Rex v Tongatu'a [2005] TOSC 27; CR 085 2004 (29 November 2005)

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

CASE NO: CR 85/04

REX

-v-

SIAKI TONGATU’A

HELD BEFORE HON CHIEF JUSTICE WEBSTER
sitting alone at Nuku’alofa on 13,14 & 21 October 2005

Counsel: Prosecution: Miss Guttenbeil
Defence: Mr Tu’utafaiva

RESERVED DECISION GIVEN ON 29 NOVEMBER 2005

Preliminary

The defendant Siaki Tongatu’a pleaded not guilty to 3 offences under section 4(a) of the Illicit Drugs Control Act 2003 of cultivating cannabis plants, and possession of cannabis plants and leaves.

Evidence and submissions

I heard evidence for the prosecution from Insp Kainga Hia; PC Ulaia Palu; PC Sione Tafea; WLCpl Polita Takau; Sgt Savuni Afei; PC Mou’ifo’ou Kaho; Mr Siale’uvea Finau, Analyst, Ministry of Health; and Chief Insp Viliami Lutua. The prosecution also produced a number of documentary and material exhibits. The defence led no evidence.

I accepted the witnesses for the prosecution as generally credible and reliable witnesses.

On completion of the evidence I heard submissions in support of their respective cases for the defence and prosecution. These are referred to in more detail below.

Indictment

The offences with which the defendant was charged were:

(Count 1)

Siaki Tongatu'a of Tu'atakilangi, on or about 12 February 2004 at Tu'atakilangi, you did knowingly without lawful excuse cultivate cannabis plants.

(Count 2)

Siaki Tongatu'a of Tu'atakilangi, on or about 12 February 2004 at Tu'atakilangi, you did knowingly without lawful excuse have in your possession cannabis plants.

(Count 3)

Siaki Tongatu'a of Tu'atakilangi, on or about 12 February 2004 at Tu'atakilangi, you did knowingly without lawful excuse have in your possession cannabis leaves.

At the close of the prosecution case Counsel for the prosecution, Miss Guttenbeil, sought an amendment of Count 2 to delete "plants" at the end and substitute "seeds". Counsel for the defence, Mr Tu’utafaiva, opposed that amendment on the ground that it would cause injustice to the defendant as, although there had been evidence about seeds, as they were not mentioned in the indictment he had not conducted his cross-examination to include them. I considered that for those reasons the amendment would have caused injustice and so I refused it.

Elements of the offences

The burden is on the prosecution in a criminal trial to prove beyond reasonable doubt every element of the offences alleged.

The elements of the offence of cultivation are:

1. Cultivation of an illicit drug;

2. Without lawful excuse, proof of which lies on the defendant;

3. Knowledge that it was an illicit drug.

Cultivation is defined in section 2 of the 2003 Act as:

““cultivate” includes harvesting and the separation of opium, coca leaves, cannabis and its extracts from the plants from which they are obtained;”

But an interpretation clause which extends the meaning of a word by the word “includes” does not take away its ordinary meaning. What is stated in relation to “cultivation” as to the meaning of the word including several other things simply enlarges the ordinary natural meaning, but does not replace it: Craies on Statute Law (7th Ed) p 214; Cross on Statutory Interpretation p 103-4; Robinson v Barton Eccles Local Board [1882] UKLawRpCh 211; (1883) 8 AC 798,801 (HL); Dilworth v Stamps Commissioner [1898] UKLawRpAC 56; [1899] AC 99,105-6 (HL); Carter v Bradbeer [1975] 3 All ER 158,164,168 (HL).

The ordinary and natural meaning of “cultivate” is to till or prepare for crops, to produce by tillage, or to devote attention to (Chambers); to farm, fertilise, harvest, plant, tend, till, work (Collins); to bestow labour and attention upon a plant so as to promote its growth (Oxford). In R v Kirkwood [1982] Qd R 158,159-61 (referred to in Words and Phrases Legally Defined) it was said:

“The offence is that of cultivating a plant, and while some means of cultivating a plant require a working of the soil, others do not, for example the application of liquid fertiliser. I do not understand why the application of water should not be regarded as cultivating the plant, in the sense of bestowing labour or attention upon it so as to promote its growth.”

The elements of the offence of possession are:

1. Physical custody and control of an illicit drug;

2. Without lawful excuse, proof of which lies on the defendant;

3. Knowledge that it was an illicit drug.

In relation to the issue of possession raised in the submissions for the defence, I considered the elements of possession, which is not defined in the 2003 Act, in some detail in R v Pohahau [2005] TOSC 3 (CR 72/02, 31.1.05) – albeit that was a case under the Drugs and Poisons Act.

The legal meaning of the word "possession" was set out by Ford J in R v Motuliki [2002] TOSC 22; CR 92/01 (24 May 2002) as:

“Archbold, 2001 edition, deals with the situation where drugs are found in premises occupied by or associated in some way with an accused. After referring to the authorities, the text states (para 26.61):

"A person is in possession of something when he has knowledge of its presence and some control over it; but he would not have possession unless he either knew, or the circumstances were such that he had the opportunity, whether he availed himself of it or not, to learn or to discover in a general way, what the items were."”

That reference still stands in Archbold 2005 at Para 26-61, and it is clear from the other cases referred to in Archbold that direct proof of knowledge is not essential and that it may be inferred or imputed from the circumstances. It has been said that possession ‘is defined by modes or events in which it commences or ceases, and by the legal incidents attached to it’: Lord Wilberforce in Warner v Metropolitan Police Commissioner [1968] 2 All ER 356,392 (HL). Explaining that further, Lord Wilberforce said (at 393):

“By [the modes or events] I mean relating them to typical situations, that [the jury] must consider the manner and circumstances in which the substance, or something which contains it, has been received, what knowledge or means of knowledge or guilty knowledge as to the presence of the substance, or as to the nature of what has been received, the accused had at the time of receipt or thereafter up to the moment when he is found with it, his legal relation to the substance or package (including his right of access to it). On such matters as these (not exhaustively stated) [the jury] must make the decision whether, in addition to physical control, he has, or ought to have imputed to him the intention to possess, or knowledge that he does possess, what is in fact a prohibited substance.”

That approach was upheld by Lord Scarman in R v Boyesen [1982] 2 All ER 161, 163 (HL).

In R v Lewis (1988) Cr App R 270 (CA) it was again held that the question to be answered was whether on the facts the accused was proved to have or ought to have imputed to him the intention to possess or the knowledge that he did possess what was in fact a prohibited substance. It was not necessary to be satisfied that the accused had actual knowledge that he had the drugs in question under his control before he could be convicted. In R v McNamara and McNamara [1998] Crim LR (CA) convictions of 2 parents for possession of drugs found in their house were upheld, although their 5 children of 17 or over lived or regularly stayed there.

Findings in fact

On the evidence before me, I was satisfied beyond reasonable doubt that on 12 February 2004, starting around 3.00 pm, a valid search was carried out by the Police at the house at Tu’atakilangi, Nuku'alofa where the defendant Siaki Tongatu’a was residing with his wife and 2 young children. Although the house belonged to the defendant's father-in-law, there was no evidence that he or the defendant's mother-in-law were residing in the house at the time. The defendant signed both the Search Warrant [Exhibit A] and the subsequent Search List [Exhibit B] of items found.

While the search was being done inside the defendant’s residence his wife arrived.

I accepted the evidence of Chief Insp Lutua, who led the search team, that while he was waiting inside the premises he called out at the front door and when nobody answered he went round the house and saw the defendant running from the house across to the neighbouring property, where there was no house. Chief Insp Lutua followed the defendant, who came round the back of the house to the outside kitchen where there was an umu already opened. The defendant told Chief Insp Lutua that he had been running because some boys were teasing him when he was getting the umu out, but Chief Insp Lutua did not see any boys, as there were only the defendant and his son of 2-3 years old. Parts of that evidence were confirmed by other witnesses (PC Palu & WLCpl Takau) and I shall return to the significance of it later.

I accepted the evidence that the following items were found during the search:

Exhibit 1

1 empty small plastic bag, found upstairs by PC Palu;

Exhibit 2

6 empty small plastic bags, found in a bedroom downstairs (used by the defendant and his wife) by PC Palu;

Exhibit 3

98 empty small plastic bags, found on top of drawers in the bedroom downstairs by PC Palu;

Exhibit 4

A flattened empty can of orange drink with a hole in it & a pipe (known as a bongo and used for smoking cannabis), found under the bed in the bedroom downstairs by PC Palu;

Exhibit 5

Unconnected with the alleged offences and not produced in Court;

Exhibit 6

6 empty plastic bags, found on the verandah inside a kava bowl [Exhibit 6B] on a table by PC Palu;

Exhibit 6A

11 plastic bags (containing cannabis leaves), found on the verandah in the kava bowl by PC Palu (recorded in the Exhibit Register as Exhibit 6.10);

Exhibit 6B

The kava bowl, found on a table on the verandah by PC Palu;

Exhibit 7

A plastic soy sauce bottle with a hole in it (also known as a bongo and used for smoking cannabis), found on the verandah on a table in the kava bowl by PC Palu;

Exhibit 8

22 empty small plastic bags with 1 plastic bag containing 12 seeds, found on the verandah in a drawer by Chief Insp Lutua. I accepted the evidence from Chief Insp Lutua and the analyst’s report that there were 12 seeds, which had been counted; and I found that the discrepancy of recording 11 seeds on the Search List was a clerical error by WLCpl Takau;

Exhibit 9

A bucket with 2 cannabis plants around 0.55 metres (or 2 feet) in size still growing inside, found in the middle of a pele plantation beside the outside kitchen by PC Tafea. These were noted in the analyst’s report as being 45 and 47 cm in size, but the difference was not significant given the period of time between the search and the analysis;

Exhibit 10

A cannabis plant stump, noted by Sgt Afei as being still green and having obviously just been cut, and the roots, found in the middle of the pele plantation by PC Tafea. The analyst’s report noted that as being 41 cm in size;

Exhibit 10D

A branch/bunch of marijuana (cannabis), recorded in the Exhibit Register as “1 plant already broken and 1 top part of Ex 10”, found beside the bushes near the fence at the back of the property by PC Tafea. I accepted WLCpl Takau’s explanation that these were the smaller branches from Exhibit 10 which had been broken off and had been collected;

Exhibit 10E

Cannabis leaves (Bag 10(c)), broken off from the branch and also found beside the fence by PC Tafea, collected up by WLCpl Takau & other PCs and handed over together to Sgt Afei, who put them in a plastic bag and labelled it 10(c) (but not taken for analysis);

Exhibit 11

A silver bowl (described as silver but more probably aluminium, as described by the analyst Mr Finau) containing dried cannabis leaves, found on the louvres of the outside kitchen by Chief Insp Lutua.

All these items were labelled and placed in plastic bags by WLCpl Takau and recorded by her on the Search List [Exhibit B], which was signed by the defendant after it had been read back to him. When the search was completed around 5.00 pm all the exhibits were taken to the Magistrate and then back to the Drugs Team office WLCpl Takau was using at the Central Police Station, which she shared with 1 other female Police officer, Insp Kava, who was also in the Drugs Team and whom she trusted. I accepted WLCpl Takau’s evidence that the exhibits were kept in that room and nobody could touch them except her. WLCpl Takau then handed over the exhibits to the Exhibit Keeper, Sgt Afei, in the muster room next to the Exhibit Room around 11.00 pm that same evening.

When Sgt Afei received the exhibits he recorded them in the Exhibit Register [Exhibit C] as WLCpl Takau read them out to him and he looked at the exhibits and wrote his entry in the Register accordingly. The exhibits were then placed them in a locked secure room at the Central Police Station used for keeping exhibits for marijuana, the key for which is held by Sgt Afei, so that only he has access to it. The exhibits for this case remained there in Sgt Afei’s custody until this trial, apart from being taken out for the analyst Mr Finau to take samples on 10 March 2004 and for the Preliminary Inquiry in the Magistrates’ Court on 15 April 2004.

In evidence both WLCpl Takau and Sgt Afei fairly admitted making minor errors in their recording and I accepted that these were clerical errors and did not indicate that the exhibits themselves had been interfered with.

The exhibits which the analyst Mr Finau received from PC Kaho on 10 March were what he described as Exhibit 6.1 and Exhibits 8, 9, 10, 10D and 11. Mr Finau’s Report dated 18 March 2004 [Exhibit H] described that he carried out his analysis by physical examinations, both macroscopic and microscopic (botanical examinations), and presumptive examinations by the Duquenois Test (RDT), and that all tests for samples from all those exhibits were positive for cannabis.

Submissions

The closing submissions of Counsel for the defence, Mr Tu’utafaiva, were that, in relation to all 3 Counts, the plants and leaves allegedly taken from the defendant's home were not proved beyond reasonable doubt to be the actual unaltered plants and leaves taken from his home and subsequently analysed by Mr Finau. In support of this submission Mr Tu’utafaiva referred to R v Pohahau [2004] TOSC 3 (CR 20/02, 30.1.04) (another case against the same accused), in which the same 2 Counsel appeared, where Chief Justice Ward said:

“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.”

Mr Tu’utafaiva referred to the former Chief Justice's recommendation as to Police procedures, given in that case on 30 January 2004, which was closely followed by the search warrant in this case on 12 February 2004. He submitted that the chain of evidence had to be strictly proved by the prosecution, but in this case there was ample evidence that the exhibits had been tampered with before they arrived for analysis.

He said that firstly there was the evidence of WLCpl Takau that she shared an office with Insp Kava and in cross-examination she stated that she put the exhibits in there and trusted Insp Kava would not do anything about them. He said that it may be very well to trust a working partner or superior officer, but it was something else to see that the exhibits were kept secure and not tampered with.

Secondly, the plastic bags in which the exhibits were kept were the same ones as described by Chief Justice Ward in Pohahau, which could be closed and opened without the knowledge of the party keeping them.

Thirdly, the search list referred to Exhibit 6A, but in the report by the analyst the reference is to Exhibit 6.1 and no evidence had been given as to whether 6.1 was the same as 6A. Exhibit 6.1 was described by the analyst as "brownish-green leaves, flower", but Exhibit 6A referred only to cannabis leaves.

Fourthly, Exhibit 8 refers to 11 seeds but the analyst refers to 12 seeds. Chief Insp Lutua said that WLCpl Takau and Hausia had counted them and there was evidence about 12 seeds, but no evidence had been given to clarify that difference.

Fifthly, Exhibit 10 refers to a stump with roots but in the second page of the analyst’s report he refers to a stem with a branch with leaves. Mr Tu’utafaiva said that he cross-examined Sgt Afei about whether he had noted that in doing the register as a stem with branch and leaves and he said yes he did so. There had been no evidence given in Court to explain why the exhibit given as a stump turned up later as a stem with a branch with leaves when given to the analyst.

Sixthly, Exhibit 10B is described as leaves found scattered around, but there is no reference at all to Exhibit 10B in the analyst's report.

Seventh, Exhibit 10C was 2 plastic bags, one with no label and the other with part of label inside. Both Sgt Afei and WLCpl Takau said they were not able to explain how part of the label came to be inside that exhibit; and it could be asked how the plastic bag with no label came to be in that group of exhibits.

Eighth, Exhibit 9 was 2 plants in the bucket and there had been evidence that the 2 plants had been growing inside the bucket but had died. However 1 plant appeared to be placed between the soil and the wall of the bucket. Mr Tu’utafaiva said he was not aware of any evidence by the prosecution to explain that.

Mr Tu’utafaiva submitted that that was all evidence that the exhibits in Court were materially different from those collected at the search.

Then in relation to Count 1, Mr Tu’utafaiva’s submission was based on the definition of "cultivate" as an inclusive definition including harvesting and separation of opium, coca leaves, cannabis and its extracts from the plants from which they are obtained. He said he was waiting to hear from the prosecution how many plants were being referred to, but he presumed it referred to the 2 in the bucket placed under the pele plantation. He said there was no direct evidence that the defendant knew about the bucket with the 2 plants in the pele plantation and there was only circumstantial evidence that he was the occupier of the room with his wife in his parents-in-law’s house. As far as the definition of cultivate was concerned, it had not been proved that the defendant was separating cannabis and its extracts from the plant from which they are obtained, but he suspected that the prosecution would submit that “cultivate” includes planting and looking after plants, in which case he said he would submit that there was no evidence to prove that aspect of the case beyond reasonable doubt.

In relation to Counts 2 and 3, Mr Tu’utafaiva submitted that there was no direct evidence and the evidence was only circumstantial that the defendant was only 1 of the occupiers at the relevant time, which was not sufficient to prove possession beyond reasonable doubt.

In response, Ms Guttenbeil, Counsel for the prosecution submitted that the case of Pohahau was materially different as in that case the officer who collected the exhibits took them from the accused and kept them in a cabinet in the Drugs Office at the Central Police Station and there was evidence that other Police officers had access to that cabinet. There had been a strong indication of the likelihood of other officers putting material from other cases in the same cabinet and evidence of tampering with the exhibits in that case. In this case there was some similarity as WLCpl Takau put the exhibits in the office used by herself and another female Police officer in the Drugs Branch: but she said that only she and Insp Kava had access to that room and the exhibits were put on a desk and she locked her office.

With reference to Exhibit 9, the bucket with 2 cannabis plants, when it was brought to Court both plants were dead but 1 of the plants was right in the middle. Sgt Afei had explained that due to the exhibits being moved around that might have caused the uprooting of the other plant and it being placed between the soil and the bucket rather than in the middle. PC Tafea and WLCpl Takau also identified the bucket as being the bucket containing 2 cannabis plants at the home occupied by the defendant.

With reference to Exhibit 10C, the 2 plastic bags, one with no label and another containing part of a label, WLCpl Takau had been asked to explain that and said that when she handed it over to Sgt Afei the label had not been damaged. In evidence she had taken the label out and the word mapakipaki (meaning broken-off leaves) still appeared on the label although it was partially damaged. She had said that that was one of the words she had written describing the exhibits labelled as 10A in the search list. When she was asked about the plastic bag with no label but 10C written on the outside, she indicated that those leaves should be together with the leaves labelled 10A on the search list.

With reference to Exhibits 6A, 8 and 10, all had been identified by Police officers in Court, in particular WLCpl Takau, as exhibits that came from the home of the defendant.

Miss Guttenbeil accepted that there were discrepancies in the descriptions in the Search List and labels, which WLCpl Takau accepted it had been mistakes in compilation of the Search List, especially Exhibits 10A and 10B, which would explain the discrepancies between the descriptions on the Search List and the labels.

Returning to the Pohahau case, in that case it was clear that the nature of the substance seized had differed materially from the substance examined by the analyst, and Chief Justice Ward referred to a material or substantial difference, but that was not the position in the present case, where it was a case of a discrepancy in the description or labelling by WLCpl Takau.

In relation to the issue of cultivation, Miss Guttenbeil submitted that harvesting alone would suffice as cultivation and there was no need also to prove separation. In relation to the submission that there was no direct evidence to prove that the defendant was the person who cultivated the cannabis or had its physical custody and control and knowledge of it, there was strong circumstantial evidence that the requisite element of knowledge was present as the cannabis plants were found inside the pele plantation. She submitted that the evidence showed that the defendant with his wife and 2 children were the sole occupants of the property and there was no evidence of any frequent visitors to it or houses in close proximity. The evidence therefore pointed directly to the defendant as occupier and controller of the property.

With reference to the mental element, Miss Guttenbeil submitted that there was evidence that the defendant appeared to have run to the back of the property, behind the house, which implied an element of guilt. Also the fact that the plants were found to have been uprooted from different areas implied that the defendant must have known that they were cannabis and was trying to get rid of them. PC Tafea had said in evidence that the pele plantation was about 5 m behind the dwellinghouse in close proximity to the house where the defendant lived, which implied that the defendant must have known about the presence of these plants. There was also evidence from PC Tafea that the bucket had been around the middle of the pele plantation, which implied that it was being hidden and from that it was possible to imply that the party who had hidden it must have known that those plants were cannabis.

With reference to Counts 2 and 3 relating to possession, the evidence already referred to about cultivation also related to those Counts.

With reference to Count 3, the various cannabis leaves had been found at the property occupied by the defendant, ie the leaves inside the house in small plastic bags and the leaves in the silver bowl located on the window of the kitchen. There had also been the cannabis leaves found scattered round outside; and it had to be emphasised that the only occupiers were the defendant and his wife and 2 young children and there was no likelihood that those leaves belonged to anyone else but the defendant.

Grounds of decision

Exhibits generally

In relation to the principal submission for the defence – that in relation to all 3 counts the plants and leaves exhibited and analysed were not proved beyond reasonable doubt to be the plants taken from the defendant’s house – I agree with what was said by Chief Justice Ward in the case of Pohahau (2004) about the strict standard of proof necessary to establish the chain of evidence beyond reasonable doubt. As he said, the Court can only convict the defendant if it is satisfied that the evidence presented to it proves beyond reasonable doubt that the material in the possession of the defendant was cannabis; and the proof that it is cannabis depends on the analyst, so the Court must be satisfied that there is no real doubt that the substances he identified as cannabis are the actual, unaltered material taken from the possession of the defendant.

But in the Pohahau (2004) case the evidence of the place where the material was kept was inconsistent with the evidence of other Police officers and it was found that the nature of the packaging of the exhibits meant that any unauthorised interference could occur without leaving any visible change to the packaging; also there had been a strong indication of the likelihood of other Police officers putting material from other cases in the same cabinet and evidence of tampering with the exhibits. As was found in that case, neither of those aspects would in themselves necessarily have been fatal to the prosecution case without some evidence that there had in fact been interference, which was found to have taken place in that case and the substance found in the case of one exhibit had been materially different from that delivered to the analyst.

However in the present case, while there were some discrepancies in the labelling and description of the exhibits, as highlighted in the submissions for the defence, there was no evidence at all that the exhibits had in fact been interfered with. In particular, in relation to the exhibits being left in the office which WLCpl Takau shared with Insp Kava, it was relevant that that was only for a comparatively short space of time from after 5.00 pm to around 11.00 pm the same evening, so that the opportunity for interference was limited.

In this case I found that some of these discrepancies were due to the exhibits having been gathered in February 2004, and now 20 months later in October 2005 the plants and roots that were green and growing when they were collected have become brown and brittle and shrivelled. While the prosecution and those responsible for investigating crimes have a responsibility to preserve evidence (R v Lushington ex p Otto [1893] UKLawRpKQB 179; [1894] 1 QB 420,423), it is clear that in this case they could not prevent the changes of nature with the passage of time and that it was inevitable that those exhibits would alter in that way. Indeed if the Police had attempted to keep the exhibits alive by watering them, they could have been accused both of altering them and of cultivating cannabis. It is not always possible to preserve evidence, but under the best evidence rule, where exhibits have been lost or destroyed it is customary for the prosecution to rely on secondary evidence, although the court must carefully assess the weight and reliability of that evidence: (R v Uxbridge Justices ex p Sofaer (1987) 85 Cr App R 367; Taylor v Chief Constable of Cheshire [1987] 1 All ER 225 (DC)). Applying that rule in this case, the Court can accept the exhibits as altered by the passage of time as the best evidence available; and, taking into account the changes over time, I accept them as reliable evidence.

In relation to discrepancies between the time of the search and the time of the analysis around 4 weeks later, it is relevant that there was only this comparatively short period of time until analysis, and the evidence of the Police officers and the analyst related to the state of the exhibits before any significant alteration had taken place.

With reference to the points raised by Mr Tu’utafaiva about individual exhibits, the 11 plastic bags containing cannabis leaves which were recorded in the Search List as 6A were recorded that same day in the Exhibit Register as 6.1 when they were transferred to the Exhibit Keeper Sgt Afei. The reference number given to them was clearly just a label and there was no evidence to suggest that the bags had been interfered with. I do not consider that the fact that the analyst recorded the presence of a flower on closer examination itself implies that there was interference: the search team and Exhibit Keeper only had to make records on the spot to identify the exhibits, their job was not to examine them minutely – that was the task of the analyst, and on doing so he obviously saw and recorded a flower.

In relation to Exhibit 8, I accept that there was a discrepancy in the number of seeds which remained unclarified but I did not consider that significant, nor amounting to evidence of interference. I accepted the evidence from Chief Insp Lutua and the analyst’s report that there were 12 seeds, which had been counted, and that the discrepancy of recording 11 seeds on the Search List was a clerical error by WLCpl Lutua, due to their small size. Although the seeds were analysed, as indicated earlier they were not ultimately part of the indictment.

In relation to the cannabis plants in the bucket [Exhibit 9], I noted that Sgt Afei recorded in the Exhibit Register that the 2 plants were both still growing and were 0.55 metres in size. That tallies broadly with the evidence in the analyst’s Report that they were 45 and 47 cm high. I accepted Sgt Afei’s evidence that with the exhibits being moved around 1 of the plants had become loose (in the dried out soil). That Exhibit had already been identified by PC Tafea and WLCpl Takau and I had no reasonable doubt that in all the circumstances what was in Court was the article seized in the search.

In relation to Exhibit 10, the Search List actually refers to “1 trunk marijuana, cannabis stem and root”, while the Exhibit Register refers to “1 stem marijuana obvious it has just been cut, still green as well as roots” and significantly records as Exhibit 10(D) “1 plant already broken and 1 top part of EX 10”. The analyst’s report refers to Exhibit 10 as “a stem with a branch with leaves” and to Exhibit 10D as “long branches with brownish-green leaves”. I thus consider that the reference to the cannabis stem is the same throughout and the small discrepancy in description adds credibility to the genuineness of the evidence of the various records, rather than having all identical entries written out automatically. The discrepancy in colour of the leaves is explained because the analyst received the material and did the analysis of the cut off plants some weeks after the search.

Exhibit 10E in Court (Exhibit 10A in the Search List and Exhibit 10C (Bag 10(c)) in the Exhibit Register) were not analysed and so again are not strictly relevant to the question of interference, even as circumstantial evidence. But I accepted the evidence that the leaves had been broken off from the branch and also found beside the fence by PC Tafea, collected up by WLCpl Takau and other Police officers, and handed over together to Sgt Afei, who put them in a plastic bag and labelled it 10(c), but they were not taken for analysis. These were satisfactory explanations given by WLCpl Takau and Sgt Afei.

In a search like this where there was a large quantity of drugs and drug-related material found, it is almost inevitable that there will be some loose ends, but I did not consider that that detracted from the evidential value of the exhibits for which I found that there was no valid challenge. In particular, in contrast to the case of Pohahau (2004), in this case (apart from the flower in Exhibit 6A) there was no suggestion or evidence that the nature of the substance seized differed materially from the substance examined by the analyst.

In this case I considered that some of the discrepancies in the labelling and recording of the exhibits were due to the sheer volume of cannabis and cannabis–related material found at the home of the defendant, which ultimately must count against the defendant rather than in his favour.

On all the evidence I was thus satisfied beyond reasonable doubt that the exhibits in Court were substantially the same as those collected from the defendant’s house at the search, although some had altered due to the passage of time; and that Exhibits 6A, 9, 10, 10D & 11 were cannabis, an illicit drug. With reference to the previous paragraph, even if a doubt existed in relation to 1 or 2 of the exhibits (which I did not find), the other exhibits were ample to make a finding of guilt on each of the 3 counts.

The suggestion made by Chief Justice Ward that the exhibits should be placed in bags with a form of the seal which would have to be broken by any person trying to interfere with them is a good one, but the search in this case took place less than the 2 weeks after the decision was delivered in the Pohahau (2004) case, so it was rather soon for the details of that decision to have filtered down to the Police, let alone be put into action. But it is a good suggestion and I very much hope that by this time the Police have taken steps to implement it. However in the present case there was no evidence from which I was prepared to infer that the exhibits had actually been interfered with or handled by persons other than WLCpl Takau, the Exhibit Keeper Sgt Afei, PC Kaho who signed the Drug Release Form [Exhibit G] and the analyst Mr Finau.

I also have to note that there was at least one exhibit, Exhibit 11, being the silver bowl containing cannabis leaves which were analysed positively as being cannabis, to the labelling and description of which Mr Tu’utafaiva did not take any objection, even although the bowl was described in the analyst's report as an aluminium bowl, which seemed more likely as it was found in the outside kitchen.

I must finish this aspect of the case by stressing that the bottom line, as it were, is that the prosecution case has to be established beyond reasonable doubt, ie if there is more than a remote possibility of the innocence of the defendant, then he should be found not guilty: (Miller v Minister of Pensions [1947] 2 All ER 372 (KBD, Denning J)). But in this case I did not consider that there was more than a remote possibility that the defendant was innocent in relation to the chain of evidence established by the exhibits.

Cultivation

In this case I found that there were clear inferences to be drawn from the whole evidence that the defendant was cultivating the cannabis plants found hidden in the middle of the pele plantation within the boundaries of the property where he was living, or recently cut off or broken off from there (Exhibits 9, 10 and 10D) in the sense that the clear inferences were that he was farming or tending them and bestowing labour and attention on them so as to promote their growth.

The clear inferences from what happened when the Police arrived were that the defendant was the person with responsibility for the cannabis plants and that when he realised that the Police were there he made a desperate attempt to destroy at least one of the cannabis plants by taking off its growing leaves and throwing them over the fence at the back of the property. The clear inference was that it was the defendant who was the person paying attention to and cultivating the cannabis plants, especially as there was no suggestion in evidence that the other occupants of the property, his wife and 2 young children, were doing so.

In addition, although this was not an essential part of my decision, there was an inference from the bowl found in the kitchen and the bags with cannabis leaves that the defendant was also harvesting cannabis and in some way separating cannabis from the cannabis plants from which it is obtained. The circumstantial evidence of the numerous small plastic bags of a type used to hold small quantities of cannabis for supplying it was further evidence from which it was possible to infer, and I did so infer, that the defendant was handling quantities of cannabis, which supported the other evidence that it was the defendant who was cultivating the cannabis plants.

I therefore found it established beyond reasonable doubt that the defendant was cultivating those cannabis plants, which I inferred that he knew were illicit drugs. As the defendant neither gave nor lead evidence, he did not establish that he had any lawful excuse for doing so. I therefore found him guilty of Count 1.

Possession

In relation to whether it was established that the cannabis found was in the possession of the accused, I found firstly that it was proved beyond reasonable doubt that the accused was an occupier of the house at Tu’atakilangi – he was living there, he was there when the Police arrived and, as has already been mentioned his reaction carried considerable inferences that he knew about the cannabis, and it was a reaction indicating guilt rather than the reaction of a casual visitor.

Secondly, as I have already mentioned, I found that there was so much cannabis and cannabis-related materials (the bongos, pipe and plastic bags) in and around the house (including the bedroom used by the defendant and his wife) and outside as well that there was an overwhelming inference that as occupier he must have known of them. In theory it was certainly possible that the material found outside the house and in the pele plantation could have belonged to others unconnected with the house, but given its close proximity to the house that did not seem to me at all probable or to raise any reasonable doubt about it.

Thirdly, in this trial I am not concerned with whether both the defendant and his wife were cultivating and in possession of the cannabis, only with whether knowledge and thus possession could be imputed to the defendant. Again his connection with the suspect materials which were found was emphasised by the circumstances of the arrival of the Police at the house and the inference from his reaction that he was trying to dispose of at least one cannabis plant.

All that was strong circumstantial evidence and the clear inference I drew from it all was that it was established beyond reasonable doubt that the defendant had been in possession of the cannabis plants Exhibits 9, 10 & 10D and the cannabis leaves Exhibits 6A & 11, all of which I inferred that he knew were illicit drugs. As the defendant neither gave nor lead evidence, he did not establish that he had any lawful excuse for doing so. I therefore found him guilty of Counts 2 & 3.

Conclusion

As in any criminal case there is no obligation on an accused person to give or call evidence. The onus remains on the prosecution throughout the trial to prove every element of the offence beyond reasonable doubt and that onus does not shift. But because the defendant has not given evidence, that does nothing to rebut, contradict or explain the evidence for the prosecution.

I therefore accepted that the necessary elements of all 3 counts had been established beyond reasonable doubt and I find the defendant guilty as charged and convict him of the counts of cultivation of illicit drugs and possession of illicit drugs.

R M Webster
Chief Justice

29 November 2005