R v Tonga [2020] TOSC 39; CR 198 of 2019 (26 June 2020)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

CR 198 of 2019

REX

-v-

MANASE TONGA

BEFORE HON. JUSTICE NIU

Counsel : Mr Fatai Samani for the Crown

Mr Siosifa Tu’utafaiva for the Accused

Trial : 13, 14 & 15 May 2020

Submissions : By Mr Tu’utafaiva, not filed

By Mr Samani, not filed

Verdict : 26 June 2020

RULING (VERDICT)

Charges

[1] The accused was charged with three counts all to which he pleaded not guilty but on the morning of the trial, the Crown offered no evidence on the second count and I dismissed it and discharged the accused of that charge.

[2] The two remaining charges are:

Count 1: Possession of illicit drug, namely cannabis, a class B drug, at Sopu on 7 November 2018 without lawful excuse, contrary to S.4(a) of the Illicit Drugs Control Act.

Count 3: Possession of ammunition without licence, namely 9 .22 rifle ammunition at Sopu on 7 November 2018, contrary to S.4(1) of the Arms and Ammunitions Act.

Election and representation

[3] The accused was represented by Mr Tu’utafaiva and he elected to be tried by judge alone.

Burden and standard of proof

[4] The Crown bears the burden of proof that the accused committed the two offences, and it must do that by producing admissible evidence that leaves me with no reasonable doubt that that is so.

[5] The accused does not have to prove that he did not commit the two offences. In fact he has given no evidence and has called no witness to give evidence in this trial, as he is entitled to do, and has left it all for the Crown to prove his guilt if they could.

[6] Mr Tu’utafaiva was to have filed his submissions on behalf of the accused before the Crown was to file theirs, but he has not done so. However, he had sufficiently raised the points of the accused defence during his cross-examination of the Prosecution witnesses and with which I will deal in this Ruling. Mr. Samani has not filed any submissions for the Crown either.

The evidence

[7] The Crown called 12 witnesses all of whom were police officers and they gave evidence as I have summarized them herein.

[8] Patelesio Tu’itavuki, 45 years of age, police photographer, produced a booklet of 15 photographs (as Exhibit 1), which he had taken in the early hours of 7 November 2018 at the Central Police station, of a black car, 2 rifles, ammunitions and drug packs.

[9] Matiu Faletau, 24 years of age, was a policeman at the material time but now a diver. He said that at about 2:00am at night in 2018 while he was still a police officer, he and two other male police officers, Moa and Lufe, went out to a call of domestic violence at Sopu, at a house directly opposite the house of a police officer, ‘Atelea, in the southern outskirt of Sopu.

[10] He said that when they left there to return to the police station, they followed the vehicle of the husband of the woman who had called to ensure that he left the woman alone. He said that they were travelling eastwards towards town and at the first intersection they came to, the husband turned south and went towards the cemetery at the outskirt of Sopu while they continued eastward from the intersection. He said he then saw a black car with its lights and engine off stopping and parking on that road at about the middle of the road. He said that the accused was the only one sitting on the driver seat in that car, and they stopped right beside him.

[11] He said that he got out of their vehicle and went over and asked the accused why he was there. He said that the accused said that he had just woken up, and he told him to wind the window down because it was half down only and he did. He said that he shone his torch into the car and he saw a rifle beside the accused with the barrel facing the drivers door and the accused finger inside the trigger guard of the rifle. He said he told the accused to get out but he did not. He said he then reached into the car and took out the rifle. He said that it was a .22 rifle. He said that the officer, Moa, came out and he gave him the rifle while he then got the accused out of the car and handcuffed him.

[12] He said that he searched the accused pockets and found 2 $20 notes there. He said he told the accused to stand there while they would search the car, and he and Moa then searched the car. He said they found an airgun on the floor of the back seat, and that Lufe also searched the front seat and found a green fabric bag between the front seats which had a plastic bag which contained 29 packs of marijuana. He said that he himself found a telescope for the rifle on top of the dashboard. He said that there was also a white spotted fabric bag found on the drivers door which contained marijuana leaves.

[13] He said that he told the accused that they were arresting him and taking him and the car to the police station. He said that he then drove the accused’s car and the other two officers went in the police car and they all went to the police station. He said that there was more searching carried out of the car at the police station and that officers Leveni, Fifita and Tu’itavuki participated. He said that all the items found in the search were laid out and photographed.

[14] He said he wrote out the entries in the diary of action, in particular entries no. 10, 11, 12, 13 and 15 which the accused acknowledged by signing each of them. He produced those entries as Exhibit 2. He said that the signature at the end of item 15 was his.

[15] He was shown the photographs in Exhibit 1 and he said that Photo 7 showed the green fabric bag found between the front seats. He said that the airgun was the gun shown at top of photo 7, and that its barrel’s mouth was shown in photo 8 beside a .22 bullet on the floor.

[16] In cross-examination, he said that the road on which the accused’s car was, was narrow, such that no two vehicle would be able to pass each other without one or both being driven off the side of the road. He said that as he recalled the accused was parked in the middle of that road, but conceded that when the two vehicles were next to each other, they were equally on each side of the road. He said that the car’s lights and engine were off.

[17] I asked and he said that their vehicle was a police vehicle with the word POLICE painted on it, as well as the identifying patterns (designs) and colours of police vehicles on it.

[18] He agreed that he had not asked the accused why he was parked in the middle of the road and he also agreed that the accused had not told him that he had just woken up.

[19] He agreed that if the accused had his finger on the trigger of the rifle when he was pulling the rifle off him, the rifle would have fired, but that it did not. He said that the reason why he took the gun off him was to prevent him shooting them with it.

[20] He said that he did not ask the accused if he had a licence to use the rifle. He said that he arrested the accused and handcuffed him and searched him. He was asked by Mr Tu’utafaiva upon what charge or offence the accused was being arrested, and he replied that he was not arrested then. He was then asked why he took him out of his car, and he replied that he thought that it was the safe thing to do, in case there were other weapons on him.

[21] He agreed that they had no search warrant to carry out the search on him or his vehicle.

[22] He said that he handed all the items found to officer Fifita at the police station.

[23] There was no re-examination and I asked questions but nothing of note was said.

[24] Talia’uli Moa, 21 years of age, 3 years as police officer, said that he was with the group that attended the domestic violence matter in Sopu on 7 November 2018, and that on their return, at a cross-road at Sopu, they saw a car parking on the road. He said that it looked suspicious because there was no house nearby anywhere, and so they went to it. He said that the driver window was down and when they got there, Officer Lufe asked him how he was and did not hear his response, but that Officer Faletau got out and went to the driver and took out a gun from the hands of the driver. He said it was a .22 rifle.

[25] He said that he himself got out and went round to the car’s front passenger door and opened it and shone his torch inside. He said that he saw that the driver had the rifle telescope under his Tshirt and he took it off him and handed it to one of the other two. He said he then opened the back door and checked in there and then opened the boot of the car and saw another gun lying on the floor there. He said he backed off and went and got the driver out and searched him.

[26] He said he then cuffed the drivers hands behind his back and led him to the police van. He said he saw Officer Faletau reach into the car and got a little bag from where the driving pedals were. He said he saw him open the bag and that there were marijuana packs inside it. He said he got in the front passenger seat and Officer Lufe told Officer Faletau to drive the accused’s car and that they came to the police station. He said that whilst they were driving to the police station, Officer Lufe told the accused that he was arrested on a charge of possession of illicit drug.

[27] He said that at the police station they searched the car again and that he found a live bullet in it. He said that when the accused was handcuffed he was not charged then but that they did it because of the danger and risk that he might cause injury to them.

[28] In cross-examination, he said that he was in police uniform of grey shirt and long black trousers and black shoes. He said he did not ask the driver for permission before he opened the front passenger door and that he did not have any search warrant to do so but that as police officer he could do so if he had reasonable grounds to suspect that the driver was committing or had committed or would commit an offence.

[29] He said he did not hear Officer Faletau ask the driver if he had a licence for the gun, and that the offence he thought the accused might commit was to shoot them with the gun. He said that after searching the accused he found nothing that was an offence on him. He said that he did not write a report of the search he carried out. He said that he did not know that he had to write one out.

[30] He said he did not ask the accused for permission to open the left front door of the car, or to remove the telescope from him, or to open the rear passenger door or the boot of the car before opening them. He said that there was money in the accused’s pocket but there was no watch there.

[31] He said he cuffed the accused’s hands because he appeared dangerous in order that they were safe. He said that the packs found were marijuana packs because they were packed like marijuana packs and the contents were of green material like marijuana leaves.

[32] He said that what Officer Lufe said to the accused was “you are arrested on the offence of possessing illicit drugs”. He said he did not hear him say to the accused that he had a right to speak to a lawyer or friend or relative or to remain silent.

[33] He was re-examined and I asked him questions but he said nothing of note.

[34] Siaosi Lufe, 44 years of age, acting sergeant with 23 years in the police force said that they were following the husband to separate him from the wife at the house in Sopu. He said that as they were travelling eastward towards the intersection, the vehicle of the husband swerved to the right side of the road to avoid a rough area on the road, and that as it did so, he was able to see a vehicle’s headlights coming towards them but that when that vehicle was about 20 meters from the intersection, it turned off its headlights and it then reversed back up the road.

[35] He said they continued onto the vehicle after the husband turned right at the intersection. He said when they got to the car, he asked the driver how he was and that the driver said he was alright. He said that he then told Faletau and Moa to get out and check out the car with their torches.

[36] He said that he saw Faletau go to the driver and then he saw him trying to pull out a gun from the car while the driver was holding on to it and that he saw Moa go and helped Faletau and got the gun off the driver and it was then given to him. He said he pulled the bolt of the gun back and a live bullet was ejected from it. He said he put down the gun in the van and gave his handcuffs to Faletau and Moa to handcuff the driver. He said the driver refused to get out and he was handcuffed whilst he was still clutching the steering wheel.

[37] He said he then got out of the van and went over and looked whilst Faletau was shining his torch at the driver’s feet. He said he saw a telescope on top of a little green bag which was between the feet of the driver. He said that they pulled the man out of the car and that he, Lufe, got the scope and the bag up onto the driver’s seat and opened it. He said that there was a big plastic bag inside containing many small plastic packs.

[38] He said that he asked the man whose the packs were and that the man said that they were his. He said he asked him his name and that the man said it was Manase Tonga. He asked him where he lived and he said that he lived in Fua’amotu. He asked him who he lived with and he said he lived with Sisi Tonga. He asked him who was Sisi Tonga, and he said that he was his father. He said that he then told him that he was arresting him for offences of possession of firearm and of illicit drug. He said he then instructed Faletau and Moa to cuff his hands behind his back and to put him in the back seat of the van.

[39] He said that Faletau called out that there was another gun in the back seat of the car and that he told him to leave it there and that they would call the drug squad. He said he called on the radio and they waited and after about 20 minutes, they received the call to proceed to the police station. He said he told Faletau to drive the man’s car and they followed behind him.

[40] He said that when they got to the station, the drug squad were there and that they took over.

[41] In cross-examination, Mr Tu’utafaiva put to him that his evidence that he saw the headlights of the car go off and that the car reversed back up the road was not true because he had not said such thing in his statement which he had written out that same morning. He said that it was true that he had not said so in his statement, but that it was true and that was what he saw. He was asked why he had not stated it in his statement, and he said that he was only writing the main things that happened. He was asked whether or not this was a main point that happened. And he said that it was but that he had forgotten it just then. He was asked how he could have forgotten it after only about 1 hour, and he said that it was true that he forgot but that he remembered it during giving his evidence.

[42] Mr Tu’utafaiva put to him that it could not be right that that was what happened because he had stated in his statement as follows:

“I remember well early morning on 7 November 2018 at 0240hrs or thereabout at Sopu but the area of ‘Isileli the black car no. C22404 was parked and it looked suspicious as it stopped on the public toad to the east while we were travelling up from the west from the house of PC ‘Atelea”.

Mr Tu’utafaiva put to him that he had thereby stated that what was suspicious was the fact that the man was stopping on the road, and not because the man had turned off his headlights and reversed. He said that the fact he had stopped on the road was also suspicious, as well as what he had just remembered.

[43] Mr Tu’utafaiva also put to him that neither the officer Faletau nor the officer Moa had said anything about the car’s headlights being turned off and then reversing, but the witness maintained that he himself had seen it and that it was true.

[44] Mr Tu’utafaiva then produced the witnesses’ statement as an exhibit and it was Exhibit 3.

[45] He said that he had not asked the driver for permission for either Officer Faletau or for Officer Moa to check out the car. He said that the reason he did not do so was because of the gun being in the car. He said he did not ask the driver if he had a licence for the gun, and that he did not even ask if he had a licence when he arrested him for unlawful possession of the gun.

[46] He said that it is true that in his statement he had stated that it was him who had handcuffed the accused, but the fact was that all three of them had to try and hold him and handcuff him. He said that at that time he had not charged or arrested the accused. Mr Tu’utafaiva then asked him what right did they have to take him out of his own car, and he said that they did have the right to do so. He said that they had to get him out and then inform him.

[47] He said he knew about S.123 of the Tonga Police Act and that they had no warrant to search, but that he did not make a report to the Police Commissioner although he knew he had a duty to make that report.

[48] There was no re-examination and I had no question.

[49] Kalosi Tapueluelu, 29 years of age, 9 years in the force said he was one of the officers who searched the car of the accused when it arrived at the police station. He said he found a small black fabric bag with white dots in a hollow of the driver’s door and that inside the bag were cannabis leaves. He said he asked the accused, who was watching the search, whose they were and that he said that they were his. He also said that he found a live .22 bullet on the floor of the right rear seat. He said he asked the accused whose it was and he said that it was his.

[50] When cross-examined he said that there was no search warrant to do the search and that he knew that. He also said that he made no report of the search to the Commissioner. He thought it was the officer in charge who was required to make the report and he was not that officer.

[51] Karsten Leveni, 32 years of age, 14 years in the force, said he was also one of the searchers. He said he found 3 .22 bullets in a hollow in the dashboard and 1 .22 bullet in the hollow for holding a cup.

[52] In cross-examination, he said that there was no search warrant and that he knew that before they started searching. He said he could not remember if he made a report of the search to the Commissioner.

[53] Tu’amelie Fifita, 23 years of age, 3 years in the force, said that he was handed by officer Faletau the items listed in entry 15 of the diary of action (Exhibit 2) and that he weighed the cannabis in the presence of the accused and wrote the weights in entry 18 as follows:

(a) the 29 packs of cannabis weighed 58.25 grams.

(b) the plastic bag with crumbled cannabis leaves weighed 1.95 grams.

(c) the cannabis leaves in the black bag with white dots weighed 4.01 grams.

[54] In cross-examination, he said that he did not weigh the plastic packs or bags in which the cannabis were contained separately.

[55] ‘Eliki Tomu, with 18 years in the force, the police armourer, said that he examined the rifle and the bullets. He produced the rifle as Exhibit 5 and his report as Exhibit 4. He said that the rifle was a .22 Magnum rifle RF (rim fire). He said that he also examined the 9 bullets and that they were all normal .22 bullets, and that although they could be fired with the Magnum rifle it was not for proper use with such rifle because magnum rifles required their own magnum bullets. They are longer and heavier.

[56] He said that when one is licenced to have a magnum rifle, he is thereby licenced to have magnum bullets for the rifle. He said that the accused was licenced to have this .22 magnum rifle and to have 50 .22 magnum bullets, and that the accused had no licence and was not licenced to have ordinary .22 rifle bullets which he had instead.

[57] In cross-examination he said that the licence of the accused did specify the bullets that he had to have namely,

“Kuo ‘osi laiseni heni ke ne tauhi ngaue’aki, to’o holo ‘a e me’atau/mahafu kuo fakamahino ‘i lalo:

Calibre

Mahafu 22 Magnum”

(Hereby licenced to keep use, carry a weapon/ammunition

specified hereunder:

Calibre

Ammunition .22 Magnum)

He said that that licence specified that he was to have and use only .22 magnum bullets.

[58] Litili Televave, 24 years old, 4 years in the force, said that he questioned and recorded the questions and answers and statements of the accused. Mr. Tu’utafaiva objected to the production of those records and said that he would give the grounds of his objection when he would make his closing submissions. The records were accordingly provisionally entered as Exhibits 6 and 7. The witness then proceeded to read them out in Court.

[59] In cross-examination, he said that he was the officer in charge of the investigation and he knew that the accused had been charged in the Court with possession of illicit drug, and that the searches carried out had been done without any search warrant. He also said that he knew that they could hold the items found for 60 days and that they had to ask the Court for extension when the 60 days expired, but that they did not ask for it.

[60] I asked and he said he did not know of S.149 of the Tonga Police Act.

[61] Minola Pousima, female police officer for 5 years, 3 of which she has been the exhibits officer at the Central Police Station, produced a copy of the page of the Drug Register with entry no. 95/18 which listed the items found in the searches in this case upon handover to her by Officer Fifita, and that copy was produced as Exhibit 8. She then produced the items and they were produced as Exhibit 9. She said that on 26 March 2020, she took 1 pack out of the 29 packs and all the loose leaves and 0.75 gram of the crumbled leaves (out of the little black bag with white dots) and gave them all to Officer Leniti Pale of the forensic unit. She also produced a copy of the page of the Drug Movement Register with entry no. 93/18 which showed all the exhibits as follows:

29 packs of cannabis.

1 plastic bag of cannabis.

1 little bag of cannabis.

9 bullets .22

1 air gun.

1 rifle .22

1 rifle telescope.

It also showed the transfer of 9 bullets, air gun, rifle and the telescope to Officer Falekaono of the armoury section on 26, November 2018 for safe storage. That copy was produced as Exhibit 10.

[62] In cross-examination, she said that when she was given the exhibits by Officer Fifita, all the small items were in the green bag (except for the 2 guns). She said that she then put the green bag with all its contents into a large white envelope and sealed it and wrote the register entry number on the outside. She said that when she received the items there was no label or number or anything on any of them. She said that the weights stated in Exhibit 8, that is, of 60.20 gram for the 29 packs and of 4.01 gram for the loose leaves and crumbled leaves were given to her orally by Officer Fifita.

[63] Leniti Pale, 38 years of age with 17 years in the force and working in the finger-printing, records and forensic unit said that he received the samples of the exhibits from Officer Pousima as shown in Exhibit 8 and that he handed the samples to Officer Kava on 27 March 2020 and that they were returned to him on 22 April 2020. He produced those samples as Exhibit 11.

[64] In cross-examination he said that their division only proceed to carry out the tests on the exhibits given to them when they were requested to do so. He said before March this year, they had not been so instructed at all. He said that there were no labels on the items at all and they were not entered on their own register either.

[65] Laulelei Kava, 22 years of age with his second year in the force this year said he has been in the forensic section since he started in the force. He said that he carried out the tests in the present case. He said the qualification he had to carry out the test was his successful completion of a cannabis identification course which was held in Tonga by the ESR of New Zealand on 18 – 22 November 2018. He said his first test was carried out in January this year and that he has now carried out some 20 odd tests since, all of cannabis, evidence on one test having been heard in evidence in Court before this one. He produced and showed to Court his certificate of completion of the course he took.

[66] Mr. Tu’utafaiva raised and I noted his objection to the evidence of this witness upon the ground that he lacked the qualification to make such test, but that the witness could proceed in the meantime.

[67] The witness then produced a report which he had prepared after he carried out his test, and it was provisionally entered as Exhibit 12. In that report he stated that he carried out two types of tests. The first was by use of a microscope. He said that when magnified under a microscope the cannabis leaf should show the presence thereon of 3 types of hairs which are called: glandular trichomes, cystolith hairs and long bristle hairs. He said that only the cannabis leaf has all those types of hair. He said the parts of the leaf which he studied under the microscope in this case all showed the presence of all 3 types of hairs.

[68] He said he then went on to carry out a chemical test on the same material. He said that they have solutions already mixed in New Zealand by ESR and that if they put the material into that solution and it turns from clear solution to a purple solution, then the material is cannabis. He said that he put material from the 3 material, that is from the pack, the loose leaves and the crumbled leaves, into the solution and that the solution turned purple each time. He concluded that all the 3 material were cannabis. He produced the samples as Exhibit 13.

[69] In cross-examination, he said that he began as a recruit in the force in 2018. He said that they get 4 things from ESR in New Zealand for the chemical test, namely, duquenois, hydrochloric acid, chloroform and cannabis oil. He said that he did not know what was in each of those solutions or how each solution was made up.

[70] He said that he received the 3 samples on 27 March 2020 and it was some weeks later that he got to do the tests on them because he had other engagements to attend to before he did the tests and made his report on them.

[71] He said that although he found the 3 types of hairs on all three samples, he did not know where on a cannabis leaf a particular type of hair can be found, but he said that if all 3 types of hairs were removed and put into the duquenois solution, the solution would turn purple.

[72] He said that the ESR expert who had conducted the course in Tonga said that only cannabis would have all the 3 types of hairs.

[73] He said that to do a chemical test, he had 3 empty test tubes marked no 1, 2 and 3 each with a label stating “positive”, “negative” or “sample”. He would then put 1 millilitre of duquenois into each test tube, and then add cannabis oil into test tube no. 1 (positive) and to test tube no. 3 (sample).He then added hydrocholoric acid into each tube and left for 1 minute, at the end of which, the solution in both 1 and 3 would turn purple. He said he did not know why the solution turned purple or why it took 1 minute to turn purple.

[74] He said that he did not know if the cannabis oil was cannabis oil. He said that it was only ESR who said that it was cannabis oil. He said he did not know what chemical reaction took place when the hydrochloric acid was added to the sample test tube. He said he did not know why the reaction was like that.

[75] He said that the final step was to add the chloroform to each test tube, and the result was that there was no change in colour of the solution in test tubes 1 and 3 but that test tube 2 solution would turn colourless.

[76] He said that the “positive” test tube no. 1 showed that the chemical used was correct and that the negative test tube no. 2 also showed that the chemical used was correct too.

[77] He said that “DQ04” meant it was the fourth bottle of duquenois which ESR had given them to use. He said that one bottle would last them about a month because they used the same bottle for other tests as well.

[78] He said that the test he carried out in this case were verified by the officer in charge, Officer, Leniti Pale, and that that officer signed the result of his test as well, although he, Leniti Pale, only signed that the form was filled in correctly.

[79] In re-examination, he said that there was no other way for the solution to turn purple except if the material was cannabis.

Consideration

[80] I have to ask myself the following questions:

(a) Was the material in each of the 29 packs cannabis?

(b) Were the loose leaves in the plastic bag cannabis leaves?

(c) Were the crumbled material in the little bag cannabis?

(d) Was the accused licenced to have .22 rifle bullets?

(e) Did the accused have possession of all or any of those things?

(f) Did the accused have lawful excuse to have any of those things in his possession?

(g) Was the search lawful?

(h) Was the arrest lawful?

(i) Are his confessions admissible?

Were the material and leaves cannabis?

[81] The evidence of the witness, Laulelei Kava, is that the material and leaves he received in the samples given to him, were cannabis, and that he came to that conclusion after he carried out tests thereon in accordance with instructions given to him by experts in New Zealand and with the use of specified chemicals which were supplied by ESR to them here in Tonga.

[82] Mr. Tu’utafaiva objects to that evidence of Mr. Kava on the ground that he did not have the qualification to give such an opinion or to come to such conclusion. He pointed out in his cross-examination of Mr. Kava that Mr. Kava did not know why the test came out the way it did, and that Mr. Kava did not even know the composition of the chemicals and solutions they were given or the chemical reactions which occurred when one chemical or solution was added to another, let alone not knowing where on a cannabis leaf a particular type of the 3 types of hair would be found, or that the cannabis oil was in fact cannabis oil or why the reaction turned out as it did.

[83] However, I ask myself, why should it be different if the expert from ESR in New Zealand was to have attended and had carried out the tests himself just as Mr. Kava had done? I am sure that with the proper scientific qualification that the expert has and with his knowledge of chemicals and of chemical reactions which occur when one was added to another, together with his years of experience in testing and analysing cannabis, Mr. Tu’utafaiva would have had no objection to his tests. But why should that be necessary if that same expert had imparted the necessary knowledge to Mr. Kava here in Tonga for the sole purpose of testing and confirming whether or not a particular material was in fact cannabis?

[84] I do not see any difference or any necessity in having that expert attending to the test himself, if such test was carried out by any lay person in accordance with instructions which the expert has given and with chemicals and solutions, including cannabis oil, which he has supplied to be used for such tests. If the result of such test showed a different result, then the material was not cannabis. Would Mr. Tu’utafaiva object if the result of the test had turned out negative? That is that the material was not cannabis? Of course he would not. He would readily agree that Mr. Kava give evidence of his test and of his conclusion that the material was not cannabis.

[85] I am satisfied that Mr. Kava was properly instructed by a proper expert who was properly qualified on the testing for cannabis on the method of ascertaining whether a substance or material was or was not cannabis, and that the chemicals and solutions supplied to him by that expert from New Zealand were the correct chemicals and solutions for such tests, and that the results of the application of those chemicals and solutions were the correct results of their application to the samples that he had been given.

[86] I am therefore satisfied beyond reasonable doubt that the material in each of the 29 packs, and the leaves in the plastic bag, and crumbled material in the little bag, were cannabis.

Was the accused licenced to have .22 bullets?

[87] I am satisfied, beyond reasonable doubt, that the accused was not licenced to have or to use .22 bullets with his rifle for which he was licenced. The licence which was granted to him specified the bullets or ammunition he was to use on the .22 magnum rifle for which he was licenced, namely .22 magnum ammunition. The calibre of the ammunition specified was .22 magnum.

[88] Because he had .22 long ammunition or bullets instead of .22 magnum ammunition, he had no licence to use or to have the 9 .22 ammunition bullets which were found in his car.

Did the accused have possession of the said material and leaves and ammunition?

[89] I am satisfied, beyond reasonable doubt, that the accused had possession of all the cannabis and of all the 9 .22 bullets found in his car, because the cannabis were in a green bag which was on the floor by his feet when they were found and in a little bag in the hollow of the driver’s door right beside him, and the bullets were found in a hollow in the dash board, in the cup holder and on the floor of the car. He knew of them and he told the officers who found them that they were his.

[90] His defence, as raised by Mr. Tu’utafaiva, was not that he did not have possession of them but that he had a licence for them, which I have found he did not. He also defended that the police had no lawful authority to carry out the search of the car which they did, and that the admissions which he gave in respect of them, verbally when they were shown to him, and in writing when he was interviewed and questioned by the witness, Litili Televave, (Exhibits 6 and 7 which were exhibited provisionally), were inadmissible because he had not been informed by the officer, Litili Televave, that he could speak to a friend, a lawyer or a relative, as was required by S.149 of the Tonga Police Act.

Was the search lawful?

[91] The search of the car (and of the accused) which was carried out by the 3 officers on the road at Sopu was done without any warrant having been issued by the Court. Was that search lawful?

[92] S.123 of the Tonga Police Act provides that a police officer may, without warrant, stop detain and search any motor vehicle and seize any thing, including the vehicle, if he is satisfied on reasonable grounds that:

(a) a serious offence has been committed, is being committed or is about to be committed in the vehicle, and

(b) it would be impracticable, unreasonable or not in the interests of justice if the officer was required to apply for a warrant in order to conduct a search in relation to the offence.

[93] In the presence case, when officer Faletau shone his torch into the accused’s vehicle and saw the rifle in the left hand of the accused, he had not stopped or detained the accused or his vehicle in any way. None of the 3 officers had detained the vehicle or the accused in any way until then. It was only after he had seen the gun in the accused’s hand that he said that he told the accused to get out of the vehicle, and that when he refused to do so, he then grabbed and pulled the gun off the accused.

[94] I do not need to be persuaded that in the circumstances prevailing at the time, namely, that it was night time, about 2:00 am in the morning, on a quiet and narrow road in the outskirt of Sopu, with no houses nearby, the vehicle being a black car with its light and engine off, being parked on the road with no street light or other lights nearby, the presence of a rifle in the hand of the accused sitting alone in the car at the driver’s seat with the driver’s window half open, there was reasonable ground for the officer Faletau, to be satisfied that a serious offence was being committed or had been committed or was about to be committed with the rifle, and that he acted on that belief and immediately ordered the window to be wound down and to grab and pull the rifle off from the accused.

[95] And having pulled the rifle off and on checking and finding that a live .22 bullet was in the chamber of the rifle, meaning that the rifle had been loaded and ready to be fired whilst it was in the hand of the accused, the accused was thereby carrying loaded gun in a public place without apparent justification.

[96] In cross- examination, Faletau said that he had pulled the gun off the accused to prevent the accused from shooting them with the gun.

[97] The evidence of Officer Lufe was that upon finding the live bullet in the chamber of the rifle, he ordered the handcuffing and removal of the accused from the vehicle, and that after the accused was removed from the car, he then saw the bag on the floor where his feet had been and that the bag contained 29 packs of marijuana and loose marijuana leaves.

[98] I am therefore satisfied that all 3 officers were acting in accordance with the above stated provisions of S.123 and that the search that they carried out in the vehicle of the accused was lawful.

No report made

[99] Mr. Tu’utafaiva pointed out with his questions that none of the 3 officers made any report of the search without warrant which they carried out to the Commissioner of Police, such as is required by subsection (5) of S.123. It provides:

“5. Any police officer who has exercised the powers under this section shall provide a report in writing to the Commissioner within 24 hours, covering the detail of the search, the objects found, any offences detected and any other relevant matter.”

[100] Does the failure to make a report to the Commissioner in writing of the search without warrant carried out render the search unlawful? Does that mean the items found in the search ought not to be received in evidence in this trial? The section does not say so and nowhere in the Act is any provision to that effect. In absence of any such provision in the Act, I can only conclude that the Act does not intend that the search thereby becomes unlawful. The search was lawful when it was carried out and I do not see any reason why it should subsequently become unlawful because no report of the search was made to the Commissioner within 24 hours.

No extension after 60 days

[101] Mr. Tu’utafaiva also pointed out that S.123 also required that the items found in a search without warrant could only be held for 60 days unless further extended by order of a Magistrate (S.123 (3)). Again the Act is silent as to what is to happen when the 60 days expired without further extension by a Magistrate. I consider that the answer is this. If a person is charged with an offence in respect of the item found in a search without warrant, the Magistrate who signs the summons containing the charge of that offence is thereby impliedly held to have thereby extended the period during which the item may be held by the police. Alternatively, and I consider it is the more reasonable, the provision of subsection (3) only applies to items seized in a search without warrant in respect of which no offence is charged against any person. Unless its correct owner is found, it should be returned to the person in whose possess it was when it was seized, unless the police wanted to keep it for longer than 60 days for whatever reason they may have. If a person is charged with an offence in respect of the item instead, there is then no requirement that the Magistrate has to grant an extension.

Right to speak to relative, friend or lawyer

[102] Mr. Tu’utafaiva also points out in his cross-examination of the witness, Litili Televave that he failed to inform the accused of his right under S.149 of the Tonga Police Act to talk to a lawyer, friend or relative before he proceeded to question and record his answers and statements in the provisionally produced Exhibits 6 and 7, because the accused had already been charged with these offences by then.

[103] That section provides that before a police officer starts to question a person who has been charged with an offence, the police officer shall inform him that he may telephone or speak to a relative, friend or law practitioner. Because the officer failed to inform the accused that he could do that, he thereby failed to afford to him his right to speak to such persons and his confessions in answer to his questions in Exhibits 6 and 7 were unlawful and were inadmissible.

[104] I have already decided in another case that S.149 grants to an accused person a right to be so informed and to be afforded the opportunity to speak to such persons if he so wishes to, and that the failure of the police officer to afford such right to an accused must result in rejection of the answers and statements made by the accused to the police officer. I am aware that the other judges have held that the answers and statements could be admitted in evidence or rejected as a matter of discretion, but I do not find any indication in the wording of the provision that would allow the Court any such discretion. If, as the section provides this is a right of the accused, then it must be interpreted and upheld as right, not as a privilege to be only recognised by discretion. Accordingly, I hold that Exhibit 6 and 7 are both excluded and are not evidence in this trial.

[105] However, I am satisfied beyond reasonable doubt, and I accept the evidence of the witnesses that when shown the 29 packs of cannabis and loose leaves and the bullets, the accused admitted that they were his.

Conclusion

[106] Therefore, having considered all the evidence and the points raised in defence, I have come to the conclusion, and I am satisfied beyond reasonable doubt, that the accused –

(a) had possession and was in possession of an illicit drug, namely cannabis, a class B drug, at Sopu on 7 November 2018 without lawful excuse, contrary to S.4 (a) of the Illicit Drugs Control Act.

(b) had possession and was in possession of 9 .22 rifle ammunition without licence at Sopu on 7 November 2018, contrary to S.4 (1) of the Arms and Ammunitions Act.

and I convict him and find him guilty of both counts with which he is charged.

Niu J

NUKU’ALOFA: 26 June 2020. J U D G E