R v Fifita [2021] TOSC 68; CR 302 of 2020 (12 May 2021)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

CR 302 of 2020

REX

-v-

WESLEY FIFITA

BEFORE HON. JUSTICE NIU

Counsel : Mrs ‘Elisiva Lui for the Crown

Mr Wesley Fifita appearing for himself, accused

Trial : 25 and 26 March 2021

Submissions : 29 March 2021

Ruling : 12 May 2021

VERDICT

Charges

[1] The accused is charged with 2 counts:

Count 1: that on or about 16 June 2020 at Pili, he knowingly and without lawful justification possessed 0.04gm of methamphetamine contrary to S.4(a)(iii) of the Illicit Drugs Control Act.

Count 2: that on or about 16 June 2020 at Pili, he knowingly and without lawful justification possessed 0.66gm of cannabis contrary to S.4(a)(i) of the Illicit Drugs Control Act.

[2] The accused pleaded not guilty and elected to be tried by judge alone and that he would represent himself.

The evidence

[3] At the commencement of the trial, both parties agreed, and the following were produced as evidence by consent:

Exhibit 1: Diary of action (7 pages)

Exhibit 2: Search list (1 page)

Exhibit 3: Search report (2 pages)

Exhibit 4: Exhibit movement register (1 page)

Exhibit 5: Record of interview of the accused (3 pages)

Charges form of the accused (1 page)

Statement of the accused (1 page)

Exhibit 6: Notice to the accused that drug analyst would not be called (2 pages)

Exhibit 7: Certificate of analysis of the cannabis (4 pages)

Exhibit 8: Certificate of analysis of the methamphetamine (8 pages)

[4] The Crown then called 5 police officers who each gave evidence and the accused asked questions of 2 of those officers. He himself gave evidence and was cross-examined and he called no witness to give evidence.

[5] Time was given to both sides to prepare their submissions and those submissions were heard 3 days later. The accused made the following submissions:

“I maintain I am innocent:

First: The first witness said that he got information that evening that drug was being sold at Talia’uli Fatongiatau’s residence at Pili and that Latu Selu was there. But Latu Selu was not there.

Second: The first witness said that I was hitting my trousers leg with my hand but I could not have done that because my hands were both cuffed (to my back).

Third: The officer Fihaki who wrote the List of Exhibits, I had told him that item 11 was already there in the house before I came to the house.

Fourth: I did not know about the Pall Mall packet at all. I was far away from it.

Fifth: Why did officer Fihaki keep the exhibits for such a long period of 21 days?

Lastly: I did not know about these drugs at all.”

[6] The first witness was Malolo Vi who is 38 years old and who had been in the drug squad for 3 years. He said that he received information that drugs were being sold at a residence of Talia’uli Fatongiatau at Pili and that one Latu Selu was there. He said that he was given that information by an informer with whom he had worked for over 2 years during which period he had received information from him for over 30 times, and of those 30 information about 25 had turned out to be correct. He said that he drove over and spoke with the informer in person and confirmed the information. He said that he then drove to the house at Pili and that he saw two motor vehicles leave the house, and that one vehicle was of a person they had arrested before for drugs.

[7] He said that he then organized the other officers and the (TRG) Tactical Response Group team (that is the armed group) and they then went to the house. He said that the TRG went in first and that about 5 minutes later, they went in. He said that there was only the accused and an older man, named ‘Amanaki Kioa, both sitting on the floor of the lounge.

[8] He said he told them who they were and that they were there to search for drugs under the powers of the police under Section 24 of the Illicit Drugs Control Act. He said he then searched the accused and that he noticed that the accused was hitting his right knee trouser pocket with his hand. He said he found in that pocket broken glass pieces of an ice smoking pipe, and in the accused rear pocket he found $52 or so in cash and 1 pack of methamphetamine. He said that he showed it to the accused and that he charged him with possession of it.

[9] He said ‘Amanaki was also searched but nothing was found on him. I take that to mean that no drug was found on him because the officer, ‘Apisai Fihaki, who searched ‘Amanaki said he found $120 in his pocket.

[10] Malolo Vi said that the lounge was searched and a pack of cannabis and a glass ice smoking pipe were found in a bowl on a shelf there. He said he asked both of them whose were those things but neither of them spoke and so he charged them both with the possession of those items.

[11] He said that the officer with the police dog then arrived and the dog then went sniffing around the house and was concerned with a Pall Mall packet which was in a pile of rubbish in the kitchen of the house. The packet appeared to be empty and was half squashed. He said that the accused was shown to the packet before it was touched by anyone, and when it was opened, there was 1 pack of cannabis and 1 pack of meth and an empty pack or two inside. He said that he asked the accused whose it was and that the accused said that he did not know of it. He said that both the accused and ‘Amanaki were both charged with possession of it, even though ‘Amanaki also denied knowledge of it.

[12] He said that when the search was completed, the accused told him that all the drugs found were his own and that ‘Amanaki had nothing to do with them, and asked that ‘Amanaki be released. He said that he accepted that confession of the accused and that it was written in the Diary of Action and that he and the accused and ‘Amanaki all signed it there and then. It reads as follows:

“16/6/20 2321Hrs No.38 Wesley Fifita says to let ‘Amanaki go because these things are all his.

(signed) Fifita

(signed) AKioa

(signed) MVi.”

[13] In accordance with that confession, the $120 found on ‘Amanaki Kioa was returned to him together with his telephone. He said that he and ‘Amanaki both signed entry no.39 which confirmed that fact.

[14] He said that he checked the search list which was written by Officer Fihaki as the search had progressed and that he and the accused both signed it.

[15] When questioned by the accused, he said that the accused had hit and broken the ice pipe in his pocket before his hands were cuffed, and that Latu Selu was not at the house. He said that it was not a set procedure that hand cuffs be applied and that they were applied only when necessary, and that because in the present case he saw that the accused was hitting his trouser pocket with his hand, he ordered that his hands be cuffed.

[16] Officer ‘Apisai Fihaki, 39 years old, said that he was in the drug squad for some 13 years. He said that his job that night was to write the diary of action entries and the Search List as each action was carried out and when each item was found and he confirmed those entries and produced in Court all the items listed and taken from the house.

[17] He said that he kept the items locked in his cabinet and that no one had access to it except himself who had the only key to the cabinet, and that he gave all the exhibits to Officer Lolohea on 21 July 2020. He confirmed in Exhibit 4 (The Drug Movement Reister) his and officer Lolohea’s signatures and the list of exhibits entered therein on that date.

[18] When questioned by the accused, he said that he agreed that where the accused was sitting in the lounge and where the Pall Mall packet was found in the kitchen was some distance because there was another area between the lounge and the kitchen, which I would think was either used as a dining area or a common room, but without any wall in between the kitchen and the lounge. He drew a plan of the house showing the same which he produced as Exhibit 9.

[19] It was put to him that several empty packs which are stated in the Search List as having been found on the north side of the accused’s bed were in fact found in the lounge, but he said that they were found in the bedroom by the accused’s bed.

[20] The officer then showed and explained each of the items found and he produced them in one big envelope as Exhibit 10.

Accused evidence

[21] The accused, aged 28, residing at Pili, said that the house had been rented out to tenants for some 9 years but that complaints had been made about those tenants for dealing or selling drugs and that the town officer and the estateholder had directed that those tenants be told to leave. He said that in April 2020 he went and gave notice to the tenants to be out by the end of May. He said that he went there in the last week of May and they were still there and that they told him that they were still looking for a place. He said that he told them that they had to be out by the end of May, and to let him know when they were leaving.

[22] He said that he did not receive any message at all and so he went there on Monday 8 June 2020 and found that they had already left. He said that he went in the same day and cleaned up the place and that he slept there about 4 times and that his friends, about 5 of them came there too and sometimes they would sleepover as well.

[23] He said that when the police came (which was on the night of 16 June 2020) he told them that he did not know anything about any drugs. He said that the things, including the drugs which the police found in the house during their search were things which the tenants had left there. He said that the pile of rubbish in the kitchen was the rubbish he had swept up after the tenants left.

[24] On cross-examination, he said that the house was his and that it had only 1 bedroom and that his clean up was just sweeping up the rubbish inside the house, and moving the furniture around, including the one 3 seat sofa in the lounge. He said he just piled the rubbish in the kitchen. He said that he just ate take away food.

[25] He said that his answer to question 21 in the Record of Interview (Exhibit 5) was true, namely:

“The pack with the crumbled ice found in my trouser pocket is mine but the packs of ice and cannabis found in the plastic rubbish bag and the packs of cannabis and ice which the dog found in the lounge I do not know whose they were.”

[26] He also said that his answer to question 22 was true, namely:

“The truth is I smoke ice as user and I know the packs I had smoked.”

[27] He said that he had not noticed that there was a pack of cannabis on the cross board (partition) on the wall because he had just come back to the house that evening.

[28] He said that it was true that he had agreed that ‘Amanaki Kioa be released because all the drugs found were his. He said that he did tell the police that night that the tenants had been living in the house until the previous week but that he did not ask any question to that effect to the police officers when those police officers were giving their evidence.

[29] I asked the accused and he said that his answers “Guilty” to both charges in Exhibit 5 were true and that he also admitted that he wrote what is written in page 5 of Exhibit 5, namely:

“I am truly repentant on this offence committed and I cooperated and helped in the works of the department on my case. And I ask for mercy in your sentencing to help cure me from the affliction of this illicit drug.”

He said that he was a victim of both methamphetamine and cannabis.

Crown submissions

[30] In reply to the oral submissions which the accused made and which I have outlined in paragraph 5 above, the Crown submitted that the only issue to be decided is whether or not the accused knew or that he had knowledge of the presence of the drugs with which he is charged in both counts. Counsel, Mrs Lui, submitted that the following evidence proved that the accused knew of the presence of the drugs:

(a) 1 pack of meth was found in the accused’s pocket. There cannot be any doubt that he knew of it. He said it was his.

• (b) 1 pack of cannabis was found on the partition board of the wall. 1 pack of cannabis was inside the Pall Mall packet. 1 pack of meth was found under the middle cushion of the 3 seat sofa. All these drugs were in the house of the accused, and his control. The pack of cannabis on the partition could be easily seen by anyone. The accused said that he moved the furniture around. He handled the sofa. The accused told the police to release ‘Amanaki because all the drugs were his. He confirmed that by signing that confession on entry 38 of the diary of action, Exhibit 1. The accused also confessed in his statement to the police, Exhibit 5.

Consideration

[31] I had set out in paragraph 5 above the points raised by the accused in his defence before I set out the evidence in respect of which those pointed related, and I now deal with each of those points:

1. Latu Selu was not there in the house at all, meaning that the officer Vi was wrong or that the information he had received was wrong. I do not find any relevance in the presence or absence of Latu Selu in the house. It was not even raised by any witness or even the accused himself. And even it was relevant, it might well be that Latu Selu had in fact been there but that he had left in one of the 2 vehicles Malolo Vi said he saw leaving the house before they went in to the house. In fact, he said one of the vehicle was of a person they had arrested before for drug. He could have been Latu Selu but the accused did not ask him.
2. He could not have hit and broken the glass ice smoking pipe which was in his pocket, like Malolo Vi said he did, because his hands were already cuffed behind his back. So how does he account for the broken glass ice smoking pipe that he had in his trouser pocket? He did not say anything about that at all. Am I to assume then that someone else had put the broken pieces of the ice pipe into his pocket without him knowing about it? I am more inclined to accept that he had put the ice pipe in his pocket himself, and that it was unbroken, for the purpose of using it later to smoke the ice or meth because he is an user of the drug, and that he deliberately caused it to break into pieces so that it would be difficult to make out what it was. I therefore accept the evidence of Malolo Vi that the accused did hit the pipe from outside of his trouser pocket with his hand in order to break up the pipe into small pieces before his hands were subsequently cuffed.
3. He told Officer Fihaki that item 11 in the Search List (Exhibit 2) namely the Pongo Smoking contraption was already in the house before he came into the house. Even if that was so, what did that have to do with the presence of the drug in his pocket? In fact, it is an admission by him that he knew what the contraption was for and that he knowingly kept it as his property thereafter, no doubt for his use for smoking the drugs.
4. He did not know about the Pall Mall packet at all because he was sitting far away from it. Does that mean that he thereby admits that he knew about the drug on the wall partition and the drug under the sofa cushion in the lounge because he was close to those drugs at the time? Of course not. Distance form where the drug was found is not relevant in these circumstances. He himself said he cleaned up the house on the first day he moved in. It is not an uncommon hiding method to put something inside an empty packet of cigarettes, half squash it to show that it is empty (of cigarettes) and chuck it on to a pile of rubbish or into a bag of rubbish, especially if it is a discernable red packet like the packets of Pall Mall cigarettes. As owner of the house, he decides that the pile of rubbish or the bag of rubbish remains on the floor of the kitchen because it is his hiding place of the drugs.

And for easy reach while sitting or lying on the sofa, he puts another pack of meth under the middle cushion.

5. Why did Officer Fihaki keep the items in his custody for 21 days? I do not see any relevance of that to the fact that these 4 packs of drugs were clearly found in his house? He does not dispute that the 4 packs that were found in his house (and his pocket) were duly analysed and were found to be in fact the drugs they were said to be at the time they were found, namely meth and cannabis. In any event Officer Fihaki properly accounted for his custody of these drugs and those drugs were duly and properly accounted for by the analysts themselves as the same drugs that were found in the search of the accused and of his house.

I therefore find no merit or substance in any or the points raised by the accused in his defence.

[32] On the other hand, I am in total agreement with the submissions of Mrs Lui for the Crown as I have outlined above. The accused himself has confessed to possessing, that is, knowingly having, these 4 drugs in his possession firstly, at his house when he told Malolo Vi to release ‘Amanaki Kioa because all the drugs were his and secondly when he answered “Guilty” to both charges, and which he confirmed when he stated that he was truly repentant on the offence committed.

[33] I consider that the accused truly admitted these offences, and that he had known about all these 4 packs of drugs before the police got there that night because he was willing to take all the blame and guilt for them and to release ‘Amanaki Kioa altogether, because he knew ‘Amanaki Kioa had no knowledge of them at all. ‘Amanaki Kioa was described to be an older man and I accept that he was not one of the 5 friends of the accused. So obviously the accused was truly sorry that ‘Amanaki was being wrongfully accused, and verbally charged, with possession of the drugs he never knew about. I therefore believe that the accused rightly told the police to release ‘Amanaki because the drugs were all his.

[34] And what is more important is that the police did believe the accused, and relying on that belief, the police released ‘Amanaki, and gave him back the $120 that was found on him.

[35] Now, can, or should, the accused be now believed that he had only lied to the police to get ‘Amanaki Kioa released but that the drugs were never the accused’s and that he never knew about them? I do not think so. He made the statement and he signed it and it was acted upon by the police and released ‘Amanaki and charged the accused alone with the possession of those drugs.

Verdict

[36] Accordingly, having considered all the evidence in this case, I am satisfied beyond reasonable doubt that the accused knowingly possessed 0.04gm of methamphetamine at Pili on 16 June 2020 without lawful justification, with which offence he is charged under Count 1, and I find him guilty and I convict him thereof.

[37] I am also satisfied beyond reasonable doubt that the accused knowingly possessed 0.66gm of cannabis at Pili on 16 June 2020 without lawful justification, with which offence he is charged under Count 2, and I find him guilty and I convict him thereof.

Niu J

Nuku’alofa: 12 May 2021 J U D G E