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R v Vaka'uta [2004] TOLawRp 8; [2004] Tonga LR 37 (1 April 2004)

IN THE SUPREME COURT OF TONGA

R

v

Vaka'uta anor

Supreme Court, Nuku'alofa
Ford J
CR 143-144/2002

8, 9, 12, 29 March and 1 April 2004; 1 April 2004

Criminal law – possession of Indian hemp – elements all proved

On Tuesday 8 October 2002 at about 10:35am seven members of the police Drugs Squad, acting pursuant to a search warrant, surrounded the house that the two accused lived in. Some entered the rear of the property and others made their approach climbing over the front boundary wall by the roadway. The warrant authorized the officers to carry out a search for drugs of any kind but, in particular, Indian hemp. On entering the bedroom of the two accused, one of the officers observed two wrapped up newspapers on the open louvers of one of the windows. As he unwrapped the newspapers, he saw that they contained green crushed Indian hemp leaves. On the outside of the louvers was a wire mesh insect protective screen. It appeared to the police that the leaves had been left on the open louvers to dry. They were subsequently analysed and found to be Indian hemp. One bundle contained 47.80g of leaves, the other 17.18g. Both accused were charged with possession of Indian hemp. They pleaded not guilty. Their defence was that the two wrapped up newspapers containing the Indian hemp leaves must have been placed on the open louvers by someone else because they were not there when the two occupants left the bedroom on the morning in question.

Held:

1. In order to establish the offence of possession of Indian hemp, the Crown must prove that the accused had actual or potential control of the substance and that at all material times they knew that the leaves were Indian hemp.

2. The Court did not find the accused credible witnesses. The suggestion that someone else must have planted the two bundles of Indian hemp leaves on the louvers within an hour or so of the unexpected arrival of the police defied belief.

3. The prosecution proved the necessary elements of the offence beyond reasonable doubt and each accused was convicted accordingly.

Statute considered:

Drugs and Poisons Act (Cap 79)

Counsel for the Crown: Mr Sisifa
Counsel for the two accused: Ms Mangisi

Judgment

At Houmakelikao, on the eastern outskirts of Nuku'alofa, there is a large yellow coloured house. Looking towards the front of the house from the road, a driveway runs down the left hand side of the property to an inbuilt garage. At the rear of the garage there are two doors. The door to the right takes one into the main living area of the house. The other door at the rear of the garage is the entrance to a small bedroom which became the focus of attention over the several sitting days occupied by this case. The room, containing one single bed, a small table or desk and a chair, was occupied by the two accused.

At approximately 10:35 a.m. on Tuesday 8 October 2002 seven members of the police Drugs Squad, acting pursuant to a search warrant, surrounded the yellow house. Some entered the rear of the property and others made their approach climbing over the front boundary wall by the roadway. The warrant authorized the officers to carry out a search for drugs of any kind but, in particular, Indian hemp.

In charge of the police team was Chief Inspector Tu'ihalangingie who at that time was working in the Drugs Division. He was one of the officers who had entered from the rear of the property. He walked around the side of the house into the garage. As he approached the two doors at the rear of the garage he observed the female accused, Petulisi, "hurrying" from the main living area of the house towards the bedroom at the back of the garage. The Inspector told her not to enter the bedroom and he proceeded then to read out the contents of the search warrant to both Petulisi and the principal occupier of the premises, 56-year-old Sione Tulikihefua.

After reading the warrant and requiring the officers concerned to empty out their pockets, the Inspector directed two of the police officers to carry out a search of the bedroom. As soon as he entered the room, one of the officers, Lance Corporal Pahulu, observed two wrapped up newspapers on the open louvers of one of the windows. As he unwrapped the newspapers, he saw that they contained green crushed Indian hemp leaves. On the outside of the louvers was a wire mesh insect protective screen. It would have been impossible, in other words, for the two wrapped up newspapers to have been placed on the louvers from the outside of the house.

It appeared to the police that the leaves had been left on the open louvers to dry. They were subsequently analysed by the Government Analyst, Dr Pakalani, and found to be Indian hemp. One bundle contained 47.80g of leaves, the other 17.18g.

Those are the essential facts making up the case for the Crown. They were not challenged apart from the fact that Petulisi denied that she had been "hurrying" towards her bedroom. She said that she had just had a shower before the police arrived and she was still in the main living area of the house when she noticed the police officers climbing over the front fence. In her subsequent statement to the police, she claimed that she was outside on the verandah of the house while the police carried out the search of her room.

Defence counsel also contended that the Crown had not proved that the Indian Hemp analysed by Dr Pakalani was the same substance found in the wrapped up newspapers. Counsel noted in this regard that Dr Pakalani had described 1 bundle of leaves in his report as being, greyish green in colour but in the photographs both bundles appear to be green. I can dispose of that submission at once. The Crown established a clear chain of evidence from the discovery of the substance in the newspapers right up to its analysis by Dr Pakalani in his laboratory at Vaiola Hospital. I am satisfied that the colour variation referred to is of no significance. Ms Mangisi this morning had to admit that even the photographs show a slight variation in colour between the two bundles of leaves and one is not as green as the other. I am completely satisfied that the substance analysed is the same substance found in the bedroom.

In addition to the newspaper bundles, the police also found three school-type exercise books on a small table or shelf in the bedroom. Inside one of the books were some bail forms in the name of the male accused, Samiu Mafi. On one of the pages was a drawing of a marijuana leaf. The books were produced as exhibits.

Petulisi, then aged 20, was apprehended and immediately taken to the police station. She made a statement denying all knowledge of the two bundles of Indian hemp leaves.

Samiu had been picked up from his home about 9 a.m. on the morning of the search by one, Kilifitoni Maile, and they were at another property preparing pigs for an 'umu when the police found the Indian hemp leaves. He later learned about the police search and how his girlfriend Petulisi (they were married two weeks later on 22 October) had been taken into police custody. He immediately went to Maile's home, had a shower and called around to the police station. He was then apprehended also. In his statement to the police Samiu denied all knowledge of the Indian hemp leaves but he admitted that one of the exercise books belonged to him and that he had drawn the marijuana leaf back in 1998. He declined to answer most of the other questions put to him by the police.

Both accused were charged with possession of Indian hemp. Upon arraignment they pleaded not guilty and they have continued to maintain that stance. Each elected to give evidence. Essentially their defence is that the two wrapped up newspapers containing the Indian hemp leaves must have been placed on the open louvers by someone else because they were not there when the two occupants left the bedroom on the morning in question. Samiu said that he had left the room to go with Maile at approximately 9 a.m. and he recalled that before he left, he had looked at the window and the newspapers were not there. Petulisi told the court that she had left the room to go and have her shower approximately 20 minutes later and there was nothing on the window louvers at that stage. The evidence was that the police had arrived at the property at around 10.35 a.m.

Samiu's mother and stepfather, Sione, are the principal occupants of the house in question but other siblings also live on the premises and they all had their own rooms. The evidence was that whenever both Samiu and Petulisi were away from the house, the door to their bedroom was locked from the outside with a padlock.

In evidence, Samiu told the court that his stepfather wanted him out of the house because they had had an argument over the use of the family vehicle. He suggested in evidence in chief that others in the family could have planted the leaves in his room as a way of getting him into trouble and, hence, removed from the house. Both the stepfather and Samiu's sister had given evidence for the Crown, however, and that suggestion had not been put to either of them in cross-examination. It should have been.

Both accused told the court that they had occupied the room at the back of the garage for only one week before the police raid but I do not accept that. The stepfather, Sione, told the court that the two accused had been occupying the room for some two months and Samiu's sister-in-law, Luseane, indicated that the period was even longer than that. In his own statement to the police, Samiu said that he and Petulisi had started living together in the room in August 2002.

The Crown has the onus of proving beyond reasonable doubt all the elements of the offence. The word "possession" is not defined in the Drugs and Poisons Act but, in order to establish the offence of possession of Indian hemp, the Crown must prove that the accused had actual or potential control of the substance and that at all material times they knew that the leaves were Indian hemp.

I say at once that I did not find the accused credible witnesses. The suggestion that someone else must have planted the two bundles of Indian hemp leaves on the louvers within an hour or so of the unexpected arrival of the police simply defies belief.

The Crown's case, on the other hand, was particularly strong and I found all the Crown witnesses entirely credible.

The prosecution has proved the necessary elements of the offence beyond reasonable doubt and each accused is convicted accordingly.