R v Tafuna [2022] TOSC 20; CR 143 of 2021 (8 April 2022)

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

CR 143 of 2021

REX

-v-
Tupou TAFUNA

JUDGMENT

BEFORE : THE HONOURABLE COOPER J
Counsel : Ms. ‘A. ‘Aholelei for the Prosecution
Defendant in person
Date of Judgment: 8 April 2022

1. The defendant represented himself.
2. He faced an indictment with his co-accused, Tevita Tupou, that alleged two counts of possessing an illicit drug contrary to section 4 (1) (a) (iv) Illicit Drugs Control Act, namely (1) 6.78 g of methamphetamine and (2) 4.27 g cannabis. Then (3) a count of possessing utensils contrary to section 5 A of the same Act; those three counts he was jointly indicted. (4) A count of permitting the use of premises for the possession of illicit drugs, contrary to section 5B of the Act he faced alone.
3. Mr. Tupou had previously been arraigned and pleaded guilty to those three counts.
4. Mr. Tafuna was re-arraigned and pleaded not guilty to all counts.
5. The case was opened in Tongan and the Court followed the English language opening note.

Officer Tu’ivai

6. He has been a police officer for 14 years and in the intelligence section of the Drugs Enforcement Taskforce (DET) for 2.
7. He was in charge of the operation on 5^th May 2021 whose focus was the residence of Tupou Tafuna, in Sopu.
8. The operation was information led. The informant had been reliable and 4 earlier operations each where illicit drugs were recovered were attributed to his cooperation. Officer Trivia received the information from at about midnight 4^th May into 5^th and briefed his senior officers.
9. A further call from the informant at approximately 0500 hrs updated them as to what was happening and who was present. The decision was then made to act urgently before evidence was lost and they went to Mr. Tafuna’s home.
10. When Officer Tu’ivai arrived there Tactical Response Group (TRG) had already entered the property and the people within had been detained.
11. He introduced himself to Mr. Tafuna and his wife, explained that a search without a warrant would be conducted and they had the necessary authority under section 24 Illicit Drugs Control Act.
12. Mr. Tafuna was advised of his rights and cautioned.
13. All were searched. Only person with anything on his person was Mr. Tafuna. That was some money. When his wife explained that was for food for the family, it was returned to her. The amount was never stated.
14. The plan of the residence became exhibit 2.
15. They started their search by deploying a police dog and Mr. Tafuna was told that he could be present throughout. First in the children’s bedroom and then they moved to the living room, then the kitchen, before going to the bedroom, room 3, as indicated in the plan and photographs 3-18 and 20 of exhibit 1.
16. In that room was Tevita Moli Moimoi and it was also here were Mr. Tafuna and Mr. Tupou when the TRG first came in.
17. In that room the dog identified areas of interest.
18. Working through exhibit 1, photograph 12 showed a black pouch in situ, under a piece of furniture, photograph 11, Officer Hakalo recovering it.
19. Photographs 21 to 30 show the stages of unpacking the suspected drugs and paraphernalia and photograph 31 all the contents with the pouch displayed together.
20. Officer Tu’ivai noted that smoking pipe and a Bong were also recovered.
21. He confirmed that he completed a report consistent with his duty under section 24 Illicit Drugs Act and he exhibited it, exhibit 3.

Cross-examination

22. The officer accepted that, at the scene, when those detained by the police had been asked whose drugs these were, Mr. Tevita Tupou had admitted they were his.
23. Mr. Moimoi had replied he did not know whose they were.

Re-examination

24. There was none.

Sione Vea

25. He has been a police officer for 2 ½ years. He explained that the box in photograph 1, exhibit 1 was a box that was found on the floor in room 3. Between it and the wall (photograph 2) was recovered the bong.
26. The pipe for smoking methamphetamine was identified in photograph 9 as having been found wrapped in tissue paper, and placed in the recess for a speaker in some audio equipment, as seen in photograph 7.
27. Photograph 9 was an image of when it had been recovered, unwrapped and placed on a table in room 3.

Cross-examination

28. None.

Officer Hakalo

29. He has been a police officer working in DET for 3 years.
30. Within the photograph booklet, exhibit 1, he identified himself as the officer in photograph 18 wearing a distinctive striped top.
31. He seized the black pouch containing the suspected drugs, photograph 11, hidden under the piece of furniture at the foot of a bed in that room, photograph 12.
32. He passed the suspected drugs and paraphernalia to the Exhibit Keeper under the supervision of Officer Tu’ivai.

Cross-examination

33. There was none.

Officer Finau

34. He is a police officer and had been member of DET for 2 ½ years.
35. He was present at the search that evening in Sopu. His responsibility was recording the exhibits found in the Search List.
36. That list was attached to the report, exhibit 2 and he identified it as his document.
37. He had handed the items seized to Officer Pousima. That handover had been recorded in the Drug Movement Register (exhibit 4 (1) original, 4 (ii) translation).
38. He identified his entries to indicate those items handed to Officer Pousima, later received by Inspector Pale when they had been taken for forensic analysis.

Cross-examination

39. There was none.
    

Agreed evidence

40. The Prosecutor explained that there had been a conversation with the defendant before trial to narrow the issues in the case. Mr. Tafuna then confirmed this was so and that he accepted that the items recovered were in fact both Methamphetamine and Cannabis.

Officer Vimahi

41. He is a member of Tonga Police Force and had been for 8 years.
42. He clearly recalled the events of 5^th May 2021. The search had started at about 0600 hrs at Mr. Tafuna’s residence.
43. His team had effected entry and he had spotted Mr. Tafuna in room 3. He had been sitting on the floor and using a soldering iron to work on electrical equipment.
44. Behind him, lying on one of the two beds in the room was a person asleep.
45. Mr. Tafuna was arrested and cautioned and handcuffed.
46. When that happened the person lying on the bed awoke. It was common ground that was Mr. Tevita Tupou.
47. The officer, using exhibit 2, marked the plan to show the position of the defendant seated on the ground and Mr. Tupou, on the bed.
48. That was then related to the photographs. Image 17 shows the bed in question, the guitar on the wall hanging over it. Therefore the pouch, under the piece of furniture was approximately equidistant between Mr. Tafuna and Mr. Tupou.

Officer Pousima

49. She worked in the exhibits officer in Central Police station. Her evidence was to add the final step in explaining the continuity of the exhibits. Whilst that was accepted and there was no dispute, it was clear the defendant accepted these were the items recovered and that they were the drugs and paraphernalia as alleged.

Cross-examination

50. There was one.

Close Prosecution case

Defence case

Mr. Tupou Tafuna

51. He is 39 years of age. On 5^th May 2021 he was at his home in Sopu.
52. The room, room 3 of the plan, was Tevita Tupou’s room. Mr. Tafuna and his wife and children had lived at their fale in Sopu.
53. He had met Mr. Tupou and they had become friends.
54. He had built an extension onto his fale, the side of the fale where Mr. Tupou’s room is was recently constructed having been in place for about 6 months.
55. Mr. Tupou had been living in his room with them during that time.
56. That morning he had been in Mr. Tupou’s room because Mr. Molimoli had asked him to repair a head set of his. He identified on photo 20 the headset. It is in the bottom right hand corner of that image; just visible are the black wires and its light coloured ear buds.
57. He was using a solder to mend those when the police came in. They said they would search the property. He was happy for that to take place.
58. He stated he had no knowledge of the pouch containing drugs nor had he ever seen Mr. Tupou use drugs in the fale.
59. They were Mr. Tupou’s drugs and he, Mr. Tafuna, was present when Mr. Tupou admitted this to the police.

Cross-examination

60. He had met Mr. Tupou about a year before and they had become friends.
61. The room he lived in was rent free and though he had constructed that side of the fale to give Mr. Tupou a room the structure was taken from an old building of his so hadn’t cost him anything.
62. In exchange for lodging there sometimes Mr. Tupou would buy food for the family, equally, sometimes not he said.
63. He was unaware of what was kept in the room, had never seen Mr. Tupou smoke drugs at all.
64. He insisted what he was telling was the truth.

Re-examination

65. There was none.

Defence case closed

Submissions

66. The prosecution submit that the defendant being in the room where the drugs were found and in close proximity and it being his home, the overwhelming inference is he must have known what was going on.

Discussion

67. The first issue is whether the search was lawful.
68. The officers stated in evidence they exercised their powers under section 24 Illicit Drugs Act:

A police officer may exercise any of the powers in section 23 without a warrant, if the grounds for obtaining a warrant under that section exist and the officer suspects on reasonable grounds, that —

1. it is necessary to do so in order to prevent the concealment, loss or destruction of anything connected with an offence under this Act; and
2. the circumstances are of such seriousness and urgency as to require the immediate exercise of the power without the authority of a warrant.

69. The evidence was that the information from the informant came at midnight 4^th to 5^th May 2021 and that the further information that triggered the search was at 0500 hrs 5^th May.
70. No explanation has been proffered as to why a warrant could not be sought.
71. For my part I can see no reason either. On the evidence before me there were 5 hours for that to be done.
72. The evidence was that became an urgent need at 0500 hrs on 5^th May and Officer Vimahi gave evidence they arrived in Sopu at approximately 0600 hrs.
73. I can see nothing on the evidence that stopped the police obtaining a warrant as soon as they had the information around midnight, or indeed immediately at 0500 hrs, given that though they stated in court they acted urgently, it does not take an hour to get to Sopu from the central police station, probably about 10-15 minutes that time of the night there being nothing on the roads with the curfew.
74. There was plenty of time for a warrant to be obtained.
75. Therefore it is my clear view the officers acted in breach of their duty.
76. What are the consequences ?
77. The case of Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 sets out the correct test for this for whether evidence the result of such a breach ought lead to its exclusion.
78. The criteria are :
    1. no deliberate disregard of the law should be involved;
    2. whether the evidence could have just as easily been lawfully obtained;
    100. the cogency of the evidence and whether the illegality could be said to
    4. affect its cogency;
    5. the importance of the evidence in the context of the case;
    6. If vital evidence, was it of perishable or evanescent nature so that if there
    7. were any delay in securing it, it would have ceased to exist.
    8. the seriousness of the offending.
79. When weighing the sides of the argument I conclude that there was a deliberate disregard of the law.
80. A warrant could just as easily have been lawfully obtained, nor was the evidence ion question so perishable or evanescent, in the context of this case, to mean the seeking of a warrant could be dispensed with.
81. Against that, the carefully photographing and the note taking and compliance with detailing a report and search list so to comply with section 24 (3) is all taken into account.
82. Likewise that this is key evidence in the case; “vital” evidence to use the word in Bunning v Cross.
83. Crucially, this is an allegation of serious offending.
84. I also take account that the search was conducted in the plain sight of Mr. Tafuna. He does not challenge any aspect of the search, allowed it to take place and does not challenge that the items in question are the illicit substances and objects in the indictment.
85. Taking all those matters together, especially that there was a very detailed contemporaneous cataloguing of the exhibits, I am of the clear view this evidence ought be admitted.
86. What constitutes possession ?
87. The ratio of Warner v Metropolitan Police Commr [1969] 2 A.C. 256 and the judgements of Lord Morris at page 289 and Lord Wilberforce at page 310 set out that the key elements are knowledge and control.
88. It was Lord Wilberforce’s description that Lord Scarman adopted, the other Lords of Appeal also concurred in Boyesen [1982] A.C. 768, HL :

“The question, to which an answer is required, and in the end a jury must answer it, is whether in the circumstances the accused should be held to have possession of the substance, rather than mere control. In order to decide between these two the jury should ... be invited to consider all the circumstances—to use again the words of Pollock & Wright [Possession in the Common Law, p. 119]—the ‘modes or events’ by which the custody commences and the legal incident in which it is held. By these I mean, relating them to typical situations, that they must consider the manner and circumstances in which the substance, or something which contains it, has been received, what knowledge or means of knowledge or guilty knowledge as to the presence of the substance, or as to the nature of what has been received, the accused had at the time of receipt or thereafter up to the moment when he is found with it; his legal relation to the substance or package (including his right of access to it). On such matters as these (not exhaustively stated) they must make the decision whether, in addition to physical control, he has, or ought to have imputed to him, the intention to possess, or knowledge that he does possess, what is in fact a prohibited substance. If he has this intention or knowledge, it is not additionally necessary that he should know the nature of the substance.”

89. On the correct analysis of the facts of this case, there is no evidence Mr. Tafuna had physical control of the items in question.
90. There is no evidence finger print analysis took place in this case yet could easily have been done.
91. To infer that he had to have known of its existence, there would need to be before me evidence that associated its sale with the fale of Mr. Tafuna.
92. Whilst the amount or methamphetamine, separately packed in dealer bags, and the existence of scales and empty packets, clearly implies commercial dealing, there is no evidence to support that happened at Mr. Tafuna’s address.
93. In fact, it could be well argued that everything contained in that small pouch was so that dealing could take place away from the fale. It appears to have been arranged specifically that way.
94. Yet there is no evidence of observations the police conducted to show numerous people coming and going at strange hours, or indeed a single person all.
95. Between midnight and 0500 hrs, there was plainly time for that to have happened.
96. There is no evidence of text messages or messages from electronic devices that relate to supply to show that it took place at Mr. Tafuna’s fale.
97. Or, as the Crown argue, evidence of drug use in the fale could lead to the inference that Mr. Tafuna knew of the existence of drugs and that one could infer possession or joint possession. The Crown argue that the existence of the smoking pipes points to this.
98. Firstly I note that both pipes were out of view. The bong tucked behind a box against the wall and the methamphetamine pipe under tissue put aside in the speaker unit’s recess.
99. Both were plainly meant not to be seen when Mr. Tafuna was found in the room.
100. An important assessment of the evidence in the correct inferences this piece of evidence can have is only with what was happening in the room when the police arrived.
101. Mr. Tupou was asleep and Mr. Tafuna was working on what appears to be a rather delicate little piece of electric repairs.
102. There is no suggestion of any party, or indeed group activity at all.
103. In fact, what Mr. Tafuna was up to suggests a rather sober concentration on his part.
104. As for the paraphernalia, the pipes; if there had been evidence that either pipe was hot or still warm, or there was the smell of drugs this would have provided a very different picture to that which the evidence suggests.
105. In Bland [1988] Crim L.R. 41 CA, whilst it has been given the health warning in Archbold ( 27-63) not to be elevated to a statement of principle and that it turned on its facts, it is instructive :

“The appellant had been living with her co-accused, R, in one room of a house which was occupied by others. The police had been observing the house and had seen a number of people calling. Some of the visitors were stopped and questioned and found to be in possession of drugs. A search warrant was executed and traces of drugs were found. The appellant denied knowledge of the presence of the drugs and said that she could not believe that R had either possessed or supplied drugs. She was charged with possession with intent to supply. The case against her rested solely on the fact that she was living with R at a time when he was undoubtedly dealing with drugs. The court ruled that the case should have been withdrawn from the jury. The fact that the appellant and R lived together in the same room was not sufficient evidence from which the jury could infer that she exercised custody or control.”

106. In the instant case there is, as discussed above, there is no evidence to associate the fale with drug dealing.
107. The prosecutor did try and cross-examine the defendant on the material that informant apparently gave to the police that triggered the search, but that plainly was hearsay, in fact anonymous hearsay, as such that line of questioning would never be permissible.
108. With nothing to from which I can properly infer drug dealing was taking place at the fale and sure the drugs were the property of the co-defendant Mr. Tupou, there is nothing before me that Mr. Tafuna knew of the drugs.
109. I also remind myself that whilst assistance that is passive would require more than knowledge and there would need to be some element of encouragement or control for there to be possession Searle [1971] Crim.L.R. 592, CA (27-69), and Conway and Burkes [1994] Crim.L.R. 826, CA.
110. Thus it cannot be said that the mere provision of the room in his fale to Mr. Tupou is not enough to infer possession.
111. Taking that all together I conclude that I can not be sure Mr. Tafuna was in possession of those drugs or utensils, counts 1 to 3.
112. As for count 4, permitting his premises to be used to consume drugs, for the reasons of the pipes being concealed and no evidence of recent use, I can not be sure that Mr. Tafuna knew of them. They being the only sign of drug use, on the evidence, I can not be sure there was drug use in the fale, and if there was, what that was or whether Mr. Tafuna knew.
113. Accordingly I acquit him of all 4 counts.
     

NUKU’ALOFA N. J. Cooper

8 April 2022 J U D G E