Rex v Ta'ufo'ou [2004] TOSC 57; CR 005-006 2004 (10 August 2004)

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

This trial has involved two accused, Vikita Ta'ufo'ou ("the first accused") and his partner Fa’umata Latu ("the second accused"), each of whom was committed for trial and last week tried before me (sitting as a Judge alone) on charges of possession of illicit drugs contrary to s 4(a) of the new Tongan drugs legislation - the Illicit Drugs Control Act 2003 ("the Act"). The particulars of each charge is that the accused did "knowingly without lawful excuse have in your possession 16 small plastic bags containing leaves of cannabis plant". I am told that this is the first case to reach trial under this Act, but the trial did not directly raise issues of interpretation of the Act.

The equivalent charge under the previous law would have been possession of Indian hemp contrary to s 36(b) of the Drugs and Poisons Act.

The 2003 Act came into force on 23 October of that year. Eighteen days later, on Monday 10 November 2003, the two accused were at their home in Ha'ateiho when a police party arrived to execute a search warrant obtained on the basis that the two accused were unlawfully keeping and selling Indian hemp. There has been no challenge to the validity of the search, or of the signed statements made by each accused subsequently at the Central Police Station. All evidence tendered was therefore admitted. Nor was there any challenge to the scientific analyst's identification of the contents of the plastic bags as cannabis, and his evidence that Indian hemp is the same thing as cannabis. The defence did not call evidence. The sole issue raised by the defence was the question whether the Crown had proved beyond reasonable doubt that the items taken by the police in the search were the same items as were tested by the analyst. I will however have to make findings on all components of the charge.

"Any person who knowingly without lawful excuse, the proof of which shall lie on him: possesses, manufactures, cultivates, uses or supplies an illicit drug; or engages in any dealings with any person, for the import, export, ..[etc] ...of an illicit drug; commits an offence and shall be liable upon conviction to a fine not exceeding $750,000 or imprisonment for a term not exceeding 25 years or both."

There are six elements of the charge as stated in the indictment, and each must be proved to the required standard, which is proof beyond reasonable doubt.

The identity of the accused. The defence accepted that the two accused in Court were in fact the same people as those whose house was searched and who were arrested and interviewed about this matter. Identity was not an issue in the trial.

The time and place of the alleged offence. This was proved to be 10 November 2003 at Ha'ateiho in Tongatapu.

An illicit drug. The term "illicit drug" is defined in s 2 of the Act to mean any drug listed in Schedule 1 of the Act or anything prescribed by regulation to be an illicit drug. "Cannabis" appears twice in Schedule 1, at the beginning and at the end.

The following drugs, designated by their international non-proprietary names or the names used in international conventions in force their isomers, esters and ethers, their salts, including the salts of any such isomer, ester or ether, and any preparations including any such substances are illicit drugs unless exempted by law:

Acetorphine	Acetyl-alpha-methyl-	Methyl-3fentanyl
Cannabis and	fentanyl	Methyl-3thio-
cannabis resin	Alphacetylmethodol	fentanyl
Desomorphine	Alpha- methylfentanyl	MPPP
Etorphine	Beta-hydroxyfentanyl	Para-flurofentanyl
Heroin	Beta-hydroxy-methyl-3-	PEPAP
Ketobemidone	tetanyl	Thiofentanyl

I have reproduced all of this part of the schedule. The point was not raised in this trial but if the Crown had relied on this part of the schedule its scientific witness may have had to give evidence that the substance examined by him was the same as the one designated in the table by its name, its isomers esters and ethers, and by its salts. It is far from clear to me, considering the layout of this table, exactly which isomers esters and ethers, and which salts, relate to cannabis and cannabis resin. No such evidence was given. The point can be left to another trial to be explored.

The other place where cannabis is listed is in the last part of Schedule 1 under the heading OTHER ILLICIT DRUGS.

Cannabis plant (whether fresh, dried, or otherwise) – that is, any plant of the genus cannabis.

I assume for present purposes, although the point was not argued, that where the Crown relies in this part of Schedule 1 it is not required to consider the full designation described in the opening paragraph of the schedule, as there are no stated isomers esters and ethers, and no stated salts, for the "other illicit drugs".

I find proved in this case that the material analysed by the analyst included cannabis plant material. In this case no certificate of analysis was produced under s. 36(1) of the Act and instead the analyst Siale'uvea Finau gave evidence of his examination and testing of samples taken from 10 of the 16 plastic bags (chosen at random). Although the material was described in the police documents as Indian hemp, he explained that hemp is a common English name for cannabis, the botanical name being cannabis sativa L. Mr Finau was not sure where the name "Indian" hemp had come from, but suggested that it may have been its place of origin at one time – hemp having been found in many countries including India, Egypt, and so on. In any event he was definite in his evidence that "Indian hemp is cannabis" and there was no challenge to his evidence that the samples were in fact cannabis.

Possession of such a drug. The 16 plastic bags of material were found in a small black bag beside an armchair in the living room of the accused's home. They were the only people in the house and each separately admitted that they had been using the material to smoke marijuana, which Mr Finau explained is one "used form" of Indian hemp (cannabis), namely the dried leaves and flowers. (The other used form is compressed resin and is called Hashish). The first accused said it was his marijuana, and the second accused said it was their "smoking stuff". Possession of the drugs by the two accused has been proved.

Knowingly. Section 4 requires that the accused "knowingly" possesses the drug. Each accused was aware they had possession of the drug, which they had used for smoking. Indeed the second accused said she had dropped the bag beside the chair when she saw the police dog used in the search.

Without lawful excuse, the proof of which shall lie on him. Although there is no punctuation and no word "and" in the expression "knowingly without lawful excuse", I interpret the section as meaning that the prosecution must prove that the accused acted knowingly and without lawful excuse – that is, the accused must have knowledge that he possesses the drugs, not that he has no lawful excuse.

I accept Mr Kefu's submission for the Crown that the section imposes an onus on the accused to prove any lawful excuse relied on. As no evidence was given by the accused, they did not seek to prove a lawful excuse, and indeed they candidly admitted to the police that they had the drug for the purpose of using it, which is illegal.

This leaves the sole issue as the so-called "chain of evidence" concerning the seized items, and the question is whether the Crown has proved beyond reasonable doubt that the items found in the living room of the house at Ha'ateiho are the same items as the analyst Finau took samples from and found to be cannabis.

I was impressed with the organisation of the police party that went to Ha'ateiho on the day in question. The items were found by Police Officer Hausia. They were photographed by police photographer PC Vailea, and then taken into the custody of PC Tangulu who had been designated as exhibits officer. I am quite satisfied that he kept the items in his possession in a plastic bag all the time until the party returned to the Central Police Station. There was a slight discrepancy between the recollections of witnesses as to who travelled with whom on the way back, but does not affect my conclusion.

Likewise I am satisfied that the items were locked in a cabinet in the Drugs Squad rooms at the Police Station except when they were taken out to be shown to each accused during their interviews, or taken to the Magistrates Court with the accused. On all occasions when they were taken out of the locked cabinet this was done by PC Tangulu in the presence of PC Kaho, who had the only key to the Drugs Office and the only key to the drugs cabinet, or by PC Kaho himself. Indeed he kept the keys on a ring worn around his neck like a necklace. In addition PC Kaho was the Investigating Officer for this case, and also the recording officer. I am completely satisfied that when the items were removed from the cabinet they were in the possession of one or other officer, or both of them, and of nobody else.

Ms Mangisi nevertheless attacked the police case in two other ways. She suggested that the absence of any seal placed on the items in the drugs cabinet meant that they could be tampered with and no-one would know. That is only a theoretical possibility in this case, but the evidence is that there was no other drug exhibit in the cabinet at the relevant time, and so long as the items remained in the cabinet and no-one else had access to the two keys (to the room and to the cabinet) then there is no reasonable possibility of their having been tampered with. A reasonable doubt is not the same thing as a remote doubt – the possibility of error must be a reasonable one and not a remote or theoretical one.

The other line of attack was the fact that there was no register for the removal of exhibits from the cabinet and their return to the cabinet. There was a register for the removal of exhibits from the Police Station, but it was not required to be filled in if the items remained at the Police Station. I accept that the police procedures, which otherwise seemed to me to be very thorough, could be further improved if the register was used in both ways and not just for external movements, and that is something the Crown may wish to consider for the future. But in this case where the evidence is so strong, the absence of such a register does not cause or contribute to a reasonable doubt about the security of the exhibits.

Nor do I accept that the fact that the analyst found in the samples not only Indian hemp leaves but also flowers and seeds, suggests that the items were different to the Indian hemp leaves referred to by other witnesses and in the charges laid against the accused by the police. The inference that I draw is that the flowers and seeds were not immediately obvious on a visual inspection, although the trained eye of the scientist saw them without a microscope. From my own view of the exhibit in Court I was not surprised that others did not refer to flowers and seeds. Further, I accept Mr Kefu's point that it was not put to the relevant police witnesses that there were in fact seeds and flowers (as well as leaves) in the plastic bags. Finally, I record for completeness that as possession of the leaves alone constituted an offence, it was not necessary to refer to the flowers or seeds in the charges or the indictment.

All elements of the charge against each accused have been proved beyond reasonable doubt and they are accordingly convicted of the charges before the Court.

Supreme Court of Tonga

Rex v Ta'ufo'ou [2004] TOSC 57; CR 005-006 2004 (10 August 2004)