Rex v Lasike [2012] TOSC 31; CR 285 of 2011 (9 July 2012)

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

NO. CR. 285 of 2011

REX

v.

NOBLE LASIKE

Sisifa with Ms L. Macomber for the Crown
W. Edwards for the Accused

JUDGMENT

[1] The accused faces 1 count of possession of ammunition contrary to
Section 4(2)(b) of the Arms and Ammunition Act (Cap 39 – the Act). It is said that on 28 June 2010 at the Sandyboyz Motel at Kolofo'ou he had in his possession two live .22 bullets without holding a valid licence.

[2] It is not in dispute that two live .22 bullets were found in a room at the Sandyboyz Motel on the day in question and neither is it in dispute that the accused did not have a valid licence to possess such ammunition. The only question is whether the bullets that were found were in the accused's possession.

[3] Before considering the evidence it is important to refer to Section 47 of the Act. This provides that:

"Every person who is proved to have had in his possession or under his control anything whatever containing any arm or ammunition shall, unless the contrary is proved, be deemed to have been in possession of such arm or ammunition".

This type of provision is usually known as a negative averment. What it means is that, providing the prosecution has proved beyond reasonable doubt that a person has possession or control of a container in which it has also proved beyond reasonable doubt contained arms or ammunition then the onus shifts to that person to prove, on the balance of probabilities, that he did not possess the prohibited contents. (see Errington-Edwards (1974) 59 Cr. App. R 213 and R v Carr-Briant (1943) 29 Cr. App. R. 76).

[4] Apart from the rather circular wording of the Section one difficulty of interpreting it is that the concept of "possession" is not defined. The question was considered by the English Court of Appeal in James McNamara 1988) 87 Cr. App. R 246, 249 in which Lord Lane explained:

First, "a man does not have possession of something which has been put into his pocket, or into his house, without his knowledge; in other words something which is "planted" on him";

Secondly, "a mere mistake as to the quality of the thing under the defendant's control is not enough to prevent him being in possession".

Thirdly, "if the defendant believes that the thing is of a wholly different nature from that which in fact it is, then the result would be otherwise".

Fourthly, "in the case of a container or box, the defendant's possession of the box leads to the strong inference that he is in possession of the contents or whatsoever is inside the box. But if the contents are quite different in kind from what he believed, he is not in possession of it."

"... the prima facie assumption is discharged if he proves (or raises a real doubt in the matter) either (a) that he was a servant or bailee who had no right to open it and no reason to suspect that its contents were illicit ... or (b) that although he was the owner he had no knowledge of (including a genuine mistake as to) its actual contents or of their illicit nature and that he received them innocently and also that he had no reasonable opportunity since receiving the package of acquainting himself with its actual contents."

[5] Turning now to the evidence, the first prosecution witness Sgt. Latu Lavaki told me that he received a search warrant from the Court on 28 June. A copy of the warrant was tendered as Exhibit 1. A translation was prepared. This warrant shows that "there is reason to suspect .... that ammunition [is] at the residence and premises of Noble Lasike ... known as Sandy Boyz".

[6] Upon receipt of the warrant Sgt Lavaki, together with three other officers, went to the Sandyboyz Motel. It is not disputed that the accused was living at the motel which he owned at that time. Sgt Lavaki told me that when the search party arrived at the motel they found the accused sitting in the bar area. "I read out the search warrant to the accused. We were well received. I explained why we were there. He allowed us freely to search his building ...".

[7] Sgt Lavaki told me that he had explained to the accused that he had a right to be present during the search but the accused, rather than be present himself, nominated one of his workers (later identified by the accused to be one of his boxing pupils) to be present.

[8] After, speaking to the accused, Sgt Lavaki and Constables 'Inoke Vi and Salesi Maile went to search a room. According to Sgt Lavaki "we only searched one room, the accused's room. The accused himself told us that this was his room. I do not know if anyone else occupied it. I just knew the accused lived in this room. When we searched the room we were not told that anyone else occupied the room".

[9] Sgt Lavaki's evidence was that "one of the officers told me that a gun holster had been found in the room. I told them not to touch it but to photograph it first". "I was also informed that 2 x .22 bullets had been found; they were left in the position in which they were found and photographed". These items were shown to the accused who said he knew nothing about them. "After we completed the search I took the exhibits and put them in the exhibit room [at Central Police Station]. A search list of the confiscated exhibits was filled in. It was signed by the accused". The search list was produced as Exhibit 2, together with an English translation. This reveals that:

"O2 live ammunitions point 22 were found inside a paper box on top of the drawer in Noble Lasike's bedroom"; and

"O1 pistol holster (black) was found in a cupboard in the bathroom".

[10] After these discoveries were made the accused was arrested and charged. As was him right he declined to make a statement other than "I will give my explanation in Court".

[11] Constable 'Inoke Vi told me that he was part of the search party. In the first room they entered there was no sign of anyone living in it; it contained stacked up chairs. Then they went to another room. He did not know whose room it was. In a box on a table in the room he found two bullets. When he came across the box it was closed. When he opened it he found the bullets inside. Constable Vi was shown a photograph (later produced as Exhibit 6 – photograph 2) "I opened the box, this is what I found".

[12] In cross-examination Constable Vi conceded that photograph 5 appeared to show a hair dryer. Again he said he did not know who owned the room. He did not know whose possessions were in the room.

[13] The next witness was Constable Maile who told me that Const. Vi found two bullets in the box depicted in photographs 1, 2 and 3. "We carried on searching in a little room adjoining the bedroom. It looked like a bathroom. (The door to the bathroom can be seen beside the wardrobe in photograph 4). In a cupboard in that room we found a gun holster. I see photograph 6. This shows how it was found".

[14] In cross examination Constable Vi stated that there were women's and men's clothing in the room. In re-examination he told the Court that he also saw men's clothing in the room, including trousers and shirts.

[15] These first three prosecution witnesses also told the Court that during the search of the room a woman appeared. Two of the witnesses named her as Sandra. While the search was in progress Sandra came into the room and collected up some clothes. These, she told them, she was taking to the laundry. After taking the clothes she went away. Constable Maile told the Court "I know this woman resides in the room but I do not know her name".

[16] The last prosecution witness was Constable Halatoa Taufa who took the photographs. Constable Halatoa told the Court that he was present when Sgt Lavaki read out the search warrant to the accused. He heard Sgt Lavaki ask the accused which room was his. The accused then identified his room which was the room which was then searched.

[17] Constable Halatoa produced the bundle of 6 photographs as Exhibit 6. The 6th photograph was projected onto a screen and much magnified. Const. Halatoa identified the gun holster on the floor of the cupboard next to a white "Jiffy-type" bag. The bag was addressed to "Hon Lasike, Sandra Motel Nuku'alofa". [sic]

[18] In cross-examination Constable Halatoa conceded that there were "female items" in the room, that photograph 5 appeared to show a hair-dryer on the dresser and that it appeared from the photographs that a woman was staying in the room.

[19] After the Crown closed its case I found that there was a case to answer and the accused elected to give evidence.

[20] The accused, Noble Lasike, told me that he is the Speaker of the Legislative Assembly. He lives at the Sandyboyz Motel which he owns and which was operated as a motel for about 7 years. Shortly after the search warrant was executed the motel ceased to operate as a business.

[21] The accused told me that in June 2010 the manager of the motel was Sandra, now Sandra Lasike, whom he married in 2011. He met Sandra in 2007 and soon after they began an intimate relationship. She moved into the motel and was appointed manager in about 2010. The accused told me that after the arrival of the police the search warrant was read out to him. "I said if that is what is wanted you do your job. Sgt Lavaki and two other officers began searching. They were looking for Sandra. Sgt Lavaki asked for room 10. The police never asked me about the room I was staying in. I was staying in room 7. The police went with Sandra to room 10". The accused told me that the only things in room 10, as depicted in photograph 4, which belonged to him were the bed, the wardrobe and the refrigerator. All the other items, including the box depicted in photographs 1,2 and 5, belonged to Sandra. The accused confirmed that the man shown sitting on the left of photograph 4, apparently observing the search taking place was one of his boxing students, the man already referred to in paragraph 7 above. The accused told the Court that although he might occasionally have visited this room, his own room was room 7 and that room was never searched. "I did not occupy or live in room 10".

[22] The accused was asked about the white packet addressed to him and depicted in photograph 6. He remembered that the packet contained samples of kava but had no idea how it came to be in the cupboard in room 10; it was certainly not there because he was living in the room. Asked about the gun holster, also found in the cupboard, his reply was "I know nothing about the gun holster". The accused told the Court that what appeared to be a hairdryer depicted in photograph 5 belonged to Sandra. All the items in the room apart from the bed, the wardrobe and the refrigerator belonged to Sandra, including the box in which it was said the bullets had been found "I know nothing about the other items and the box in particular. After the search I asked Sandra. She said that her former husband (who had passed away) had a licence to carry a .22. They operated a bowser at Touliki and after the bowser shut down its contents were moved and placed in Sandra's room".

[23] The second witness for the defence was Sandra Lasike. Sandra told me that she moved into the motel in 2007. She moved into Room 10. When the police arrived on the day of the search they asked for room 10. After showing her the search warrant "they said they were there to search Lasike's room. I told them his room is room 7. They said that is OK". They then searched room 10.

[24] Sandra explained that only two weeks before the search took place she and "some of the boys" moved the remainder of her possession from the bowser at Touliki and took them to the motel. Items moved included files, stationery, bags, office furniture and the box in question. This box, Sandra told me, contained files, coin bags and usb wires. She told me that she had "no idea" where the bullets came from but the rest of the contents of the box belonged to her.

[25] Sandra was shown Exhibit 6, the bundle of photographs. What was previously thought to being a blow-dryer was indentified in fact to be an electric massager which she owned. All the other items shown in the photograph as being in the room belonged to her. While there may indeed have been some of the accused's clothes in the room this was only because she kept some of his clothes for him in her wardrobe which was bigger than his. Sandra denied sharing room 10 with the accused although she admitted that she had been in an intimate relationship with him since 2007.

[26] Sandra was asked about her visit to the room while the search was taking place. She told me that she had indeed visited the room. She went there to fetch some clothes which she had left in the bathroom and which needed to be laundered. Shown photograph 6, the cupboard in the bathroom, she stated that she had never seen the gun holster before: it could easily be mistaken for a scarf. As to the white packet addressed to Lord Lasike, this contained kava samples from 'Eua which she was arranging to have sent to Fiji. She explained that the accused and she were considering starting a kava export business and it was she who had been given the duty to explore possible markets. In cross-examination Sandra was adamant that room 10 was her room, not the accused's, and that he did not share it with her.

[27] Following the close of the case for the defence Mr Edwards made helpful submissions. He referred me to a number of English authorities including Sullivan v Earl of Caithness [1976] 1 All ER 845 and emphasised that for possession to be established, mere custody of the ammunition was not enough. Mr Edwards argued that the Crown had failed to establish that the accused possessed the bullets. He emphasised that there was nothing to contradict Sandra's evidence that the box belonged to her or that the box, which had been closed until the police opened it, was in room 10 which both the accused and Sandra swore was not shared by Sandra and the accused but was occupied by her alone. Even if it were to be argued that the box was in a room which the accused technically controlled because he was owner of the room, the Crown had not proved beyond reasonable doubt that he knew of the box's contents. As for the gun holster, the accused's evidence that he had not seen it in the room should be accepted.

[28] Mr Edwards suggested that the police evidence was not consistent. In particular he pointed out that in the lower court Constable Maile's evidence had been that he knew that a woman resided in the room whereas he denied knowing that in his evidence at the trial. An extract from the preliminary enquiry was tendered as Exhibit 5. On this point Mr Edwards is plainly correct. Constable Maile's evidence was not the same as that given at the preliminary enquiry.

[29] Mr Edwards submitted that taken as a whole, the case against the accused was weak. The bullets themselves were very small and could easily have been "overlooked". There was no reason for the accused to look in the box which had only recently arrived from the bowser at Touliki. The evidence as to the occupation of the room was weak. No explanation had been given why, according to Constable Vi, a room stacked with chairs had also been entered. Given all these uncertainties the accused was entitled to be given the benefit of the doubt and should be acquitted.

[30] Mr Sisifa also referred me to authority. In R v Motuliki [2002] To. L.R.124, the then Chief Justice referred with an approval to an extract from Archbold 2001 Edn in which it is stated that:

"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".

Mr Sisifa also referred to R v Singh [2003] To. L.R. 13, in which the Court observed that:

"An accused cannot be said to have possession of something he does not know is there at all".

[31] Mr Sisifa submitted that the credibility of the accused was central to the case. He pointed out that the suggestion that the room asked for and searched was in fact only occupied by Sandra and that the accused in fact lived in another room, was not put to the police witnesses. He also pointed out that the purpose of the search warrant was clear from its face: it was to search the accused's accommodation, not Sandra's. Exhibit 2 which had been signed by the accused stated that the bullets had been located in his bedroom, not Sandra's. The fact that there were men's clothes in room 10 was clear evidence that this room was not exclusively occupied by Sandra. All these matters, taken together, Mr Sisifa suggested, showed that the accused and Sandra had not told the Court the truth.

[32] So far as the accused's knowledge went, Mr Sisifa referred to the photographs. These clearly show that the box which contained the bullets was in plain sight of and easily accessible to, anyone who used the room. It was obvious, Mr Sisifa submitted, that anyone in the room would be curious about the box which, from the photograph, appeared not to be capable of being properly closed or sealed. It was submitted that it had been proved beyond reasonable doubt that the accused knew of the contents of the box, including the bullets, and therefore was in possession of them.

[33] With the greatest respect to both counsel, in my opinion the consequences of Section 47 of the Act were insufficiently taken into account. In my view, before a conviction could be entered a two stage process has to be completed. The first question is whether I am satisfied, beyond reasonable doubt, that the Crown has proved that the accused had possession or control of the box in which the bullets were found. Central to this issue is the question of the accused's occupation of room 10. As already seen, the search warrant was in respect of Lord Lasikes dwelling place, not Sandra's. I find it beyond belief that had the police been told that Lord Lasike's room was in fact room 7 and not room 10 that they would have ignored that information and knowingly gone to the wrong room. At the very least, both rooms would have been searched, but we know that was not the case. The evidence of Sgt Lavaki (which was corroborated by Constable Halatoa) was that the accused identified room 10 as his room and that evidence was not challenged. When Sandra came into the room during the search to collect washing from the bedroom in which the gun holster was found, she did not ask the police why they were searching her room rather then the accused's when it was his room, not hers to which the warrant applied. The fact that the accused sent one of his own men to be present when the search took place rather than calling for Sandra herself strongly suggested acknowledgement that the room to be searched was one in which the accused had the principal interest, not Sandra. The accused's signature on the exhibit list has already been noted as has the address on the package found in the cupboard in the bathroom. While I accept that the likelihood is that the accused and Sandra made use of more than one room I find it wholly unrealistic to suggest that a couple living in a de facto married relationship would not both visit and enjoy the use of whichever rooms were available to them.

[34] The inconsistencies in the police evidence relied on by Mr Edwards were in my view minor and no more than can be expected in a case dating back more than 2 years. I found the police officers to be witnesses of truth and I accept their evidence. When it is in conflict with the evidence of the accused I reject his testimony and accept that of the police. I find as a fact proved beyond all reasonable doubt that the room in which the box was found was a room which was regularly used and occupied by the accused. The box was in plain sight of anyone using the room. I find it proved beyond all reasonable doubt that the accused had it in his possession and under his control.

[35] Given this finding of fact, the second step in the two stage process required by Section 47 comes into consideration. The second question is whether the accused, on the balance of probabilities, has shown ("or raised a real doubt in the matter") that he had no reason to suspect that the contents of the box contained illicit material or that he had assumed control or received possession of the box innocently and had no reasonable opportunity, since receiving the box, of acquainting himself with its contents (see James McNamara & R v Motuliki) referred to above.

[36] Both the accused and his witness Sandra stated that the box belonged to Sandra. Sandra gave a detailed account of its contents: files, coin bags and usb wires. To have gained this knowledge of the box's contents she must have gone through it. The unchallenged police evidence was that when the box was opened the scene depicted in photograph 2 was revealed: the two bullets lying in full view. Despite this, Sandra told me that she had "no idea" where the bullets came from. This evidence was inconsistent with what the accused himself had told me. According to the accused's evidence Sandra told him, after the search had taken place, that her former husband who had passed away had a licence to keep a .22 weapon. Since this fact, if accepted, provides a highly plausible explanation for the appearance of the two bullets in a box received from the bowser previously run by Sandra's former husband, how could be that she had "no idea" where these bullets came from? Sandra's evidence on this point made no sense to me and did not support the evidence of the accused. I do not believe that Sandra was telling me the truth. In my view the likelihood is that the two bullets did indeed come in a box from the Touliki bowser and I find it highly unlikely that Sandra did not know perfectly well what the box contained. I also think it probable that the accused would have come to know what was in the box which suddenly came to be in the room and which was sitting beside the bed on the day the room was searched. I am not satisfied that the accused had shown either that he had no reasonable opportunity to open the box and inspect its contents.

[37] It might be argued that there was no reason for the accused to suspect that the box contained any illicit material at all. In my view however, the existence, once again, in plain sight, of the gun holster on the floor of the cupboard of the bathroom adjoining room 10, right next to the package addressed to the accused, is clear evidence that would put an innocent person on notice that something unusual had entered his room. I find it highly unlikely that the accused did not know of the existence of the gun holster and was not put on notice of its possible ramifications.

[38] Having seen and heard the accused and his witness I did not find that I could believe his claim to know nothing of the contents of the box and that he had no reason or opportunity to discover what the contents were. I do not find that the accused has discharged the evidential onus which, on the balance of probabilities is placed upon him by Section 47 of the Act. It follows that I am satisfied that the Crown has proved that the accused was in possession of the two bullets in question. That being the only issue before me, the Accused must be convicted as charged.

NUKU'ALOFA: 9 July 2012.

CHIEF JUSTICE

N. Tu'uholoaki
9/7/2012.