Rex v Hapihau [2007] TOSC 23; CR 51, 52-2007 (8 October 2007)

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

NO. CR.51-2 of 2007

REX

-V-

1. VILIAMI HAPIHAU
2. ‘INOKE KOLOMALU
   

BEFORE THE HON. JUSTICE ANDREW

Counsel:
Ms. Mafi for the Crown and
Mr. Tu’utafaiva for both Accused.

Dates of Hearing: 18th September 2007.
Date of judgment: 8th October 2007.

SENTENCING

Both accused have pleaded not guilty to an offence of possession of an illicit drug contrary to S.4(a) of the Illicit Drugs Control Act.

In the case of ‘Inoke Kolomalu the particulars of the offence are that on or about 23rd December 2006 at Futu he did knowingly without any lawful justification posses .01 cigarette containing an illegal drug namely cannabis weighing approximately 0.39 grams and 01 pack containing an illegal drug namely cannabis weighing approximately 0.43 grams.

In the case of VILIAMI HAPIHAU the particulars of the offence are that on or about 23rd December 2006 at Futu he did knowingly without any lawful justification posses 01 cigarette’s containing an illegal drug namely cannabis weighing approximately 0.31 grams.

The Crown case was that on or about 23rd December 2006 the 1st accused was drinking with 2 others at Futu village at ‘EUA and the 2nd accused went to the house and they both came and stood outside the MAXI discoteque nearby when the 1st accused ‘Inoke Kolomalu gave the 2nd accused a cigarette with cannabis and a small packet of cannabis and he put them in his pants. The 1st accused, it is alleged, had another cigarette with him containing cannabis. The police arrived and detective Inspector Leone called out too police to search them. The items were located on the accused and they were taken to the Police Station where they were questioned. The items were given to the Inspector who took them to an analyst and they were confirmed as cannabis.

There has been no challenge to the fact that the items were cigarettes and did contain cannabis.

The accused made Records of Interview with the police and answers to the written statement of charges form and a so called confessional statement.

This evidence has been objected to as being obtained unfairly. The particulars of the objection are that:

1. Procedures were not followed in recording the interviews.
2. That everything that was recorded was not written down.
3. The accused were left a long time unnecessarily before being interviewed.
4. The accused were not properly fed when in custody and only fed when their families delivered food to them.
5. They were unable to go to the toilet when left in the cells.
6. Parts of the Record of Interview were not recorded.
   

The objections are based on S.22 of the Evidence Act.

The accused were arrested 2 days before Xmas at ‘Eua. They were in custody for 3 days. The fact is that there was no Magistrate in ‘Eua at this time, being Xmas and boats were not running to the mainland. Inspector Leone took them both to Tongatapu at the first available opportunity and he saw the Magistrate there who said to detain them and he would later give a decision on bail. They were taken back to ‘Eua and detained at the Police Station although not locked in the cells. I do not think that the conduct of the police can be criticized. It was simply the only practical solution to wait until transport was available to take them to a Magistrate as this was r over Xmas and nothing more could be done. The accused on the evidence before me were free to leave the Police Station and return home from time to time whilst they waited for the Magistrate’s decision. The evidence does not show that they were treated harshly, for example, they slept and ate with the police and watched videos together. I do not accept the evidence that they were treated harshly by being handcuffed too tightly. There does not seem to be any complaint about this. The fact is that on the accused’s own evidence they were co operating with the police and there was no reason for any harsh treatment. The accused were cautioned. They answered questions willingly and they were released on bail when the Magistrate made his decision to grant bail. The accused signed the Records of Interview and their written statements to the charges and confession statements confirm that they were in possession of cannabis.

I do not believe that any of this evidence was unfairly obtained. I cannot see that the accused were overborne or gave their statements otherwise than willingly. There is no evidence that the accused were told they would be released if they confessed. In his Record of Interview ‘Inoke Kolomalu said that Viliami gave him a cigarette and a packet to hold and he suspected it was marijuana "because we used to smoke it before." He said he put it on his trousers. He agreed it was found on him. In his statement to the charges he said it was true. In his confessional statement he confirmed all of these facts.

Viliami Hapihau in his Record of Interview confirmed that he gave ‘Inoke the cigarette and packet of marijuana. He said he did so as he felt too drunk to hold it at this time he also had a cigarette with marijuana and had had it for a few nights before. He said it had cost him $10.

In his statement he said it was true that he and ‘Inoke had the marijuana on them.

The police gave evidence that as they approached the accused they threw the cigarette to the ground from where they were recovered. I accept the evidence of the police that this is what happened. Clearly that was the action of someone trying to conceal something. The simple fact is that the material found on the accused was marijuana. The accused have admitted it and said they knew it was marijuana.

The elements of possession are:

1. Physical custody and the control of an illicit drug.
2. Without lawful excuse proof of which lies on the defendant.
3. Knowledge that it was an illicit drug.
   

All of three 3 elements have been established beyond reasonable doubt in relation to both accused.

Accordingly both accused are found guilty of the charge and are convicted.

NUKU'ALOFA: 8 October 2007.

JUDGE