Rex v Vete [2007] TOSC 48; CR 239-240 of 2004 (10 February 2007)

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

NO. CR 239-40 of 2004

REX

V

SEMI VETE & ANOR

BEFORE THE HON. JUDGE LAURENSON

Counsel: Mr. Kefu for the Crown, Mr. Tupou for Vete, Mr. Tu'utafaiva for 'Amanoni

Dated: 10 February 2007.

ORAL DECISION IN CHAMBERS

This is a decision arising from an application by the Crown in Chambers, seeking leave to have a further analysis done in respect of the exhibits in this case which are alleged to be prohibited drugs. The accused are charged with importing and conspiring to import significant quantities of indian hemp some four years ago. A trial started on 1st of February 2006 and was aborted on the 24th or 25th February 2006 for reasons of which I am not aware.

The trial is now been set down before me starting on 5 March 2007.

At a Pre-trial conference in 2 February 2007 the Crown indicated it sought leave to have a different Analyst carry out the analysis of the material alleged to be the prohibited drug hemp. The reason for this being that the an Analyst who had carried out the first analysis is now studying for a Doctorate in New Zealand and was unwilling to continue his involvement in the trial.

Mr Tupou objected on the Crown that it was unfair that the Crown should have opportunity to boost its case on re-trial, and further that the defence sought to cross examine the Analyst in relation to his evidence on the first trial.

Mr Tu'utafaiva raised no objection to the Crown application.

I requested Mr Kefu in the Crown to make further inquiries regarding the availability of the first Analyst and also to make inquiries as to precisely what the Crown proposed if the first Analyst is still not prepared to attend.

The matter was adjourned to further a directions conference on 9 February 2007. I considered the matter in the meantime and concluded that if the first Analyst was not available there is no good reason why the Crown should not be permitted to obtain a further analysis from a different Analyst.

On 9 February 2007 Mr Kefu advised

(a) first Analyst was not prepared to attend because of his study commitments
(b) the other Analyst available in the Kingdom of Tonga had declined to be involved because he was related to one of the accused.
(c) There are no reciprocal arrangements between the Kingdom of Tonga and New Zealand which enable me to enforce the attendance of the first Analyst.
(d) Crown has therefore made tentative arrangements with the Australian Authorities familiar with drugs analysing to conduct the analysis.
(e) Nothing was to be done until the Court determined whether the new Analyst should be appointed

Mr Tupou maintained his objection based on:

(a) The Court should enforce attendance of the first Analyst invoking, of necessary, its inherent jurisdiction. I pointed out the obvious answer namely that any inherent jurisdiction which this Court has, certainly does not extend to making an orders for the attendance of witnesses residence in another jurisdiction in respect of which there is no appropriate accord in existence.
(b) It was unfair that the defence should be deprived of to the right to cross examination on evidence relating to the analysis at the first trial particularly because, as he said, there were difficulties in that evidence in relation to Analyst's view. I informed Mr Tupou that this argument has no foundation if another Analyst gave evidence of an entirely new analysis. What has happened previously in relation to the first analysis was irrelevant. At trial the evidence of the second Analyst would stand or fall on the basis of the entirely new evidence which would be quite independent of the first analysis.
(c) It was inappropriate because there was no authority to allow material exhibits to be send to another country for expert analysis. I disagreed pointing out that in New Zealand there were precedents for this and I noted in particular R-v-Barlow where it was my understanding that work was carried out in the United States. I therefore indicated that I intend to make an order allowing the Crown to obtained a further analysis. This would be subject to the result being obtained promptly so that Mr Tupou could be made aware of them so that he could arrange for these to be considered by a defence Analyst. I also indicated that the Crown should call the Analyst near the end of the Crown case to provide further time for this purpose.

At this point stage has been reached where I was required to continue a trial started yesterday (R-v-Kali Tupou) I therefore adjourned the directions conference to 9:30am Saturday 10 February 2007. In the meantime Mr Kefu was to check with the Australian Authorities to determined when and where the analysis would be carried out. I also enquire Mr Tupou what further matters if any he wish to raised. He referred the following matters:

(a) To determined access to work and papers of the UN Analyst.
(b) If analysis to be done in the Kingdom of Tonga query presence of that defence counsel
(c) The timing for the analysis procedure and, if it was to be done in Australia what access for defence Analyst

The directions conference 9:30 on 10 February 2007.

Mr Kefu advised:

1) The Court that he had been in touch with the Australian authorities. The necessary formalities required to provide the analysis would not be completed until at least Monday of next week.
2) The alternatives proposed to the Australian authorities were:

• a) The analysis be carry out in the Kingdom of Tonga or
• b) In Australia with the Crown's stated preference being in the Kingdom of Tonga
• c) There was no objection to Defence Analyst being present either in the Kingdom of Tonga or Australia.

3) He had to ensure that in any analysis would be completed within 2 weeks from today. It was proposed that the exhibits be released to a Police officer who would retain custody of the items except during the process of analysis and if it would be necessary to conduct same in Australia. He would be escorted by Australian Police. In the light of the above matters I made the following orders:

• 1. That the Crown may obtain a further analysis of the exhibits in this case which was stated, in the first trial to be the prohibited indian hemp
• 2. Those exhibits are to be released by the Court to a police officer who will retain custody of same until returning them to the Court.
• 3. The officer may release same during this time to a properly accredited Analyst either in Australia or the Kingdom of Tonga for the purposes of carrying out the analysis. During the analysis a defence Analyst Jenny Sibley may be present to observe the procedure and take notes.
• 4. Subject to the consent of the Crown Analyst that person's working papers and reports are to be made available to the defence Analyst, especially if the defence Analyst cannot be present at the time of the analysis.
• 5. The Crown will call the Crown Analyst as near as possible to the end of the Crown case.

BAIL

Bail is renewed automatically to 5 March 2007 at 9am. Mr Tupou raised an application on behalf of his client Mr Vete whose father is seriously ill in Auckland Hospital. The Crown is aware of this and accept that this is the position. There is accordingly no requirement for any medical certificate to be provided. The result is such that if this trial proceeds and if the result is Mr Fehi is in prison it is almost certainly that he will not see his father again. He therefore seeks bail to enable him to attend New Zealand to see his father. The Crown has no objections nor does the Crown seek to have the present bond surety of $5000 to the accused $2500 to each of the two sureties in place.

I therefore direct that the conditions of bail may be varied to enable the accused to travel to New Zealand for a period of one week concluding on 26 February 2007. He is to report to the Central Police Station no later than at 5pm on that day.
In all others respects the existing bail conditions are to continue noting that the accused are to asked to report at l0am Monday 5 March 2007.

Commitments of Trial

Mr Tu'utafaiva who has previously indicated that his concern in this matter is to ensure a prompt for fair trial raised a very real practical point namely that this trial is due to commence at 11:30 on Monday 5 March 2007. The delay has been caused in order to accommodate my arrival back in the Kingdom of Tonga at approximately half past 5 that morning. He therefore requested that the Jury summonses require attendance at 11am and not 9 am.

DATED: 10 February 2007...................JUDGE