Satini v R [2023] TOSC 20; AM 11 of 2022 (24 March 2023)

IN THE SUPREME COURT OF TONGA
APPELLATE JURISDICTION
NUKU'ALOFA REGISTRY

AM 11 of 2022

HARRIS SATINI
-v-
REX

JUDGMENT

BEFORE: LORD CHIEF JUSTICE WHITTEN KC
Appearances: Mr D. Corbett for the Appellant
Mr F. Samani for the Respondent
Hearing: 2 and 24 March 2023

Judgment: 24 March 2023

1. By Amended Notice of Appeal filed 10 February 2023, the Appellant, Mr Harris Satini, appeals against the decision of Principal Magistrate Mafi on 20 September 2022 and 5 October 2022 whereby:
   • (a) the Appellant was convicted of one count of destruction of evidence in relation to the commission of an offence contrary to s 37A of the Illicit Drugs Control Act (“the Act”) and one count of possession of utensils contrary to s 5A of the Act;
   • (b) he was sentenced for those offences to a head term of 18 months’ imprisonment; and
   • (c) the Magistrate also reactivated a suspended sentence in proceeding CR 227 of 2019 of a term of 2 years and 3 months and added that in full to the sentence for the matters before him.

(“the decision”)

2. On 13 February 2023, the Appellant applied for leave to admit fresh evidence on the appeal pursuant to s 79 of the Magistrates Court Act. The fresh evidence sought to be relied upon consisted of:
   • (a) affidavit evidence from Mr Satini in relation to medical evidence of his family having hypertension issues which was relevant, he said, to his explanation for the utensils (64 small plastic zip lock plastic bags often referred to in cases of alleged drug offending as ‘dealer packs’ and a set of digital weighing scales) to the Magistrate below and that he was not aware that the dealer packs were inadvertently placed in his tool bag before returning home from work on the day in question; and
   • (b) affidavit evidence from his wife, Mele, that the scales belonged to her for the purposes of her work as a science teacher.
3. The application was heard on 2 March 2023 and considered by reference to the principles discussed in decisions such as Takataka & Ors v Hurrell & Ors [2005] Tonga LR 359, as applied more recently by the Court of Appeal in Dexing Construction Co Ltd v Fua [2019] TOCA 12 and Kaufusi v Tukui'aulahi (No.2) [2021] TOCA 7. The first requirement was not demonstrated, namely, Mr Satini was not able to persuade the Court by admissible evidence that the further evidence in question could not have been obtained with reasonable diligence for use of the trial. Accordingly, the application was refused.
4. At the conclusion of the substantive hearings, I delivered an ex tempore judgment. These are the reasons for judgment, from the transcript, edited as to form only, not substance.
5. The Amended Notice of Appeal contains what are stated to be 24 grounds. The first four are in fact recitations of ss 74 to 76 of the Magistrates Court Act relevant to the nature and the bringing of this appeal. The balance raises complaints about, or challenges to, the Magistrate’s decision.
6. Following the dismissal of the fresh evidence application, Mr Corbett abandoned grounds 5, 10, 11, 12, 13 and 15. He was unsure at the time on whether to proceed with grounds 22 and 23, to which I will turn in due course.
7. I have considered the parties’ written submissions and heard further from counsel on the hearings. During the course of oral argument, counsel for the Respondent conceded that the appeal should be allowed. I will now explain why that concession was correctly made.
8. Grounds 6 to 9 challenged the Magistrate’s decision whereby he inferred from the evidence before him on the first count of destruction of evidence, that a Sprite bottle containing three small plastic ziplock packs, contained “something” which could have been evidence of the commission of an offence under the Act.
9. During discussions with counsel, it was agreed that those grounds of appeal in fact did not identify the real problem with the Magistrate’s approach and finding on this count.
10. After outlining the evidence from the police officers in relation to the Sprite bottle and what was found in it, and taking into account the Accused’s various explanations about the bottle and the packs including that he first became aware of them when he was drinking from the bottle and felt the plastic packs touching his lips, to then later seeking to explain the packs in the house including those in the bottle as being used to weigh or portion out salt in his household because of the health problem mentioned above, to another occasion where he told the Magistrate that he put the packs in the Sprite bottle to test the police investigation, the Magistrate rejected those explanations and inferred as a result that there was something inside the packs and the bottle. On that basis he convicted the Appellant on that charge.
11. However, the charge pursuant to s 37A of the Act as articulated in the summons required the Magistrate to be satisfied on the evidence beyond reasonable doubt that Mr Satini had destroyed a substance which was capable of being used as evidence in relation to the commission of an offence under the Act.
12. It was common ground that the evidence of the contents of the three packs in the Sprite bottle included that they contained a “white melted substance”. During the trial, Mr Satini carried out an experiment with a second Sprite bottle in which he placed three small plastic packs containing salt. The apparent purpose of the test was to demonstrate to the Magistrate that the salt in those packs also dissolved into a white melted substance over the period of an adjournment in a trial.
13. That was all not to the point.
14. The essential element of the charge was that the substance had been destroyed. But there was no evidence that any of the Sprite bottle, its liquid contents, the three packs or their contents were destroyed. At best, all one could infer was that if the latter started out like the salt experiment containing crystals of some sort or powder such as that often found with similar dealer packs containing methamphetamine, cocaine or some other Class A drug, that powder had dissolved into the white melted substance referred to by Officer Hakalo in his evidence. That conversion from a solid state to a liquid state does not constitute destruction. It also highlights serious shortcomings in the police investigation whereby they did not:
    • (a) take the packs out of the Sprite bottle;
    • (b) examine the packs to see whether they were open or still closed;
    • (c) examine or test the contents of the packs in whatever form they might have been;
    • (d) examine or test the composition of the liquid inside the Sprite bottle to see for example whether any of the contents of the packs had dissolved into the Sprite and whether those contents could have been identified as illicit drugs.
15. For that reason alone, the conviction in summons CR 52 of 2022 cannot stand.
16. For completeness, I would add that grounds of appeal presently under consideration included that the Magistrate stated: “According to s 37A of the Act, it is the Accused’s obligation to prove he is innocent”.
17. Section 37A does not contain any provision to that effect. It appears that the Magistrate may have been referring or had in mind s 37B which provides:

Prosecutions

In any proceedings against any person in respect of any offence against this Act in which it is proved that he had in his possession any illicit drug, controlled chemical or equipment, or utensil, or did any act in relation to any illicit drug, controlled chemical or equipment, or utensil which would have amounted to that offence, the burden of proof shall lie on him.

18. With respect to those responsible for drafting this recent amendment to the Act, it is nonsensical for two reasons. Firstly, the reversal of the burden of proof purportedly stated that at the end of that provision is premised upon a proceeding in which it is already proved that the person had for example possession of illicit drugs. That begs the question what then is there for the person to prove? Secondly, and putting aside the premise just described, the provision requires an Accused to prove something which is not specified. The most absurd interpretation would be that the Accused bears the burden of proving the charge against him which could not possibly be regarded as Parliament’s presumed intention.
19. In my view, the only sensible interpretation available is to read 37B in the context of other provisions such as s 4, 5 and 5A, which provide that the onus of proving any lawful excuse to the relevant offence shall lie on the Accused.
20. Therefore, 37B in my opinion should be interpreted in a similar fashion so that as a catch all provision it applies to all prosecutions under the Act where if a lawful excuse is to be relied upon by an Accused, the burden of proving it lies on the Accused which is an unremarkable proposition.
21. However, the problem with the learned Magistrate’s misstatement of that provision and his understanding of the onus of proof is that in the absence of any greater elucidation in his reasons, it is not possible to know the extent to which that error infected his analysis which followed and resulted in the conviction.
22. Further, in his reasons, the Magistrate stated that he believed that there was ‘something’ inside the packs and that the Accused placed them inside the Sprite bottle to destroy them. The reference to ‘something’ inside the packs is not a sufficient finding to support a conviction under s 37A. That is because that provision requires a finding that the substance must have been capable of being used as evidence in relation to the commission of an offence under the Act. The commission of an offence under the Act, in the context of the present case, might have been possession of illicit drugs. It appears the Magistrate was inferring that there were illicit drugs inside the packs. But unfortunately, without specifying that, one cannot be certain that the finding fulfils the requirement of s 37A. On the facts of this case, the only substance which could have been relevant as evidence in relation to the commission of an offence under the Act, would have been illicit drugs. However, the police investigation failed to test the Sprite bottle for drugs that and Magistrate failed to specify them.
23. Grounds 16 to 23 concern the conviction of possession of utensils.
24. The above analysis is also instructive on the Magistrate’s findings in relation to this count. That is because it appears that he relied on an inference that the packs in the Sprite bottle contained illicit drugs (without expressing it) as providing the foundation for a finding under s 5A that the 64 packs and the weighing scales found in Mr Satini’s house were utensils.
25. Section 2 of the Act defines utensils as:

“utensils” includes any article associated with the manufacture, use, possession and supply of an illicit drug or controlled chemical, and includes test tubes, weighing scales and dealer packs.

26. The Magistrate erred in his decision to convict on this count for a number of reasons.
27. Firstly, he included the Sprite bottle containing the three packs amongst the utensils, when it was common ground that they had been removed by the Police Prosecutor from that charge.
28. Secondly, in order to be satisfied that the remaining packs and scales which were the subject matter of the charge constituted utensils for the purposes of s 5A, the Magistrate had to be satisfied on the available evidence that those items were, relevantly, articles associated with the use or possession of illicit drugs.
29. The fact that the definition specifies test tubes, weighing scales and dealer packs cannot derogate, in my view, from the primary requirement that even those items must be proven to have been associated with illicit drugs. Otherwise, and for example, weighing scales, which might be found in any number of the kitchens of law abiding citizens throughout Tonga could be the subject of charges under the Act simply because they are capable of being used with illicit drugs. Again, that could not have been Parliament’s intention in enacting the definition or s 5A.
30. The proof required is some evidence of actual drugs in the location or physical proximity of the alleged utensils such as dealer packs and weighing scales sufficient to support an inference that they were in the possession of an Accused for the purpose of, for instance, possessing, using or supplying illicit drugs. In other words, that they were associated with drugs.
31. Thirdly, there was no evidence of any drugs found in the premises. There was only the possible inference on the part of the Magistrate that the packs in the Sprite bottle contained drugs. But for the reasons already stated, the Magistrate’s reasoning was deficient in that regard and his conclusion were not clear. In light of the result below, I make no finding on whether there was sufficient evidence to support such as inference had it been adequately reasoned and expressed.
32. However, in that regard, I pause to observe that the Magistrate’s reasons included his rejection of the Appellant’s evidence that the other packs and scales were used in his household for weighing salt because of an asserted family medical problem specified as Parkinsons disease. There was no evidence that the packs inside the Sprite bottle or any other pack in the house contained salt.
33. Finally, in ground 24, the Appellant complains that in reactivating the whole of the suspended sentence in CR 227 of 2019, the Magistrate erred by failing to take into account that, as one the conditions of that suspended sentence, the Appellant had already completed 70 hours’ community service. That error was also conceded by the Respondent here and on 2 March 2023, both counsel agreed that if the appeal against conviction was unsuccessful, credit for the completed community service should result in the reactivated sentence being reduced from 27 months to 20 months.
34. In the result, the appeal is allowed.
35. The decisions of Principal Magistrate Mafi in Magistrates Court proceedings CR 52 and 53 of 2022 on 5 October 2022 are quashed and set aside.
36. The material before me does not support an acquittal by this Court. However, the the number and nature of the errors below combined with the matters considered on the application by the Appellant to adduce fresh evidence all militate in favour of remitting the matter back to the Magistrates Court in its enhanced jurisdiction before a different Magistrate for a retrial.

NUKU’ALOFA	M. H. Whitten KC
24 March 2023	LORD CHIEF JUSTICE