R v Musika [2018] TOSC 51; Criminal Case 137 of 2017 (28 September 2018)

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

CR 137 of 2017

BETWEEN: R E X - Prosecution

AND: UASI MUSIKA
- Defendant

BEFORE THE HON. JUSTICE CATO

Counsel: Mr ‘I. Finau for the Prosecution

Mr S. Tu’utafaiva for the Defendant

VERDICTS AND REASONS

1. The accused, Mr Uasi Musika, was charged on indictment before me in a Judge alone trial of two counts of possession of an illicit drug contrary to section 4 (a) of the Illicit Drugs Control Act. The particulars related to count one being cannabis plant material and count 2 relating to cannabis seed.
   
2. Two further counts of possession of Arms (a .22 semi-automatic rifle) without a licence a possession of ammunition without a licence contrary to section 4(2) (b) of the Arms and Ammunitions Act were also charged. However, the Crown during the course of the trial elected not to proceed with these charges and the accused is acquitted and discharged on those charges.
   
3. The case is within a very narrow compass. Police executed a search warrant on the 4^th May 2017 at a property occupied by the accused and his wife and a young man in his twenties named Vili Taufa. Evidence was given that there were three rooms in the shouse besides a living room; one a room that was used for storage, another, a bedroom room used by the accused and his wife; and a bedroom used by Taufa. The accused was aged 47 at the time of the alleged offending.
   
4. Evidence was given that cannabis plant material and or seeds were located at various places in or in the vicinity of the house on the day of the search being the 4^th May 2017. The accused was present during the search and also accompanied the police outside where cannabis was located in three places. A dog was used to search the property for drugs. I am satisfied beyond reasonable doubt that the drug located was cannabis, evidence to this effect being given by Officer Pale. Further, I am satisfied beyond reasonable doubt that the amount of cannabis located in total amounted to 42.91 grams of plant material (count 1) and 1221.1 grams of cannabis seeds (count 2). The Crown almost at the conclusion of its case altered the particulars of the counts to reflect the evidence adduced by Office Pale as to weights which varied from the amounts alleged in the indictment. I accepted the application to amend, there being no apparent prejudice. As I have said, I am satisfied the Crown was able to prove beyond reasonable doubts the weights of plant material and seeds alleged in the amended particulars.
   
5. The location of the cannabis was in several places inside and outside the house. Police exhibit one consisted of foil located in the living room in a black cup which contained 14 marijuana seeds and leaf, weighing .33 grams. A much larger amount of cannabis leaves and seeds were located in a storeroom on a tray (police exhibit 4). The plant material weighed 9.96 grams and the seeds 356.14 grams. Inside a bucket in the storeroom, was contained a plastic bag with cannabis leaves weighing 26.99 grams, (police exhibit 6). A plastic bag containing plant material and weighing 5.83 grams was located on top of a cupboard inside the bedroom occupied by the accused and this weighed 5.83 grams, (police exhibit 7). A very substantial number of cannabis seeds were located in a black bag said to be found on the southern side of the property at the back of a water tank and lying beside a barrel about 11 metres from the house. The seeds were contained in five packs and altogether weighed 853.04 grams. The seeds were contained in 22 smaller packs. This was police exhibits 14.
   
6. Various locations were photographed and the most important of these is seen in photographs 1 – 4, police exhibit 4; and 13-18, police exhibit 14. Educative of the amount of cannabis seeds located in the black bag (exhibit 14) is photograph 18. Other cannabis plant material was located outside in bush area in the backyard (police exhibit 15) and cannabis seeds in a plastic bag, police exhibit 16, weighing 32.52 grams were also in the bush in the backyard.
   
7. Mr Tu’utafaiva, in his final submissions, took issue only with whether the accused had possession beyond a reasonable doubt of the cannabis seeds and plant material found outside the house. He candidly stated that this client admitted possession of the seeds and plant material contained in exhibits 1, 4, 6, 7 of the Crown case, that is the cannabis material located in the house.
   
8. In his record of interview, the accused had admitted living in the house which belonged to his wife’s parents, and said that he had been staying there for two years. He admitted that, in the house, there was weed, plant leaves and other things that he said he had found outside. He said it was cannabis seeds and plants for herbal medicine. He admitted that the seeds and plants located in the house belonged to him and he had found them he said from the back outside and in a small house close to his own. Originally, the English translation had said they belong to him and he had found these things at the outside at the back of a house close to his house. However, after the Crown had completed its closing submissions, Mr Tu’utafaiva objected to his translation and it was resolved in terms of the agreed version which I have recorded.
   
9. He said that he had the plant leaves for about a week before the police had searched. He said that he had put the leaves and seeds into the house. The leaves he used for medicine because he had a permit from a doctor in America to use it there. He said that he did not use the seeds. He admitted that he smoked the leaves as a medicine. He did not have the permit from the doctor. He stated that he threw seeds away after he had finished smoking the plants. He said that he knew it was not lawful in Tonga to smoke because he did not have his permit with him.
   
10. He admitted exhibit one was the left over from his smoking. He said in relation to exhibit 4 (bag of seeds and plant material) that he had found it outside the house and had brought it into the house. He had processed and separated the material. The residue on the tray he said was from the big plastic bag which I took to mean the larger bag in that exhibit and not the black bag, exhibit 14. He said the residue which I took to mean the seeds weighed 356.14 grams. He also said the plant leaves found in exhibit 6 came from the plastic bag. He further said that the plant leaves contained within the bag located in the bedroom were his and taken from the same packet. He admitted that bottles found in a van were smoking apparatus to use with the herbal medicine. He said he knew of exhibit 14, the large bag, containing 22 smaller bags of seed only when police found it.
    
11. It was pointed out by Mr Tu’utafaiva that the accused had also maintained his lack of knowledge of the cannabis located outside (police exhibit 14) and in particular had told police that he did not know how they belonged to and how they came to be there, at the scene when the bag was located. (Reference to exhibit 5, Diary of action, para 68).
    
12. Mr Tu’utafaiva also pointed out that Mr Musika and his wife were not the only occupants of the house but present also was Vili Taufa. Taufa had been arrested also at the property for it seems having a bag located in his room with a small amount of plant material in it. Mr Musika referred to this in his voluntary statement. He said that the black bag he had used before taking it back to the room where Vili slept. He said that he had put something in it which contained cannabis seeds and leaves from the stuff that he had found outside. He had put it in the bag and had taken it out before leaving it at Vili’s room but he did not know that some of it had fallen into the bag. Mr Musika did not suggest that Taufa had anything to do with any of the cannabis either located inside or outside, as Mr Finau pointed out in his submissions.
    

REASONS

13. Mr Musika did not elect to call evidence or give evidence. I did not hold this against him. However, I regarded his record of interview with considerable scepticism. I found his reason for smoking as an attempt to distance himself from a deeper and more serious involvement with cannabis. I consider he was trying to give the impression to police that his smoking of plant material and association with cannabis was medicinal and distant from more serious commercial drug dealing that the location of the very large amount of cannabis seeds suggested.
    
14. In this regard, I do not accept either that his denial of knowledge of and possession of police exhibit 14 was truthful. The exhibit was not secreted away and Mr Musika had been living at the property for about 2 years. I do not think that Mr Musika would have failed to notice the presence of black bag such as is depicted in the photographs located about 11 meters from the rear of his house. I do not accept that it had been left there by some unknown third person. There is a notation in para 76 diary of action (exhibit 5) where it is noted that a search at a small house at the southern side of the property was all clear. I do not, however, accept Mr Musika’s answer in his record of interview that he got the seeds and plants material from inside a small house near his home. Again, I view this as no more than an attempt to distance himself from the cannabis seeds located in his property, particularly exhibit 14.
    
15. I do not accept either Mr Musika when he said, in his record of interview, that he had no interest in seeds that he was telling the truth either. The seeds located inside and outside had obvious commercial value for cultivation. I consider that is it no mere coincidence that located in the house occupied by he for two years was a bag of cannabis seeds to which he admitted possession and reasonably near to the house was also a very large amount of packed cannabis seeds. I do not overlook his assertion, but I do not accept it either, that the seeds were just residue in his mind and not of value to him. To my mind, there is signature evidential value about the location of the bag of seeds in the house that he admits were his and the location of not dissimilar bags of seeds outside particularly in police exhibit 14. For these reasons, I reject his assertion that he was not in possession meaning that he did not have custody and control of the cannabis exhibits located outside the house, beyond any reasonable doubt, on or about the 4^th May 2017.
    

Verdict

16. I find him guilty of two counts of possession of cannabis as charged in the indictment. He is convicted and remanded in custody for sentence. A probation report is ordered.
    
17. As I have said, he was discharged on counts 3 and 4 of the indictment relating to possession of an unlicensed firearm and possession of unlicensed ammunition.
    
18. The cannabis material and seeds are to be destroyed.
    

C. B. Cato
DATED: 28 SEPTEMBER 2018 J U D G E