[2007] Tonga LR 219

IN THE SUPREME COURT OF TONGA

R

v

Mataele anors

Supreme Court, Nuku'alofa
Andrew J
CR 98-100/2005

26 and 27 September 2007; 1 October 2007 

Criminal law – three accused charged with possession of cannabis – drugs found at their home – all found guilty 

Each accused was charged with possession of various quantities of an illicit drug, namely cannabis, contrary to section 4 (a) of the Illicit Drugs Control Act 2003. On 8 March 2005 the police, acting under a search warrant, carried out a search of the home of the second accused, 'Otutaha. The police had obtained information from the girlfriend of the second accused who had reported the matter out of her aversion to drugs and the deleterious affect they were having on her relationship with the accused. The police found 12 plastic bags in Mataele's pocket and 13 plastic bags on 'Amanoni's bed. All three accused were at the home when the police arrived and commenced their search. 

Held: 

1. The court was satisfied that the analyst, Siale'uvea Finau, a senior medical laboratory technician at the Ministry of Health, was properly qualified as an expert analyst. 

2. The elements of possession were: (1) physical custody or control of an illicit drug; (2) without lawful excuse, proof of which lay on the accused and (3) knowledge that it was an illicit drug. Mataele had admitted in a police Record of Interview that the cannabis found in his pocket was for selling from his home and that submission was unchallenged. He was convicted accordingly on two counts of possession. 

3. 'Otutaha had told the police that he would only speak in court. He told the police that they had no evidence. He did not give any evidence in court. Although there was no onus on the accused, it was beyond dispute that he was the occupier of the home and that the marijuana was found in the bed. There was a strong inference that he was in possession of the marijuana. He had never denied that other than to say it was not found in his bedroom. The accused was found guilty as charged. 

4. 'Amanoni objected to the tender of the police Record of Interview on the grounds that, whilst he was a Tongan, he had little understanding of the Tongan language and he had given his answers in English and they were translated into Tongan. He claimed that the Record of Interview should be excluded on discretionary grounds pursuant to section 22 of the Evidence Act (Cap 15). The court did not accept that the accused had a poor knowledge of Tongan and it was not satisfied that the Record of Interview had been unfairly obtained. The accused was convicted. 

Statutes considered: 
Evidence Act (Cap 15) 
Illicit Drugs Control Act 2003 

Counsel for the Crown: Mr Sisisfa 
Counsel for the accused: Mr Tu'utafaiva 

Judgment 

The accused Lolo Mataele is charged with 2 counts of possession of illicit drugs contrary to s 4(a) of the Illicit Drugs Control Act. The particulars of the offences are:- 

"1. On or about 8th March 2005 at Ngele'ia you did knowingly and without any lawful excuse have in your possession 13 plastic bags containing cannabis inside. 

2. On or about 8th March 2005 at Ngele'ia you did knowingly and without any lawful excuse have in your possession 12 plastic bags containing cannabis inside." 

The accused Sosefo 'Otutaha is charged with 1 count of possession of illicit drugs. The particulars are as follows: 

"1. On or about 8 March 2005 at Ngele'ia you did knowingly and without lawful excuse have in your possession 13 plastic bags containing cannabis inside." 

The accused Siaosi 'Amanoni is also charged with 1 count of possession and the particulars alleged against him are in the same terms as against Sosefo 'Otutaha. 

All 3 accused have pleaded not guilty to the charges. 

The facts disclosed that on the 8th March 2005 the police obtained a search warrant in relation to the home of the 2nd accused Sosefo 'Otutaha. The Police had obtained information from one Lomekina Parma that the accused were in possession of cannabis and had been dealing. The witness was the girl friend of the 2nd accused Sosefo 'Otutaha and I accept that she had reported the matter out of her aversion to drugs and the deleterious affect it was having on her relationship with the 2nd accused. I accept her as an honest, genuine and sincere person who did not act out of any revenge but, as stated, out of her genuine concern about the effects of drugs. 

Police searched the home and found 12 plastic bags in the left pocket of Lolo Mataele and 13 plastic bags on the bed of Siaosi Amanoni. All 3 accused were at the home when the police arrived and commenced their search. 

The material found was taken to an analyst, Siale'uvea Finau a senior medical laboratory technician at the Ministry of Health who found that all the material was cannabis. I have no reason to doubt the chain of events by which the material was taken to the analyst and I have no reason to doubt the material was properly analysed as cannabis. I am satisfied that Mr. Finau is properly qualified in this area and that he is an expert. There were random samples taken from all the packs located and they were subjected to Microscopic, Macroscopic and physical tests and all proved positive for cannabis. In addition there was really never any dispute that it was cannabis. 

LOLO MATAELE 

13 plastic bags were found in his pocket. They have been photographed when they were found and clearly show them on the accused person. The accused in a Record of Interview made on the same day as these events, that is, the 8th March 2005, agreed that he was staying at this home and agreed he was there with the other accused when the police arrived. The accused admitted that the cannabis was in his pocket in the 12 packages. He agreed that the other pockets of cannabis were found in the bed of the accused Siaosi 'Amanoni. He agreed that they belonged to him. The cannabis found in his pocket was for selling form the home and he had been doing so since moving into the house in January that year. He said that all 3 of them obtained income from selling the cannabis. 

These admissions are unchallenged. I can see no defence to both charges. Additionally there in the evidence of Lomekina Parma that he was in possession of cannabis. 

The elements of possession are: 

1) Physical custody or control of an illicit drug.

2) Without lawful excuse proof of which lies on the accused. 

3) Knowledge that it was an illicit drug. 

All 3 elements are well established both on the evidence and on the evidence of the accused's own admission. It was never denied. 

I am satisfied beyond reasonable doubt that the accused is guilty of both counts of possession. 

The accused is found guilty and I return a verdict of guilty on both counts. 

SOSEFO 'OTUTAHA 

In the Record of Interview on the 9th March 2005 he agreed that he was home with the other accused when the police arrived to conduct the search. He agreed that cannabis was found but that he only knew about his own room. Thereafter he said he would only speak in Court. He did say to the police that they had the evidence. He has not given any evidence in Court. 

There is no onus on the accused. He was the occupier of this home. It is beyond dispute that the marijuana was found in the bed. There is a strong inference that he was in possession of this marijuana. He has never really denied it other than to say it was not found in his bed room and he would give his evidence in Court; which he has not done. Then additionally there is the evidence of Lomekina Parma who says that she was at the house and that the accused was in possession of the marijuana. The accused does not deny that he had knowledge of the drugs on the premises. All of that evidence establish beyond reasonable doubt in my judgment that he was in possession of the 13 bags found in the bed of his home. I am satisfied as already found that the drugs were cannabis and have been properly analysed as such. I am satisfied beyond reasonable doubt that there is no lawful excuse shown for so being in possession. I am satisfied that he had knowledge that he was in possession of illicit drugs. 

I find the accused guilty as charged and he is convicted accordingly. 

SIAOSI AMANONI 

The accused has objected to the tender of the Record of Interview conducted on the 9th March 2003. 

The grounds of that objection were that the accused, whilst he was a Tongan, he had little understanding of the Tongan language. He said he gave his answers in English and they were translated into Tongan. He denies that he gave the answers recorded. The objection in that it is unfair that the answers were recorded in Tongan and that the Record of Interview was unfairly obtained and that the Record of Interview should be excluded on discretionary grounds pursuant to s 22 of the Evidence Act. 

Firstly I am not satisfied that the accused had a poor knowledge of Tongan. The accused in evidence said that he was 42. He is a Tongan citizen. He was born here. At 6 he said he was taken to Fiji. He came back in 1973 and spent 3 ½ years in High School in Tonga. He was living in Tonga on his arrest. He says he can speak simple Tongan but can't read or write it. The background he gives hardly suggests that he would have a poor knowledge of Tongan. Police Officer Vaea was present at the interview. He says that the accused was asked what language he preferred and he replied in Tongan i.e he said he understood Tongan and was happy for the police to write down his answers. The accused willingly signed the Record of Interview. I accept the evidence of Police Officer Vaea who appeared as an honest and reliable witness and said that the accused understood and spoke Tongan. I have no cause to doubt his evidence. I do not accept that the accused had a poor knowledge of Tongan and I am not satisfied that the Record of Interview was unfairly obtained. 

The Record of Interview of the 9th March 2005 in admitted into evidence.

In that interview the accused said he was staying at the house and he was there when the police arrived. He agreed that accused came to the home and brought marijuana from Sefo 'Otutaha. He said he had seen the marijuana on the bed and the living room before the police came that day. He says Sefo would get it from them when selling it. He agrees it was found on his bed. He says Sefo told him "to tell the police that the drugs were all Lolo's as he appears insane and he was found with drugs on him." 

There is no dispute that the accused had knowledge of illicit drugs on the premises. The drugs were found in his bed. The evidence of Lomekina Parma is that all 3 accused smoked marijuana at the house. She was residing there. The accused has not given any evidence on the trial (although there is no onus on him). 

All of that satisfies me beyond reasonable doubt that there is a strong inference that the accused was in possession of these drugs and that that is the only rational inference that can be drawn in these circumstances. 

I am satisfied beyond reasonable doubt that the accused had physical custody and control of these drugs and that he had knowledge that they were illicit drugs. No lawful excuse for so being a possession has been shown. 

I find the accused guilty of charge and he is convicted.