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R v Pohahau [2003] TOLawRp 38; [2003] Tonga LR 270 (19 August 2003)

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

Cr 133-135/2002

R

v

Pohahau

Ward CJ
4, 5, 7, 8, 11, and 13 August 2003; 19 August 2003

Criminal law – possession of drugs – elements of offence Criminal procedure – substitution of alternative offence – criteria established

On Friday, 30 August 2002 the police conducted a raid and Indian hemp was found in two containers: the first was a glass jar buried in the ground of the house where the three accused were staying at that time; and the second was a black bag thrown, on the prosecution case, into the adjacent 'api. The three accused were charged with a number of offences relating to and arising from alleged dealing with the Indian hemp. Each of the accused was charged with two counts of possession. The first and third accused were also charged with conspiracy to supply and actual supply of Indian hemp to others in August 2002.

Held:

1. The statement of one accused was not evidence against any other; the accused who did not give evidence were entitled to remain silent and the fact of their silence does not affect the case one way or the other.

2. The Court was satisfied beyond reasonable doubt that the first and third accused were in knowing possession of Indian hemp, that they were involved in the supply of drugs, and that they were involved in the conspiracy to supply drugs. Therefore they was convicted on counts 1, 2, 3, and 4.

3. The second accused was only charged with possession of the drugs found in the house. The evidence demonstrated that she supplied Indian hemp and that she was involved in the conspiracy to supply but she was not charged with those offences. In order to convict her of possession, I must be satisfied the prosecution has proved she had physical custody or control of the drugs charged. As a person involved in the supply ring, she clearly had knowledge of the presence and preparation of those drugs. The question for the court was whether the circumstances demonstrated by the evidence establish that her part involved actual custody or control of the drugs at the house. The Court was not satisfied the offence was proved to the required standard in a criminal case and she was acquitted on counts 1 and 2.

4. The Court considered the power provided by clause 13(d) of the Constitution (that allows any Act to make provision that a person charged with an offence may be convicted of another offence (not being a more serious offence) arising out of the same circumstances) but the terms of section 42(3) of the Criminal Offences Act only allow the Court to substitute a conviction for another offence if the allegations in the indictment amount to or include an allegation of that other offence expressly or impliedly. There was nothing in the indictment to amount to an allegation of a conspiracy. The Court did not convict the second accused of an alternative offence and she was discharged.

Statutes considered:

Constitution of Tonga Act (Cap 2)

Criminal Offences Act (Cap 18)

Counsel for prosecution: Mr Kefu
Counsel for all accused: Miss Mangisi
(later Vaka'uta and Havea continued in person)

Judgment

These three accused are charged with a number of offences relating to and arising from alleged dealing with Indian hemp in August 2002 at Longoteme.

The drugs were found in two containers during a raid by the police on Friday, 30 August 2002. The first was a glass jar buried in the ground of the house where all three were staying at that time and the second a black bag thrown, on the prosecution case, into the adjacent 'api. Each of the accused is charged with two counts of possession in relation to those. The first and third accused are also charged with conspiracy to supply and actual supply of Indian hemp to others in August 2002.

In August 2002, the first and second accused, Pohahau and Vaka'uta, had been living together in a de facto relationship for some months. The police raided the house in which they were living in Longoteme on 30 August 2002 and the drugs were found. At the time of the raid, Pohahau and the third accused, Havea, were present in the house. Havea is the nephew of the first accused. Vaka'uta, was not present and only arrived when the search of the premises was nearly complete.

The prosecution case is that the police first went to the house where Pohahau and Vaka'uta had previously been living near the lagoon. The warrant named Pohahau and, when the occupants read it, they explained that he had moved to a house in the village. The officers went to that 'api arriving at about 11:10 am.

On arrival one of the officers looked inside the house and saw two men in the first room. They were Pohahau and Havea. Pohahau was standing and Havea sitting down.

The house has a fale koloa in front and that was searched first but nothing relevant was found. In the living room of the house there were 8 unused small polythene bags. In the bedroom shared by Pohahau and Vaka'uta, the officers found 21 pieces of kitchen foil cut into 7 or 8 cms squares. The first accused told them they were for a tau'olunga costume.

The officers then went outside and searched the grounds. They found a glass jar containing plastic bags of what appeared to be mainly seeds but also some leaves of Indian hemp. The contents of that jar are the subject of count 1 against all the accused.

Behind the house, on the side away from the road, is an overgrown plot with trees and bushes. The next allotment to the house is a vacant area of mown grass. It abuts both the house and the overgrown plot behind it. On the other side of that vacant plot is the home of Makeleta Samani. When the search started, she was standing in her garden facing the vacant lot doing her washing. She noticed that, as the police arrived, a man ran out of the house at the back and threw a black bag over the hedge. She had the impression that he was trying to throw it into the overgrown area but there was a strong wind which carried it over into the vacant area. The man then returned to the house.

She told the police about this and the bag was also searched. In it were a number of small foil wrapped packets which appeared to contain Indian hemp. The contents give rise to count 2 against all the accused.

Makeleta could see well enough through a section of the hedge where the tanetane was sparse. However, she was not able identify the man. All she could say was that he was wearing a purple t-shirt and black shorts. Shortly afterwards she was taken to where Pohahau was standing and identified the clothes he was wearing as the same as those she had seen on the man who threw the bag. She had never seen the first accused before that day.

Analysis of the substances seized revealed they were all Indian hemp. In the glass jar there were 76 foil wrapped rolls, 3 plastic bags of leaves and 2 bags containing seeds. The net contents amounted to 384.34 gms of Indian hemp and included a number of seeds calculated by the analyst to be over 12,000. The black bag contained 58 more foil wrapped rolls the contents of which weighed a further 59.02 gms.

There was no challenge to the analyst's evidence but the defence did challenge the continuity of the evidence that the drugs found in the raid were the drugs analysed. The main ground of challenge is that the drugs were kept at the police station in a filing cabinet to which more than one officer had the key. I do not need to set it out in detail. I am satisfied beyond reasonable doubt on the evidence as a whole that the drugs were not touched by any person other than the witness responsible for them at that stage and that they were the drugs analysed by Dr Pakalani. I am satisfied beyond any doubt that those drugs were Indian hemp.

By the time the glass jar had been found, Vaka'uta had also arrived at the house. The accused were asked about the jar and all three said they knew nothing about it. However, the officer noticed Pohahau and Havea exchanged glances and then Havea said it was his. A similar situation occurred when they went to see the black bag. After an initial denial of any knowledge, there was a similar exchange of glances followed by an admission by Havea that it was his.

The prosecution called two witnesses who gave evidence of having bought marijuana from the accused. 'Etuate Fehoko told the court that he bought drugs from the 'api by the lagoon on four occasions. He would wait outside and one of the accused would come and ask how much he wanted. He bought from the first accused on two occasions and from each of the other accused once. He paid $10 for a single foil roll and identified the rolls seized by the police on 30 August 2002 as similar in size and form. The charges of supplying and conspiracy to supply against Pohahau and Havea allege that it was Fehoko and others who were supplied.

The other purchaser was Sunia 'Ofa and he bought from the 'api in the village. He told the court he went to the shop and always dealt with Pohahau although the other two were present at the time. On one occasion he asked Havea who then went off to fetch Pohahau. He also identified the rolls seized in the raid as being the same type as the drugs he had bought. He also paid $10 a roll.

Both these witnesses gave extra evidence of an incident during the trial which related to the first accused only. Both witnesses had been at court on Tuesday of the trial but the court had to adjourn early that day. The witnesses went off together and started drinking spirits. After they had been drinking some time, Pohahau came and talked with them about the trial. He did not try and persuade them not to come to court but he gave them a small bag of marijuana.

This was challenged on behalf of the first accused. Both the witnesses agreed they had been drinking for some time when the accused arrived. One admitted being drunk but the other denied it. One said the drugs were given to him and the other that they were given to both. I am not satisfied that part of their evidence was reliable enough to place any weight on it and I disregard it.

The accused were all arrested. Havea was interviewed under caution on 31 August 2002 and the other two the following day.

Pohahau told the police he was living with Vaka'uta and they had moved to that particular 'api the previous Monday from the 'api by the lagoon. He said they lived with Havea and had moved there with him although he "comes and goes". He explained he had come to Tonga from the United States in 1995 and had been supported by his parents ever since. They sent him $400 – 600 each month. He denied any knowledge of the drugs found and, when asked if he could say to whom they belonged, he replied, "When we were arrested 'Isikeli told me it was his." He agreed he had been wearing a purple t-shirt and black shorts on the day of the raid but he denied throwing the bag, insisting that Makeleta was lying. When he was again asked to whom the drugs belonged, he said they belonged to Havea. He was asked, "Are you willing to put the blame on your sister's son and clear your name?" and replied, "I am not pointing the finger at him, I am telling the truth."

When charged, he repeated his denial; "It is not my marijuana and I had no knowledge about this."

In court, he remained silent and called no witnesses.

In her interview, Vaka'uta confirmed she had, at that time, been living with the first accused for 11 months and during that time he had received regular remittances from his mother in the United States. She had been with him to collect them on more than one occasion. She also referred to Havea living with them although she also said he only came to visit. She identified the purple t-shirt and black shorts as the first defendant's and also agreed she had seen the black bag as it belonged to someone who had lived in the house previously. She said that the drugs found belonged to Havea because she had heard him tell the police at the time.

She made a short statement to the police that "All these items belong to 'Isikeli Havea apart from the clothes, t-shirt and shorts. They belong to Kusitafu Pohahau."

The police witnesses also gave evidence that, in February 2003, Vaka'uta had come to the police station with a black eye. She complained that Pohahau had assaulted her and they had split up. She told them he was living with another woman. She was clearly angry and went on to say that the drugs found in the search all belonged to the first accused. Those comments are not evidence against the first accused because he was not present and Vaka'uta did not give evidence. However, they are evidence against her of knowledge of the drugs at the house.

Similarly, the claims by Pohahau and Vaka'uta that the drugs belonged to Havea can be evidence against each of them only and not against Havea.

She chose not to give evidence but, when making her final address to the court (because she was by then appearing in person), she stated she had no knowledge of the drugs and suggested one of the witnesses who claimed to have bought drugs from her had given evidence inconsistent with the summary of evidence in the case and she did not know him. The summary of evidence was not in evidence in this trial. However, I shall give her denials the same weight as if they had been made in an unsworn statement.

When Havea was interviewed, he said he had been staying at the house since the previous Monday. He was asked if, when the police started to search the house, he knew there were drugs there and replied that he did. He agreed marijuana had been found and said it all belonged to him. It was specifically suggested that Pohahau had advised him to take the blame but he denied that was the case. However, when asked details about the drugs and whether cars visited with people wanting to buy drugs, he declined to answer any more questions. When charged he said the charges were true and made a short statement in which he said, "All the things I have been charged with are mine and I don't want to say anything else."

He gave evidence in the trial and denied having ever stayed at the 'api by the lagoon. He said that he had only been to the other 'api that day for the first time and had arrived less that 10 minutes before the police arrived. He was not asked about the apparent conflict with his statements to the police about that. He told the court that, when the drugs were found, Pohahau said to him, "Why don't you just admit its yours?" He was frightened and so he said they were although he had nothing to do with them. He explained that he did not tell the police because he did not think they could effectively protect him.

He agreed that he had seen Sunia at the house but said he had simply asked for Kusitafu and so he went and fetched him.

I bear in mind that the prosecution must prove every part of the case beyond reasonable doubt. In a case such as this, I also remind myself that the statement of one accused is not evidence against any other and that the accused who did not give evidence are entitled to remain silent and the fact of their silence does not affect the case one way or the other. It is also clear that the two witnesses who gave evidence of purchasing marijuana are accomplices and I cannot accept their evidence unless I consider it credible and it has been corroborated.

I did find both witnesses credible. I have stated that I considered the evidence of the incident during the trial did not prove the incident to the required standard because they had been drinking I am satisfied the remainder of their testimony was credible. Havea's evidence that he recalled Sunia 'Ofa coming to the shop and asking for the first accused is corroborative against himself and, as it was given in evidence on oath, against Pohahau. I also find that the way each witness described the packaging of the marijuana they bought from the accused and then identified the drugs seized as being the same was also capable of corroborating the evidence of each of them.

I am satisfied beyond reasonable doubt that both these witnesses were speaking the truth and did both buy drugs from the accused as they described.

I found the witness Makeleta Samani credible and accurate. I am satisfied that her evidence of the clothing worn by the man who threw the bag over the boundary was correct and that it was the clothing of Pohahau that she had seen. This was clearly done as a response to seeing the police arrive and it is noteworthy that, when the officers first arrived at the house, they noticed that, although Havea was sitting down, the first accused was standing. That would accord with the suggestion that he had just had time to re-enter the house after disposing of the bag.

The evidence was that the glass jar was buried in freshly dug soil at the back of the house and that the accused had all been in the house since the previous Monday. I am satisfied to the required standard in a criminal case that was correct. There was no evidence that anyone else was using the house whilst they were there and I am satisfied the glass jar had been hidden there during that time.

I am satisfied beyond any doubt that it was the first accused, Pohahau, who threw the bag over the fence and he, clearly by his actions, knew the contents. He was in possession of them and he is convicted on count 1. The drugs in the glass jar included some wrapped in the same manner as those in the black bag and that, together with the pieces of foil in the bedroom of the house, satisfy me beyond any doubt that the first accused was in possession of those drugs and he is convicted on count 2. I am satisfied beyond any doubt that the witnesses Fehoko and 'Ofa gave truthful evidence that they went to purchase marijuana from Pohahau and that, together with the evidence of the similarity of the manner in which the drugs they purchased and those analysed were packaged, satisfies me beyond any doubt that the material they were supplied with was Indian hemp. He is convicted on count 3. I shall return to count 4 after I have dealt with Havea.

I have no doubt that Havea was staying with his co-accused at that house and had also been associating with them previously at the 'api by the lagoon. His admission to the police suggests that he knew the nature of what was discovered at the raid but, before I can convict, I must be satisfied beyond reasonable doubt that the prosecution has proved that he had actual physical possession of the drugs or some form of control over them. Whilst the explanation he gave of his failure to tell the police about his fear of Pohahau is, in my opinion, far from satisfactory, I am not satisfied it has been proved to the required standard to have been a true admission of ownership of the drugs but I am satisfied that he knew of their presence and nature. However, the prosecution must prove actual custody or control by Havea. The evidence of 'Ofa was that, when he came to the house to buy marijuana, Havea and 'Ana were present but he dealt with Pohahau. However, on one such occasion, he asked Havea for marijuana and he went to fetch Pohahau. It was Pohahau who came and carried out the deal which suggests that the real owner of the drugs was Pohahau. As I have stated, knowledge of the presence of the drugs and that dealing was going on is not sufficient alone to prove the offence of possession but it can be inferred from the evidence. The further evidence of Havea's actual involvement with the dealing takes it beyond mere knowledge and I am satisfied beyond reasonable doubt that he was in knowing possession of the Indian hemp both in the bag and in the glass jar and he is convicted on counts 1 and 2. Passing to count 3, I am satisfied beyond any doubt that he was involved in the supplying of drugs. At the 'api by the lagoon, I am satisfied he actually passed those drugs to the witness Fehoko and was at that time in possession of them but, at the 'api in the village, there is no evidence he actually physically handled the drug. However, the evidence was that, over the period in question, he was clearly a willing and knowing party to the supply of Indian hemp from both 'apis. He is convicted on count 3.

Count 4 against Pohahau and Havea charges conspiracy to supply Indian hemp. I have no doubt whatsoever, that all three accused were fully involved in the supply of drugs. Their presence in the house, the quantity of drugs possessed by Pohahau, the manner in which the drugs sold had been packaged and the amount of similarly prepared drugs in the 'api and the presence of the foil squares in the bedroom prove beyond any doubt that this was a well organised and funded operation. The evidence of Fehoko shows only too clearly that the method of operation involved all the accused personally. There is no doubt at all that this was the result of an agreement between them and I am satisfied they were all involved in that conspiracy.

The accused Pohahau and Havea are convicted on count 4.

The second accused is only charged with possession of the specific drugs found in the raid on the house. The evidence demonstrates only too clearly that she did supply Indian hemp to the witness Fehoko and that she was involved in the conspiracy to supply but she is not charged with those offences. In order to convict her of possession, I must be satisfied the prosecution has proved she had physical custody or control of the drugs charged. As a person involved in the supply ring, she clearly had knowledge of the presence and preparation of those drugs. The question for the court is whether the circumstances demonstrated by the evidence establish that her part involved actual custody or control of the drugs at the house. As I have already stated, the only direct evidence of actual supply at the house was that Pohahau sold it to the witness. When 'Ofa went there to buy, both Vaka'uta and Havea were present but, although he spoke to Havea, he told the court he never spoke to Vaka'uta. His evidence clearly suggests she knew of the dealing but he gave no evidence that established more than knowledge on her part. What the evidence does show is that the house belonged to Vaka'uta's family and she was living there in a de facto relationship with Pohahau. There can be no doubt whatsoever that she knew what was going on and that the drugs were being prepared for sale in the house but what makes her case different from that of Havea is that, unlike Havea, her relationship with Pohahau was a reason for being present in the house other than for the preparation and supply of drugs. As a result the evidence does not lead the court to the sure conclusion that she was involved with her partner's drugs such that she had custody or control of them. There is grave suspicion but I am not satisfied the offence is proved to the required standard in a criminal case and she is acquitted on counts 1 and 2.

Clause 13 (d) of the Constitution allows any Act to make provision that a person charged with an offence may be convicted of another offence (not being a more serious offence) arising out of the same circumstances. Both possession and supply of Indian hemp are made offences by the same section of the Drugs and Poisons Act and the same penalty is provided for both. I consider therefore that, for the purposes of clause 13 (d), supplying the drug is not a more serious offence than possession. Section 42 (3) of the Criminal Offences Act provides that where the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence, the accused may be found guilty of that other offence or of an offence of which he could be found guilty on an indictment specifically charging that other offence.

I have considered that power but the terms of section 42 (3) only allow me to substitute a conviction for another offence if the allegations in the indictment amount to or include an allegation of that other offence expressly or impliedly. The two counts against Vaka'uta charge that she had the drugs in her possession. Possession of drugs may be included in an offence of supplying them but an allegation of possession in an indictment falls short of amounting to or including supply. Clearly the description in the indictment in this case of the manner in which those drugs were wrapped could imply they had been prepared for sale but that does not mean that the allegations actually stated in the indictment amount to or include an offence of supply. There is nothing in the indictment to amount to an allegation of a conspiracy. I do not consider I can, therefore, convict the accused Vaka'uta of an alternative offence and she must be discharged.