa's evidence was that on the morning of the search, Tavalu had ordered several fish meals from the restaurant to give to the police and he came back approximately one hour later at around 11 a.m. with two police officers and collected the meals.

Surprisingly, after calling this evidence, defence counsel made no mention of it in her submissions. I suspect, however, that its relevance was directed at the issue of credibility. All the police officers had denied in evidence any suggestion that they had been given food by Tavalu during the search.

The other witness called on behalf of the accused was 23-year-old Manoa Kanokupolu. He had been asleep in one of the bedrooms inside the house when the police arrived but he had been woken by the police and taken outside. Manoa said that later, after the warrant had been read out, he had been instructed to accompany the police while they carried out their search of the house.

Manoa told the court that while the police were searching the kitchen area they told him to bend down and pick up an aluminium tray under the sink. He did so but there was nothing under it apart from the timber floor. Manoa said that while he was carrying out that task, one of the police officers pulled out a drawer to the bench alongside of him and told him to look inside. At the same time, another police officer took out one of the aluminium foils from inside the drawer, opened it up and showed him the contents. Manoa said that the policeman asked him if the substance was marijuana and he had replied that he did not know.

In the course of her submissions, Ms Mangisi was asked by the court what inference or inferences she was inviting the court to draw from Kanokupolu's evidence. Counsel responded that she was inviting the court to conclude that the aluminium foils had been "planted" by the police or someone else. That is a serious allegation to make against the police and the proposition was never put to any of the officers in cross-examination. It should have been. In any event, I would not be prepared to make such a finding on that evidence alone. For one thing, Mr Kanoupou made no suggestion in his evidence of the foils being planted and, for another, there was evidence, which I accept, that before the search began the officers involved were required by the officer in charge, Chief Inspector Halapua, to empty out their pockets. That evidence was unchallenged.

Although neither accused gave evidence, they both made statements to the police which were produced in evidence by consent. They each freely admitted smoking marijuana at the party the night before. Tavalu told the police that he had purchased five "marijuana plastics" for $10 each from two boys who had sold them to him at his workplace and that was the marijuana that the participants had smoked at the party the night before. Tavalu also said that he had been smoking marijuana since he went to Hawaii in 1997.

When Tavalu was charged with possession of "one plastic with Indian hemp" and the "two foils with Indian hemp", he answered, "what I have been charged with is true."

The accused Finau admitted to the police that he had become "hooked on marijuana" since tried it as a cure for his asthma. He also admitted that the substance he is charged with possessing had been found by the police officer in the pocket of the short pants he had been wearing at the time of the search.

Notwithstanding the admissions made to the police, as in any criminal case, the onus is on the Crown to prove all the elements of the offence of possession beyond reasonable doubt.

Ms Mangisi made typically succinct submissions. I will deal with each in turn. First, counsel submitted that the contents of the plastic bags and aluminium foils found during the search were not the same substances that had been analysed by Mr Pakalani.

The first point that Ms Mangisi made under this head was in relation to the plastic bag found in Finau's pocket. She noted that Lance Corporal Mafua had said in evidence that Finau was searched outside on the driveway whereas Constable Palu, who was responsible for recording the exhibits at the scene, said that she thought he had been searched in the bedroom.

I cannot accept that there is any substance in this particular submission. For one thing, Constable Palu qualified her answer by saying that she was not sure. For another, the accused admitted in his statement to the police that the plastic bag had been found in his pocket (wherever he had been searched).

Defence counsel then noted that the government analyst had described the contents of that same plastic bag as "brown fragmented leaves and two seeds" whereas Constable Palu referred to seven seeds. When Constable Palu was asked about the discrepancy she told the court that her description of seven seeds was wrong and there were two seeds but they were crushed. That was her only explanation for writing down seven seeds instead of two.

Having considered carefully all the evidence relating to this aspect of the case, I accept the Constable's explanation. The "fragmented leaves" would have made it difficult to ascertain the exact contents of the plastic bag unless one emptied out the contents and carefully analysed them. The Constable was not examining the contents in a laboratory setting but at the scene of the search where she was being handed various exhibits by other officers to make a record of before returning to the police station.

Ms Mangisi made a similar submission in relation to the aluminium foils. Her point was that Constable Palu had described those exhibits on the exhibit label as, "two foils shaped like cigarettes containing marijuana and buds from one of the drawers in the kitchen" but, in his report, the analyst referred only to the leaves and made no reference to the buds.

When the analyst was cross-examined about the discrepancy, he acknowledged that he only tested the leaves and once he found that they tested positive for marijuana, he did not bother testing the buds. Therefore, he did not mention the buds in his report. The analyst commented that it would have taken him another hour to test the buds and as the leaves had proved positive, he did not consider that the extra test was warranted. Again, I accept that explanation but, for completeness, it would have been better had he also referred to the presence of the buds in his report.

There was one other submission relating to the chain of continuity made by Ms Mangisi. It related to the evidence of WPC Takau. Constable Takau told the court that she handled the exhibits at the Central Police Station on one occasion only and that was when they had been given to her by Constable Tuku'afo and she was told to return them to the official exhibits keeper, Sergeant 'Olie. This was immediately after Constable Tuku'afo had completed his interviews of the two accused. For some reason, WPC Takau recorded in her notebook that she handed the exhibits back to Sergeant 'Olie on 18 November 2001 at 2300 hrs whereas, in her evidence, she told the court that, after checking with Sergeant 'Olie's official exhibits Register Book, she was certain that her notebook entry was incorrect and that the exhibits were actually handed back to the Sergeant on 20 November 2001 at 1500 hrs.

The mistake was a most unfortunate one for Constable Takau to make. Her only explanation was that this particular case was part of a much larger drug operation at the time and she and other staff had been working long hours.

Having listened subsequently, however, to Sergeant 'Olie's very thorough account of the movements of the exhibits at the police station, I have no doubt that the entry in the official Register Book is correct and that Constable Takau's notebook entry was, as she now freely acknowledges, completely wrong.

In summary, I have considered carefully all the submissions ably made by Ms Mangisi relating to the chain of continuity but I am satisfied beyond any doubt that the Crown has proved that the exhibits found at the scene and produced in evidence were those examined by the government analyst.

With one exception, I am also satisfied that the Crown has proved that each accused had possession in terms of section 36 of the Drugs and Poison Act, of the Indian hemp described in the Particulars in the indictment.

Finau, of course, was found with the plastic bag of Indian hemp in his pocket. He admitted that the substance was marijuana and the Crown has proved that it was. He is convicted accordingly.

Tavalu is charged with the one count of possession of Indian hemp but the Particulars of the offence refer to both the plastic bag found in the pocket of the trousers in the wardrobe and the two aluminium foils found in the kitchen.

Given Tavalu's admitted lengthy involvement with marijuana and the fact that he had been in charge of the premises for some 11 months while his parents were in the States, I am satisfied that the Crown has proved he had "possession", as defined in R v Motuliki (unreported) No. CR 92/2001, (judgment dated 24 May 2002, of the two aluminium foils of Indian hemp found in the kitchen.

Applying that same definition, however, I am not so satisfied that Tavalu did have possession of the Indian hemp found in the pocket of the trousers in the wardrobe. That finding, of course, will be a matter relevant to sentencing. An Indictment does not fail because all the facts stated in the Particulars cannot be precisely proved. The test is whether the defence has been prejudiced in any way by a failure to prove each precise fact stated.

No suggestion of any such prejudice was claimed in the present case and I am satisfied, in any event, that there was no prejudice to the accused Tavalu arising from the Crown's failure to prove possession of the Indian hemp found in the trousers in the wardrobe.

In other words, the Crown has succeeded in proving all the elements of the offence against both Tavalu and Finau and each accused is convicted accordingly.

NUKU'ALOFA: 20 MAY 2004.

JUDGE