Rex v Tu'itavake [2007] TOSC 40; CR 3-5 of 2007 (27 August 2007)

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

NO. CR.3-5 of 2007

REX

V

1. FILOKIVALU TU’ITAVAKE
2. SONATANE MAHE
3. TEVITA TAIALA
   

BEFORE THE HON. JUSTICE ANDREW

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

Dates of Hearing: 20, 21st August 2007.
Date of judgment: 27th August 2007.

JUDGMENT

The three accused are charged with possession of an illicit drug namely cannabis contrary to section 48 of the illicit drugs control act.

The particulars of these offences in relation to each accused are as follows:

FILOKIVALU TU'ITAVAKE:

"about the 28th of July 2006 you did knowingly without lawful excuse possess an illicit drug namely:

Plastic bag containing 0.34 g of cannabis plant.

One plastic bag containing 0.35 g of cannabis plant.

One post protector bag containing 0.06 g of cannabis plant.

One plastic bag containing 252 cannabis seeds."

SONATONE MAHE

"on about 28th of July 2006 you did knowingly and without lawful excuse possess an illicit drug namely three plastic bags containing 864 cannabis seeds."

TEVITA TAIALA

"on or about 28th of July 2006 you did knowingly without lawful excuse possess an illicit drug namely;

One post protector bag containing .06 g of cannabis plant.

One plastic bag containing 42 g of cannabis plant.

One plastic bag containing 0.34 g of cannabis plant."

The facts are not greatly in dispute. The police obtained a search warrant in relation to the searching of the land, dwelling house and vehicle in the allotment of Vaitulala and Launga Saafi at Kolomotu'a on the 28th of July 2006. The police attended the house at approximately 7 a.m. on that day and commenced to search. They were let into the house by the first accused who was said to be the occupier of the house. Inside the house the police located a proliferation of material which the police believed was cannabis. This included plant and seed material. Some was located inside the lounge room including plants and seeds, some in the bedroom occupied by the first accused, some in a packet outside the house and some in a vehicle outside which on the evidence clearly belonged to the accused Tevita Taiala. All three of the accused were at the house at this time.

The Crown have called scientific evidence from analyst Siutaka Siua, a senior pharmacist at the Ministry of health and an analyst. The defence submitted that a certificate from the analyst does not comply with section 36 of the act as it was not served upon them within 28 days of the hearing. Such a provision however is only relevant if the prosecution does not propose to call the analyst as a witness. He was called in these proceedings and his report is not exactly a scientific analyst certificate, but a report of the analyst's findings. The analyst's conclusion after examining leaves, seeds and puds is that the material examined were cannabis in origin. I am satisfied beyond reasonable doubt as to the expertise and qualification of Mr Siua: that he is an expert witness in this area and that the material he examined was in fact cannabis. He conducted a macroscopic, microscopic and chemical examination which was clearly professional and accurate. Each test on all the items was positive for cannabis. None of the accused ever disputed that the material at the house and in the car was cannabis.

The defence had submitted that the Crown have not proved beyond reasonable doubt that the material examined by the analyst was necessarily that taken from the house and that the real possibility that the material could have been tampered with, has not been excluded. That is, it is said, that there is a breach in the chain of continuity by which the drugs were retained by the police and their delivery to the analyst.

At the time of the search all of the material was recorded in an exhibit book by the exhibit officer, including the location where each was found. There is extensive evidence of how they were taken to the drug department and as to how they were securely retained and registered in an audit book. A total of 11 witnesses had given evidence as to that chain of events. Whilst there may be some discrepancy in the description of what was in each different bag I do not think that the chain of continuity has been broken nor that there is a reasonable doubt that the material was tampered with. That material was all photographed at the scene. That matches the material produced in evidence. The analyst has confirmed that that material is what he examined. I am satisfied beyond reasonable doubt that the material examined by the analyst is that which was located at the house and that all of that material is shown to be cannabis.

Accused SONATONE MAHE

This accused was charged with being found in possession of three plastic bags containing 864 cannabis seeds.

Whilst there is no onus upon him he has not given any evidence in the trial. In a record of interview conducted on the 30th of July 2007 which is unchallenged, he said that he had been in the living room of the house on that night. This is when the seeds were found. He was asked:

Question: "was anything found on your bed and blanket?

Answer: Yes a packet of marijuana seeds and money were found on our blanket.

Question: Did the police ask for the owner of the marijuana seeds found on your bed?

Answer: My marijuana seeds.

Question: Where did you get the marijuana seeds from?

Answer: We usually took the seeds from the marijuana brought by Tevita Taiala."

[I remind myself that this is not evidence against the co-accused Tevita Taiala].

The accused then further stated that he had obtained the seeds and that he had assisted in packing them for selling.

I am satisfied beyond reasonable doubt that he was in possession of the seeds which clearly were marijuana seeds, that is, they were cannabis.

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.
   

It is beyond reasonable doubt that the accused was in possession of cannabis and that he had knowledge that it was an illicit drug and that no lawful excuse for so being in possession has been shown.

Accordingly, the accused is found guilty of the offence of possession of an illicit drug and he is convicted of the charge.

TEVITA TAIALA

Again, there is no onus on the accused in this trial. He has not given any evidence.

He is charged with being in possession of four items, namely,

One post protector bag containing .06 g of cannabis plant.

One plastic bag containing 42 g of cannabis plant.

One plastic bag containing 0.34 g of cannabis plant.

One plastic bag containing 0.35 g of cannabis plant.
In a record of interview conducted on the 28th of July 2006, which is unchallenged, he was asked:

"Question: Why were you arrested by the police, did you commit an offence?

Answer: A plastic bag was found in my car, therefore, the plastic bag of cannabis is mine."

It is conceded that he was so found in possession of this bag and that it contained 42 g. I am satisfied that it was cannabis.

The elements of the offence as already stated 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 three elements of the offence in relation to the cannabis found in his car are established beyond reasonable doubt.

It is said that there is no evidence however that he was in possession of the other three items. Items three and four were two plastic bags located beside him in the living room of the house. In his record of interview he said that he knew that cannabis seeds, leaves and flowers had been found at the house. He admitted to selling marijuana and he admitted to being the owner of empty plastic bags and crushed cannabis found where he had been sleeping. He admitted to having been marketing marijuana for the past year and that he brought it from people who brought it in from Fiji.

All of that is strong circumstantial evidence, if not direct evidence and the clear inference I draw from it, is that he was in possession of these three remaining items with which he is charged.

I am satisfied beyond reasonable doubt that he was in physical custody and control of the four items that he is charged with for which there is no lawful excuse shown and that he had full knowledge that they were illicit drugs.

The accused is convicted as charged and I return a verdict of guilty.

FILOKIVALU TU'ITAVAKE

The accused is charged with possession of:

Plastic bag containing 0.34 g of cannabis plant stop.

One plastic bag containing 0.35 g of cannabis plant.

One post protector bag containing 0.06 g of cannabis plant.

One plastic bag containing 252 cannabis seeds.

The accused was said to have been asleep in a bedroom of the house when the police arrived. He was the occupier of the house. The first two items were found in the living room of the house beside two other persons item 3, the post protector bag was found in the bedroom which he occupied. The accused is reported to have said at the time that he found if when cleaning up and put it in the dirty clothes basket. I do note that there is evidence that he came and went from this house and that others occupied this bedroom from time to time. There were eight persons in the house when the police arrived. Item four was found in the backyard.

In a record of interview dated the 30th of July 2006 he said that he knew who was in the house at the time and that his house was available for them to sleep in. He said, they came and went when he was away and also stayed there when he was there.

He was asked:

"Question: Was there anything during the search by the police that you were dissatisfied with or upset about.

Answer: I was all right with it for I knew that marijuana would be found at the house to stop the youth for I am tired of telling them to stop bringing the marijuana to my house."

Later he was asked about the marijuana found in the living room and said, "it was found there as it belonged to those who slept in the living room." He said the same things about the seeds found in the living room.

He was asked about the cannabis found in his bedroom and he said, "that also belongs to the other guys that I was arrested with for I recall that the boys used to come to my room whenever I was away."

In relation to the seeds found outside the house he said, "that was where they smoked marijuana where you found the plastic bag, is that what you are referring to George? He said he had no knowledge of the marijuana found in Tevita's car.

He was then asked.

Question: So, who owns all the items found in your home?

Answer George, it all belongs to those guys for I am tired of telling them.

Later, he said that he was tired of telling the others to stop dealing marijuana but that they kept on doing it.

In a confessional statement, he said," it is true that I am involved for I knew they had done this in my house".

There is virtually no other evidence as to the accused's knowledge of the drugs and in relation to his possession of them.

This evidence raises issues of whether the accused was in possession of drugs. He admits to having knowledge that they were in his house but is he in possession when he says that they were not with him but were brought there by others after he had told them repeatedly not to do so?

The legal meaning of the word "possession" was set out by Ford J. [as he then was] in R V Motuliki [2002] TOSC 22 C.R.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 [paragraph 26.61]"

" a person is in possession of something when he has control over it; but he would not have possession unless he 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 accused is effectively saying that he knew of the presence of the drugs in the house but he did not have control over it. There is really no other evidence.

It has been said that possession is defined by modes or events in which it commences or ceases and by the legal incidents which attached to it: Warner v Metropolitan police commissioner [1968] 2 ALL ER 356, 392, cited in Motuliki's case[supra] and further in relation to possession that: "on such matters as these[ not exhaustively stated] the jury must make the decision on whether, in addition to physical control, he has or ought to have imputed to him at the intention to possess or knowledge that he does possess, what is in fact a prohibited substance."

In the circumstances here I am left in doubt as to whether the accused had sufficient control over the drugs, that is, where he had told others who clearly were in possession of the drugs, not to bring them to his house even though they persisted in doing so. In these circumstances, also, I cannot impute to him, beyond reasonable doubt that he had the intention to possess the drugs.

For these reasons, I am not satisfied beyond reasonable doubt that he was in possession of the drugs involved and accordingly I find the accused is not guilty and he is discharged.

NUKU'ALOFA: 24 August 2007

JUDGE