R v Tomasi [2019] TOSC 38; CR 70 of 2019 (17 July 2019)

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

CR 70 of 2019

BETWEEN: REX

- Prosecution

AND: RODNEY TOMASI

- Accused

BEFORE LORD CHIEF JUSTICE PAULSEN

Appearances: Mr. T ‘Aho for the Prosecution
The Accused in person

Date of Hearing: 1, 2, 8, 9 July 2019
Date of Ruling: 17 July 2019

VERDICT

The charges

[1] Mr. Tomasi pleaded not guilty on indictment to two counts of possession of illicit drugs, contrary to s. 4(a) of the Illicit Drugs Control Act (counts 1 and 2), one count of bribery of a member of the Tonga Police, contrary to s. 165 of the Tonga Police Act (count three), three counts of possession of arms without a licence, contrary to s. 4(1)and 2(b) of the Arms and Ammunition Act (counts four, five and six) and, one count of possession of ammunition without a licence contrary to s. 4(1)and 2(b) of the Arms and Ammunition Act (count eight).

[2] Mr. Tomasi elected trial by Judge alone and is self-represented.

[3] The trial was subject to a number of delays and adjournments due, in part, to the unavailability of Police witnesses. The prosecution was unable to call three witnesses, who were engaged elsewhere on important duties. In addition, the prosecution never intended to call the Officer in Charge of the investigation, Sergeant Sateki Tu’utafaiva, who I understand is no longer in Tonga.

[4] In closing the prosecution’s case, Mr. ‘Aho accepted that, due to a lack of evidence, acquittals should be entered on counts one, four, five, six and seven. I agreed with that assessment and Mr. Tomasi was acquitted on those charges. This ruling relates to only the remaining two charges.

[5] The particulars of count two (which was amended during the trial) and count three, read:

(Count 2)

Rodney Tomasi of Lapaha, on or about 14 May 2018, at Ha’ateiho, you did knowingly and without lawful excuse possess a Class B illicit drug, namely 0.83 grams of cannabis.

(Count 3)

Rodney Tomasi of Lapaha, on or about 14 May 2018, at Ha’ateiho, you did knowingly and without lawful excuse possess a Class A drug, namely methamphetamine.

The burden and standard of proof

[6] The onus of proof lies on the prosecution at all times and, it is to the standard of proof beyond a reasonable doubt in relation to the charges and every constituent element of the charges. I have reminded myself that I must base my decision only on the evidence which I have heard in this Court. On the basis of the burden and standard of proof, the prosecution case must stand or fall on the evidence which the parties chose to call before me. In a case where the prosecution has been unable to call all of its witnesses, the application of these fundamental principles have had a determinative effect.

The elements of the offences

Possession of an illicit drug

[7] Cannabis is a Class B illicit drug. Section 4(a)(i) of the Illicit Drugs Control Act reads:

Any person who knowingly without lawful excuse, the proof of which shall lie on him –

(a) possesses....an illicit drug

commits an offence...

(i) in respect of a Class B drug in the quantity of less than 28 grams, to a fine not exceeding $5,000 or imprisonment for a term not exceeding 1 year or both.

[8] The elements of the offence that the prosecution must prove beyond a reasonable doubt in order to establish the charge are:

(a) That Mr. Tomasi;

(b) On or about 14 May 2018 at Ha’ateiho;

(c) Knowingly possessed the Class B drug Cannabis.

Bribery of member of the Tonga Police

[9] Section 165 (1) of the Tonga Police Act reads:

A person commits an offence if the person gives, or offers to give, to any member of Tonga Police, or to a person performing functions on behalf of Tonga Police, any money or other benefit as an inducement to do or refrain from doing any act in the execution of the police officer’s duty as a member or in the performance of the person’s function on behalf of Tonga Police.

[10] The elements of the offence that the prosecution must prove beyond a reasonable doubt in order to establish this charge are:

(a) That Mr. Tomasi;

(b) On or about 14 May 2018;

(c) Offered money or other benefit;

(d) To a member of the Tonga Police;

(e) Intending to induce that member of the Tonga Police to refrain from arresting him;

(f) Being an act in the execution of that members’ duty as a member of the Tonga Police.

The prosecution evidence

[11] Much of the prosecution’s evidence related to the methamphetamine and firearms charges and is not relevant to the remaining charges that I am required to consider. The evidence relevant to these two charges falls within a small compass.

Office Kalosi Tapueluelu

[12] He was the prosecution’s principal witness. He had been, but is no longer, in the Drugs Task Force. He described himself as the Investigating Officer in this case, but I find that in fact his superior was Sergeant Sateki Tu’utafaiva.

[13] On 14 May 2018, he and an Officer Leveni got information from Sergeant Tu’utafaiva that Mr Tomasi was parked at Ha’ateiho and in his vehicle were arms, ammunition and drugs. They travelled to Ha’ateihio and located Mr. Tomasi sitting in his car near the Silapelua fields. His car had a flat tyre. Another man, called Fine, was there to change the tyre. Sergeant Tu’utafaiva was also present. Mr Tomasi, Fine and the vehicle were searched. Officer Leveni found a “rolled joint” upon Mr Tomasi. Mr Tomasi denied that the joint was his. He was then arrested and cautioned.

[15] Officer Tapueluelu continued the search around the driver’s area and found cash hidden in the seat and what appeared to be methamphetamine in a compartment of the door. Mr Tomasi again denied that this belonged to him. Officer Tapueluelu opened the door at the rear of the vehicle and found a packet of Pall Mall cigarettes. It had most of its plastic wrapping still on it, and what appeared to be cannabis in two dealer bags inserted into the wrapping. Mr Tomasi was taken to look at the Pall Mall packet and said that it was not his

[16] Officer Tapueluelu then drove Mr Tomasi and Officer Leveni to the Police Station in Mr Tomasi’s car. On the way Mr Tomasi asked the officers “what is your number to release me”. Officer Tapueluelu said he had heard that phrase many times, in his 6-7 years working in drugs operations, and his understanding was that Mr Tomasi was asking how much the officers wanted to let him go. Mr Tomasi was told that they would be taking him to the station to complete their work.

[17] In cross-examination, Officer Tapueluelu confirmed that he was told there were arms in the vehicle by Sergeant Tu’utafaiva. He said that they did not have a search warrant but the Police Act allow searches without warrant. He said that he did not hear Sergeant Tu’utafaiva asking an observer for his phone and did not know about the deletion of a video taken of the search.

[18] Mr Tomasi did not challenge Officer Tapueluelu on his evidence that Mr Tomasi had asked for their “number” to release him. Before Mr Tomasi finished cross-examining Officer Tapueluelu I asked him if he wanted to ask him any questions about what took place on the way back to the station. He said he did not, and so Officer Tapueluelu’s evidence was not contradicted on this aspect.

Officer Naianlai Tukuafu

[19] She works in the Domestic Violence Unit. On 14 May 2019, Seini Tomasi, who is Mr Tomasi’s estranged wife, came to the office for help as she was afraid of Mr Tomasi. He had threatened her life and had a gun. She was instructed to take Mrs. Tomasi to Sergeant Tu’utafaiva, which she did. She told Sergeant Tu’utafaiva that Mrs Tomasi was seeking help from the domestic violence unit but there were firearms involved. Sergeant Tu’utafaiva told her to hand over the case to him.

Officer Leniti Pale

[20] His duties include testing of cannabis for which he has received training by the Australian Federal Police. He has appeared as a witness to identify cannabis in more than ten trials, including trials in the Supreme Court. He received exhibits taken from Mr Tomasi of a joint and two plastic bags containing dried leaves. These were given to him from WPC Pousima who is responsible for Exhibits and he had signed for them. He examined the exhibits and found them to be cannabis. He produced his report. He was not cross-examined by Mr Tomasi.

Mr Tomasi

[21] Mr Tomasi gave evidence that he had become estranged from his wife. He has a friend involved with drugs and this friend has a “dealing relationship” with Sergeant Tu’utafaiva. This friend warned him that he was going to be searched so he and another friend, called Kimi, swept his car clean and then drove into town to take dog meat to another friend, but got a flat tyre at Ha’ateiho. He called his wife to bring a spare tyre and waited so long that he called another friend, Fine, to help and Fine came over. The Police arrived. He asked if they had a search warrant and they told him no and to get out of the vehicle. He was handcuffed. Both he and the vehicle were searched. He was shocked and angry by the search were drugs were found and he called over to people watching that the Police had planted things in his vehicle. A man was videoing what was happening on his phone but Sergeant Tu’utafaiva took the phone and deleted the video. The flat tyre was replaced and he was taken to the Police station.

[22] Under cross-examination Mr. Tomasi denied that he had offered a bribe to Officers Tapueluelu and Leveni but importantly this exchange occurred:

‘Aho I would like to take you to that time that you, Leveni and Tapueluelu went to the police station. You did say to them what are your numbers so you can release [me]?

Tomasi No

‘Aho Do you remember you did not question Tapueluelu on this point?

Tomasi No we talked about money issues after.

‘Aho Do you remember when Tapueluelu gave evidence you did not question him on this point?

Tomasi I did not really take it as useful.

‘Aho You didn’t take it as useful but do you remember the Learned Judge has asked you again would you like to question him and again you said no?

Tomasi I do recall.

‘Aho So you didn’t find it [useful] the first time and His Honour pointed it out to you and you still didn’t question him?

Tomasi To be honest I was upset about his evidence and not only that I thought of my family and my problem and that is why I cried at that time.

Other defence witnesses

[22] Mr Tomasi called two other witnesses to give evidence who were present during the search but, as he acknowledged in his closing submissions, they said little that assisted him and as their evidence does not affect the outcome of the case, I do not need to refer to them further

Discussion

The possession charge

[23] Mr ‘Aho frankly acknowledged that there were holes in the prosecution case (due to the unavailability of its witnesses) but submitted that there was more than enough evidence to be satisfied beyond reasonable doubt that the accused was guilty of this offence. I am unable to agree with that assessment in relation for two principal reasons.

[24] The search of Mr Tomasi and his vehicle was undertaken without a search warrant having been first obtained. Mr Tomasi said, and I accept, that he challenged the Police’s right to search him and his vehicle. Clause 16 of the Constitution protects against unlawful searches when it provides:

It shall not be lawful for anyone to enter forcibly the houses or premises of another or to search for anything or to take anything the property of another except according to law: And should any person lose any property and believe it to be concealed in any place whether house or premises it shall be lawful for him to make an affidavit before a magistrate that he believes it to be concealed in that place and he shall describe particularly the property so concealed and the place in which he believes it to be concealed and the magistrate shall issue a search warrant to the police to search for the property according to the affidavit so made

[25] Mr ‘Aho argued that the search was not unlawful because it was conducted pursuant to powers under s. 24 of the Illicit Control of Drugs Act. Relevantly, ss. 23(1) and 24 provide:

23 Search Warrants

(1) If a Magistrate is satisfied, by information on oath, that there are reasonable grounds to suspect that there is in or on any place —

(a) an illicit drug, controlled chemical or controlled equipment;

(b) any evidence relating to the commission of an offence against this Act; or

(c) any property derived from an offence under this Act,

the Magistrate may issue a warrant empowering a police officer or a customs officer at any time, or at such time as the Magistrate may specify in the warrant, to enter the place, search for any illicit drug or thing and if found, seize it and search any person found at or in the place......

24 Search and seizure without warrant in emergencies

(1) A police officer may exercise any of the powers in section 23 without a warrant, if the grounds for obtaining a warrant under that section exist and the officer suspects on reasonable grounds, that —

(a) it is necessary to do so in order to prevent the concealment, loss or destruction of anything connected with an offence under this Act; and

(b) the circumstances are of such seriousness and urgency as to require the immediate exercise of the power without the authority of a warrant.

(2) A police officer may, for the purposes of this section, stop any vehicle or craft where the officer suspects on reasonable grounds that anything connected with an offence under this Act is upon or in the vehicle or craft.

(3) A police officer shall report to a Magistrate any action which he has taken under this section.

[26] Mr. ‘Aho argued that the Police were faced with an emergency situation as Officer Tapueluelu had been told by his superior that there were illicit drugs and firearms in the vehicle and that during the course of the search cannabis had been found. In addition, I note that Officer Tapueluelu said that the search occurred when there was no Magistrate available to issue a search warrant.

[27] I am unable to accept Mr ‘Aho’s submission because it fails to address the requirement in s. 24 that “the grounds for obtaining a warrant under [section 23] exist”. The first such requirement in s. 23 is that a Magistrate is satisfied that “there are reasonable grounds to suspect that there is in or on any place”, inter alia, an illicit drug. Officer’s Tapueluelu said that he and Officer Leveni received instructions to undertake the search from Sergeant Tu’utafaiva, but he gave no evidence from which it can be inferred that reasonable grounds existed to suspect the presence of illicit drugs and Sergeant Tapueluelu did not give evidence. The absence of evidence from Sergeant Tu’utafaiva means also that I also cannot be satisfied that the further requirements in s. 24(1)(a) and (b) were satisfied; justifying a warrantless search. In addition, I note that there was no evidence of compliance with s. 24(3).

[28] I understood Mr ‘Aho to submit that I can infer that Sergeant Tapueluelu had reasonable grounds to suspect the presence of illicit drugs because cannabis was found. In doing so, he was advancing a logical fallacy and affirming the consequent. The presence of cannabis says nothing at all about whether, prior to the search, Sergeant Tu’utafaiva had reasonable grounds to suspect it was there.

[29] It may be, as Mr Tomasi suspects, Sergeant Tu’utafaiva was given information from Mrs Tomasi which he acted upon, but there was no evidence that this was in fact the case, when the information was given or what the information might have been.

[30] It follows that the search was not defensible under s. 24. Mr ‘Aho advanced no other grounds to justify it. I note in this regard that the Police also have powers to search persons without warrant under s. 122 of the Tonga Police Act but Mr ‘Aho did not rely on this section and it would not have aided him to do so as it too requires that there be “reasonable grounds” to that a person to be searched has an illicit drug in his possession and that it would be “impracticable, unreasonable or not in the interests of justice” that the police officer obtain a search warrant. I find therefore that the search of Mr Tomasi and his vehicle was unlawful.

[31] Anticipating this possibility, Mr ‘Aho argued that I should not exclude the evidence of the search (and specifically that cannabis was found on Mr Tomasi and in his vehicle), but should adopt the approach taken by Cato J in R v Kitekei’aho (Unreported, Supreme Court, CR 36 of 2015, 27 July 2017) where the Judge said, at [24]:

...I raised with counsel the approach of the High Court of Australia in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 where the Court sanctioned a balanced approach to such issues. The Court in considering whether illegally obtained evidence should be admitted had to balance the public interest in maintaining the integrity of search and seizure procedures and ensuring that those whose task it is to enforce the law act lawfully, against the public interest that those who commit criminal offences should be brought to justice. (See further Ireland's Case [1970] HCA 21; (1970) 126 CLR 321). The factors adverted to by Stephen and Aickin JJ in Bunning were;

a. no deliberate disregard of the law should be involved;

b. whether the evidence could have just as easily been lawfully obtained;

c. the cogency of the evidence and whether the illegality could be said to affect its cogency;

d. the importance of the evidence in the context of the case;

e. If vital evidence, was it of perishable or evanescent nature so that if there were any delay in securing it, it would have ceased to exist.

f. the seriousness of the offending.

[32] Mr. ‘Aho submitted that the evidence that the cannabis was found in the search should be admitted because there was no malice, the Police acted in good faith in the belief that there were illicit drugs to be found and the belief was proven to be correct.

[33] Once again I am unable to accept Mr. ‘Aho’s submission, principally for the same reason I that I found the search to have been illegal: there is a lack of evidence to support it. In the absence of evidence from Sergeant Tu’utafaiva, I cannot know if the search was conducted in deliberate breach of the law or whether the evidence could not have easily been lawfully obtained. Whilst I accept that the evidence is important, this case involves a modest amount of cannabis and the offence that Mr Tomasi is charged with is at the lower end of the scale of drug offending. For those reasons, I consider the evidence of the finding of the cannabis should be excluded and the charge is therefore not proven.

[34] For completeness, I note that there was a further gap in the prosecution’s case, in that there was no evidence as to what happened to the cannabis from when it was said to have been found until it was logged into the exhibits register at the Police station at 21.25 hours by Officer Leveni. In circumstances where Officer Leveni did not give evidence, there are no photographs of the cannabis in situ and Mr Tomasi gave, what I consider credible evidence from Mr Tomasi, that Sergeant Tu’utafaiva deleted a video of the search, I am cannot be satisfied that the items located in the search were the same items as logged into the exhibits register and subsequently analysed by Office Pale.

The bribery charge

[36] Officer Tapueluelu’s evidence about what Mr Tomasi said in the car on the way to the station was not challenged and I accept it. I reject Mr Tomasi’s evidence that he did not challenge Officer Tapueluelu’s evidence because he was upset. It is correct that he was upset and he was given time to compose himself over lunch before resuming his questioning and it was at that point that I asked him if he wanted to ask Officer Tapueluelu about what had happened on the ride back to the station. He replied he did not. I am also satisfied that Mr Tomasi’s words where a clear invitation to accept a payment to release him. There is no doubt in my mind that is what Mr Tomasi intended by his words.

[37] But that is not an end for two reasons. First, the particulars in the indictment allege that Mr Tomasi offered a bribe to the officers “so they refrain from arresting him.” That is plainly not what occurred as he had been arrested some time earlier. He offered a payment for his release from custody which is to my mind a different matter However had this been the only difficulty with this charge I would have been minded to seek submissions on whether to amend the indictment.

[38] The more significant matter concerns the requirement that the inducement be made to a member in the execution of that members’ duty as a member of the Tonga Police. To understand why this is an issue it is helpful to refer to the recent decision of the High Court (NZ) in Webster v New Zealand Police [2019] NZHC 1335.

[39] Webster was an appeal by Mr Webster from conviction for offences that included assaulting a police officer in the execution of his duty. Mr Webster had called the police for assistance because of an altercation with this methamphetamine-addicted son. When the police arrived Mr Webster was standing on his property inside the fence. A police officer entered the property and was told to get out by Mr Webster and, when he did not, Mr Webster pushed him. Mr Webster was convicted in the District Court, from which decision he appealed.

[40] The police relied, inter alia, upon s. 14 of the Search and Surveillance Act 2012 that provides a constable may enter a place, and take any action he or she has reasonable grounds to believe necessary to prevent offending or avert an emergency if he or she “has reasonable grounds to suspect an offence was or was about to be committed that would likely cause injury to any person or serious damage to, or serious loss of, any property, or there was a risk to the life or safety of any person that required an emergency response.

[41] After noting that it was a fundamental principle of New Zealand law that the coercive power of the State, “including entering onto private property, may only be exercised under lawful authority,” Palmer J held that s. 14 did not justify the police officer’s actions in entering Mr Webster’s property because he did not have reasonable grounds to suspect an offence was about to be committed causing injury or that there was a risk to the safety of any person requiring an emergency response (at [30]). It followed that it had not been proven that the constable was lawfully on Mr Webster’s property when the constable was assaulted and he was not therefore in the execution of his duty and the appeal against conviction was upheld.

[42] In the present case Mr Tomasi had been arrested without warrant. The powers of the Police to make an arrest without warrant are contained in s. 115 of the Tonga Police Act and require the a police officer believes on reasonable grounds that the person is, is about to or had committed an offence. A person so arrested must be brought before a Magistrate or, if there is no Magistrate, the officer in charge of the police station to be charged as soon as practical after being arrested (s. 116).

[43] However in this case the only basis for the police to believe that Mr Tomasi had, was or was about to commit any offence was that what was believed to be cannabis was found on his person and in his vehicle. That cannabis was found during an unlawful search, for the reasons that I have referred to. I have also ruled that the evidence of both the search and the finding of cannabis is inadmissible in evidence against Mr Tomasi.

[44] It must follow that the prosecution has failed to prove beyond reasonable doubt that Mr Tomasi was in lawful custody and the police officers Tapueluelu and Leveni were acting in the execution of their duty when he offered then an inducement to release him and this charge must be dismissed also.

Result

[45] Mr Tomasi is acquitted on counts in the indictment.

Arms

[46] Counts 4 to 7 of the indictment relate to firearms and ammunition found by the Police at Mr Tomasi’s home after they were invited on to the property by Mr Tomasi’s wife. Mr Tomasi denies any knowledge of the firearms/ammunition and claims no interest in them. In those circumstances I order their disposal under s. 34 of the Arms and Ammunition Act.

O.G. Paulsen

NUKU’ALOFA: 17 July 2019. LORD CHIEF JUSTICE