R v Uasike [2020] TOSC 88; CR 171 of 2020 (23 October 2020)

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

CR 171 of 2020

BETWEEN: R E X

- Prosecution

AND:

TANIELA UASIKE

- Accused

VERDICT

BEFORE: JUSTICE LANGI

Counsel: Mr. Joe Fifita for the Crown Prosecution
The Accused In Person

Date of Verdict: 23^rd October, 2020

1. THE CHARGE AND PRELIMINARY MATTERS
   

1. The Accused is charged with two counts of possession of illicit drugs under the Illicit Drugs Control Act:
   1. Count 1: that on 15 November 2018 he knowingly and without any lawful excuse possessed a Class A drug, namely methamphetamine contrary to section 4(a) of the Act;
   2. Count 2: that on 15 November 2018 he knowingly and without any lawful excuse possessed a Class B drug, namely cannabis contrary to section 4 (a) of the Act;
      
2. I have reminded myself at the outset that 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 charge and every constituent element of the charge.
   
3. Before I can convict the accused the prosecution must prove the following elements beyond a reasonable doubt:
   
   1. That on 15 November 2018 at ‘Umusi;
   2. The Accused knowingly possessed;
   100. A class B drug, cannabis/A class A drug methamphetamine
        
4. At the beginning of the trial, the prosecution informed me that after discussion with the accused, they have narrowed down the issues in this case to the following issues:
   1. Possession of an illicit drug;
      
5. To prove ‘possession’, the Crown must prove:
   1. Physical custody and control of an illicit drug;
   2. Without lawful excuse, proof of which lies on the defendant;
   100. Knowledge that it was an illicit drug;
        
6. The accused informed me that he does not dispute that illicit drugs were found at the residence of Creed Tongamoa but claims that they were not his;
   
   2. THE EVIDENCE

CROWN’S EVIDENCE

7. I heard evidence from 2 witnesses for the prosecution.
8. The first witness was police constable Tu’amelie Fifita. He stated that on 15 November 2018 they had taken a prisoner by the name of Creed Tongamoa to his garage at ‘Umusi to execute a search warrant for illicit drugs. They had arrested Mr. Tongamoa and had found illicit drugs on him and the reason they went to his work place was to search for illicit drugs. When they arrived, they saw the accused and two other male persons standing in the doorway to the garage office together with Creed Tongamoa’s wife and daughter. When he got out of the police vehicle, he saw the accused turn and run towards an area where they later found a bag containing illicit drugs. He did not see the accused holding anything but only saw him run. They took the accused and everyone else to the garage to stay there while they searched the area. A short time after they began the search, Inspector Vi noticed a black bag next to the vehicle where the accused was seen walking away from. The bag was opened and they found one pack of methamphetamine and one pack of cannabis. They asked the accused who the bag belonged to and he said that he did not know. He asked the other two men who were there who the bag belonged to and they said it was the accused’s bag.
9. In cross-examination the accused put to him that it was only himself and Creed’s wife and Tevita ‘Alatini who were standing at the door when the police arrived. He said that Lokovalu Leha was not standing at the door with them and had in fact been standing in the area where they located the bag. The witness maintained his evidence that it was the accused, Tevita ‘Alatini and Lokovalu Leha who had all been standing at the entrance of the door when they arrived.
10. There was no re-examination and I had no questions for the witness.
11. The second witness was Detective Malolo Vi. He lead the search at ‘Umusi to search the workplace of Creed Tongamoa where the police suspected he was selling illicit drugs. He stated that they had received information that there were workers at the workplace who were selling drugs. When they turned into the workplace compound they noticed the accused and Tevita ‘Alatini and Lokovalu Leha standing at the door to the office. The door was a sliding door, and they were standing on the right side while the left side was closed. He noticed the accused moving and disappeared to left side while the other two stood on the right. When they stopped he noticed the accused re-appear and stand next to the two other boys. At that time, he suspected the accused had done something unlawful to have turned and run when he saw them.
12. They then gathered everyone in one place while they searched the area. He stated that towards the end of the search he reached the area where he suspected that the accused disappeared to and he saw a black bag on the ground. It looked like it had been thrown there as it had fallen sideways. He asked Creed about the bag and Creed told him to ask the boys as it was their bag. He then asked the accused and the other two boys who the bag belonged to and they told him that they knew nothing about the bag.
13. He then stated that he arrested them based on their body movements and the fact that the accused had run when he saw them and then finding the drugs only two meters away from where they had been standing. He said that they opened the bag and found illicit drugs inside and an empty can which looked as if it had been used to smoke cannabis.
14. In cross-examination, the accused put to him that he had not run but he maintained that he had run when he saw them coming.
    

DEFENCE EVIDENCE

15. After the Crown closed its case I explained to the accused that the burden to prove the charges against him remained with the Crown from the beginning of the trial to the end and that he did not have to prove he was innocent. The accused understood and chose to give sworn evidence.
16. He stated that on the day the police came to conduct the search they had just arrived to the workplace to start work for the day when Creed Tongamoa’s wife came to inform them that the police had arrested him. She told them that Creed had been caught with illicit drugs. While they were still talking the police arrived. He and Tevita ‘Alatini and Creed’s wife were standing at the door and the police came and took them outside and searched them. Another officer went inside and found Creed’s daughter inside the office and searched her. Creed was then taken out of the police vehicle and the search commenced. He stated that Officer Vi called them to the area where the small bag was found and he asked them who the bag belonged to and they told him that they do not know as they had just arrived to open the garage. They were then arrested because they were the only ones at the workplace. They took the accused and the two other men and released Creed’s wife and his daughter.
17. In cross-examination he stated that he had gone to work in the afternoon as he had other matters to attend to that day. He stated that he was the mechanic and the other two men were panel beaters. He denied any knowledge of the black bag and stated that the area where the police had found the bag was the area where Lokovalu Leha had been listening to music.
    
    100. DISCUSSION
18. This was a relatively short trial where the only issue in dispute was possession of an illicit drug. The accused does not dispute that the drugs found in the bag are illicit drugs but he says the bag does not belong to him and he has no knowledge of its contents. Therefore, the issues for me to consider and determine are as follows:
    1. Has the Crown proven beyond reasonable doubt that the accused had knowledge, and therefore possession of the illicit drugs?
       

Has the prosecution proven beyond reasonable doubt that accused was in possession of an illicit drug?

19. The Crown’s case is based solely on circumstantial evidence. Briefly, the prosecution says that I should convict the accused because the evidence is that he had run when he first saw the police and then he re-appeared. And when the search was conducted, the police found a bag containing illicit drugs in the ‘area where the accused was seen running towards’. There was no other evidence to tie the accused to the offending.
20. As has been noted in various cases in the Kingdom, circumstantial evidence can be powerful evidence, but it is important that it is examined with care, and to consider whether the evidence which the prosecution relies upon in proof of its case is reliable and whether it does in fact prove guilt (R v Azuelo [2009] TOLR 14; [2009] TLR 140 (18 March 2009); R v Nisifolo [2009] TOLR 1 [2009]; TLR 27 (9 January 2009).
21. Additionally, before convicting on circumstantial evidence it is important to consider whether the evidence discloses any other circumstances which are or may be of sufficient reliability or strength, to weaken or to destroy the prosecution’s case. The court must also be careful to differentiate between arriving at conclusions based on reliable circumstantial evidence, and mere speculation. Speculating in a case amounts to no more than guessing or making up theories without good evidence to support them, neither the prosecution, the defence or I, should do that.
22. As stated above, in this case the prosecution is relying on evidence of various circumstances relating to the crime and the defendant which they say, when taken together will lead to the sure conclusion that the defendant was in possession of illicit drugs.
23. To have possession of something requires the person to have physical custody or control over it plus the required knowledge of its presence.
24. The legal meaning of the word ‘possession’ was set out by Ford J in R v Motuliki [2002] TOSC 22; CR 92/01 (24 May 2002) as:

“Archbold, 2001 edition, deals with the situation where drugs are found in premises occupied by or associated in some way with an accused. After referring to the authorities, the text states (para 26.61):

“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”.

25. That reference still stands in Archbold 2005 at para 26-61, and it is clear from other cases referred to in Archbold that direct proof of knowledge is not essential and that it may be inferred or imputed from the circumstances. It has been said that possession ‘is defined by modes or events in which is commences or ceases, and by the legal incidents attached to it’: Lord Wilberforce in Warner v Metropolitan Police Commissioner [1968] 2 All ER356, 392 (HL). Explaining that further, Lord Wilberforce said (at 393):

“By [the modes and events] I mean relating the to typical situations, that [the jury] must consider the manner and circumstances in which the substance, or something which contains it, has been received, what knowledge or means of knowledge or guilty knowledge as to the presence of the substance, or as to the nature of what has been received, the accused had at the time of receipt or thereafter up to the moment when he is found with it, his legal relation to the substance or package (including his right of access to it). On such matters as these (not exhaustively stated) [the jury] must make the decision whether in addition to physical control, he has, or ought to have imputed to him the intention to possess, or knowledge that he does possess, what is in fact a prohibited substance”

26. That approach was upheld by Lord Scarman in R v Boyesen [1982] 2 All ER161, 163 (HL). Similarly in R v Lewis (1988) Cr App R 270 (CA), it was again held that the question to be answered was whether on the facts the accused was proved to have or ought to have imputed to him the intention to possess or the knowledge that he did possess what was in fact a prohibited substance. It was not necessary to be satisfied that the accused had actual knowledge that he had the drugs in question under his control before he could be convicted.
27. In the case of R v Cox [1990] NZCA 13; [1990] 2 NZLR 275, Hardie Boys J clearly explains the two elements of ‘possession’. The first is the physical element and it is actual physical custody or control. The second is the mental element or the element of mens rea which is a combination of knowledge and intention: knowledge in the sense of an awareness by the accused that substance in his possession (often inferred or presumed) and the intention to exercise possession.
28. After considering the law with regard to possession and applying it to the evidence I have heard, I am not satisfied that the Crown has proven that the accused had physical custody and control of the bag found by the police nor the required knowledge of the presence of the illicit drugs. While the court is entitled to draw reasonable inferences from the circumstantial evidence, the inference that Crown counsel invites the court to draw cannot, in my opinion, support the charges to the required standard of proof beyond a reasonable doubt.
29. In this case, the police saw the accused turn and run when he saw the police vehicle. Constable Tu’amelie Fifita was asked by counsel whether he had seen the accused hold something in his hand when he turned and ran. The officer said no. He only saw the accused turn and run and then re-appeared and stood together with the other two boys. None of the two witnesses were able to say exactly where the accused had run. All they could say was that he had disappeared behind the left side of the door which had been closed and then re-appear. The direction he had disappeared to was where they later located a bag containing the illicit drugs.
30. The accused in this case had some association to the workplace, in that he worked there as a mechanic. But so were the other two men, who were panel beaters. The Crown relies only on the evidence of the police that the accused had run when he saw them. An inference can be made that he ran because he was trying to hide something. But is that enough to prove beyond a reasonable doubt that he had custody and control over the illicit drugs? No one saw him hold the bag, no one saw him throw the bag. The owner of the workplace, Creed Tongamoa, had also just been arrested by the police who found illicit drugs on him. It is therefore possible that the drugs were his. In those circumstances the court cannot be satisfied to the criminal standard that the accused had physical custody and control of the illicit drugs, or that he had the required knowledge.
    
31. For the reasons given above, I am not satisfied that the Crown has proven the charges beyond reasonable doubt and the accused is therefore acquitted.
    

‘E. M. L Langi
NUKU’ALOFA: 23 October 2020 J U D G E