R v Angilau [2021] TOSC 22; CR 315 of 2020 (15 February 2021)

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

CR 315 of 2020

BETWEEN: R E X
-Prosecution
AND: PENISIMANI ANGILAU
-Accused

VERDICT

BEFORE : JUSTICE LANGI

Counsel : Ms ‘Aunofo ‘Aholelei for the Crown Prosecution
The Accused In Person

Date of Verdict: 15 February, 2021

1. THE CHARGE AND PRELIMINARY MATTERS
   

1. The Accused is charged with one count of possession of illicit drug contrary to section 4 (iii) of the Illicit Drugs Control Act:
   
2. He pleaded not guilty to the charge and trial commenced on 3 February 2021 where the Crown called 3 witnesses and requested an adjournment for the last witness to travel from Vava’u. The matter was adjourned to today for the Crown’s last witness to give evidence.
   
3. After the Crown closed its case the Accused chose to call one witness. An oral verdict was delivered at the end of the trial and I had acquitted the Accused of the charges against. I now give my written reasons for the outcome of this case.
   
4. 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.
   
5. Before I can convict the Accused the Prosecution must prove the following elements beyond a reasonable doubt:
   
   1. That on 12 November 2019;
   2. The Accused knowingly and without lawful excuse;
   100. Possession of a Class A illicit drug;
        
6. At the beginning of the trial counsel for the Prosecution asked to tender the Scientific Analyst Certificate on the basis that the Defence failed to reply to the notice under section 36 of the Illicit Drugs Control Act to require the analyst to be called to give evidence. I allowed the certificate to be tendered as Exhibit 1;
   
7. Crown counsel and the Accused informed me that the agreed issues are:
   1. Legality of the search;
   2. Possession of illicit drugs;
      

2. THE CROWN’S EVIDENCE

8. I heard evidence from 2 witnesses for the Prosecution.
   
9. The first witness was Tevita Vakalahi who is an experienced officer with 15 years’ experience. He has been with the Tactical Response Group for 11 years. On the 12 November 2019 he was part of a team who had arrested a man by the name of Sefo Moala. They arrested Mr. Moala at the junction on Vaha’akolo Road and Bypass Road. He and some other officers were ordered to go to Tokomololo to Mr. Moala’s house to stand watch and prepare for the search team to search the house. They went to Tokomolo and after securing the house, he and the other officers went and stood outside at the entrance to the house. While they were standing there, one of the community police officers walked over and started having a conversation with them about the people who would visit the house. He also told them that there is a black car that would always come and park in front of the Mormon church. While the community officer was still talking, the Accused drove by in his car and the community officer told the police that the Accused is the person he was just talking to them about.
   
10. Officer Hakalo then made the decision to search the Accused vehicle without a warrant and he informed the Accused that they were going to conduct a search without a warrant. The Accused was taken out of the car and Officer Vakalahi commenced the search from the front of the car. During the search the Accused was standing besides the other officers and all of them were watching Officer Vakalahi open the doors and searching the car.
    
11. He did not find anything in the car and he proceeded to open the boot of the car. Inside the boot were speakers and a pair of sneakers. He heard one of the officers telling the Accused to watch the search and what was being done. He heard the Accused reply that he has already learned his lesson and was no longer doing these things. He searched the sneakers and found 1 pack of methamphetamine inside the sole padding of one of the sneakers. During this time the Accused was watching and when he picked up the packet and asked the Accused what it was, he replied and said “officer, why have you put that thing inside the shoe?”. He then informed Hakalo of what he had found inside the shoe and the Accused was cautioned for possession of illicit drugs.
    
12. The second witness was Officer Halapua Hakalo. He has worked as a police officer for six years and has been with the Drugs Enforcement Taskforce for 2 years.
    
13. He said that on the day in question the police had arrested a person named Sefo Moala in relation to drugs offending. Mr. Moala was taken to the police station while he and officers from the Tactical Response Group were instructed to go to Tokomololo to secure Mr. Moala’s residence for a search later that night.
    
14. They arrived at Mr. Moala’s residence and after securing the house the TRG police walked over to the front gate and stood around waiting for the search team to arrive. He sat on the veranda looking at the road. After a while the Accused’s car drove up to the entrance of the gate. He heard the officers saying that it was the Accused Penisimani Angilau. As soon as he heard that it was the Accused he hurried over and told the Accused to get out of the car and that the police were going to search his car pursuant to their powers under sections 122 and 123 of the Tonga Police Act. He said that he was familiar with the Accused and that upon hearing that it was his car in front of the gate he made the call to search the car without a warrant.
    
15. He said that the Accused was then taken outside of his car and Officer Vakalahi commenced the search by opening the boot of the car. At that time, he was standing with the Accused and he asked the Accused where he had been that night. The Accused then began complaining and saying that he had just finished exercising and if anything is found in the car then the police put it there. While they were talking Vakalahi shouted out from the boot of the car for the Accused to come and see what he had found inside the sole of one of the sneakers inside the boot.
    
16. He said that the pack of illicit drugs was taken to the exhibit room and kept there.
    
17. In cross-examination, he said that the reason he made the call to search the Accused and the vehicle was because the police had authority to search without a warrant pursuant to sections 122 and 123 of the Tonga Police Act.
    
18. In reply to a question from the bench as to what reasonable cause did he have to make the call to conduct a search without a warrant, Officer Hakalo said that he is familiar with the Accused’s name being a target for illicit drugs and when he heard that it was the Accused’s car he instantly directed for a search to be conducted on him and his car.
    

100. DEFENCE EVIDENCE

19. The Accused chose to remain silent and did not give evidence. However, he did call one witness to give evidence on his behalf.
    
20. Mr. Manoa Motuliki is known to the Accused. On 12 November 2019, at around 8pm, he went with some friends to Sefo Moala’s house to pick some work tools. However, when they got there they saw that the police were searching Sefo Moala’s house. They drove past the house and made a U-turn and returned on the same road. However, on their way back they saw the Accused’s car in the middle of the road. The police stopped them and they had to park their vehicle and wait for the police to finish searching the Accused’s vehicle.
    
21. He said that he saw the police open all the doors of the vehicle and the Accused was told to get out of the car. He then saw the police searching the Accused and then another officer walking towards the Accused from the boot of the car. He then saw the police handcuff the Accused and take him to Sefo Moala’s house.
    
22. In cross-examination he said that he did not see the police find illicit drugs in the boot of the car. The only thing he saw was the police opening all the doors of the car and then searching the Accused. Then he saw someone walking from the boot of the car to where the Accused was. The Accused was then led into Sefo Moala’s compound.
    
    4. DISCUSSIONS
23. At the close of the cases for both parties, the Accused informed the Court that he did not wish to make any further submissions as he did not know what else to say to the court.
    
24. In light of the choice by the Accused not to give any closing submissions, Mrs. ‘Aholelei for the Crown submitted that she did not wish to make closing submissions herself. I then asked Mrs. ‘Aholelei whether, in her view, the evidence that was called by the Crown, was sufficient to take this case to the required standard of proof beyond a reasonable doubt. Mrs. ‘Aholelei rightly stated that she did not believe that the Crown has proven the charges beyond a reasonable doubt.
    
25. For reasons I will touch on later, after hearing the evidence called by the Crown, I am not satisfied that the Crown has proven the charges beyond a reasonable doubt.
    
26. Firstly, however, I commend Mrs. ‘Aholelei for her integrity in admitting to the fact that the evidence before the court is insufficient to take the case to the required standard of proof beyond a reasonable doubt. It is rare but not unheard of for the Crown to concede at the end of the evidence called that they have fallen short of proving their case to the required standard of proof. This only goes to demonstrate that the Prosecution has the responsibility of a minister of justice and not simply that of an advocate and has a duty to seek justice within the bounds of the law and not merely to convict or uphold a conviction. This responsibility carries with it specific obligations to see that the Accused is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.
    
27. In this case, the issues in dispute was the legality of the search and possession of illicit drugs. In relation to the legality of the search, Officer Hakalo stated in evidence that in this case he had used the powers in section 122 and 123 of the Tonga Police Act to conduct the search on the Accused and his car.
    
28. Section 122 (1) of the Tonga Police Act provides (as relevant) as follows:
    1. “122. Search of persons without a warrant
    • (1) This section applies if a police officer is satisfied, on reasonable grounds,
      1. that a person has any of the objects mentioned in subsection (2) in his possession, and;
      2. 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 search the person for the objects.”

Subsection (2) (b) lists “an illicit drug” as an object for the purposes of subsection (1).

29. Section 123 (1) (a) of the same Act provides as follows:

“123. Search of places, vehicles, vessels and aircrafts without a warrant.

(1) This section applies if a police officer is satisfied, on reasonable grounds, that:

1. A serious offence has been committed, is being committed or is about to be committed in any place, premises, vehicle, vessel or aircraft and;
2. it would be impracticable, unreasonable or not in the interests of justice if the offender was required to apply for a warrant in order to conduct a search in relation to the offence.
   

30. From these provisions of the Tonga Police Act where searches are to be made without a warrant, the critical requirement is that the police officer must be satisfied on reasonable grounds of two things before he can carry out a search without a warrant. Firstly, that a serious offence has been committed, is being committed or is about to be committed. Secondly, that action be taken right away without a search warrant.
    
31. In Rex v Posoni [2020] TOSC 71 at paragraph 32, His Honour Justice Niu stated that “the reasonableness of the 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 later found to have been committed or is being committed or is about to be committed because that is subsequent to the decision to make the search without a warrant. Rather, the reasonableness of the belief is determined on the reliability of the information received by the officer alone. Where a police officer has made a search without a warrant, and has seized an object or substance, he has the burden and obligation of proving and satisfying the Court that he had such reasonable grounds or cause for the search he made without a warrant. Such proof is not satisfied by simply saying to the Court that he had reasonable grounds or cause to do so. He must satisfy the Court what the grounds or cause were, that they existed and that they were reasonable”.
    
32. In this case, I am not satisfied that Officer Hakalo had reasonable grounds to make the decision to stop the Accused and search his vehicle. The evidence of the two Crown witnesses were inconsistent. Officer Vakalahi stated that the reason they decided to search the vehicle was because the community police had told them that the Accused’s car was a frequent visitor to Mr. Moala’s house. This is inconsistent with the evidence of Officer Hakalo who stated that the reason he made he decision to stop and search the Accused was because he is familiar with the Accused and he is a drugs target. Mrs. ‘Aholelei for the Crown may have been aware of this inconsistency in the statements when she tried to suggest to Officer Hakalo that the reason he made the call to search the Accused and his vehicle was because the community officers came and told them that the Accused was a frequent visitor to Mr. Moala’s hosue. Officer Hakalo answered and said that it was only after they had finished the search that the community officers told them that the Accused was a frequent visitor.
    
33. Just because someone is a suspected drug dealer or a target does not give the police carte blanche to stop and search every person they think may have illicit drugs on them without a reasonable cause. If this were the law, then the rights of so many citizens would be affected where police would have powers to search anyone at a whim. I do not believe that was the intention behind sections 122 and 123 of the Tonga Police Act.
    
34. Additionally, no report was tendered by Officer Hakalo in compliance with the requirement in section 122 (6) of the Tonga Police Act to report searches without a warrant to the Police Commissioner.
    
35. For these reasons I rule that the search without a warrant in this case was unlawful and exclude the evidence seized during the search.
    
36. Even if the search was lawful, the Crown’s case would still fail because in my view, they have not proven possession of an illicit drug. Officer Vakalahi gave evidence that he searched the vehicle starting from the front of the car to the back. He said that the Accused was present during all times and was watching him up to the moment he took out the drugs from the sole of a shoe in the boot of the car. He said that when he told the Accused to come and look at what he had found the Accused had shouted “why did you put that there?”.
    
37. Officer Hakalo states that they took the Accused out and the search had started from the boot of the car and while the vehicle was being searched he asked the Accused where he had been and the Accused was complaining and asking why they were searching him. The Accused told Officer Hakalo that if they found anything in the car then the police had put it in there. Suddenly, Officer Vakalahi yelled out from the boot of the car to the Accused to come and see what he had found. This part of the evidence suggests to me that the Accused was not present when the illicit drugs were found, as stated by Officer Vakalahi.
    
38. Additionally, the evidence of Manoa Motuliki is that he saw the Accused being taken out of his car and searched. He then saw an officer walk towards the Accused and the Accused was handcuffed and led to Sefo Moala’s house. This evidence seems to corroborate the evidence of Officer Hakalo when he stated that while the Accused was complaining about being detained they were surprised when Officer Vakalahi shouted out from the boot of the car, suggesting that the Accused was in fact not standing next to Officer Vakalahi when he found the packet of methamphetamine.
    
39. As a result of the matters outlined above the Crown has failed to prove the charge beyond a reasonable doubt and the Accused is acquitted.
    
40. As requested by the Crown, I further order that all illicit drugs seized from the Accused is destroyed.
    

‘E. M. L Langi
NUKU’ALOFA: 15 February 2021 J U D G E