IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

Cr 53-54/2002

R

v

Lauteau

Ford J
27 November 2002; 24 February 2003

Criminal law – supply of drugs – interpretation of "supply"

The first accused, Toio Lauteau, was charged with one count of growing two Indian hemp plants (also known as marijuana) in or about May 2001 and one count of supplying 52 Indian hemp leaves to the second accused on or about 14 October 2001. The second accused, 'Ofa Tahavalu, is charged with one count of supplying the same 52 Indian hemp leaves to Ma'ake Kali also on or about 14 October 2001. At all relevant times, Ma'ake Kali was a prisoner at Sinai prison, 'Eua. Neither accused gave or called evidence.

Held:

1. The failure to provide, in advance, a fair summary of the evidence to be given by Sergeant Leone and Chief Inspector Hia did not mean that their evidence was inadmissible.

2. To establish a charge of supplying Indian hemp, the Crown had to prove that the accused supplied the substance to some other person. To supply somebody with something in this context meant to hand over or transfer physical control so that the other person could use it in whatever way he or she saw fit. The transfer can be by way of a gift, or a selling, or any way at all.

3. One of the elements that had to be proved in a supplying charge was that the transfer to the recipient must be for the purposes of the recipient. This element of the offence was missing in relation to the charge against Toio of supplying the leaves to 'Ofa. All 'Ofa did was hand them straight on to Kali as he had been instructed to do. There was no suggestion that the Indian hemp leaves were transferred to 'Ofa to meet his own wants or requirements. The Crown failed to establish this element of the charge. The accused Toio was acquitted on the supplying charge but was found guilty on Count 1 (the growing charge). The second accused 'Ofa, was found guilty on the single charge he faced of supplying the Indian hemp leaves to Kali.

Case considered:
R v Maginnis [1987] AC 303

Statutes considered:
Bail Act 1990
Drugs and Poisons Act (Cap 79)
Laws Consolidation Act 1967
Magistrates' Courts Act (Cap 11)

Counsel for the Crown: Mr Sisifa
Counsel for respondent: Mr Tu'utafaiva

Judgment

When this case was heard during the last circuit at 'Eua, counsel for the accused challenged the adequacy of the documentary evidence made available by the Crown prior to trial. He alleged that the Crown had failed to comply with its obligations under section 42 of the Magistrates' Courts Act (Cap 11) to provide proper statements from the prosecution witnesses. The matter was raised as a preliminary issue and, for that reason, I consider it appropriate to deal with the point now before turning to consider the other substantive issues.

Section 42 prescribes the procedure to be followed when an accused person consents in the Magistrates' Court to be committed to the Supreme Court for trial without the calling of witnesses. Where the prosecutor seeks to apply for committal without calling witnesses he is required to lodge with the magistrate, inter alia, one copy of "a fair summary of the statements of the prosecution witnesses"- (s 42(2)(b)). If the accused consents, the magistrate is then required to serve him with a summary of the witnesses' statements.

The immediate difficulty that arose from these submissions was that section 42 of the Magistrates' Courts Act had been repealed by amendment No 28 of 1990. Counsel were, therefore, invited by the court to investigate why the section had been repealed and why the Magistrates' Court continue, apparently, to still operate under the repealed provision.

Neither counsel was able, in their submissions, to shed light on the reasons for the repeal of section 42. Crown counsel submitted that, "arrangements have been made between the police and Crown Law to clarify the procedure to be followed since section 42 has been repealed in 1990." Counsel requested that the decision regarding section 42 should be deferred until the procedure to be followed is clarified.

In response, Mr Tu'utafaiva, helpfully conceded that, as the Crown and the accused had consented to the section 42 procedure being applied in this case and as the magistrate had acted on such consents, then the matter should proceed as if section 42 had never been repealed.

It seems clear that it was never Parliament's intention to repeal section 42. The 1990 amendment followed on immediately from the 1990 Bail Act (No 27 of 1990) and upon the passing of the Bail Act it was necessary to make some consequential amendments to sections in the Magistrates' Courts Act dealing with bail. That is clear from sections 2 and 4 of the 1990 amendment Act (No 28) which specifically refer to the Bail Act 1990.

It appears, however, that in making the consequential amendments to the Magistrates' Courts Act, the draughtsman of the 1990 amending act wrongly relied upon the Magistrates' Courts Act as it appeared under the old Laws Consolidation Act 1967, overlooking the fact that when the laws of the Kingdom had been consolidated again two years previously, in the 1988 Consolidation Act, the sections in the Magistrates' Courts Act had been renumbered.

The reference to section number 42 in amendment No 28 of 1990 is clearly intended to be a reference to section number 46 of the Magistrates' Court Act, as numbered under the 1988 Consolidation Act. It was a bad error and it is surprising that the matter has not been rectified before now.

I am satisfied, in other words, that section 42 should never had been repealed and I, therefore, propose to act on Mr Tu'utafaiva sensible suggestion and treat it as extant for the purposes of the present case. 

The documentary inadequacies complained about by Mr Tu'utafaiva relate to the evidence given by two of the Crown witnesses, Sergeant Leone and Chief Inspector Hia. Counsel noted that the statements supplied in respect of Sergeant Leone simply said:

"This is the Police Officer who carried out the work in investigating the discovery of the Indian hemp at the Sinai prison farm on the morning of 15/10/01."

Sergeant Leone turned out to be the principal police investigating officer and he gave extensive evidence on all aspects of the prosecution case. Mr Tu'utafaiva's objection to his "statements" is well founded. There is simply no way in which the brief sentence quoted above could be described as a fair summary of the sergeant's statements given in evidence.

The other objection raised by counsel related to Chief Inspector Hia. The inspector is the officer in charge of the Criminal Investigation Division and the Drug Section. No brief of evidence had been provided to the accused in respect of Inspector Hia's evidence. Mr Tu'utafaiva told the court from the Bar that he did not find out that Inspector Hia was going to give evidence until shortly before he travelled to 'Eua for the trial.

Crown counsel told the court that the decision to call Inspector Hia was made only in the course of final preparation for trial and notice was immediately given to counsel for the accused. He quite properly conceded that a written statement should have been taken at that point and handed to counsel for the accused, but it was not. The Chief Inspector's evidence was not as crucial to the Crown's case as Sergeant Leone's but it was important in that it completed the link in the evidence relating to the handling of the exhibits.

The failure to provide, in advance, a fair summary of the evidence to be given by Sergeant Leone and Chief Inspector Hia does not mean that their evidence is inadmissible. Halsbury 4th edition, Vol 11(2) para 1004, commenting upon a not dissimilar requirement under the English committal proceedings, states:

"The prosecution may call witnesses whose evidence was not before the committing justices, but notice of intention to call such witnesses should be given to the defendant, and copies of their proofs should be supplied to the defendant and to the court. The failure to give such notice and copies of proofs does not render the additional evidence inadmissible." 

A note to the paragraph in Halsbury states, "the failure to give notice and copies is a matter of observation, and might be a ground for postponing the trial."

I suspect that counsel for the two accused in the present case may well have sought a postponement of the trial had it not been for the fact that this Court has only the one session a year in 'Eua.

I turn now to consider the facts of the case.

The first accused, Toio Lauteau, is charged with one count of growing two Indian hemp plants (also known as marijuana) in or about May 2001 and one count of supplying 52 Indian hemp leaves to the second accused on or about 14 October 2001. The second accused, 'Ofa Tahavalu, is charged with one count of supplying the same 52 Indian hemp leaves to Ma'ake Kali also on or about 14 October 2001.

At all relevant times, Ma'ake Kali was a prisoner at Sinai prison, 'Eua. The case for the Crown is that on Saturday 30 October, Kali met the two accused at the Nafanua wharf. It is not clear why, as a prisoner, he was at the wharf but apparently he had to pick up some timber. Kali knew the first accused, Toio, who is one of his relatives, but he did not know 'Ofa. He told the court that he had never met 'Ofa before and so, for some inexplicable reason, he made up a name for him -- he called him "Pita".

Kali said in evidence that he asked them (the two accused) if they had any marijuana and they told him to come back on Sunday -- the next day. Around mid-afternoon on the following day Kali left the prison to go to the Ta'anga bakery. He said that he met the two accused at the bakery and "Pita" gave him a supply of marijuana leaves. The witness told the court that he put the leaves in his pocket and took them back to Sinai prison. He then placed the leaves in an empty baked beans can and hid the can in the ceiling of his prison cell.

That evening the prison officials became suspicious and they obtained a search warrant to inspect Kali's cell. Early the following morning they found the tin can containing the marijuana leaves. Later that same day Sergeant Leone took Kali to Nafanua wharf in time for the arrival of the ferry from Tongatapu. Kali was able to identify the two accused who were assisting in the offloading of the ferry. The sergeant told the court how he approached each accused; they immediately admitted their involvement and were duly arrested and taken back to the Police Station.

Each accused, after proper caution, made a written statement to Sergeant Leone. In his "Record of Interview", Toio admitted growing the Indian hemp plants on a tax allotment behind Hango College. He said that initially there were 8 plants and only two of them grew. On Sunday 14 October 2001 he picked leaves from the two surviving plants for his relative, the prisoner Kali. When they then met up with Kali at the bakery later in the day, Toio gave the Indian hemp leaves to 'Ofa to give to Kali. 

In his Record of Interview, 'Ofa said that he began smoking marijuana in 1995. He admitted that on 14 October 2001 Toio had given him the marijuana leaves "to give to the boy standing in the bakery shop" and he duly did so. He said that the leaves were packed in aluminium foil. Both accused went on to make "so-called confessions" and they each admitted the charges when they were read out to them.

Neither accused gave or called evidence. They did not have to, of course. As with any criminal trial, the onus remains on the Crown throughout to prove all the elements of each charge. The charges were laid under sections 86 (a) and (b) of the Drugs and Poisons Act (Cap 79). The terms "growing" and "supplying" are not defined in the Act but growing means taking any step intended by the accused to assist in the cultivation of the plants. He must, of course, have known that the plants were Indian hemp.

To establish a charge of supplying Indian hemp, the Crown must prove that the accused supplied the substance to some other person. To supply somebody with something in this context means to hand over or transfer physical control so that the other person can use it in whatever way he or she sees fit. The transfer can be by way of a gift, or a selling, or any way at all.

Mr Tu'utafaiva, in typically succinct submissions, argued that the Crown had failed to prove its case because no Indian hemp was exhibited during the trial and, alternatively, none of the Crown witnesses were asked to identify the Indian hemp leaves so that the court could be satisfied that the leaves sent to Tongatapu for analysis by Dr Viliami Pakalani were the same leaves referred to by the witnesses. Counsel also noted that Dr Pakalani had not been able to connect the Indian hemp leaves he examined with the broken stem which had also been sent to him for analysis.

The Indian hemp leaves were not produced as exhibits but that is not unusual. After being picked they, like any plant material, would have had only a very limited shelf life. The production of physical substances or objects is not required in order to render parole evidence as to their nature admissible. The nonproduction of a substance or object may, in certain circumstances, go to the weight but not to the admissibility of parole evidence.

In the present case, apart from the parole evidence, the Crown relied upon photographs of the marijuana leaves. The photographs were taken by a local planter/photographer on the day after the leaves were discovered and they were of excellent quality. For some reason, however, they were not produced until the very end of the case. The photographer was, in fact, the final witness for the Crown. Effectively, that meant that the photographs could not be put to any of the witnesses and they were, therefore, of limited evidential value. Not surprisingly, the photographer was not cross-examined.

Nevertheless, after considering carefully all of Mr Tu'utafaiva's submissions in relation to what he referred to as "the continuity of events", I am satisfied, to the required standard of proof, that the Crown has established that the leaves referred to in the indictments were Indian hemp. I am also satisfied, subject to what I will say in a moment, that the Crown has established all the elements of the growing and supplying charges. In this regard, I found Sergeant Leone to be a thorough and credible witness. 

I have a lingering concern over one aspect of the charge of supplying against the first accused. Toio is charged with supplying the Indian hemp leaves to the other accused, 'Ofa. 'Ofa, in turn, is charged with supplying the same leaves to the prisoner Kali. The evidence is that Toio gathered the Indian hemp leaves from the two plants he was growing to give to his relative, Kali. He and 'Ofa then met Kali at the bakery on the Sunday afternoon as had been arranged the previous day. For some reason which could not be explored before me, instead of giving the leaves directly to Kali in the bakery, Toio gave them to 'Ofa to give to Kali.

One of the elements that has to be proved in a supplying charge is that the transfer to the recipient must be for the purposes of the recipient. In R v Maginnis [1987] AC 303, Lord Keith delivering the majority judgment in the House of Lords said:

"The word "supply", in its ordinary natural meaning, conveys the idea of furnishing or providing to another something which is wanted or required in order to meet the wants or requirements of that other. It connotes more than the mere transfer of physical control of some chattel or object from one person to another . . . . The additional concept is that of enabling the recipient to apply the thing handed over to purposes for which he desires or has a duty to apply it."

It seems to me that this element of the offence is missing in relation to the charge against Toio of supplying the leaves to 'Ofa. All 'Ofa did was hand them straight on to Kali as he had been instructed to do. There is no suggestion that the Indian hemp leaves were transferred to 'Ofa to meet his own wants or requirements. The Crown has, therefore, failed to establish this element of the charge.

For that reason, I acquit the accused Toio on the supplying charge but I find him guilty on Count 1 which is the growing charge. I also find the second accused 'Ofa guilty on the single charge he faces of supplying the Indian hemp leaves to Kali. 

Finally, I refer briefly back to the preliminary legal point taken by Mr Tu'utafaiva in relation to the failure of the Crown to supply a fair summary of the statements of Sergeant Leone and Chief Inspector Hia. Counsel submitted, and the court accepts, that had he been provided, prior to trial, with a proper fair summary of the evidence of these witnesses then his advice to his clients may well have been different and he would certainly have had to give very careful consideration to any advantages that may have been available through an early guilty plea. These are proper matters for counsel to again raise with the court in relation to sentencing.