R v Fatongiatau [2020] TOSC 96; CR 160 of 2020 (6 November 2020)

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

CR 160 of 2020

BETWEEN:

R E X - Prosecution
AND:

TEVITA TALIA’ULI FATONGIATAU - Accused

VERDICT

BEFORE: JUSTICE LANGI

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

Date of Verdict: 06 November, 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:
   1. Count 1: that on 01 March 2019 at Pili he knowingly and without any lawful excuse possessed a Class A drug, namely 0.087 grams of methamphetamine 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 27 March 2019 at Pili;
   2. Mr. Fatongiatau knowingly possessed;
   100. A class A drug methamphetamine
        

2. THE EVIDENCE

4. The Crown called nine witnesses to prove their case against the accused.
5. The first witness was Police Constable Viliami Manumu’a. He has been a police officer for 6 years and is now stationed with the Police Prosecution Unit. Before that he was an exhibit keeper in the police exhibit room. He was shown the Drugs Exhibit Register and he confirmed that on 20 June 2019 at approximately 11.20am he handed over the exhibits to PC Pale together with all other methamphetamine exhibits to be taken to New Zealand for testing. He was present when PC Pale weighed all the exhibits again and packed them, ready to be taken. He recorded the work that was carried out in the police station diary. He had recorded the exhibits in relation to this case as Exhibit 58 weighed 0.38 grams.
6. He was also shown an entry concerning the movement of the exhibits which was recorded on 17 May 2019 as Entry 45. He stated that it was an internal handover between the police inside the lab. This was when the exhibits were weighed and recorded a weight of 0.38 grams. He said that after the exhibits were weighed he returned them to the exhibit room to be picked up later by PC Pale to take to New Zealand.
7. He also said that the officer who had made the entry on 17 May 2019 had entered the wrong time and that it was a mistake. He produced the Exhibit Register as Exhibit 1.
8. In cross-examination he was not sure whether or not photos had been taken but believes that they officers from the scene of crime (SOCO) may have taken photos but that he was only present during the weighing of the drugs. He also did not know of the exhibits weighing 0.087 but only knows the recorded weight of 0.38 and has know knowledge of the first recorded weight o 0.36
9. The second witness was PC Halatoa. He is in charge of the Drugs Enforcement Task Force and has been in charge for the past 18 months.
10. He said that on 1 March 2019 at around 10pm he received reliable information that the accused was selling illicit drugs from his home at Pili. He then ordered that a search without a warrant be conducted at the accused’s residence. He went with the Taskforce and the Police Tactical Response Team to the accused’s residence and found him there with his family. He informed the accused of the reason they were there and informed him that they will conduct a search without a warrant pursuant to sections 122 and 123 of the Tonga Police Act. When the search was conducted PC Pohiva found a pack of methamphetamine behind a drawer inside the accused’s room. He asked the accused who it belonged to and the accused told him that he did not know. He then arrested the accused for possession of illicit drug and they took him to the police station. On 2 March 2019 he sent a report of the search to the Acting Police Commissioner via email. He produced the report into evidence. He said the reliable information he had received had been from one of his police officers.
11. In cross-examination he did not know about the weight of 0.087 and only knows the recorded weight of 0.36 grams. He also stated that they had gone to the accused’s residence at around 10:15pm and not at 8:35pm. In re-examination, he referred to the station diary to confirm the actual time recorded for the search was 2210hrs. Also, in the station diary the accused had signed an entry that was made at around 2315hrs.
12. He also said the reason they did not get a warrant was because of the urgency of the matter and the police needed to act quickly in case the drugs went missing or destroyed.
13. The third witness was Constable Kalosi Tapueluelu. In March 2019 he was working with the Drugs unit. On 1 March 2019 he received reliable information from an informer who stated that there was someone who was selling meth or ice. The police went to this person’s house (target) and found that he was not there. He received another call from the informer telling him that the target had gone to the accused’s house to sell him a pack of meth and that he was on his way back home. They went back to the target’s home and found him there and also found illicit drugs on him. They arrested the target and took him to the police station. He then informed Taufa of the information regarding the accused and told him that if they were to do something then they must act quickly in case the drugs went missing or were destroyed.
14. The decision was made to carry out a search of the accused’s residence because they believed the information was reliable.
15. In cross-examination, he said that he could not recall what time he had informed Taufa about the information but that it was after the target had been arrested. He said that he recalls that when he told PC Taufa the information it was still daylight.
16. In re-examination he said he recalls that they had carried out the work in the evening when it was still daylight but he could not recall the time. After looking at exhibit 1 the entry shows the time of the search was 2210hrs.
17. The fourth witness was Constable Tevita Pohiva. He was part of the search team that went to the accused’s house. When they arrived the Tactical Response team had already taken the accused and his wife and children outside of the house and Taufa was talking to them. He and three other officers then commenced the search.
18. He found a pack of white powder inside the accused’s bedroom. He said he knew it was the accused’s bedroom because he had been asked whose room it was. He said that he found the pack underneath the carpet behind a small drawer next to the door to the bedroom. He said that the drawer is situated to the left of the room when you enter the door and he had found the plastic underneath the carpet behind the drawer.
19. He also stated that when he found the pack of ice the accused was standing with Constable Fihaki at the entrance to the room. He said that at all times during the search the accused was standing at the doorway to his bedroom looking on while the police searched the room. He said that there were 4 of them searching the room. They each searched different areas in the room and just as they were about to finish he heard Constable Fifita ask Constable Televave whether he had searched the drawers and said to move the drawers and check underneath.
20. He then went over to the drawer and checked all the drawers then he lifted the carpet and found the plastic underneath it. Before he touched it he first called Fihaki and the accused to look at what he had found.
21. In cross-examination he maintained that the accused had been called to look at the drugs when he lifted the carpet. He said that the accused was lying and that he had been present when the plastic bag was found. He said that no fingerprints had been lifted from the plastic bag of ice.
22. The fifth witness was Police Constable Litili Televave. He has been with the Drugs Task Force for 3 years and had been part of the search team at the accused’s house. He said that he and officers Pohiva, Fifita and Hakalo went into the accused’s bedroom to search for illicit drugs. He said that Constable Pohiva found a pack of ice. He said that he and Pohiva had searched around the area where the drawer was located and he had searched the drawers and Pohiva was the one who moved the drawer and lifted the carpet. He said that Pohiva then called out to the accused to come and take a look and when they walked towards the area where Pohiva was standing he was already holding the pack of ice.
23. He also said that the lights in the bedroom were not working but that they had used their torches to search around and there was sufficient lighting for them to see. He said that all of them inside the room each had torches. He said that the pack of ice was found towards the end of their search. He said that they had nearly missed searching the drawers because there was a suitcase on top of the drawers and he had been searching inside the suitcase when someone asked whether he had searched inside the drawers. He then remembered that he had not searched the drawers.
24. He said when Pohiva found the pack of ice the accused and officer Fihaki were called and he was shown what had been found.
25. In cross-examination the accused put to him that if he and officer Fihaki had been standing at the door watching them then there would have been no need to report the matter to Fihaki. He replied that it was normal procedure for matters to be reported once illicit items were found.
26. The sixth witness was Tu’amelie Fifita. He has been with the Tonga Police for four years and is stationed at the Serious Crimes Unit. He was part of the search team and he was present when officer Pohiva found a pack of ice in the accused’s bedroom. He said the pack was found underneath the carpet. He said that when they entered the bedroom the accused was standing at the doorway looking into the room. He said officer Televave commenced searching in the left side of the room where the drawer was standing just at the entranced. He said that Televave searched a suitcase that was on top of the drawer. He and officer Pohiva then went to the back of the bed and started their search from there. Towards the end of the search they had reached the front of the room near the door when he noticed that the drawers were still shut and it did not look like it had been searched. He said that he is used to carrying out searches and seeing drawers being opened and in a state which would let you know that they had searched that area. He then asked Pohiva whether they had searched the drawer and Pohiva said no. Pohiva and Televave then searched the drawer and Pohiva moved it to the side and lifted the edge of the carpet and found a pack of ice underneath. Pohiva called out to them and they all saw the drugs including the accused. The accused was then cautioned. He said that they had used torches and there was sufficient lighting.
27. In cross-examination, he said that no one had said ‘the room is clear’. He said that he does not recall the colour of the drawer but the suitcase on top of it was black. He could not remember what type of carpet was used in the bedroom.
28. The seventh witness was female Constable Pousima who was the exhibit keeper. She referred to the drug register and said that on 18 March 2019 she received exhibit number 58/19 from 1 pack of methamphetamine weighing 0.36 grams. She said that the drugs were weighed by the drugs taskforce team and handed over to her and she records the weight that they had assigned to the exhibit.
29. On 17 May 2019 she had recorded a new weight of 0.38 grams. She said that when the exhibits are ready to be taken to New Zealand for testing the usual procedure is that the drugs would be taken again for weighing and preparation before it is flown to New Zealand. She said that officer Fusikata weighed the exhibits again and officer Tu’itavuki took photographs while she recorded what was being done. This work was carried out in the Scene of Crime laboratory.
30. After the exhibits were weighed and photographed they were then labelled and then taken to the safe in the exhibit room.
31. In cross-examination she stated that she only received the exhibits on 18 March 2019 and does not know where they had been kept prior to that.
32. The accused also put to her that he is being charged with possession of 0.87 grams of methamphetamine but the records show 0.36 grams. She said that the weight of the exhibits recorded on 17 May were the only ones she knew to be the final weight before the exhibit was taken to New Zealand.
33. The eighth witness was Acting Inspector Leniti Pale. He has been a police officer for 18 years and is now the Acting Officer in Charge of the criminal records office. He has also been the analyst for cannabis for 15 years.
34. On 20 June 2019 he prepared drugs exhibits to be taken to the ESR in New Zealand for testing. He took the exhibits from the exhibits room and had signed the exhibit registry which records the handover. On 21 June 2019 he took the exhibits to New Zealand for testing. He said that one of his main duties was to take the exhibits to New Zealand for further testing. He said that when he arrived in New Zealand on 21 June 2019 the New Zealand police were waiting for him and escorted him to the ESR lab where he handed over the exhibits that same day. He said that the handover is recorded in the ESR form.
35. He said that he received the results of the test via email from ESR and the report stated that the powder weighed 87 milligrams and contained methamphetamine. He said that the differences in the weight of 0.38 grams recorded and the 0.87 milligrams recorded were only because of the units applied. He said that the units they use for weighing of suspected drugs is grams but the lab at the ESR used milligrams. He said that he was not aware of how the ESR determines which units to use because they use grams and milligrams interchangeably.
36. He stated that one reason for discrepancies in the weights of the suspected drugs is because they weigh the exhibits together with the plastic bag they found it in but when the items are brought to the ESR the suspected drug is taken out of the plastic bag. This would often result in different weights for the suspected drugs.
    
    100. ACCUSED’S SUBMISSIONS
37. The accused elected not to give or call evidence. In his closing submission he submitted that this court should not accept the Crown’s evidence for the following reasons:
    1. The Crown has failed to prove that the methamphetamine taken by the police were the same one analyzed because of the differences in the weight. He said that the exhibits increased in weight from 0.36 grams to 0.38 grams. He also cross-examined some of the witness on the fact that he has been indicted for possession of 0.87 grams of methamphetamine.
    2. The lawfulness of the search. He says that there was ample time for the police to get a search warrant. This is based on an inconsistency in the evidence of Taufa and Tapueluelu because according to Tapueluelu he had given the information to Taufa in the evening while it was still daylight. However, according to Taufa, the information had been given after hours when the courts had closed for the day.
    100. The illicit drugs had been planted by the police in his room during the search. He had not seen the time the police claimed to have found and had only seen the pack of ice in the hands of Televave. The police had already finished the search and he heard them say ‘Clear’ before someone else said ‘hey what’s this?’. When he turned to see what it was, he saw Televave holding a plastic bag.
         

4. CROWNS SUBMISSIONS

38. The Crown submitted that I should convict the accused because they have proven all the elements of the charge beyond a reasonable doubt. They say that the search without a warrant was lawful because the police had received reliable information about the accused and they needed to act fast in case the drugs were destroyed. The Crown also say that the accused had not proved that he was in lawful custody of the illicit drugs.
    
    5. DISCUSSION
39. In relation to the search without a warrant, section 123 of the Tonga Police Act requires that the police officer must be satisfied on reasonable grounds of two things before he can carry out a search without a warrant, one, that a serious offences has been committed, is being committed or about to be committed, and two, that action be taken right away ie. without a search warrant.
40. The reasonableness of belief that a serious offence has been committed, is being committed or is about to be committed is not determined by the fact that the offence is found to have been committed (that the police did find illicit drugs on the accused) because that is a consequence or result of the decision to make the search without a warrant. It is determined by the reasonableness of the belief prior to the search without a warrant. It must be determined upon the reliability of the information received by the officer alone.
41. In this case the evidence is that Constable Tapueluelu received information that another accused person was selling drugs at his residence. The police arrested that person and found illicit drugs on him. Tapueluelu then received information from the same informer that the person they had arrested had left the accused’s house where he had gone to sell drugs to the accused.
42. Officer Tapueluelu said he believed the information was reliable and he accordingly informed his superior PC Taufa who then made the call to search the accused’s house without a warrant. I accept officer Tapueluelu’s evidence and I accept that he was satisfied on reasonable grounds that a serious offence was being committed.
43. In relation to the time the information came to the knowledge of the police, it does not matter whether the information was received after or before working hours. The question is whether or not, in the reasonable opinion of the police officer, action needs to be taken right away without a search warrant. The inconsistencies therefore of the evidence between Taufa and Tapueluelu in relation to the time the information was received is not significant in this case because I accept that Tapueluelu may have forgotten the time he told Taufa about the information he received. In this case, it was reasonable that the police acted right away.
44. As for the contention by the accused that the drugs may have been planted in his room, there was no evidence to support his suggestion as the witnesses all state that he had been standing at the door watching them while the search was being carried out. While there were no lights working in the bedroom the officers all had torches which they stated had given sufficient lighting for them to carry out the search. I accept the evidence of the witnesses who stated that they had almost finished the search when PC Tapueluelu alerted PC Televave that the drawers had yet to be searched and which is why PC Pohiva moved the drawers to search in that area thereby finding the pack of ice under the carpet.
45. Lastly and most importantly in this case, is the accused’s challenge to the differences in the weights of the drugs seized thereby suggesting that the drugs seized from his residence is not the same drugs taken to New Zealand for analysis. This is based on the fact that he is indicted for possession of 0.087 grams of methamphetamine. However, the documentary evidence submitted by the Crown show two different numbers. The first weight recorded during the first time the substance was weighed was 0.36 grams. They were weighed again in preparation for taking to New Zealand and the new weight recorded was 0.38 grams. However, when the ESR report was given the analyst recorded a weight of 0.87 milligrams.
    
46. In R v Pohahau [2004] TOSC 3, Chief Justice Ward referred to the strict standard of proof necessary to establish the chain of evidence beyond reasonable doubt. As he said, the Court can only convict the defendant if it is satisfied that the evidence presented to it proves beyond reasonable doubt that the material in the possession of the defendant was cannabis (in this case methamphetamine); and the proof that it is cannabis depends on the analyst, so the court must be satisfied that there is no real doubt that the substances he identified as cannabis are the actual, unaltered material taken from the possession of the defendant.
47. For the reasons given above, I am left in doubt that the methamphetamine that was tested by the ESR in New Zealand were the actual, unaltered material taken from the possession of the defendant. The prosecution has failed to give a sufficient explanation as the inconsistencies of the weights recorded. I accept the explanation by PC Pale that there may be times when inconsistencies may occur in the weights but they would be minor inconsistences. For instance, the differences in 0.36 grams and 0.38 grams can be considered a minor inconsistency which may be a consequence of the sensitivity of the scales and other factors. However, the ESR report recorded a weight of 0.087 milligrams which was then converted by the prosecution on the indictment to 0.87 grams, is a major inconsistency with the 0.36 grams and 0.38 grams recorded earlier.
    
48. As a result, the accused is acquitted.
    

‘E. M. L Langi
NUKU’ALOFA: 06 November, 2020 J U D G E