R v Fifita [2021] TOSC 116; CR 245 of 2020 (23 June 2021)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

CR 245 of 2020

BETWEEN : REX - Prosecution

AND : SOSAIA FIFITA - Accused

BEFORE HON. JUSTICE NIU

Counsel : Mr ‘Inoke Finau for the Crown

Mr Siosifa Tu’utafaiva for the accused

Trial : 26 and 27 May 2021

Submissions : 31 May 2021

Verdict : 23 June 2021

VERDICT

Charge

[1] The accused is charged that he knowingly without lawful excuse possessed 2.36 grams of methamphetamine at Tofoa on 14 November 2019, contrary to S.4(a)(iii) of the Illicit Drugs Control Act as in Count 1, and of 3.14 grams of cannabis at the same time, contrary to S.4 (a)(i) of the Illicit Drugs Control Act, as in Count 2.

The evidence

[2] The Crown called and 4 police officers gave evidence. The accused did not give evidence and he called no witness to give evidence.

[3] Malolo Vi, age 38 from Fanga, police officer, said that at about 8:35pm on 14 November 2019, he received a telephone call from an informer, with whom he had dealt and who had given him information on at least 10 occasions over the previous 12 months which had all been correct, that the accused was driving around in his car selling illicit drugs and that he would try to confirm where the accused was and let him know. He said he knew the accused and what his car looked like. He said that he then organized a team from his drug unit and from the tactical unit to standby.

[4] He said that at about 9:00pm the informer rang and told him that the accused was parked on the east parking area of Vaiola hospital at Tofoa. He said that he then informed his team and they all went there straight away. He said he stopped his vehicle at the entrance to the parking area and that he saw and recognized the accused’s vehicle because its rear window was broken and that the accused had had a sheet of plastic taped up in its place, and that he saw the accused standing by the driver’s door. He said that the officers grabbed him right there.

[5] He said that photographs were taken and he identified them. Photographs no. 2 and 4 showed the accused’s car. It was parked next to a black car which belonged to one Sioeli and that Sioeli was also grabbed by the officers. He said that when he got there, Officer Fifita told him and showed him a small glass bottle lying on the pavement by the front right, and a telephone lying at the front, of the accused’s car. He pointed out the little glass bottle on photo no.3 and photo no.5.

[6] He said that he asked the accused about the phone and the little bottle and that the accused said that the telephone was his but that he did not know about the bottle. He said that Officer Fifita opened the little bottle and there were 4 packs of methamphetamine in it. The witness said that he charged and arrested the accused with possession of those drugs.

[7] He said the officers then went to search the accused’s car and that the accused told him that he had drug in his car, that it was “wheat” (uite) meaning cannabis. He said that the search was carried out and that the cannabis was found in a bag in the accused’s car. He said that a search list was written by Officer ‘Otuhouma and that after he confirmed it, he signed it and that they went and searched the accused’s house at his home but that he left to attend to another matter before that search finished.

[8] In cross-examination, he agreed that when he had written his statement he had said that the informer had told him that there was “someone” driving around selling drugs, and that that was true but that when the informer rang him back the second time, he told him that it was the accused who was doing it and where he was. He agreed that after both men were held by the officers he did ask them their names although he knew the accused’s name but not Sioeli’s name.

[9] He also agreed that Officer ‘Otuhouma who had written the diary of action that evening had written that there was a briefing held that reliable information was received that “someone” was selling drugs, and that subsequently he was informed that it was the accused and that he was said to be heading towards the area of the Yacht Club but the informer told him to wait while he would find out for sure and then let him know. He said that he forgot about the Yacht Club when he was giving his evidence and that it must be right if ‘Otuhouma had written it in the diary of action.

[10] He agreed that there were about 10 officers from the drug division and about 8 officers from the tactical division in the team which attended to this operation. He confirmed that there would be records of the 10 operations which had successfully been carried out from information provided by this particular informer. He said he had known the accused in 2019 although he had not been charged with any offence then.

[11] He said that the accused was grabbed by Officer Filipe Langi but he was not sure if Filipe Langi was armed or that the 2 men were laid on the pavement of the carpark or that they were hand cuffed. He said that he did not know if the accused had food in his mouth. He said that no drug was found on Sioeli or in his car.

[12] He said that he did not know if the little glass bottle was dusted for fingerprint. He said that he knew that the substance found was methamphetamine because of his experience in his work.

[13] He said that Sioeli was taken out of his car but could not recall by who. He said that another person, a woman by the name of Heilala was also searched because she was near there and was suspected. He said that he could not recall but he thought some money was found on Sioeli but did not know what was done about it. He agreed that no drug was found in the accused’s home.

[14] He said that it was his responsibility to make a report to the Police Commissioner of the search that was carried out and that he believed that there was one made.

[15] He said that the accused was kept in custody on 14 November 2019 and was taken to the court with his summons on 18 November 2019.

[16] He said that he could not remember a Police Manual and that what they did was according to procedures.

[17] On re-examination, he said that the work that was carried out on the accused previously concerned drugs but that no arrest was made then. He said that the search of the accused’s house was carried out because of the drugs found by and in his car at the hospital parking. He said that Heilala was searched because she was also a suspect and was in the area where the accused was.

[18] Officer Tu’amelie Fifita, 24 years of age, of Havelu, police officer in the drug division, said that on 14 November 2019, they were briefed that the accused was going to be at the Yacht Club, but that before they got there, they were told that he was at the Vaiola Hospital parking instead and so they went there. He said that when they got there, he saw the accused standing between his car and Sioeli’s car talking to Sioeli who was standing on the other side of Sioeli’s car. He said that he went up and grabbed the accused and laid him on the ground between his car and Sioeli’s car with his head to the front of both cars.

[19] He said he searched him and found cash in his pocket and that as he led the accused to search the accused’s car, he noticed a small glass bottle lying beside the accused’s car and also a telephone lying in front of the accused’s car. He pointed out the bottle and the telephone in photos no. 6, 7 and 8. He also pointed out photos no. 9, 10, 11 and 12 which showed him opening the bottle and putting its contents on the palm of his gloved hand.

[20] He also pointed out in photo no. 13 the contents of the accused’s pocket as laid out on the bonnet of Sioeli’s car.

[21] He also pointed to photo no. 16 which showed loose cash, a little black bag and a half straw on the driver’s seat of the accused’s car as it was before the driver’s door was opened. He said before he opened the door, the accused said that he wanted to say something. He then told Officer Malolo Vi and that the accused then said to Malolo Vi that there was cannabis in his car. He said that he then opened the little black bag on the driver’s seat and found in it 1 pack of cannabis, a $3 phone card, and an empty pack. He said that Officer Vi then charged the accused with possession of that cannabis. He said that he also found cash in a hollow of the driver’s right arm rest on the driver’s door, as shown in photo no. 21. He said he also found cash stashed in a band of the driver’s sun visor, as shown in photo no. 22.

[22] He said that Officer Televave was searching the front passenger side of the accused’s car and that he found there a black bag which contained a weighing scale amongst other things as shown in photos no. 23 and 24. He said that on the right rear seat there was found a smoking apparatus for smoking cannabis as well as for smoking methamphetamine as shown in photo no. 26.

[23] He said that he also searched the accused’s house and that he found there empty packs, and a big pack, 2 broken test tubes amongst other things as shown in photograph no. 28. He produced the photographs as Exhibit 3.

[24] In cross-examination, he said that they had finished work at 4:30pm but that they often stood by in case they would be needed. He said that they were directed to stand by around the area near the Yacht Club to watch out for the accused, and that after about 45 minutes they were directed to the east parking of Vaiola Hospital.

[25] He said that he came up to the accused from the east while the vehicles were facing west, and that the accused was not talking on or using the telephone, and that he was not eating anything, and that it was possible that his telephone might have fallen out of his hand when he grabbed him from behind. He agreed that the telephone did not have any information that was relevant to any offence.

[26] He said that the reason he grabbed the accused was because he was the one that they were after and that he was arresting him and it was for the leader to charge him. He said that he was grabbing him and holding him for his own safety as well, and to prevent him from destroying any evidence which was commonly done by other persons. He said he did not know the precise law which allowed him to do that but that Officer Vi informed the accused that he was being arrested and searched under SS.122 and 123 of the Police Act and that that was the law he used to arrest the accused. He said that he laid the accused on the ground and cuffed his hands behind his back.

[27] He said that he did not make any report of the search he carried out to the Police Commissioner but that it was important that such report be made. He said that Officer Vi charged the accused with possession of methamphetamine but that he made no mention to the accused of any right of the accused to contact a lawyer. He said it was Vi who arrested the accused but that he did not know who it was that should take the accused to Court.

[28] He said that the last time he saw these things in the photographs was that night. He said the woman, Heilala, was searched by the woman police they had with them. He said that Sioeli was also laid on the ground and cuffed and that officer Televave searched him and that money was found on him but he did not know what happened to that money. He agreed that he did search the accused’s house and that he had made no report of that search.

[29] On re-examination, he said that it was possible that the accused’s telephone came loose and fell to the front of the car when he grabbed the accused from behind. He said that he was not thereby arresting the accused and that he was only apprehending him.

[30] I asked and he said that photograph no. 15 showed the rear window of the accused’s car being covered and taped up with a plastic sheet.

[31] Officer ‘Emeli ‘Otuhouma, aged 24, of Ma’ufanga, drugs division, said that she was in the search team on 14 November 2019 and that she was the one writing the entries in the diary of action which she produced as Exhibit 4. She said that this operation was named “Credit Operation”.

[32] She said that at the briefing held, Officer Vi told them that he could not give out the name of the person they were after because that person had a sister in the force and he did not want her to know. She said that the vehicle she was in left the Longolongo station and came and stood by at the central police station and awaited further instruction. She said she did not know if there was any report of the operation that they carried out that evening.

[33] In cross-examination she said that she did not write down the name of the accused’s sister in the note in the diary of action because she did not know the accused’s sister and also because she thought she should not write it down even if she knew. She said that she only knew of the name of the accused when Officer Vi asked the accused his name as she wrote in entry 5. She said that Heilala was also a target that they were after.

[34] She said that she wrote each item that was found at the time each item was found. She agreed that the accused did not sign the search list and that she did not record why he did not do so. She said that she did not go to the accused’s house at all.

[35] In re-examination, she said that entry no. 12 in the diary of action was signed by both the accused and Officer Vi. She said she had known of the woman Heilala because she had been arrested for drug previously. As to Sioeli, she had not known of him and he was not a target at all.

[36] Officer Siosateki Vainikolo, 36 years of age, of Matalikufisi, said that he was in the search team of 14 November 2019 and that he was responsible for exhibits which were found in the search. He produced the search list as Exhibit 2. He said that he had the relevant exhibits photographed at the police station that night and he identified them in photographs 29 to 34. He said that photo no.29 showed the small glass bottle, its lid and the 4 packs of methamphetamine found inside it, and which was listed in item no.2 in the Search List. He also said that photo no.30 showed the pack of cannabis found inside the little black bag found on the driver’s seat as was listed in item no.3 in the Search List.

[37] He said that he handed over those exhibits to officer, Hinemoa ‘Aho, who was in charge, together with officer Pousima, as keeper of the exhibits. He produced a copy of the relevant page of the drug movement register which he had signed at that handover. He identified his signature in column 7 of the page, and he also identified the signature of Officer Pale who signed in column 11 as having received the 4 packs of methamphetamine and 1 pack of cannabis on 7 August 2020 which he had handed over to Officer ‘Aho on 15 November 2019. The register page was produced as Exhibit 5.

[38] In cross-examination, he said that he was at the briefing at Longolongo and that they left to the hospital but could not remember who he travelled with or how many but that he recalled that it was Officer Afu who wrote the Search List because he was the one assigned to write it. He said that he (the witness) was not shown in any photograph and he agreed that the diary of action did not mention that any exhibit was handed to him. He said that he put all the exhibits into a large paper bag at the scene and that he then took them out and laid them out and had them photographed at the police station as shown in photos no.29 to 35, before they were given into the care of the exhibit keepers the following day.

[39] He said that he had not written entry no.28 of the diary of action and that he did not know what happened to Sioeli’s money.

[40] He said the little glass bottle was a toothpick bottle and that there were 4 packs of meth inside weighing 3.52 grams and he identified them in photo no.12.

[41] He said that photos no.27 and 28 showed the accused’s house and what were found there. He said that the register did not show any of those items because they were not required to be handed over to the exhibit keepers.

[42] He said that Officer Televave was the investigating officer. He said that if a person is arrested he is to be taken to the Magistrate’s Court and he did not know why the diary of action did not show that the accused was taken to the Magistrate’s Court.

[43] In re-examination, he said that photo 28 showed the properties at the accused’s house, and that photo 35 showed those properties at the police station.

[44] I asked and he said that photo 14 showed the exhibits being put into plastic bags and that they were then given to him to put into the paper bag. He said that photo 12 showed the white round lid of the little glass bottle.

Evidence by consent

[45] At the commencement of this trial both counsel agreed and the following were admitted as evidence by consent:

(a) Exhibit 1A - letter from ‘Inoke Finau to the accused dated 17 August 2020 that the substances that he analysed were methamphetamine, and required the accused to give notice that he want Leniti Pale to attend and give evidence, and that if he did not give such notice within 21 days, the report would be produced in evidence without the attendance of Leniti Pale.

(b) Exhibit 1B - a similar letter from ‘Inoke Finau dated 17 August 2020 attaching the report of Laulelei Kava dated 9 August 2020 that the substance that he analysed was cannabis.

Defences of the accused

[46] At the hearing of the submissions of both counsel in Court on 31 May 2021, Mr. Tu’utafaiva made 3 submissions, namely

(a) that the search was unlawful and that all items seized be excluded as evidence;

(b) that the differences in the weights of the substances found and the substances analysed were such that they could not be the same substance; and

(c) whereas there could be no doubt as to possession of the cannabis, there was reasonable doubt as to possession of the methamphetamine, by the accused.

Was the search unlawful?

[47] Mr. Tu’utafaiva submitted that S.122(1) of the Tonga Police Act requires that the police officer must be satisfied on reasonable grounds that a serious offence had been committed or was being committed or was about to be committed. He says that Officer Malolo Vi, who received the information, could not have had reasonable grounds to be satisfied because the informer was not even sure who it was and where it was that that person was supposed to be selling the drugs.

[48] Officer Malolo Vi said that he had had information from the same informer on 10 previous occasions which had all turned out to be correct and that when the informer told him on this occasion that there was someone driving around selling drugs in Nuku’alofa, he was reasonably satisfied that it was true and he therefore called the team together and briefed them and despatched them to different parts to “stand by” and await the farther communication from the informer. He then received the information that the person was the accused. He said that he knew the accused and that he also knew the accused’s car, and although he was said to be heading to the yacht club, he was to wait for further confirmation, and so he waited. He then received the further information that the accused was parked at the east parking at Vaiola Hospital, which turned out to be exactly as the informer had informed him.

[49] I am therefore satisfied that Malolo Vi was reasonably satisfied, on reasonable grounds, that the accused was about to commit a serious offence, and that it was impracticable to apply to obtain a search warrant because the accused might drive off or might dispose of the drugs in the meantime. I accept that it was imperative that he and the team he had had to act right away without a search warrant.

[50] Mr. Tu’utafaiva says that Malolo Vi had no evidence that any sale of any drug was being made by the accused to Sioeli with whom the accused was talking because no drug was found on Sioeli or in his car. I do not agree. Firstly, the team got there after the accused was already at the carpark and Sioeli was already there parked right beside the accused’s car and he was talking to the accused. Secondly, even if no sale had been made, the drug may still be with the accused, in his possession, or it may have been handed to Sioeli but that the money had not been paid to the accused, so that the possession of the drug would have been with Sioeli. In either case, one of them might have the possession of the drug at that moment.

[51] Mr. Tu’utafaiva says that the manner of the arrest of the accused and of Sioeli were so unreasonable that they were unlawful because they should not have been grabbed and laid face down on the ground and hand cuffed behind their backs. He says that they were being treated as guilty already but that they were not. Again, I do not agree. The officers were entitled to take such steps as were necessary to ensure that they, the police, were assured of their safety, because persons dealing in drugs commonly carry or have arms in their possession, and also to ensure that any drug was not thrown away and lost or even swallowed and thereby destroyed. Officer Tu’amelie Fifita gave evidence of that.

[52] Mr. Tu’utafaiva also says that there was no reasonable grounds at all to search the accused’s house and home, but again I disagree because cannabis was found in the accused’s car and methamphetamine was found in a glass bottle beside the accused’s car, not far from where the accused’s telephone was lying in front of his car. I consider that to be reasonable grounds to believe there might be drugs in the accused’s home, which was why a search was carried out there. The items found there were the same as the items found in the right rear seat of the accused’s car.

[53] He says that because nothing was found on Sioeli or on the woman, Heilala, who was also said to be a target, there was deliberate disregard by the police of their power to arrest and search by failing to consider that they had to be reasonably satisfied first. I do not think I have to make any finding about the search of Heilala because no item of evidence was found on her.

[54] Mr. Tu’utafaiva pointed out that the police failed to comply with S.122 (6) of the Act because no report of the search without warrant was made to the Commissioner of Police, as is required by that provision. I do not think that such failure makes a lawful search carried out without a search warrant unlawful. I consider that the purpose of requiring a report to be made to the Commissioner is to ensure that the police officer reports to the Commissioner the grounds upon which he had acted without a search warrant and the result of the search carried out, so that the Commissioner can check whether or not the officer did have the required reasonable grounds which a Magistrate must ascertain before he issues a search warrant, and also as to the need to act right away without a search warrant.

[55] Mr. Tu’utafaiva also pointed out that there was no search list made of the items which were removed from the accused’s house, but I do not think that that is of any substance as far as the lawfulness or otherwise of the search is concerned because the items were properly photographed and identified. He also pointed out that the search list made (Exhibit 1) was not signed by the accused and that it was a failure to follow proper procedure, but the accused did not dispute that search list during his cross-examination. Besides, all the items were properly laid out and photographed as well and no dispute was raised about those photographs.

[56] I therefore find and I hold that the search carried out at the parking area of Vaiola hospital and at the house of the accused were lawful and that the items found, including the drugs found by the car and in the car are admissible as evidence in this trial.

Identity of the drugs

[57] As to the identity of the substances found and the substances analysed by the analysts, Mr. Tu’utafaiva submitted that there was such a vast difference between the weights of the substances found and the substances analysed that they could not be the same substance.

[58] He pointed to the weights which the analyst, Officer Leniti Pale, found when he weighed the 4 packs of methamphetamine separately as follows:
Pack 1 0.81g
Pack 2 0.19g
Pack 3 0.66g
Pack 4 0.70g
Total 2.36 grams

And contrasted that total with the total weight of the 4 packs which Officer Vainikolo had found when he weighed them which was 3.52 grams – a difference of 1.16 grams.

[59] Mr. Finau for the Crown however pointed out that the difference in the two total weights was due to the fact that Officer Leniti Pale had weighed only the methamphetamine without the plastic packs in which the methamphetamine was contained. He pointed out that the officer, Leniti Pale, did say that in his report when he used the word “’ata’ata” meaning “only” when he stated, in respect of each of the 4 packs:

“The Exhibit 1 is a selophane containing white crystal grains and the weight of only the white crystal grains was 0.81g.”

[60] I agree with Mr. Finau. That was what Leniti Pale said he did. If the total difference of 1.16 gram is divided by 4, 4 being the number of empty selophanes which had contained the substance, the average weight of each selophane would be 0.29 gram. Counsel, Mr. Tu’utafaiva, would have been aware that that was why there was a difference in the two weights, and he did not challenge the evidence in entry no.28, 29 and 30 of the diary of action, that Officers, Vainikolo and Langi, had weighed the substances and found their total weights which were written in those entries, namely, 3.14 grams for the cannabis and 3.52 grams for the methamphetamine, and which did not contain the word “’ata’ata” (only) as Leniti Pale had stated in his own report.

Did the accused have possession?

[61] Mr. Tu’utafaiva submitted that the evidence of the Crown as to possession of the methamphetamine by the accused was only circumstantial without any direct evidence such as there was with regard to the cannabis and the accused denied that he knew of it. Mr. Tu’utafaiva says that the little glass bottle ought to have been dusted for fingerprint but that was not done and it should have been done because of the denial thereof by the accused. It ought to have been mandatory for that to be done.

[62] Mr. Finau submitted, in reply to that, that it would and should be reasonably inferred that the little glass bottle containing the methamphetamine belonged to the accused because the little bottle was closer to the accused than the telephone lying at the front of the car, which the accused acknowledged was his. He says that the presence of cannabis and of cash in different places in the car and of the smoking pipe in the back seat, for use with either cannabis or methamphetamine, supports that inference.

[63] I agree with Mr. Finau. The telephone of the accused did not show or have any incriminating information or of any offence. Officer Tu’amelie Fifita gave evidence of that. The accused knew that. There was no reason for him to get rid of the telephone. I believe that the telephone came off him accidentally when Officer Tu’amelie Fifita grabbed him from behind and put him face down on the ground.

[64] I believe that it came off him accidentally because he did not know and he was not prepared when Officer Tu’amelie Fifita grabbed him from behind, and that the telephone fell forward to the front of his car as he was being thrown or laid down beside his car with his head towards the front of the car.

[65] I believe that the little bottle also fell from him accidentally when he was grabbed and laid face down on the ground, because it did not fall far like the telephone did. I also note, looking at phono no.5, that both the phone and the little bottle were to the left of the space between the 2 cars which indicates that the force which propelled the 2 objects forward and to the left came from the rear of and between the 2 cars, which was how and where the officer Tu’amelie Fifita described.

[66] The amount of methamphetamine inside the little bottle was a substantial amount of 2.36 grams and it was properly packaged into 4 separate packs and carefully packed into a little glass bottle with a good lid thereon to keep them intact and safe. They were packed tightly in a small object for ease of “palming” or being handed from the palm of one person into the palm of another. I agree with Mr. Finau that the presence of different amounts of cash in different parts of the accused’s car, and the presence of a substantial amount of cannabis in the car, is consistent with the presence of the substantial amount of methamphetamine in the little glass bottle lying beside where the accused was grabbed and laid face down beside his car.

Defences fail

[67] I therefore find that all 3 defences raised by the accused fail for the reasons I have given.

Charges proved

[68] On the other hand, I have found that the Crown has proved the two charges it has brought against the accused. In respect of the cannabis charge, the accused admitted to Officer Malolo Vi that the cannabis found in the little bag sitting on the driver’s seat, was his.

[69] In respect of the methamphetamine charge, I am satisfied beyond reasonable doubt that the small glass bottle containing the 4 packs of methamphetamine was on the accused and that it fell beside his car, together with his telephone, when Officer Tu’amelie Fifita grabbed him from behind and laid him on the ground beside his car.

Conclusion

[70] Accordingly, I am satisfied, beyond reasonable doubt that the accused, knowingly and without lawful excuse, possessed 2.36 grams of methamphetamine as charged in Count 1 and 3.14 grams of cannabis as charged in Count 2 and I find him guilty of both counts and convict him accordingly.

Niu J

Nuku’alofa: 23 June 2021 J U D G E