Rex v Tau [2005] TOSC 42; CR 239-41.2005 (15 December 2005)

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

CR 239-41/2005

BETWEEN:

REX
Prosecution

AND:

LATU TAU
TILILA POUSINI
‘OFEINA SAVE
Accused

BEFORE THE HON MR JUSTICE FORD

Counsel: Ms Guttenbeil-Pole'o for the Crown and the three accused in person;

Dates of hearing: 14 and 15 December 2005
Date of judgment: 15 December 2005.

ORAL JUDGMENT

The three accused are each charged with one count of possession of an illicit drug contrary to section 4(a) of the Illicit Drugs Control Act 2003. The particulars in the indictment simply allege that on 8 March 2005 at Popua they knowingly without lawful excuse had in their possession cannabis leaves and seeds.

The Crown's case was that on 8 March 2005 the police, pursuant to a warrant, conducted a search of a traditional Tongan fale at Popua occupied by Nausaimone Kitekei'aho. They arrived at the property around midday. Inside the fale were Nausaimone and two of the accused, Latu Tau, a male, and Tilila Pousini, a female. The other accused, also a female, 'Ofeina Save, was outside the fale hanging out washing.

The court was not given the dimensions of the fale but helpful photographs were produced and it would appear to be approximately 12 feet wide and perhaps 15 feet in length. It has a door at the front and another opening along one of the walls which witnesses spoke about either as a door or a window. I will refer to it as a window. The outside walls of the fale are made of dried palm tree leaves. The court was told that inside the fale two bedrooms have been created with walls made of cardboard and cloth. The rest of the inside of the fale appears to be an open living area.

Two items of cannabis were found. In one of the bedrooms a police officer found, inside the pocket of a pair of men's blue short pants, a small piece of tinfoil and inside the foil was one cannabis seed. Then, in the living room, another officer found a folded up Port Royal tobacco pouch and inside the pouch were four cannabis seeds and another small rolled up foil containing a mixture of seeds and brownish cannabis leaves and flowers weighing approximately 0.3 g. The Port Royal pouch was located on a stem of one of the coconut leaves which made up the exterior wall of the fale. It was only about 8 inches away from the frame of the window I have already referred to.

Another item found on the floor of the fale was a crumpled empty "Kist" orange drink can. The can had a small air hole punctured on one side and one of the officers from the drug squad was able to identify it as a can used for inhaling cannabis. The officer explained how the can is held on its side, cannabis seed is placed inside the can and then the bottom side of the can is heated. The user inhales the cannabis aroma through the tab opening at the end of the can.

There was no challenge made to the identification of the suspected cannabis items. The Crown called evidence from the Senior Medical Laboratory Technician at Vaiola Hospital Laboratory Services. He explained the test procedures he carried out and confirmed that, upon examination, the substances all proved positive for cannabis. Reliable evidence was also called from the police officers who had been involved in safekeeping the exhibits.

The three accused were unrepresented by legal counsel but Mr Tau did cross-examine a number of the police witnesses. The thrust of his cross-examination was directed to obtaining confirmation from the officers that none of the three items in question, or any other suspected substance, had been found on any of the accused.

Each of the accused made an unsworn statement to the police denying any knowledge whatsoever of the cannabis found in the blue shorts and the Port Royal pouch. As was their right, they elected not to give or call evidence at the trial but they did reaffirm the accuracy of the statements they had made to the police. In short, their defence was that they had no knowledge whatsoever of the existence of the cannabis items in question.

Crown counsel accepted that she had the onus of proving beyond reasonable doubt all the elements of the offences. The elements involved in establishing a charge of possession were recently reviewed by Webster C. J. in R v Tongatu’a [2005] TOSC 30, 29 November 2005. The Chief Justice referred to the following text in Archbold 2005 at 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."

The Chief Justice referred to other authorities noting that direct proof of knowledge is not essential and that knowledge of the presence of the items in question may be inferred or imputed from the circumstances. The question to be answered in each case is 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.

There were no lay witnesses called by the Crown. Apart from the hospital Laboratory Technician, the prosecution's other seven witnesses were all police officers. In considering the factual scenario, therefore, it is necessary to refer to the unsworn statements made by each of the accused to the police.

It is clear from the evidence given in relation to the search warrants that the person the police were targeting on the day in question was Nausaimone. He had recently returned from Fiji. The court was told little about Nausaimone but he apparently has a wife and children in Fiji and, while in Tonga, he lives in a de facto relationship with the second accused, 27-year-old Tilila.

Nausaimone travelled to Fiji on 26 February 2005. Prior to that he and Tilila had been living in the Tongan fale at Popua. He returned to Tonga on Saturday 5 March 2005. Upon his return he took a taxi from the airport to Tilila's parents house in Haveluloto where Tilila was then living. He stayed there only a short time, however, on the Saturday before travelling on to the Tongan fale at Popua.

On the morning of Monday 7 March, Tilila visited Nausaimone at Popua and in the afternoon they travelled out to his parent's house at Houma where they both stayed the night. On the morning of Tuesday 8 March Nausaimone and Tilila returned from Houma. Tilila went directly to her parents' home at Haveluloto and Nausaimone carried on to Popua. Tilila told the police that later that morning she was waiting for a bus and the first accused, Latu Tau, came along, picked her up, and they travelled to Popua together.

Latu Tau is a married man. He said in his unsworn statement to the police that he was living at Kolonga at the time and he had travelled into town that day to hand in a visa application to visit New Zealand. He said that he also wanted to have a necklace made and that is why he wanted to see Nausaimone at Popua. He had known Nausaimone for some time and he was aware that he made and sold necklaces at the Talamahu market.

Continuing in his statement to the police, Latu said that he and Tilila arrived at Nausaimone's Tongan fale at Popua around midday and they were only there around two minutes when the police arrived to carry out their search. Two of the police officers had said that when they entered the fale to carry out the search, Latu was sitting on the floor close to the Port Royal packet which was found on the wall. In an unsworn submission Latu made to the court, he strongly denied that allegation. He said that he had been sitting just inside the door of the fale when the police arrived and he was the first to go outside. He said that he was outside the fale when the police read out the search warrant and he was not inside the fale when the police entered.

Although those statements were not presented as evidence on oath, I am inclined to accept them. I believe it would have been a natural reaction for Latu to have gone outside as soon as the police arrived to see what was going on. Moreover, I did not find the police evidence on this particular aspect of the case entirely convincing.

Like the other two accused, Latu denied any knowledge of the cannabis in the trouser pocket or the Port Royal tobacco pouch. Crown counsel submitted that knowledge of the presence of the cannabis could be inferred or implied from the circumstances of the case. Referring first to Latu, the prosecutor acknowledged that he was only a visitor to Nausaimone's fale but she stressed that the Port Royal tobacco pouch was "not hidden" and the Kist soft drink can was just lying on the living-room floor.

I accept that the Port Royal tobacco pouch was clearly visible but the small quantity of cannabis in the foil inside the pouch could not be seen unless someone unfolded the pouch and looked inside. I have no doubt, on the evidence, that the Port Royal tobacco pouch belonged to Nausaimone. The difficulty for the prosecution is that, although Nausaimone was apprehended with the others and taken to the police station, he apparently somehow absconded and is now believed to be living in Fiji.

Latu said in his statement to the police that he had only arrived at the property a short time before the police arrived. Tilila made a similar comment. Presumably that was a matter which the police could very easily have checked out as part of their investigation. They could for example, if it was available, have called evidence from neighbours or others to challenge the arrival time given by these two accused but no evidence of that nature was presented. There is no evidence before me, in other words, to rebut the statements made by Latu and Tilila that they had arrived at the property only a short time before the police.

I do not see the presence of the Kist soft drink can on the ground inside the fale as helping the prosecution case. Even accepting the evidence from the drug squad officer about the link between the can and the smoking of cannabis, the presence of the can does not, in my view, lead inextricably to the inference that the accused must have known that the cannabis seeds were inside the rolled up Port Royal tobacco pouch on the wall.

There was no evidence to suggest that anyone had been smoking cannabis in the fale when the police arrived. There were none of the usual tell-tale signs such as the presence of smoke or the distinctive cannabis aroma. There was no evidence that the Kist can was hot or warm from recent use.

The prosecutor emphasised that in relation to Tilila, she was Nausaimone's de facto partner and that she usually spent the night at the fale. While that is true, there is no evidence that she had spent the night at the fale since Nausaimone left for Fiji on the 26th of February and I cannot accept that the Port Royal pouch would have been sitting where it was since that date.

For these reasons, I do not consider that the charges against Latu and Tilila have been established beyond reasonable doubt.

With 'Ofeina the position is a little different. She lived in the fale at Popua with her husband, Takaunove Save, who is Nausaimone's half brother. As mentioned earlier, she was hanging out washing when the police arrived. Her husband was at work. Crown counsel submitted that as an illicit drug was found in her bedroom, her knowledge of its presence can properly be inferred. The drug, counsel is referring to in this regard, is the single cannabis seed found in one of the pockets of the pair of men's blue shorts.

'Ofeina's husband has been charged with possession of that seed and he has pleaded guilty. He is still to be sentenced. His explanation was that someone had given him the seed sometime earlier. Given her husband's admission and the lack of any other evidence on the subject, I am not prepared to infer that 'Ofeina would have necessarily known about the presence of the one seed in the pocket of the blue shorts.

In relation to the Port Royal tobacco pouch, the prosecutor sought to rely on certain answers 'Ofeina had given in her interview with the police. She was asked by the police about the marijuana leaves and seeds and she said that she knew nothing about them. She was then asked who they belonged to and she replied "Nausaimone". The accused was further asked:

"Q. 33. 'Ofeina, all these things that you've just said in question 32, one foil that had one marijuana leaf and four marijuana seeds, where was this put in?

A. Inside the Port pouch."

The problem with that question and answer is that no indication is given as to the timing of the accused's knowledge. If she knew before the police visit of the presence of the cannabis inside the tobacco pouch then it could properly be inferred that she had possession of the substance. What I suspect, however, is that the only reason she was able to give the answer she did was because, following the police search, she like everyone else involved would have been aware of the cannabis found inside the Port Royal tobacco pouch.

So although one cannot help but have suspicions about the involvement of all of the accused in the drug scene, suspicions alone can never form the basis for a successful prosecution. In relation to the specific charges faced by each accused, therefore, I have not been persuaded of their guilt beyond reasonable doubt and they are each accordingly acquitted.

NUKU'ALOFA: 15 DECEMBER 2005

JUDGE