Rex v Nau [2004] TOSC 5; CR 291 2001 (20 February 2004)

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

NO. CR.291/2001

BETWEEN:

REX
Prosecution

AND:

SAMUELA NAU
Accused

BEFORE THE HON CHIEF JUSTICE WARD

Counsel: Mr Kefu for Prosecution
Mr Tu’utafaiva for accused

Hearing: 13, 16 and 17 February 2004
Judgment: 20 February 2004

JUDGMENT

This accused is charged with a single count of possession of one plastic bag containing Indian hemp leaves, contrary to section 36(b) of the Drugs and Poisons Act.

The prosecution case is that the material alleged to be Indian hemp was discovered during the search of a house in Fatai on Saturday, 17 November 2001. The witnesses told the court that this was one of a large number of synchronised drugs raids on that day. The police arrived at the house during the morning and, in one of the bedrooms, forced open a locked clothes chest. In it, at the bottom under the clothes, they found an envelope. It was taken out and contained a small plastic bag in which were some leaves. Also found in the same place was a pipe of the type frequently used, according to the police witnesses, for smoking Indian hemp and known as a bongo and another envelope containing $200.00 in cash.

The leaves were later examined by Dr Pakalani, the Government Analyst and found to be Indian hemp.

The accused was not there at the time but he was interviewed under caution by the police the following day. He told the police that he was very drunk on the Friday night and slept at the house of the friend with whom he had been drinking. When he awoke on the Saturday, he went home and was told that the police had searched the house.

He told the police officer that he lived in the house at Fatai and he kept his clothes in a wooden box in his room. He did not share the box and he kept it locked. The money was from his work. He was asked about the ‘bongo’ and told them he had found it and it was, as far as he knew, used for smoking Port.

He was then asked about the plastic bag with the leaves in it. He acknowledged it was from the box and, when asked what it is, replied "Its just bush. I came and it was just outside our house and I broke it and put it in a plastic bag and I put it inside the photos and placed it inside my clothing box." He did not know the name of the bush and he said he put it in the bag for no reason.

The accused elected not to give evidence or call any witnesses.

The defence is based on three submissions.

The first is that the prosecution has failed to prove to the criminal standard that the leaves found were the same material as that examined and identified by Dr Pakalani as Indian hemp. Mr Tu’utafaiva, for the accused, points out that there are a number of discrepancies in the evidence of the police officers as to the description of the leaves when they were found. The officer who actually found them described them as dry leaves with the colour of dry leaves. This conflicts with the other witnesses all of whom described the material as being green and fresh looking to varying degrees.

I state immediately that I was not impressed with the evidence of the officer who actually found the material. I have no doubt he was trying to be accurate but his recollection of much of the events of that day was vague and uncertain and he had no recollection at all of many of them. There are certainly variations in the other officers’ descriptions but I do not consider those are significant. These officers saw the materials briefly on one, two or three occasions over a year ago. It is not surprising their recollections vary but I note the consistency in their suggestion that the material looked relatively fresh to them at the time. When it was seen by Dr Pakalani, he also noted that it was relatively fresh.

Counsel also suggests that the evidence fails to establish that the substance that reached Dr Pakalani was the same substance as that found in the clothes box. The evidence was that PC Hala’ufia was designated to receive and look after any exhibits found in the search. The officer who found them passed them to Hala’ufia at that time. They were labelled and kept by that officer until he reached Nukunuku Police Station when he handed them over to PC Kaho who was the station exhibits officer. I have no doubt that the items passed to Kaho were the exact same items as had been found in the clothes box.

Kaho was questioned at length about the manner in which he recorded the receipt and subsequent movements of the items. It was plain that he did not enter the times in the register properly. He told the court the drugs register was new and he was not clear how he should use it. It is also clear that his registers do not account for all the items at each stage.

He told the court that he was the only person who had a key to the exhibits room and that no one else could gain access to it. He placed the items seized in there and kept them under lock. The next day he was present at the interview of the accused and he brought the items out to be shown to the accused. At the end of the interview he put them back in the exhibits room.

The next time he brought them out was on 22 November 2001 when, in company with PC Vea, he took them to Dr Pakalani at the Central Police Station. The procedure adopted by the police is that a drugs release form is filled in and signed by the officer and the analyst. That was filled in by Vea and again there are obvious mistakes on it. It states that the material was handed over at Vaiola Hospital. The officer told the court that he had filled in the form before the drugs were delivered in order to be ready and, at that time he thought they were to be taken to Vaiola. When he realised the hand over was to be at the Central Police station, he did not alter the form because that would make it appear dirty! Anyone can make a mistake but it should be admitted to be a mistake. If the officer’s explanation is true then he cannot be considered a credible witness because, on his own admission, he has knowingly prepared a false document to be used in evidence. If he is not speaking the truth about this, and I am satisfied he is not, he cannot be regarded as a truthful witness in these proceedings. Had there been no other witness to the delivery of the exhibits, I would have found that the Crown had not proved the chain of events up to the analysis. However, I do believe officer Kaho who accompanied Vea.

I accept the evidence of Dr Pakalani that the substance he received that day and examined on 30 November and 1 December was Indian hemp. He was asked why he described it as leaves when, at court, he pointed out that there are some seeds and stem included. Does that not, he was asked, show that the substance here in court cannot be the same as that he examined? He explained that he just recorded leaves because that was the significant part of the material. Had there been any additional significance in the other parts, he would have described them but he did not consider it was necessary in this case.

The second ground of challenge also relates to the substances found. Mr Tu’utafaiva points out the accused told the police immediately he was given the opportunity, that the substance was part of a bush by his house. He suggests that the prosecution should have adduced evidence of the bush and, the officers having failed to do so, the prosecution has not discharged the burden of proof. I do not accept that is correct. The burden on the prosecution is to prove to the necessary standard that the substance seized was Indian hemp. Having produced the evidence upon which they make that case, there is no further burden to disprove every suggestion made by the accused. It may have been better if the police had checked the position but the prosecution is entitled to decide what evidence it wishes to call. Having called it, the court must decide on that evidence whether it is sufficient to prove the case. In this case the officers did nothing to follow up the explanation because they did not believe the accused.

They had reason to think that. Dr Pakalani told the court that the speed with which it would have stopped appearing fresh would depend on a number of variables but the material he saw was only a few days old at the most. The police officers had also noticed its freshness. The accused’s unchallenged explanation to the interviewing officers was that he had placed it in the bag on 20 September, more than eight weeks before it was found. The accused, as was his right, chose not to give evidence but it means the only evidence of the origin of this plant material is the answers he gave in the interview. He has not produced the plant for the court to see nor add to the answers he gave and the court cannot speculate.

I am satisfied beyond reasonable doubt that the material examined by Dr Pakalani was the material found in the clothes box and had not been altered in any way before he received it. I also accept his opinion that it was freshly plucked and I do not accept there is any truth in the accused’s suggestion to the police that it was plucked from a bush many weeks before.

The third ground of defence is that the accused was never identified as the person who was interviewed by the police. I cannot accept that is the case. There was no suggestion that his identity was challenged in this case. If, as this submission requires, the whole interview was with some person other than the accused, that fact should have been put to the officers and it was not. In fact, the officer who conducted the interview was asked a number of questions about the contents of the interview which suggested that there was no challenge to the identity of the person being interviewed. It was also put to him that he had told the accused that he did not believe the accused’s answer.

I am satisfied that the prosecution has proved that the person interviewed was this accused.

I am satisfied beyond any doubt on the evidence as a whole that the clothes box was that of the accused and that the materials in it were his including the money, the smoking pipe and the leaves all of which were admitted to be his. I am equally satisfied that those leaves were Indian hemp and that the accused knew what they were and sought to suggest they were not to avoid the consequence of his possession.

He is convicted as charged.

NUKU’ALOFA: 20 FEBRUARY 2004

CHIEF JUSTICE