R v Tupou [2020] TOSC 91; CR 212 of 2020 (30 October 2020)

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

CR 212 of 2020

BETWEEN: R E X

- Prosecution

AND: SIMILATI TUPOU

- Accused

VERDICT

BEFORE: JUSTICE LANGI

Counsel: Ms Halaevalu Aleamotu’a for the Crown Prosecution
The Accused In Person

Date of Verdict: 30 October, 2020

1. THE CHARGE AND PRELIMINARY MATTERS
   

1. The Accused is charged with one count of possession of illicit drugs under the Illicit Drugs Control Act and one count of possession of ammunition without a license under the Arms and Ammunitions Act:
   1. Count 1: that on 28 February 2020 he knowingly and without any lawful excuse possessed a Class A drug, namely methamphetamine contrary to section 4(a) (iii) of the Act;
   2. Count 2: that on 28 February 2020 he knowingly and without any lawful excuse possessed ninety-four .22 blank ammunition without a license;
      
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 for possession of an illicit drug the prosecution must prove the following elements beyond a reasonable doubt:
   
   1. That on 28 February 2020 at Pahu;
   2. Mr. Tupou knowingly possessed;
   100. A class A drug methamphetamine
4. 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.
5. Before I can convict the accused for possession of ammunition without a license the prosecution must prove the following elements beyond a reasonable doubt:
   1. That on 28 February 2020;
   2. Mr. Tupou possessed blank ammunitions;
   100. Without a license;
        

2. THE CROWN’S EVIDENCE

6. I heard evidence from 5 witnesses for the prosecution.
   
7. The first witness was ‘Eliki Tomu who is the police armourer. He began working in the armoury department in 2004 and he has been there since. He has undertaken and completed numerous trainings on arms and ammunitions. Since his time as the police armourer, he has given evidence in approximately more than 500 cases.
   
8. He had prepared a report in relation to ammunitions that had been seized from the accused’s residence. On 7 May 2020 his assistant Senior Constable Falekaono received .22 blank ammunitions for examination which had been handed to him by Acting Sgt. Leveni. This was registered in the armoury registration as 343/20 and noted that it had been seized from Similati Tupou, male, of Pahu.
   
9. He examined the bullets and found that they were blank bullets. He checked their records and found that the accused did not have a license to own these bullets.
   
10. He tendered his report as Exhibit 1 and the .22 ammunitions as Exhibit 2.
    
11. The second witness was Malolo Vi. He led a search without a warrant that was conducted at the accused’s residence on 28 February 2020. At around 10:40pm he received reliable information that illicit drugs were being sold from the accused’s residence at Pahu. The police were required to act fast in case the drugs were destroyed. When they arrived at the accused’s house they saw a vehicle parked outside and they searched the vehicle and found illicit drugs. They then went inside the accused’s house and he then informed the accused that they were going to search his house without a warrant. He informed the accused that they were authorized to search without a warrant for illicit drugs. The accused did not object and they commenced their search. He told the accused to follow them as they searched the house, and when they reached the back of the house there was a bed there and the accused told him that he and his wife used this area as their room. They searched the area and found six test tubes wrapped in toilet paper. They had also been informed that the accused makes these test tubes for smoking. He asked the accused who the tubes belonged to and he said they were his. They continued searching and PC Vainikolo found a blue bag inside an empty onion sack that was hanging on the wall. They opened the bag and found one test tube inside which had remnants of off yellow powder which they suspected was meth and a small plastic bag of meth. He asked the accused about the contents of the bag and he told them that it was just a fake thing and that it was salt. He told the accused that they will test to see if it was false drugs. They tested the substance inside the plastic bag and meth was detected. However, from his experience he already knew it was meth just by looking at it. The accused was shown the result of the test and he was again asked who it belong to. The accused maintained that it was his. They continue the search and found a yellow plastic bottle containing ammunitions that had been hidden on top of the lining of the bed. They counted the ammunitions in front of the accused and it came to 94 bullets. He was then cautioned and arrested for possession of ammunition without a license and possession of illicit drugs.
12. He produced the search list which was signed by him and the accused as Exhibit 3. He had also made a report to the Magistrate as required by section 24 (3) of the Illicit Drugs Control Act for searches without a warrant. This was produced into evidence as Exhibit 4.
    
13. He was not cross-examined and I had no questions for the witness.
    
14. The third witness was Constable Siosateki Vainikolo. He was part of the search team. After the accused was informed that they will conduct a search without a warrant they commenced the search in the kitchen area and he found a sack which was hanging on a nail on the wall. Inside the sack was a black bag containing two test tubes. One of the tubes still had remnants of white powder inside it. It also contained 1 pack of ice. The accused was present and saw everything. He then informed Inspector Vi and he (Vi) questioned the accused about the bag.
    
15. In cross-examination it was put to him that the bag belonged to Sake and that the accused had asked them to call Sake so that they could ask him. The witness maintained that he had not heard any such thing and that the accused’s explanation in relation to the items were recorded in the exhibit diary and he had signed it. The witness also stated that he had not heard the accused say that he will take responsibility for the items found but that he will make his own investigations to find out who the bag belongs to.
    
16. The fourth witness was Constable Carsten Leveni. He was part of the search team and he was the exhibit keeper during the search. They found test tubes and one of the test tubes still had remnants of white powder inside. They also found a pack of ice and a bottle of blank ammunitions. He confirmed that all the exhibits listed in Exhibit 3 were given to him for safe keeping. He took the exhibits to the station and scraped the remnants of the white powder from the tube for weighing. It weighed 0.02 grams. The plastic containing meth weighed 0.32 grams.
    
17. After he finished weighing the exhibits he then handed them over to be kept in the Exhibit room. This handover was recorded in the Exhibit Movement Diary. He produced an excerpt from the Movement Diary and produced it as Exhibit 6.
    
18. He was not cross-examined and I had no questions for the witness.
19. The fifth and final witness was Constable Leniti Pale. He has been a police officer for 18 years. He is now an Acting Police Inspector assigned to the Scene of Crime unit at the Nuku’alofa police station. He has worked in that unit for 15 years. He had tested the suspected drugs using two different methods of testing, the Trunarc Analyser and what he referred to as the colour test.
    
20. He said that he had completed the Thermo Scientific Portable Analytical Instruments (Safety and Security) Training which had been conducted by the Thermo Scientific and Warsash. After the one-day training he and other participants were awarded certificates to acknowledge that they were capable of operating the Trunarc Analyser. He produced into evidence two different reports. The first report contained his qualifications and how he had used the Trunarc analyser to conduct the test of the drugs seized from the accused’s residence. The second report was the Trunarc Scan report.
    
21. He stated that the device has a laser which is pointed directly at the suspicious drug sample. It then generates a distinct spectrum which is then analysed for identification in the devices drug library contained in the unit. He said that the library holds up to more than 400 different types of drug substances. He said that the device can rapidly detect single or multiple compounds and that it has been accepted in a number of countries.
    
22. He stated that on the 25^th July he had tested two exhibits that had been seized from the accused’s residence. One plastic containing meth which had been scraped from the test tube found inside a bag at the residence, and one small pack of meth. He said that he first weighed the small pack of meth which weighed 0.07grams and the meth scraped from the test tube weighed 0.03grams.
    
23. He then proceeded to conduct a ‘colour test’ of the two exhibits by taking very small amounts from each exhibit and mixing them with chemicals which returned positive for methamphetamine.
    
24. A second test was done with the use of a device called the Trunarc analyser which also recorded a reading for methamphetamine. He demonstrated in court how the machine worked and the steps he had taken before the machine printed out the report.
25. He first explained and demonstrated what he referred to as a self-check or performance check of the device to ensure that it is able to perform according to the manufacturer’s specifications. After the self-check the device should return a reading which states PASS which confirms that the device is operating well without any problems.
    
26. Next he put the exhibits against the laser and scanned it. The device then registered the exhibits scanned and returned a reading for methamphetamine. A scan report was then printed out.
    
27. He produced the Analyst Report as exhibit 7A and the Trunarc Scan Report as exhibit 7B. There was no objection by the accused.
    
    100. THE DEFENCE EVIDENCE
28. At the end of the Prosecution’s case I explained to the defendant that the onus of proving guilt is on the Prosecution and he did not have to prove to me that he is innocent. The accused understood and chose to call one witness and he also gave evidence.
    
29. The first witness for the defence was the accused’s son, Fungalei Tupou. He had been present during the search of their house. He stated that the ammunitions seized from their house belonged to him. He said that he had found the container of ammunitions in the rubbish as he was employed as rubbish collector. He said that the day he found the container of ammunitions he had felt sick and had asked his boss to allow him to go home. He then went home and just left the container in the house when the police came to conduct the search.
    
30. In cross-examination he maintained that he had found the bullets in the rubbish. He said that no one else lives with them in the house and that it was just his parents and 8 children including himself.
    
31. The second witness was the accused. A few days before the search he had received a call from someone named Filo informing him that he will come over and treat him for doing some repair work on his vehicle. He said that Filo owed him money for fixing a few vehicles. Filo told him that he will pay him that Friday. On the Friday, Filo told him that he and another man named Sake will run and get the money and then come and pay him. They went for a long time and around 9pm Sake called out from outside the house. He went outside and Sake told him that Filo was going to the shop to buy something then he will come back and pay him. He was very angry and he shouted at Filo when he came back from the shop to give him his money. Then the police arrived and search the vehicle and found something inside. Then they informed him that they will search his house.
    
32. He said he was happy for the police to search his house because he knew there was nothing inside. In relation to the sack that was hanging on the nail, he recalls that earlier that day Sake had come inside the house and sat with him and his wife smoking cigarettes. His wife had got up and left and he too also got up and told Sake to finish smoking his cigarettes then come outside. He then went outside to wash a car that they were going to return that day. When the police found the sack inside his house he then remembered that Sake had been in his house that day and it was most likely his bag because it certainly did not belong to them. Sake was called by the police but he denied any knowledge of the bag. Inspector Vi then told them that if they lied they will all be arrested. He also told him that he will be arrested because it’s his house. He told Vi that it was fine as they will find out the truth later. When they were at the police station, Filo told him that he had given the drugs to Sake to hide. Filo told him that he had forgotten about the drugs and when Vi asked him he lied. He said he has no knowledge of the drugs taken by the police from his house. The test tubes found at his house are just thrown around everywhere. He said that no one else lives at the house except for him and his wife and their children.
    
33. In cross-examination he agreed that Sake and Filo had only parked beside his house and had never gone inside. He said that it was when Sake came inside for a smoke that he believes he must have hung the bag in his kitchen.
    
34. He stated that he was not making up false stories and that they had been smoking and his wife left and he too got up and left and told Sake to finish smoking before joining them outside. That is when he believes Sake had hidden the bag.
    
35. He agreed that he had first told Malolo Vi that the white powder was just salt but that was because he though Sake was just playing a joke on him.
    
36. He said that the test tubes found at his house were collected by his wife as they had been lying around in the house and she had put them away in case someone would get hurt.
    4. DISCUSSIONS

Possession of ammunitions without a license

37. There were a total of ninety-four .22 calibre blank bullets found in a plastic bottle on top of the lining of the accused’s bed and one of the charges the accused faces arising out of that discovery is unlawful possession of ammunition contrary to section 4(1) of the Arms and Ammunitions Act (Cap 39). That section provides that no person shall possess ammunition except under a license.
    
38. In R v Tau anors [2005] Tonga LR 418, the then Chief Justice Ford considered the meaning of the word “possession” in a drugs trial where the accused was charged with possession of cannabis leaves and seeds. There is no special statutory definition of the word “possession” and his Honor adopted a passage from the 2005 edition of Archbold (para 26.61) which stated “a person has 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”.
    
39. His Honor went on to state “The question to be answered in each case is whether on the facts the accused was proved to have or ought to have imputed to him (or her) the intention to possess or the knowledge that he or she did possess what was in fact a prohibited substance”.
    
40. In R v Yang Yu Zhen [2009] TLR 70; [2009] TLR 481 (11 December 2009) the accused was charged with possession of ammunitions without a license. The matter was decided again by his Honor Chief Justice Ford who referred to his consideration of the word ‘possession’ in Tau and stated the definition of possession in Tau would have equal application to a charge of ‘possession’ of a firearm or ammunition under the Arms and Ammunitions Act. He further stated that for the words “a prohibited substance” can be substituted with “unlicensed ammunition”. On the accused’s version of events, he should not have imputed to him an intention to possess or knowledge that he did in fact possess the unlicensed ammunition because they did not belong to him. He adamantly denies anything to do with the ammunitions and says that they belong to his son who he had called to give evidence.
    
41. I say at the outset that I do not believe the accused’s story nor the evidence of his son who I found to be an unreliable witness from his demeanour in court and the far-fetched story of having found the ammunitions in the rubbish. I reject both their evidence completely. It is quite baffling that the accused would risk his own son’s freedom and have him give evidence and incriminate himself just to free himself of this charge.
    
42. I accept the Crown’s submission that the ammunitions belonged to the accused because they were found at his house where he admits the only occupants to be himself, his wife and their children.
    
43. I accept the evidence of the armourer who is not only and expert in arms and ammunitions but also responsible for issuing of licenses for the lawful possession of arms and ammunitions. He stated that the accused does not have a license to possess ammunitions.
    
44. I am therefore satisfied that the Crown has proven this charge beyond a reasonable doubt.
    

Possession of methamphetamine

45. Throughout the trial, the only issue in relation to the charge of possession of a Class A drug was that of “possession”. The accused denies that the drugs are his and instead claims that they belong to a person named Sake who he said had probably brought his bag inside the house and had hung it on the wall. Other than that, there was no real challenge to the chain of evidence or the analyst reports produced and the test carried out by the analyst.
46. However, because the Prosecution has introduced a new device (Trunarc Analyser) that the police used for testing of the drug, and the fact that the accused is unrepresented and has not had the benefit of legal advice, it would be only fair that I first satisfy myself that the Crown has proven that the methods used in testing of the drugs were reliable and that they have established the identity of the drug beyond a reasonable doubt.
    
47. I can understand the importance to the police and the prosecution of this new device they seek to produce in court for the first time. Prior to this, it has always been the practice of the police in every Class A drugs prosecution where a not guilty plea has been entered by the accused to send or take samples of the suspected drugs to New Zealand for scientific analysis and confirmation. This costs money and sometimes it involves a lot of inconvenience to the police. However, the courts must still be cautious, especially when the accused is unrepresented, in ensuring that the evidence produced by the Crown is sufficiently reliable to be admitted in a court of law.
    
48. In this case, the prosecution is asking the court to accept scientific evidence given by someone they rely on as the scientific analyst to prove that the drugs were in fact illicit drugs. The issue raised with the use of the Trunarc device for testing is one of reliability. Archbold 2016 (para 10 – 58) discusses the application of scientific techniques to the testimony of lay witnesses. Reference is made to Trochym v The Queen, 216 C.C.C (3d) 225, where the Supreme Court of Canada held that “whilst a party wishing to rely on novel, scientific evidence must first establish that the underlying science is sufficiently reliable to be admitted in a court of law, the same applied to the application of a scientific technique to the testimony of a lay witness; and reliability is to be evaluated according to:
    1. Whether the technique can be and has been tested;
    2. Whether it has been subjected to peer review and publication;
    100. The known or potential rate of error and;
    4. Whether the theory or technique has been generally accepted;
       
49. The Illicit Drugs Control Act is silent on the use of presumptive tests such as the Trunarc device for determining illicit drugs. However, section 36 (1) of the Act states that “the production of a certificate purporting to be signed by a scientific analyst shall be prima facie evidence of the facts therein stated”. In my opinion, there are no further requirements attached to this section that would require me to explore further whether or not this court is required to evaluate the reliability of the method used by the scientific analyst in forming his conclusions stated in the certificates produced.
    
50. I therefore form the view that section 36 (1) of the Act only requires that I be satisfied that the police officer who produced the certificates is regarded as a scientific analyst. If I accept that he is a scientific analyst, then section 36 (1) can be engaged to use the facts stated in the certificates as prima facie evidence.
    
51. In this case, after having heard the evidence of Constable Pale and having followed the process that was undertaken in testing the drugs, I am satisfied beyond a reasonable doubt as to his expertise and qualification; that he is an expert witness in this area and that the material he examined was in fact methamphetamine. He was trained on how to use the Trunarc device and received a certificate. He conducted two different tests: a colour test using chemicals which indicated that the substance was methamphetamine, and the test using the Trunarc device which further confirmed that the substance was methamphetamine.
    
52. However, this does not give the prosecution a carte blanche every time the equipment is used. The veracity and reliability of the evidence will still need to be considered in certain cases where I anticipate there will be a challenge to the use of this device for testing of illicit drugs by experienced defence counsels. Without the force of the law to support the use of such devices, the prosecution will need to address reliability issues such as whether the use of the Trunarc analyser alone in legal proceedings is sufficiently scientifically reliable to be admitted into evidence. Another issue is that of hearsay evidence, as the report is being offered for the truth of the matter asserted, and the report is based on programming instructions created by an unknown person not in the courtroom. This person is not subject to cross-examination, so the persons methodology cannot be scrutinized. These are just some of the reliability issues that the Crown must consider but I reserve my position on these issues and the points for evaluation of reliability discussed in Trochym above for further exploration in another case when the court has had the benefit of further submissions from counsels if or when issues of reliability may arise.
    
53. In the present case, there was no objection to the certificates tendered by the police scientific analyst and it was not really in dispute that the substances were methamphetamine as the only real issue in this case was possession. Having accepted that the witness is an expert witness who may be referred to as a scientific analyst I am satisfied that the contents of the certificates produced is prima facie evidence of the statements therein. Added to the results given by the Trunarc device was the colour test that was also used, and I am left in no doubt as to the identity of the illicit drugs tested.
    
54. As for the element of possession, I have no doubt that the accused had custody and control of the drugs and he knew that he was in possession of an illicit drug.
    
55. As a result, I am satisfied that the Prosecution has proven both the charges against the accused beyond a reasonable doubt and he is accordingly convicted.
    

‘E. M. L Langi
NUKU’ALOFA: 30 October 2020 J U D G E