R v Lino [2018] TOSC 43; CR 131 of 2017 (29 August 2018)

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

CR 131 of 2017

BETWEEN: R E X - Prosecution

AND: MA’ATI VONI LINO - Defendant

BEFORE THE HON. JUSTICE CATO

Counsel: Mr T. ‘Aho for the Prosecution

The accused was unrepresented

RULING DICHARGING ACCUSED

1. This ruling supplements the oral ruling discharging Mr Lino at trial.
   
2. Ma’ati Voni Lino was charged with one count of possession of a very small amount of methamphetamine contrary to the Illicit Drugs Act. The prosecution, at the conclusion of the case, admitted that it could not comply with the provisions in section 6 of the Act which provides;
   
   1. In any proceedings under this Act, the production of a certificate purporting to be signed by a scientific analyst shall be prima facie evidence of the facts therein stated;
      
   2. Such a certificate shall only be admissible under section (1) if a copy of the scientific analyst’s certificate has been served by or on behalf of the prosecution on the accused or his counsel at least 28 days before the hearing at which the certificate is to be tendered in evidence and at the same time the accused has been served with a written notice that the prosecution does not propose to call the analyst as a witness;
      
   3. The accused shall give written notice to the prosecution at least 21 days before the hearing that he requires the person who made the analysis to be called by the prosecution as a witness.
      
3. Mr Aho stated that he believed that the letter had not been served in which case there has been an absence of compliance with section 36(2) of the Act. The prosecution cannot consequently rely on the certificate and prove the substance was methamphetamine. Accordingly, it cannot establish a prima facie case and the charge against the accused is dismissed.
   
4. This is a timely warning for Tonga. Methamphetamine is becoming more popular in Tonga and prosecutions are becoming more common for this kind of drug. It has had devastating consequences for other countries where it has proved to be difficult to control and even more to eradicate but has only recently acquired a noticeable presence in Tonga. The practical reality for Tonga is that it will be extremely expensive and sometimes difficult to require an analyst to come to Tonga to give evidence where a defendant does give notice under section 36 (3) that the analyst is required. Attendance of an overseas analyst can only be voluntary since a subpoena cannot have extraterritorial effect.
   
5. In this case Mr Lino was unrepresented and it was incumbent upon the prosecution to prove the identity of the drug. The fact that he did not know anything about the requirements of section 36 and may have unwittingly given his consent for the admission of the certificate by not challenging its admission cannot be now held against him. In cases involving representation by counsel, it may as a consequence of this decision become routine to require the analyst to give evidence because it will be known that a failure to call the analyst where notice is given will inevitably mean that the prosecution fails. This may have very serious consequences for law enforcement and the welfare of Tongans if it results in the failure to obtain convictions in drug cases of this kind. In Lino, the amount of the drug was very small, but the consequences will be far more serious in cases of large scale importations, or manufacturing or supply cases.
   
6. Over many years involved with drug prosecutions, I have never seen an accredited analyst successfully challenged as to the identity of a drug. In my view, so long as the laboratory is a properly accredited laboratory for the substance in issue (and this should be covered in the analyst’s certificate), the results should be regarded as conclusive on the identity of the drug and the need to call the analyst can be safely dispensed with. If this view is considered too rigorous, then an alternative is that the certificate should be admitted without any need to call the analyst as prima facie evidence of the identity of the drug, having been served as part of the prosecution case at committal. Before the defence can at trial dispute the identity of the drug an analyst’s certificate to the contrary should be served on the prosecution no later than a month before trial. This will give the prosecution the opportunity to decide whether it should require its analyst to be present to give evidence, or risk the prosecution failing. This proposal would have the desired effect of requiring the prosecution to call expert evidence on the identity of the drug only where a plausible case has been raised by the defence.
   
7. In my view, legislation is urgently required in Tonga to accommodate the position of analyst evidence of drug identity or else more prosecutions for illicit drugs in Tonga may be in jeopardy.
   

C. B. Cato
DATED: 29 AUGUST 2018 J U D G E