IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

NO. CR. 274/2001

BETWEEN:

REX
Prosecution

AND:

SIOSAIA FATAI TALOA
Accused

BEFORE THE HON MR JUSTICE McELREA

Date of trial: 2 and 3 September 2004
Date of judgment: 3 September 2004

Counsel for the Crown: Mr Sisifa
Counsel for the Accused: Mr Fifita

ORAL JUDGMENT AT TRIAL

The evidence against the accused

The charge against the accused Fatai Taloa is that he possessed marijuana, or Indian hemp, and that he possessed an Indian hemp seed, on 20 September 2001. Such items were found in a room at Vaini (which was referred to as his room) in a house belonging to his parents. He had gone with the police to the property, he was there at the time they were found and he said to the police that these items were his. The accused then went back to the police station and the next day he made a statement in which he acknowledged that they belonged to him. Also in that room, under the bed, was a passport located during the search, and it was his passport. All of those things suggest that the accused is guilty of the charges.

The evidence for the accused 

On the other hand, I have heard evidence from the accused and from a second defence witness, Siosifa Kanavau aged 72, who resided at the same address. I accept his evidence that the accused had not lived at that house (i.e. his parents' home) for many years. He lived at the home of his girlfriend’s parents in the same village, Vaini, although he sometimes visited especially if his two foster children had been staying at his parents' place. According to Mr. Kanavau – and I accept his evidence – the room in which the marijuana and the seed were found (in the back of a television set) was used occasionally by the witness Kanavau (although he normally slept in his own building on that same allotment), sometimes by the accused's sister Neomai, who was in charge of the house in the absence of her parents overseas, and sometimes by grandchildren of the owners who lived in the village and often came and stayed at the house. He said that those grandchildren are aged 18 to 20 years of age.

The accused denies on oath that the marijuana and seed belonged to him. He says that he only claimed that they were his because he was trying to protect his sister who was in charge of the house and controlled it in the absence of their parents. Whilst it is unusual for someone to make a false admission to the police about owning illegal drugs, it is possible for that to happen. The accused said that his passport was there because he left it there, between the mattress and the bed-base in that room. He said they were the only things in that room that belonged to him, and he regarded that as a safe place for the passport. He said it was safer there than at the property where he lived with his girlfriend, which was Tevita Talelima's house.

Weighing up the two accounts of the matter

The evidence of the accused and his witness in my view raises a reasonable doubt about the correctness of the police case. I accept that on the basis of the accused's statement the police were quite right to prosecute. The accused brought this prosecution on himself by making a statement that it was his marijuana, but taking into account Siosifa Kanavau's evidence as well, I believe that the accused's explanation is a reasonable one, and there is at least a reasonable possibility that it is true. There must therefore be a reasonable doubt about his guilt.

Other matters raised by the defence

There were three matters raised in addition that I will mention now only very briefly, about the search pursuant to the search warrant. These were raised by Mr Fifita in his questioning of the witnesses.

Naming of the police officer entitled to execute the search warrant

The first challenge was that the search warrant was addressed to Inspector Hia. This Officer was not present during the search of this house and nor was he the officer in charge of the search of this house. (He was in charge of the search of a tax allotment). I suggest that the Crown might advise the police that they need to take more care about naming the person to whom the search warrant is addressed. It seems that from s 51 of the Magistrates' Courts Act the warrant must "name" one or more police officers. (The position is different in New Zealand where the warrant can be addressed to "every Police Constable".) Unless s 51 is to be amended in this respect it would be wise for the police, in seeking a warrant, to find out which Officer will be in charge of the search of the property identified in the warrant and to name that person.

Premises searched not those stated in search warrant

The second issue with the warrant is that was stated to be a warrant to search "the two dwelling houses belonging to Pinomi Taloa at Vaini where the accused is residing". The house searched did not belong to Pinomi Taloa – and, further, the accused had never resided at the two dwellings of Pinomi Taloa at Vaini. In view of the decision I have already reached it is not necessary to make any decision about whether the search was invalid on that basis.

Reference in search warrant to stolen goods

The third point raised by counsel for the accused about the search warrant was that it referred to "stolen Indian hemp", and the evidence did not relate to stolen goods. I believe the answer to this curious aspect of the warrant, which I have struck once before in a Tongan drugs case, is that the form of the search warrant prescribed by the Magistrates’ Courts Act (see Form 6 of the Schedule to that Act) very oddly refers to goods "which have been stolen". Perhaps this is because the relevant clause in the Constitution (cl. 16) states that no search of another person's house is lawful "except according to law". Clause 16 then continues:

"And should any person lose any property and believe it to be concealed in any place whether house or premises it shall be lawful for him to make an affidavit before a magistrate that he believes it to be concealed in that place and he shall describe particularly the property so concealed and the place in which he believes it to be concealed and the magistrate shall issue a search warrant to the police to search for the property according to the affidavit so made."

Clause 16 of the Constitution thus provides a right to obtain a search warrant for stolen goods. But the search warrant issued normally by the Magistrates are not issued under cl. 16 of the Constitution but under s. 51 of the Magistrates' Courts Act. That section is not limited to cases of stolen goods but applies to "any property upon or in respect of which any offence has been committed". The Crown Law Office may therefore wish to advise the Minister on the need to amend Form 6 so that it follows the wording of s 51 rather than being limited to cases of stolen goods. 

So long as Form 6 remains in its present form, the police cannot be criticised for acting on warrants that refer to stolen goods, but it is a practice that is bound to cause confusion.

Powers of the Court

As to the question whether the search was valid when it was not conducted by Inspector Hia and did not relate to a house owned by Pinomi Taloa (or to one where the accused was residing), I do not need to express a view. The legal position is that evidence is not made inadmissible merely because it has been obtained pursuant to an invalid process – see R v Bowie (unreported, Nuku'alofa Registry, CR. 287A/2001, 7 March 2003, Ford. J). However, if the police conduct themselves in a manner which is unlawful, this Court like any other Court of original jurisdiction has an inherent power to prevent an abuse of its process, and in a bad case – that is, if the police conduct is such that the continuation of the prosecution is an abuse of the Court’s process – the Court has the power to grant a stay of proceedings.

This present case is in my view not a bad case, so I would not have used that power in any event, but it may be timely for the police to be advised that there is a residual power in this and any other Court to dismiss or stay charges on the grounds of abuse of process in a bad case, and therefore it is important that they make the effort to follow the correct procedures as far as search warrants and other procedures are concerned. I say this only in an attempt to be helpful to the Crown for the conduct of future cases, but it does not make any difference to the outcome of this case, which I have decided on the basis of other evidence.

I will provide some legal references on the subject of abuse of process when this decision is typed up.

[See Master Jacob (later Sir Jack Jacob) "The Inherent Jurisdiction of the Court" (1970) Current Legal Problems p 23 especially at pp 32 and 51 as to the inherent powers of courts; R v Sanders [1994] 3 NZLR 450 (CA) as to search warrants generally; and the commentary in Adams on Criminal Law at para CA347.04 as to the Court's power to stay a prosecution for abuse of process:

This term ["abuse of process"] in itself comprehends two different kinds of cases. In the first, the "abuse of process" is found in the fact that in the circumstances it is impossible for a future trial of the defendant to be fair. An "abuse of process" may also occur where the conduct complained of is, in the words of the Court of Appeal in Fox v A-G [2002] 3 NZLR 62; (2002) 19 CRNZ 378 (CA) at p.72; p.388:

"of a kind that is so inconsistent with the purposes of criminal justice that for a Court to proceed with the prosecution on its merits would tarnish the Court's own integrity or offend the Court's sense of justice and propriety."

In Fox there is reference to similar English authority – see e.g. R v Horseferry Road Magistrates' Court, ex p Bennett [1994] 1 AC 42 at 74. While the power to stay is not a disciplinary process and is only exercised in the clearest of cases, it is founded not in local legislation but in the inherent power of any Court to control its own processes, and in my view would therefore apply in this Court.]

For the reasons given earlier in this judgment the charges against the accused have not been proved beyond reasonable doubt and I enter verdicts of Not Guilty on both counts.

NUKU’ALOFA: 3 September 2004

JUDGE