Rex v Pohahau [2005] TOSC 3; CR 072 2002 (31 January 2005)

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

NO CR 72/2002

BETWEEN:

REX
Prosecution

AND:

KUSITAFU POHAHAU
Respondent

BEFORE THE HON CHIEF JUSTICE WEBSTER

Heard at Nuku’alofa on 24, 25 & 26 January 2005.

Counsel: Crown: Mr Sisifa
Accused: Miss Mangisi

FULL WRITTEN REASONS FOR RESERVED DECISION
GIVEN ON 28 JANUARY 2005

In this case I reserved my decision at the end of the hearing and gave it in outline on 28 January.

The accused Kusitafu Pohahau pleaded not guilty to the charge on indictment of possession of Indian hemp, contrary to section 36(b) of the Drugs and Poisons Act (Cap 79), the details of the charge being:

Kusitafu Pohahau, on or about 10th May 2002, at Longateme, was found in possession of 6 plastic bags containing Indian hemp, and 21 aluminium foils containing Indian hemp.

Miss ‘Ana Vaka’uta was charged with the same offence, but was not present and could not be found by the Police on the first day of the trial, so after hearing Counsel I took the decision to proceed with the trial of Mr Pohahau alone and issued a warrant for the arrest of Miss Vaka’uta. Miss Vaka’uta then appeared at the Court at the end of the Crown case on 25 January. After again hearing Counsel and Miss Vaka’uta, I decided that I should complete the hearing of Mr Pohahau’s case; and that Miss Vaka’uta’s case would have to be heard subsequently by another Judge. Included among the factors influencing that decision were the age of the case and the probable length of time before a retrial of both accused together could be held.

The Crown led evidence from PC Kelepi Hala’ufia, Dr Viliami Pakalani, PC Salesi Napa’a, PC Toetu’u Kolopeaua, PC Solomone ‘Otuafi, PC Patelesio Tu’itavuki and PSgt Sauvuni Afei. The Crown also produced documentary and material exhibits.

The accused did not give evidence himself and led no witnesses.

Although the Crown witnesses were cross-examined about collateral aspects of their evidence, apart from the challenge to Dr Pakalani’s evidence, their evidence itself was not seriously challenged and I found them all credible and reliable witnesses.

There were many references in evidence to what was said by Miss Vaka'uta, who had been present when the Police search of the premises at Longoteme began, which I heard under reservation and ultimately discounted as being hearsay, so they formed no part of the evidence on which I have reached my decision in this trial. The same applies to evidence of what was said by Inspector Vaihu, who led the search team, but was not available as a witness at the date of the trial. However I was able to take into account the evidence of what these 2 people did.

The elements which the Crown has to prove under section 36(b) are that (1) the accused had the suspect substance in his possession; and (2) that the suspect substance was Indian hemp.

The word "possession" is not defined in the Drugs and Poisons Act, but its legal meaning 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 2003 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.

In closing submissions Miss Mangisi for the accused challenged that the evidence was insufficient to establish possession by the accused Mr Pohahau.

The evidence, which I accepted, was that when the Police arrived at the house of Paea Vaka'uta in Longoteme nobody was there, but Inspector Vaihu had gone off and found Miss Vaka'uta. After the search warrant had been read to her, as she did not have a key Inspector Vaihu had opened the mosquito netting and climbed through a window, then opened the door to let in Miss Vaka'uta and PC Hala'ufia, who was there to collect and record any items found in the search.

Inspector Vaihu proceeded with Miss Vaka'uta and PC Hala’ufia to a bedroom, where in a drawer containing clothing he found a plastic bag containing 6 smaller plastic bags containing a substance which PC Hala’ufia considered looked like marijuana [Indian hemp] and 20 wraps of aluminium foil, also containing a substance. That was duly collected and recorded by PC Hala’ufia. Inspector Vaihu then found on top of the drawer what was described as a small coin can containing coins and another wrap of aluminium foil, again containing a substance.

A further 6 empty plastic bags had been found on the floor beside the bed, also a plastic bag containing 15 empty plastic bags.

At that stage Inspector Vaihu had gone to Veitongo to collect the Police photographer and more officers to assist in the search, leaving PC Hala’ufia in charge.

While Inspector Vaihu was away the accused Mr Pohahau had come to the house. PC Hala’ufia's evidence, which was not challenged on this point and which I accepted, was that after Mr Pohahau had been searched and informed of the reason why the Police were in the premises, he had been very concerned and very worried, so that PC Hala’ufia had tried to cool him down and had called Miss Vaka'uta and PC Napa'a outside. Mr Pohahau had said that he was not satisfied with the Police entering his premises and what they were doing was illegal and unlawful.

Inspector Vaihu had then arrived back and Mr Pohahau had been taken in to the bedroom and shown what had been found in the drawer and in the coin box. Mr Pohahau had said that it was too late and the Inspector should stop being an actor; and he had started to turn around and walk out of the room, but the Inspector had stopped him from leaving the room while the search was conducted, but nothing else was found.

Then in another room a metal pipe used for smoking (with a small plate on top) had been discovered, but Mr Pohahau had said he did not know who owned it. The search had also been continued outside and another aluminium foil containing a substance believed to be marijuana had been found lying at the sidewalk outside the West side of the house, but Mr Pohahau said he had no knowledge about that. A further 16 empty pieces of aluminium foil together with 17 empty plastic bags had also been found outside beside the house in an open area on the South-east side, but on being questioned the accused Mr Pohahau had said he knew nothing about that.

Miss Mangisi submitted for the accused that it had not been proved to the required standard that he had been in possession of the material found, as she said that there had been no evidence given that he had been in actual occupation of the house at Longoteme, but that appeared to overlook the evidence of Mr Pohahau’s statement of dissatisfaction that the Police had entered his premises. She also submitted that there had been no evidence that Mr Pohahau had been in possession of a key to the house, which was correct, and no evidence that he was actually the occupier of the main occupier of the house. She further submitted that the location where the substances were found was unusual and those outside could have been accessed by anyone.

Although the witnesses were questioned in cross-examination about the search procedure, the search was not challenged in the submissions for the accused.

I found it established beyond reasonable doubt that the 6 plastic bags and the 21 aluminium foils (20 + 1 in the coin case) referred to in the charge were found in the bedroom of the house at Longoteme.

In relation to the main challenge by Miss Mangisi for the accused, as to whether it was established that those were 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 Longoteme - he came there while the search was going on, and his reaction to finding that the search was in progress was one of great upset and outrage, which was not the reaction of a casual visitor. Moreover, in evidence which was not challenged in cross-examination, he said to PC Hala’ufia that he was not satisfied with the Police entering his premises.

Secondly I found that there was such a proliferation of drugs (in 2 places in the bedroom and outside as well) and drug-related materials (the pipe and the empties) in and around the house 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 could have belonged to others unconnected with the house, but given its close proximity to the house and its similarity to what was found inside 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 Mr Pohahau and Miss Vaka’uta were in possession of the drugs, only with whether knowledge and thus possession could be imputed to Mr Pohahau. Again his connection with the suspect materials found was emphasised by the circumstances of his arrival at the house - his concern and upset and in particular his behaviour and strong reaction in the bedroom when asked to look at the suspect items, telling Inspector Vaihu not to be an actor, from which I inferred that that material was in his possession and they were his drugs. His behaviour on that occasion was in contrast to Miss Vaka’uta’s calm demeanour.

All that was strong circumstantial evidence and the clear inference I drew from it all was that Mr Pohahau had been in possession of the suspect items, so it was established beyond reasonable doubt that he had possession of them.

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

The analyst, Dr Viliami Pakalani, a Senior Medical Scientist with the Ministry of Health at the Vaiola Hospital Laboratory Services, who holds a Bachelor of Biomedical Science degree from the University of Tasmania and has over 30 years experience in the field, identified the material found in the 6 plastic bags (leaves) and in the aluminium foil wraps along with them (also leaves) by botanical examination (using a x 20 magnification objective microscope) as positive for Indian hemp. By a similar technique he identified the contents of the aluminium foil wrap in the coin box (15 seeds and leaves) as positive for Indian hemp; and also the contents of the aluminium foil wrap found outside the house (leaves) as positive for Indian hemp. The approximate weights of the leaves were 18.77 grams in all 6 plastic bags and 21.12 grams in all 20 aluminium foils with them. The weights of the leaves in the other exhibits were recorded by him as being insignificant. He conducted his botanical examination using an Indian hemp control which had been established in previous cases and compared the suspect leaves with that. He had also repeated his botanical examination, which he did as a double check for his own satisfaction; and he had concluded that the elements he had observed in the botanical examination had left no doubt that the suspect items were all Indian hemp. In cross-examination he explained that his botanical knowledge was sufficient to carry out the identification without a chemical analysis, although if the botanical examination had been doubtful he would have carried out a chemical analysis, which however was time-consuming and costly.

In relation to the identification of the substances found, Miss Mangisi submitted that the botanical examination was not reliable proof that the leaves were Indian hemp, but I was unable to accept that submission and found that Dr Pakalani’s analysis established beyond reasonable doubt that these substances were Indian hemp.

I therefore accepted that the necessary elements of the offence had been established beyond reasonable doubt and I find the accused guilty as charged and convict him of the count of possession of Indian hemp.

R M Webster
CHIEF JUSTICE

NUKU’ALOFA: 31 January 2005