Rex v Pohahau [2004] TOSC 3; CR 020 2002 (30 January 2004)

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

NO. CR.20/2002.

BETWEEN:

REX
Prosecution

AND:

KUSITAFU POHAHAU
Accused

BEFORE THE HON. CHIEF JUSTICE WARD

COUNSEL: Ms G. Guttenbeil for Prosecution.
Mr S. Tu’utafaiva for the Accused.

Hearing: 26 and 27 January, 2004.
Judgment: 30 January, 2004.

JUDGMENT

The accused is charged with one count of possession of Indian hemp on 24 December 2001, contrary to section 36(b) of the Drugs and Poisons Act.

The prosecution case is that, on Monday, 24 December 2001, the police executed a search warrant on a house in Vaini belonging to one Moto Makahununiu. The premises consisted, at that time of a small timber fale and, behind it and about 10 feet away, a partly built concrete European style house. The information upon which the search warrant was issued was that the accused was possessing and selling Indian hemp from the premises.

When the search party arrived, the only person on the premises was a young man, Nasili Lapale. He was on the veranda of the partly constructed house at the rear. He told the police that he had come to see the accused that day and was waiting for the accused who had told him was going into town and would be back. He was present during the search and was arrested and charged with possession of the Indian hemp found on the premises. The case against him was subsequently withdrawn.

Nasili was called by the prosecution and, in cross-examination, altered his account considerably. He agreed that he had, in fact, been at the 'api since the Saturday night and said he was staying to look after it whilst the accused went to ‘Eua. I did not consider he was a truthful witness and attach no weight to his evidence.

The police searched the small house first and took possession of six large sacks of unpounded kava, which are nothing to do with this case. They then proceeded to search the concrete house and the garden.

In the garden, on a shelf attached to the trunk of a Tava tree, was a kerosene stove. It was found to contain a plastic bag concealed under the burner unit. That bag contained a small quantity, 3.5 gms, of dried Indian hemp and a number of small plastic bags.

A number of similar plastic bags were found on the frame of a window of the incomplete house. Later a police dog was brought to the premises and alerted the police to another plastic bag of Indian hemp buried under the gravel of the unconcreted floor of the bathroom of the new house. That bag was found to contain 31.73 gms of dried Indian hemp.

The seized items were taken to the police station and were later delivered to the government analyst. He examined them and confirmed that the plant material in both plastic bags was Indian hemp.

The accused was arrested subsequently by the police and interviewed. He was asked a series of questions by the police officers and replied to them all that he had been advised by his lawyer to say nothing. He was entitled to take that course and the interview has no evidential value.

In court, he chose to stand mute and called no evidence.

The burden is on the prosecution and defence counsel submits it has failed to prove its case beyond reasonable doubt in three ways.

The first is that the prosecution has not proved that the accused was in possession of the drugs that were found during the search.

Mr Tu’utafaiva first points to the wording of the Particulars of Offence in the indictment, which charges the accused with possession of 2 plastic bags which "you had in your possession at the house you were residing at in the village of Vaini". He points out the house the accused was actually residing in was the small house and not the partly built house. Moreover, it shows, he contends, that the police information was about that house. I find no merit in either of those contentions. The nature or reliability of the information upon which the search warrant was obtained is no part of the evidence and cannot be considered. The fact that the indictment is worded in the way it is also has no bearing. It was drafted after the drugs had been found and the accused had been committed from the Magistrates’ Court. By that stage the prosecution case was that the drugs were found in the garden and the incomplete house. Even if ‘the house in which he was residing’ should be restricted to the actual house in which he slept, the prosecution knew that the drugs were found outside it. Careless drafting it may be but the particulars sufficiently disclose the case the accused has to face and it adds no more to the submission on the first ground.

I do not, in any event, accept that residence refers solely to a house. It applies to the whole of the property upon which the house is situated. In this case, I am satisfied beyond any doubt that the accused was residing on Moko’s ‘api which included both buildings and the garden in which they stood.

There is far more substance in the question of whether the prosecution has proved that the drugs hidden in the stove in the garden and buried in the concrete house were in the possession of the accused. Mr Tu’utafaiva elicited in cross-examination that the house was visited by some family visitors and that at least two visitors sometimes stayed overnight or longer. It was also clear that the accused was living in the house with his de facto wife, Fuiva, although, at the time of the search, she was in ‘Eua.

Moko’s sister gave evidence and agreed the fence of the whole premises was low enough for anyone to step over without difficulty. The witness Nasili, as has already been stated, told the court that he had been in the house for the whole of the day before the search and on the Monday up to the arrival of the police officers. The evidence was that he was certainly present when the police officers arrived.

How, counsel asks, can it be considered that the prosecution has proved possession by the accused to the required standard? Anyone could have left the drugs there. The police agreed they had received the information which led to the warrant more than two weeks before. During that time, the drugs could, counsel submits, have been ‘planted’ there.

I remind myself that the accused was entitled to decline to say anything to the police and to remain silent in court. His silence can, in no manner, be taken as an admission of guilt or as evidence against him. I also note, of course, that it means the court must decide the case on the prosecution evidence only.

The prosecution called two civilian witnesses, in addition to Nasili, who gave evidence of the occupation of the house by the accused and his de facto wife. The first was Moko’s sister, a relative by marriage of the accused. She told how the accused lived with her for some time but, when Fuiva also moved in, she suggested that the accused and Fuiva should live in Moko’s ‘api. It was unoccupied and she was responsible for looking after it. They moved in about June 2001 and she occasionally visited them there. She told the court that sometimes Fuiva was away in ‘Eua and sometimes Moko’s son, Sikaleti, who normally lived with her, would stay at Moko’s house with the accused.

The other civilian witness lived in the house next door. She told the court that the accused lived in the small house but how she saw frequent visitors arriving and leaving and how they would stay and wait on the veranda of the concrete house and see the accused there. Most visitors stayed a few minutes only but one person in particular, ‘Isikeli, was a more frequent visitor and often stayed the night.

Mr Tu’utafaiva asks the court to find that the drugs could have belonged to any of these people and so the prosecution has failed to prove possession by the accused as opposed to anyone else to the required standard.

It is clear on the evidence that that accused had a number of visitors and at least two sometimes stayed overnight. Neither Sitaleki nor ‘Isikeli was called. I am satisfied beyond any doubt that the prosecution evidence establishes that the accused was the occupier of those premises. He was sleeping in the small house but it is equally clear that he used the whole premises including the incomplete house. Counsel’s submission suggests that, in any case where drugs are found in premises but there is no admission of possession, the court will be unable to find beyond reasonable doubt that the occupier was in possession in any case where other people have visited or stayed at the premises.

I do not accept that is correct. It is a matter to be determined on the evidence as a whole. In this case, the prosecution has proved that the drugs were found in the premises used and occupied by the accused and his de facto wife. That is prima facie evidence of possession by him and is the prosecution case. There is no evidence from the defence one way or the other. The court must assess the evidence it has of the place where, and manner in which, the drugs were found.

One container of the drugs was found concealed in the partly built house. There is no evidence that they were placed there by a stranger or a visitor without the knowledge of the accused. Similarly the manner in which the drugs were concealed in the stove in the garden suggests that they were placed there by the occupant of the premises. Any stranger using the accused’s dwelling to hide his drugs there would be running a very high chance of discovery. It should also be noted that each separate bag of drugs contained some small plastic bags. They were of the same type as those found on the window frame in the house. If the drugs were concealed there by a stranger, would he have left similar bags in such an obvious place? I am satisfied the presence of those bags on the window frame demonstrates that the occupier of the premises was using those bags with his drugs. On the evidence as a whole, I am satisfied beyond reasonable doubt that the drugs found by the police belonged to the accused and were hidden by him.

I would add that the suggestion the drugs were planted by someone deliberately between the receipt of information and application for a search warrant was first raised in counsel’s final submissions. Such a suggestion should have been put clearly to the witnesses. There is no evidence to support such conjecture.

The second aspect raised by the defence refers to the evidence of the analyst. He referred to having conducted a botanical examination of the plant material. He agreed that such an examination would require the use of a microscope with a X10 objective lens. His written report makes no mention of that. Mr Tu’utafaiva suggests that it means the court cannot be satisfied to the criminal standard that the drug was properly examined and identified.

The witness told the court that although the use of the expression ‘botanical examination’ must in itself convey that information, he would normally make specific mention of the fact. The omission in this report must have been an error that he overlooked when checking the typed report. He told the court that, in this case, he certainly did use such a microscope. I accept his evidence.

The last point raised by the defence is that the material examined and identified as Indian hemp by the analyst has not been proved to the necessary standard to be the material seized from the premises in Vaini. It is correct, as Mr Tu’utafaiva points out, that this must be proved strictly. The prosecution has proved the chain of continuity in this case and I am satisfied that the exhibits found in the accused’s premises were proved to have been delivered to the analyst.

However, counsel’s point is that the evidence of those events showed there may have been an opportunity for them to have been tampered with between the seizure and the delivery to the analyst and that is supported by evidence that the nature of the substance seized differed materially from the substance examined by the analyst.

The prosecution evidence was that the exhibits were simply placed in larger plastic bags of the type, which can be closed by pressing together a thickened strip. No attempt was made to seal the bags with any form of police seal which would have to be broken by any person trying to interfere with the exhibits. That is unfortunate and will always leave it open to challenge as to the possibility of the exhibit having been tampered with before the analyst can examine them. The police would be wise to consider instituting such a procedure.

However, I must consider the evidence in this case and decide whether it reveals that the manner in which they were kept by the police may have given an opportunity for some unauthorised access. Mr Tu’utafaiva points to two matters of evidence in addition to the failure to seal the exhibits.

First, the analyst described the plant material he received from the police as "leaves". In court he looked at the exhibits and agreed they were the material he examined and that they were undoubtedly leaves and nothing else. No seeds or other plant material was present. However, the Drugs Squad officer who received the drugs at the scene, PC Tu’ifua, had described the material in the bag concealed in the stove as consisting of leaves, seeds and branches or buds. As the officer responsible for the custody of the exhibit at the scene, he would have reason to look at it carefully and, as a Drugs Squad officer, he would know the significance of what he saw. Counsel suggests that, if they had seeds and branches then, the absence of those parts later suggests the material delivered to the analyst had been changed. If that exhibit has been interfered with or altered in any way, the court cannot be satisfied that the other exhibits, which the officer told that court were kept with it, were not also altered.

Secondly, Mr Tu’utafaiva points out that the same officer had sole custody of the exhibits after their seizure until he passed them, three days later, to another officer to take to the hospital. He told the court that he kept them locked in his own personal cabinet in the Drugs Squad office. However, the other witnesses from the Drugs Squad told the court that there are no separate cabinets in the office. There is only one cabinet which is used in all such cases and the officer whose exhibit it is will hold one of only two keys as long as his exhibit is kept in there. The other key remains with the head of the Drugs Squad. The officer was questioned about the cabinet by defence counsel and given full opportunity to correct his evidence if he wished but he insisted that he had his own cabinet and kept the drugs in it under lock.

If his evidence is not correct, as the other police witnesses suggest is the case, the court has no reliable evidence of the security of the exhibits. Without that the court must consider whether the prosecution has proved beyond reasonable doubt that the drugs Dr Pakalani analysed had been kept free from interference.

These are very unfortunate discrepancies. The court can only convict if it is satisfied that the evidence presented to it proves beyond reasonable doubt that the material in the possession of the accused was Indian hemp. The only proof that it is Indian hemp depends on the analyst and the court must be satisfied that there is no real doubt that the substance he identified as Indian hemp is the actual, unaltered material taken from the possession of the accused. In this case, the evidence of the place it was kept is inconsistent with the evidence of other police officers in the same office. It is clear the nature of the packaging of the exhibits means that any unauthorised interference could occur without leaving any visible change to the packaging.

Neither of those would, in themselves, necessarily be fatal to the prosecution case without some evidence that there had, in fact, been interference. In this case there is such evidence. The prosecution witnesses themselves have told the court that the substance found in the case of one exhibit was materially different from that delivered to the analyst.

In those circumstances the court cannot be satisfied to the criminal standard that it was the same substance as that taken from the possession of the accused. That doubt must also attach to the other exhibit which had been kept together with it.

The accused must be acquitted.

NUKU’ALOFA: 30 January, 2004.

CHIEF JUSTICE