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R v Mafi [2004] TOLawRp 68; [2005] Tonga LR 47 (31 May 2004)

IN THE SUPREME COURT OF TONGA

R

v

Mafi

Supreme Court, Nuku'alofa
Ward CJ
Cr 260-1/2003 and Cr 20-1/04

24-26 May 2004; 31 May 2004

Criminal law – drug possession and cultivation charges – question as to admissibility of confession – admissible and convicted

The accused were both charged in one case with offences under the Drugs and Poisons Act and, in a second case with offences under the Illicit Drugs Act 2003, which has replaced the previous Act. The defendants agreed to have the cases tried together. They were husband and wife and were both unrepresented. Petulisi Mafi pleaded guilty to both indictments. There was no real dispute about the finding of the drugs or that they were prohibited substances, namely Indian hemp in the first case under the Drugs and Poisons Act and cannabis in the second case under the Illicit Drugs Act. At the police station the husband told the officer that he did not want to make any statement because he did not know anything about the drugs. The accused husband claimed that the handcuffs were moved up his arm and tightened so that, in a very short time, they were causing him acute pain. He pleaded to have them removed but to no avail and so he gave the answers in the interview that the officers wished to hear so the handcuffs would be removed. The officers denied those allegations. There was a question as to the admissibility of the husband's statements. The wife told the court that the 8 plants and the 83 bags of Indian hemp were hers and had been given to her by an African friend at Popua service station that night when she went alone to fill the car. She said that she did not tell her husband anything about those things.

Held:

1. The Court considered all the evidence about the interviews with the husband and did not believe his account. The Court believed the officers and was satisfied beyond reasonable doubt that the accused gave the answers voluntarily. They were admissible.

2. The prosecution proved to the criminal standard that the plants were being carefully cultivated in the plastic bowls and the husband was knowingly involved in that cultivation. He was convicted of count 1 of growing Indian hemp. Counts 2 and 3 related to possession of the 83 bags and the 8 plants respectively. The Court was satisfied beyond reasonable doubt that he was in possession of the plants and bags and he was convicted accordingly.

3. With respect to the husband telling the police the drugs were his saying that he would show the officer where he had grown the plants, a confession would only be admitted if the prosecution prove beyond reasonable doubt that it was voluntary. The Court was not satisfied that the accused made that statement voluntarily. After 10 days in custody and having told the police twice that he was not involved, he was still being detained. The Court was satisfied it may have appeared to him that he was simply going to be detained until he changed his story.

4. The Court considered whether the prosecution proved to the criminal standard that the accused was in possession of the cannabis in the bin. The Court did not find the accused husband a credible witness and on the evidence as a whole was satisfied that he did know of the presence of that cannabis. The Court was satisfied the accused was in knowing possession and control of those drugs.

5. The accused husband was convicted of counts 2 and 3 relating to possession. He was acquitted of count 1 relating to cultivation of the cannabis.

Statutes considered:

Drugs and Poisons Act (Cap 79)

Illicit Drugs Act 2003

Counsel for prosecution: Mr Sisifa
Accused in person

Judgment

The accused are both charged in the first case, CR260-1/03, with offences under the Drugs and Poisons Act and, in the second case, CR20-1/04, with offences under the Illicit Drugs Act 2003, which has replaced the previous Act. The defendants agreed to have the cases tried together. They are husband and wife and both are unrepresented.

Petulisi Mafi has pleaded guilty to both indictments and will be sentenced at the conclusion of the trial of her husband.

There is no real dispute about the finding of the drugs or that they are prohibited substances, namely Indian hemp in the first case under the Drugs and Poisons Act and cannabis in the second case under the Illicit Drugs Act.

The first case relates to an incident shortly before midnight on Tuesday, 21 January 2003. The prosecution case is that police officers saw the accused and his wife driving a car in the vicinity of Lapaha. They had a committal warrant for him relating to an unpaid fine and stopped the car. The validity of the warrant has been a matter of some challenge by the accused but I do not need to determine that issue. However, it is relevant to the admissibility of the police interview with the accused.

The accused was asked to get into the police car and the second police officer drove with her in her car to their home so she could leave some laundry before, presumably, going to the police station to be with her husband. As they arrived at the house, she removed the laundry and took it to the door. At that moment the police car arrived and the officer said that the Samiu had run off.

As a result, the officers told Petulisi to get back into the car with the laundry she had removed and she was taken to Mu'a Police Station in her car but, this time, with the officer driving.

On arrival, she appeared to be trying to run away but was stopped and taken into the police station and the office in charge of the police station was called.

When he arrived he directed a search both of the car and of Petulisi. In the former, the officer found hidden in the laundry, some plastic bowls containing earth which appeared to have had plants removed from them recently. The soil was still moist.

Petulisi was searched by a woman police officer and was found to have 83 small plastic bags hidden in her underwear. They each contained a small amount of plant material which was later found to be Indian hemp. When asked Petulisi said, "They are ours".

Some hours later, the same woman officer noticed a cloth which turned out to be a skirt behind a door in the charge office near to where Petulisi had been sitting the previous night. On closer examination, it was found to have 8 small plants wrapped in it. They were fresh and appeared to have been freshly uprooted. They also were identified to be Indian hemp. Again, Petulisi said, "They belong to us".

Her possession of those drugs is relevant to the case against this accused as is her admission that they were hers. However, her use of the words 'ours' and 'us' is no evidence against the accused. I am satisfied beyond any doubt that the analysis of the substance in the bags and of the plants proved that they were Indian hemp.

Samiu did not come to the police station until the afternoon of 24 January 2003 when he was detained in custody. His challenge to the validity of the arrest warrant questions the reasons for his being detained, as he was, in custody until 29 January but, as I have stated, I do not consider I need to resolve that issue.

He was interviewed about these incidents on 27 January 2003. There were three interviews in all that day. The accused challenged the officers over the making of the statements attributed to him. In his evidence he explained that he had been handcuffed when he first was put in the cell and remained in handcuffs until the day of the interviews. At the commencement of the interviews, he told the officer that he did not want to make any statement because he did not know anything about the drugs. At that point the interviewing office called out to the sergeant that he did not want to say anything. Following the sergeant's intervention, the handcuffs were moved up the accused's arm and tightened so that, in a very short time, they were causing him acute pain. He pleaded to have them removed but to no avail and so he gave the answers in the interview that the officers wished to hear so the handcuffs would be removed. Those allegations were denied emphatically by the officers involved.

As the accused was not represented, I did not hold a trial within a trial on the voir dire. I considered that, by leaving consideration of the admissibility of the interviews until the end of the case, it would ensure the accused was able to give all the relevant evidence he wished. However, I now must consider the admissibility of the interviews before I consider the contents.

The accused said that, at one stage when he was in pain, his wife was taken to the toilet and, on her way, saw him and witnessed his distress. She was called by the accused but was not asked about that part of the incident. She did tell the court that she had admitted possession of the drugs and said they were nothing to do with her husband. However, the officers tried to force her to deny it and were clearly trying to make her implicate Samiu.

I have considered all the evidence about the interviews with this accused and I do not believe his account. I believe the officers and I am satisfied beyond reasonable doubt that the accused gave the answers voluntarily. They are admissible.

In the first interview he told the officers that he ran away from the police car because he disputed the warrant. However, he told the interviewing office that the marijuana in the car was his. He was able to tell the officer that there were 83 bags and that they were to be sold for $10 each. He then agreed with the officer that the drugs were the true reason why he ran away. Shortly afterwards he was interviewed again and stated that the plants had been grown under the step of his house in Lapaha and they were being taken that night to find a place to plant them out. He told the police that he was the person responsible for growing them and no one else was involved.

In his evidence, he told the court that he had not run away but had simply told the officer that he would walk to the police station. However, he later hid when the police car drove by during the early hours. He said he suspected his wife had been arrested but he did not go to the police station until the afternoon of the Friday. He did not go before that because he thought he would be put in a cell because of the disputed warrant. However, he did not go to a lawyer about the warrant or his wife's arrest and he did not explain why he changed his mind and went to the police station on the Friday without trying to have the matter of the warrant cleared up by his lawyer. When the incident of the handcuffs arose, he was represented at the magistrate's court but could only say that he thinks he told her about his mistreatment.

His wife told the court that the 8 plants and the 83 bags of Indian hemp were hers and had been given to her by an African friend at Popua service station that night when she went alone to fill the car. She did not tell her husband anything about those things.

I do not believe the wife and neither do I believe the accused. I am satisfied beyond any doubt that he knew of the plants in the vehicle and his account to the police was true. I have no doubt at all that the trip that night was, as he told the police, to plant these out. The prosecution has proved to the criminal standard that those plants were being carefully cultivated in the plastic bowls and he was knowingly involved in that cultivation. He is convicted of count 1 of growing Indian hemp. Counts 2 and 3 relate to possession of the 83 bags and the 8 plants respectively. The particulars of charge describe him as being in possession of them at Lapaha/Mu'a police station. I do not understand why it was worded in that way. The evidence is that his possession of them was in the car in Lapaha. I am satisfied beyond reasonable doubt that he was and he is convicted in counts 2 and 3.

The second case arose from a search of an allotment in Lapaha on 13 November 2003. That day the police mounted simultaneous raids on the town and tax allotments of one Lomoloma Lausi'i. The accused and Petulisi were living there. The allotment holder and the accused and his wife were at the tax allotment and so the officers took Petulisi and Lomoloma to the town allotment to allow the search to start there also. Once there, Petulisi told them that the drugs were at the tax allotment and she would show them where. They returned to the tax allotment and called off the search of the 'api'uta.

There is a small shelter on the 'api uta in which the accused and his wife were living and an officer had found a can which appeared to have been used for smoking marijuana. The accused was asked about it and said that it was used for smoking marijuana.

Petulisi indicated an area of saafa grass and the officers saw a red bin with a lid. The accused was called over and asked whose dustbin it was, to which he replied he did not know. It was opened and could be seen to be full of what turned out to be cannabis packed in plastic bags. He was asked whose it was and replied, "Maybe it is yours". He was arrested and taken to the police station.

There was a considerable quantity of cannabis in the bin. It was packed in 10 plastic bags although some contained more than one bag and some contained a number of small bags already packed with cannabis similar to those found on Petulisi in January.

The total weight of cannabis was 1.85 kgs and included approximately 6,000 seeds which had been separated to a great extent from the remainder. There were a total of 27 small bags which had been already packed with the plant material. Also, in one of the bags were two small pieces of hashish weighing 0.8gm.

The accused was interviewed by the police on 16 November 2003. There is also a challenge to the admissibility of these interviews. The accused told the court that, after he was arrested, he told the officer that he did not want to make a statement because he knew nothing about it. He also asked to see a lawyer and one came to visit him the following day, 14th.

He was first interviewed on 16 November 2003 and denied any involvement with the drugs. He was detained in custody and was still in custody on 21 November 200 2003 when he was again interviewed. Again he denied any knowledge of or involvement with the drugs.

Surprisingly, it should be said, he was still in custody on 24 November. The officer in charge was asked why it was necessary to keep the accused in custody in a case of this nature for more than 10 days. It is clear that the accused was unhappy about his continuing detention and mentioned it to the officer on 21 November. To the court, the officer's explanation was that the magistrate had ordered it. This court was not told the reasons given to the magistrate and it is hard to understand what could have justified such a long time in custody. In the absence of clear reasons, it appears likely it was simply to try and persuade the accused to change his account from denial to admission and the accused's evidence is that was precisely what happened.

He was transferred at one stage to the Police Training School. He had seen his wife and was shocked to see how thin she was looking. She also told him that she had been badly beaten up by the same officer as was questioning this accused. The accused wanted to get out so he could take her to hospital.

However, far from being released, he continued in custody and then, on 24 November, the same officer came out to the Training School and told the accused that he would ask for the accused and his wife to be detained in custody even longer. As a result, the accused decided to tell the police the drugs were his and sent a message to the officer that he would show him where he had grown the plants.

He told the court that he did this only because he was desperate to be released. He also said that he was scared of the officer because he had previously been handcuffed and beaten by the same officer. He said that when he said that he did not want to make a statement, the officer had advised the accused to be careful or "he might see what would happen"; a statement the accused interpreted as a threat of violence

The officer denied anything of the sort. He also denied that he had been to the Training School earlier in the day the accused sent the message to come. The accused called the gate officer who was on duty that day but she did not support the accused and said the officer had indeed only visited once that day and that was after the accused had sent the message.

The accused's account of his fear of the officer is not helped by the fact that, after the accused said he was threatened, he was still able to make two separate interviews denying any involvement. I accept that, if he believed his wife's account that she had been beaten, that would reinforce his own fear but I do not believe his fear was as great as he claimed because of his ability to resist the officer's questions on the first two occasions. I am also satisfied that the gate officer is correct about the number of visits that day by the officer to the Training School so I do not accept that there was an earlier threat that day to extend the period the accused and his wife would remain in custody.

However, that said, I consider that the length of time the accused was detained in custody was, in the absence of clear reasons, a disgrace. The power to detain an unconvicted person is a severe attack on his right to freedom. The law gives that power to the magistrate to ensure there is some safeguard against abuse of power by the authorities. It is for that reason that magistrates should always ask the reasons for such a request. Any such reason should be carefully and critically considered and the reasons for the detention recorded in the courts papers. Too often this court hears cases where the magistrate appears to consider his duty simply to endorse any request by the police to detain a man in custody. When the trial is heard before the Supreme Court, the officer in charge should be able to state the reasons why it was necessary to continue to continue to detain a man without trial.

This court has said many times before that a request to remand in custody or order or extend a period in custody simply because the police have not completed their investigations, in the absence of anything else, is not sufficient. Yet it continues to be the reason most frequently put forward and, more seriously, is almost invariably accepted and acted on by the magistrate.

There may well be good reason why an accused should not be released such as the fact he has been convicted of many similar offences in the recent past or that there are witnesses yet to be interviewed may be vulnerable to pressure from the accused. That is not the case here. The evidence was always going to be, and was at the trial, only that of police officers and the analyst. In that case and in the absence of clear reasons, I question whether the magistrate should have allowed the police more than one day.

However, the accused was detained in custody from his arrest on 13 November. He was not interviewed until the afternoon of 16 November. As the evidence was entirely the result of a police search, he could and should have been interviewed on the day of, or the day immediately following, his arrest. Even after being interviewed, he was further detained until 21 November. On that day, the police tried again and again the accused denied his part in the offence and expressed concern at his continued detention. Still he was not released and eventually on 24 November he suddenly decided to tell the police he was involved.

The court has discretion to exclude a confession if it believes it may not have been voluntary. For an unconvicted person to be detained in police custody is a traumatic and unpleasant experience. If it continues for some days, it is increasingly oppressive and will tend to sap the will of even the most resolute person especially if it appears simply to be extended because the accused person continues to deny the offence. A confession will only be admitted if the prosecution prove beyond reasonable doubt that it was voluntary.

In this case, I am far from satisfied that the accused made that statement voluntarily. After 10 days in custody and having told the police twice that he was not involved, he was still being detained. I am satisfied it may have appeared to him that he was simply going to be detained until he changed his story. I am not satisfied that the prosecution has proved that was not the case and the interview on 24 November is not admitted. It has already been given in evidence but I ignore its contents.

The police evidence of the search is that the red bin was in the saafa grass about 10 to 15 metres away from the hut where the accused and his wife were staying. It was obviously not clearly visible because the officers on the search did not see it until they were told specifically to search that area. However, it was first seen by the officer from the edge of the clear area near the hut.

Before the court can convict this accused of possession of those drugs it must be satisfied beyond reasonable doubt that the accused knew of the drugs and had control over them. His evidence was that the drugs were not his and he had no knowledge of them. He called his wife and she insisted that was the case; the plants had been cultivated, harvested, dried and packed by her without her husband having any knowledge or involvement.

She told the court that she had said they were hers when she showed them to the police. The accused also told the court that, when the police arrested him, his wife remonstrated with them and demanded to know why he was being taken rather than her as the drugs were hers and not his. She told the court that the whole operation had been hers and the accused knew nothing about it. She told the court that she said the same in her statement to the police but they wanted her to say the drugs were Samiu's. She explained that she was intending to sell them from her house to anyone who came to buy.

I did not consider she was a truthful witness. I am satisfied beyond any doubt she was involved in the preparation of this cannabis and that the intention was to sell it. The quantity and the manner in which some was already packed can only lead to that conclusion.

However, the court must consider whether the prosecution has proved to the criminal standard that the accused was in possession of the cannabis in the bin. I did not find the accused a credible witness and on the evidence as a whole, I am satisfied that he did know of the presence of that cannabis. It was close to the place where he was living and I simply do not believe he was unaware of it. I am satisfied that the soft drink can was also his and demonstrates the use of the drug at his home. In all the circumstances at the time at the tax allotment, I am satisfied the accused was in knowing possession and control of those drugs.

He is charged with two counts of possession of an illicit drug relating to the cannabis leaves in the 10 plastic bags in one count and to the seeds in the other. I am not clear why it was necessary to separate them into two counts but they relate in total to the contents of the red bin. He is convicted of counts 2 and 3.

The first count charges him with cultivating 8 cannabis plants in July. The prosecution case is that those were the plants from which the cannabis in the bin was derived. There is no evidence of cultivation by the accused and he is acquitted of count 1.