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

CR 74 of 2021
CR 76 of 2021

REX
-v-
[1] ‘ATAPANI PANGI
[2] MANU HUNI

REASONS FOR VERDICT

BEFORE:	LORD CHIEF JUSTICE WHITTEN QC
Appearances:	Ms ‘Aholelei for the Prosecution
	Both accused in person
Date of trial:	8, 9 June 2021
Date of verdict:	9 June 2021

The charges
1.	By indictment dated 12 April 2021, ‘Atapani Pangi, Matangi Fetu’u’aho and Manu Huni (whom hereafter I will refer to for convenience simply by their first names) are charged with the following offences, alleged to have occurred don 28 December 2020 at Fo’ui:
(a)	count 1 - all three jointly – possession of 183.3 grams of cannabis contrary to s 4(1)(a)(ii) of the Illicit Drugs Control Act (“the Act”);
(b)	count 2 -  ‘Atapani and Matangi - possession of 37.7 grams of cannabis contrary to the same provision;
(c)	count 3 - Manu - unlawful possession of utensils, in the form of three aluminum cans used to smoke in cannabis, contrary to s 5A of the Act; 
(d)	count 4 -  Manu - knowingly permitting his house to be used for the commission of an offence, namely, possession of cannabis; and
(e)	count 5 - Matangi - possession of 1.16 grams of cannabis.
The Act
2.	Section 4(1) of the Act provides, relevantly, that any person who knowingly without lawful excuse, the proof of which shall lie on him, possesses an illicit drug, commits an offence. Further, pursuant to recent amendments to the Act, which came into force on 8 December 2020, and which therefore apply to this indictment, possession of a class B drugs (which includes cannabis) of 7 grams or more is now deemed to be supplying. The new s.5A provides, relevantly, that any person who knowingly, without lawful excuse, the proof of which shall lie on him, possesses utensils capable of being used in the commission of an offence under the Act, commits an offence. The new s.5B creates an offence of knowingly permitting any place, relevantly, to be used for the commission of an offence under the Act. 
Procedural history 
3.	On 26 April 2021, Matangi pleaded guilty to all counts against him on this indictment and in another proceeding. He was sentenced 1 June 2021. 
4.	On 26 April 2021, ‘Atapani and Manu pleaded not guilty to all counts on the indictment. 
The trial
5.	The trial of these proceedings commenced on 8 June 2021. Both accused confirmed that they had received and considered the Court’s information guide for self-represented Defendants in relation to the criminal trial process.
6.	At the conclusion of the evidence and submissions, on 9 June 2021, I delivered my verdict ex tempore. This is the transcript of the reasons for verdict, edited as to form only, not content.
7.	At the outset of the trial, two documentary exhibits were tendered by consent. Exhibit P1 comprises 15 photographs of Manu’s residence in Fo’ui and depicts scenes within mainly the living room where quantities of cannabis and plastic packets were found on the floor a few metres away from a bed against a wall with a pink blanket on it to which I will refer later. Photographs 5, 6 and 7 depict a black plastic bag containing cannabis. That and the cannabis found in the living room is the subject of count 1 on the indictment. Photographs 9, 10 and 11 depict the back area of the house where again cannabis is shown on the floor together with other plastic packs. That cannabis is the subject of count 2. Photographs 12, 13 and 14 depict aluminum cans which have been dented to create a valley with a black scorch mark in the middle of those depressions. Photograph 15 depicts an outdoor kitchen area in which the Crown adduced evidence that one of the three cans alleged as being utensils against Manu was found. 
8.	Exhibit P2 is a sketch of the floor plan of Manu’s residence, marked with the locations of various items and persons found during the police raid. 
9.	Also at the commencement of the trial, both accused admitted that the substances found and seized by the police on the day in question at Manu’s house were cannabis. 
10.	Ms ‘Aholelei for the Crown indicated, that from her discussions with the accused,  the real issue for determination was possession.
“Possession”
11.	The Crown is required to prove each of the elements of each of the offences beyond reasonable doubt. In relation to the possession of cannabis, counts 1 and 2, the elements are:
(a)	physical custody and control of an illicit drug;
(b)	without lawful excuse, proof of which lies on the defendant; and
(c)	knowledge that was an illicit drug. 
12.	An elaboration of those elements is contained in the recent decision of Acting Judge Langi in R v Uasike 2020 TOSC 88, where Her Honour stated:
“23. To have possession of something requires the person to have physical custody or control over it plus the required knowledge of its presence.
24. The legal meaning of the word ‘possession’ was set out by Ford J in R v Motuliki [2002] TOSC 22; CR 92/01 (24 May 2002) as:
“Archbold, 2001 edition, deals with the situation where drugs are found in premises occupied by or associated in some way with an accused. After referring to the authorities, the text states (para 26.61):
“A person is in possession of something when he has knowledge of its presence and some control over it; but he would not have possession unless he either knew, or the circumstances were such that he had the opportunity, whether he availed himself of it or not, to learn or to discover in a general way, what the items were”.
25. That reference still stands in Archbold 2005 at para 26-61, and it is clear from other cases referred to in Archbold that direct proof of knowledge is not essential and that it may be inferred or imputed from the circumstances. It has been said that possession ‘is defined by modes or events in which is commences or ceases, and by the legal incidents attached to it’: Lord Wilberforce in Warner v Metropolitan Police Commissioner [1968] 2 All ER356, 392 (HL). Explaining that further, Lord Wilberforce said (at 393):
“By [the modes and events] I mean relating to typical situations, that [the jury] must consider the manner and circumstances in which the substance, or something which contains it, has been received, what knowledge or means of knowledge or guilty knowledge as to the presence of the substance, or as to the nature of what has been received, the accused had at the time of receipt or thereafter up to the moment when he is found with it, his legal relation to the substance or package (including his right of access to it). On such matters as these (not exhaustively stated) [the jury] must make the decision whether in addition to physical control, he has, or ought to have imputed to him the intention to possess, or knowledge that he does possess, what is in fact a prohibited substance”
26. That approach was upheld by Lord Scarman in R v Boyesen [1982] 2 All ER161, 163 (HL). Similarly in R v Lewis (1988) Cr App R 270 (CA), it was again held that the question to be answered was whether on the facts the accused was proved to have or ought to have imputed to him the intention to possess or the knowledge that he did possess what was in fact a prohibited substance. It was not necessary to be satisfied that the accused had actual knowledge that he had the drugs in question under his control before he could be convicted.
27. In the case of R v Cox [1990] 2 NZLR 275, Hardie Boys J clearly explains the two elements of ‘possession’. The first is the physical element and it is actual physical custody or control. The second is the mental element or the element of mens rea which is a combination of knowledge and intention: knowledge in the sense of an awareness by the accused that substance in his possession (often inferred or presumed) and the intention to exercise possession.”
13.	The Court of Appeal’s decision in Lasike v Rex [2012] TOCA 1 at [19] to [21] is also instructive.
The evidence
14.	The Crown called evidence from six police officers. 
Antonio Tu’ivai 
15.	Antonio Tu’ivai is an intelligence officer with the Drugs Enforcement Taskforce. He gave evidence that on the day in question he received reliable information from an informant concerning Matangi selling cannabis from his home at Te’ekiu. The officer explained that he considered the information reliable because he had worked with the informant on between eight and 10 previous operations, all of which, proved successful from the informant’s information. 
16.	A group of task force officers was assembled and they proceeded to Matangi’s residence. When they arrived, they were told that Matangi had gone to Manu’s residence at Fo’ui. The police then went to Manu’s residence at Fo’ui and conducted a search of the house. Officer Tu’ivai confirmed that what was found during the search was as depicted in the photographs comprising exhibit P1. 
17.	Officer Tu’ivai was not cross-examined by either accused. 
Tevita Pohiva 
18.	Officer Tevita Pohiva was also involved in the search. Importantly, Officer Pohiva said that when he entered the residence, through the front door into the living room, he saw Manu on a bed inside the living room looking at ‘Atapani and Matangi who were putting cannabis leaves inside packets. ‘Atapani and Matangi got up from the living room and ran towards the back, at which point, packs of cannabis were thrown outside at the rear of the house. 
19.	After gathering the cannabis in the living room, Officer Pohiva and a number of other officers searched the whole house. He confirmed that the aluminum cans depicted in photos 12 to 14 were found in Manu’s bedroom. 
20.	‘Atapani cross-examined Officer Pohiva and put to him that he, ‘Atapani, did not run out the back because he was already standing at the back door. Officer Pohiva rejected that and confirmed that he saw ‘Atapani running towards the back with Matangi. 
21.	Manu did not cross-examine Officer Pohiva. 
Litili Televave 
22.	Officer Litili Televave was also one of the officers who searched the house that day. He informed Manu why the officers were there and that they were authorized pursuant to s 24 of the Act to search the house without a warrant. He said that Manu understood what he was told, and the search was conducted. However, before embarking upon the search, Officer Televave said that he searched his own officers to ensure that they had nothing on them because of previous operations in which police had been later accused of bringing drugs into a scene. He confirmed that none of the officers had any contraband on them. 
23.	Officer Televave said that ‘Atapani and Matangi were apprehended by officers who had gone around the back of the house. When questioned, Matangi admitted that the drugs were his, whereas, according to Officer Televave, ‘Atapani denied that they belonged to him. Both were then cautioned and arrested. Officer Televave also confirmed the cannabis and packs found within the house and at the back area as depicted by the photographs in exhibit P1. 
24.	All three accused were brought back into the living room as depicted in photograph number 3. He asked all three about the cannabis. He asked Manu if he had seen the cannabis, what it was and to whom it belonged. Manu answered that it was marijuana and that it belonged to Matangi and ‘Atapani. The officer also asked ‘Atapani who the drugs belonged to and he said that they belonged to Matangi. 
25.	During the search of the rest of the house, the aluminum cans were found and Manu admitted that they were his. He confirmed also that Officer Vea found a third aluminum can used for smoking cannabis in the outdoor kitchen shown in photo 15. 
26.	Officer Televave was then asked about the diary of action kept by police as a result of the operation. Entries 1 to 18 of the diary for the relevant day were tendered, without objection, and marked exhibit P3. After refreshing his memory from the diary entries, the officer confirmed that the entries were correct. Entries  15 and 16 recorded the following: 
“15. Detective Pohiva found cannabis leaves and packs of cannabis that are on the floor of the living room of the house. Detective Televave informed Manu of his right to remain silent and that he was free to answer or not any questions asked of him. Detective Televave asked Manu what are the things thrown on the floor of the living room and Manu said it was marijuana. Detective Televave asked Manu who it belongs to and he stated that the marijuana belonged to Matangi and Ata. 
16. Detective Televave asked Ata what are the things on the floor and he answered it was marijuana. Detective Televave asked Ata who it belongs to and he stated that it belonged to him and Matangi.” 
27.	Both those entries were signed by all the accused. The officer said he witnessed ‘Atapani sign the entries. Neither ‘Atapani nor Manu suggested otherwise during the trial. 
28.	Officer Televave was cross-examined by ‘Atapani although his question proceeded from an incorrect assumption that the officer had earlier given evidence that he saw ‘Atapani running outside. The officer’s evidence in chief was that he was later told by other officers, who had intercepted ‘Atapani, that he had run outside. 
29.	Manu did not cross-examine Officer Televave. 
Emily ‘Otuhouma 
30.	Officer Emily ‘Otuhouma gave evidence as to the entries in the police search list for the operation. A copy of that search list was tendered, again without objection, and marked exhibit P4. The list was signed by Sergeant Televave, as the officer in charge, and receipt of the list was acknowledged by the signature of Manu, as the occupant of the house. 
31.	Officer ‘Otuhouma was not cross-examined by ‘Atapani.
32.	Manu cross-examined Officer ‘Otuhouma in relation to the aluminum cans and put to her that he used them to smoke Tongan tobacco. The witness responded that using such cans for smoking cannabis was, in her experience, what police officers usually encountered. 
33.	In re-examination, Officer ‘Otuhouma confirmed that no tobacco was found during the search, and that if any had been found, it would have been recorded on the search list. 
Sione Vea 
34.	Officer Sione Vea, again, from the Drug Enforcement Taskforce, said that when the police vehicle entered the property, he could see through the front door, two persons in the living room stand up and run. Officer Vea went directly around to the back of the house and stood on the edge of the concrete in front of the back door. From there, he intercepted ‘Atapani running through the back door. At that point, Matangi ran into the back of ‘Atapani and packs of cannabis dropped to the ground but he could not say for sure who dropped them. 
35.	Officer Vea was also one of the officers who found the two aluminum cans in Manu’s bedroom and the third in the outdoor kitchen. When asked whether he could identify whether the cans had been used for smoking cannabis, he explained that from his previous experience of similar operations, he had come across cans, in a similar physical condition to the three in this case, which had been used for smoking cannabis. He added that such cans also had a scent confirming that they had been used for smoking illicit drugs. He smelled the three cans in this case and confirmed that they had been used for smoking cannabis. Officer Vea also confirmed that no Tongan tobacco was found in the house. 
36.	In cross-examination ‘Atapani put to Officer Vea that he, ‘Atapani, was already standing outside the house, that two officers apprehended him and placed him on the ground, then Matangi came, slipped and crashed into them and that’s when the packs dropped onto the ground. Officer Vea rejected that version and confirmed that when he got to the back of the house, ‘Atapani had not yet come through the door. He confirmed that he was standing on the edge of the concrete directly opposite the back door as shown in photo 11. 
37.	Manu did not cross-examine Officer Vea. 
Minola Posima 
38.	Officer Minola Posima is the exhibits officer at Central Police Station. She produced the Register of Exhibits and identified the entries for 29 December 2020 and the list of items which were deposited as exhibits in this matter including cash, cannabis and utensils. The exhibit register entries for this case were tendered without objection and marked exhibit P5. 
The accused
39.	Following the close of the Crown’s case, both accused elected not to give or call any evidence. 
Closing submissions 
Crown
40.	Ms ‘Aholelei summarized the evidence much as above. In relation to count 1, as against Manu, Ms ‘Aholelei submitted that an inference could be drawn that, at some stage, Manu had control over the cannabis because he allowed his house to be used by the others to pack the drugs. 
41.	With that and a summary and analysis of the evidence, Ms ‘Aholelei submitted that the Crown had established beyond reasonable doubt the elements of all four counts. 
‘Atapani 
42.	In his closing submissions, ‘Atapani denied that any of the cannabis belonged to him and that it only belonged to Matangi. He also repeated that he did not run out the back of the house but that he was just standing at the back door. 
Manu
43.	During his closing submissions Manu maintained that he was not guilty of the charges against him. However, for the first time, he asserted that:
(a)	he did not give ‘Atapani or Matangi permission to enter his house;
(b)	they entered the house just before he got there; and
(c)	he did not know that there was cannabis in his house.
44.	Manu also confirmed that the aluminum cans the subject of count 3 were his but explained that sometimes he runs out of cigarette papers so he uses cans for smoking tobacco. 
Crown’s reply
45.	By way of reply, Ms Aholelei submitted that Manu’s assertion that he did not give the others permission to be in his house should be rejected because, she said, Manu did see them and the cannabis and he did not attempt to “chase them out”. 
Consideration
46.	Having seen and heard each of the witnesses who gave evidence on behalf of the Crown and having closely considered the five documentary exhibits tendered during the trial, I accept, without reservation, the Crown’s evidence. The evidence of all six officers was credible and reliable and was undamaged by any attempted cross-examination by either accused. The oral evidence was also supported by the documentary evidence, particularly, exhibits P1, P2 and P3. 
47.	Even though no issue was raised by the accused about the lawfulness of the search without a warrant, having regards to the requirement in s 24 of the Act, I am satisfied on the evidence that police had reasonable grounds to suspect that it was necessary in order to prevent the concealment, loss or destruction of anything connected with an offence under the Act, which, in this case, was the cannabis, and that the circumstances were of such seriousness and urgency as to require the immediate exercise of the power to enter and search without the authority of a warrant. 
‘Atapani 
48.	In relation to counts 1 and 2 against ‘Atapani, I make the following findings on the evidence which I have said I fully accept:
(a)	He was present at the house when the police arrived. 
(b)	He was sitting in the living room with Matangi putting cannabis in the plastic packs. 
(c)	As the police entered the house, he got up and ran towards the back door. 
(d)	Once there, Matangi ran into him and packs of cannabis fell to the floor. 
(e)	‘Atapani admitted to police that the cannabis belonged to him and Matangi. 
49.	I am therefore satisfied, beyond reasonable doubt, that in respect of counts 1 and 2, ‘Atapani, jointly with Matangi, had the requisite knowledge and control over the cannabis to constitute the offence of possession of cannabis. Accordingly, I find ‘Atapani guilty on both those counts. 
Manu
50.	In relation to Manu, I do not accept his unsworn statement from the bar table in closing submissions that he did not know there was cannabis in his house. I am satisfied beyond reasonable doubt that he was present in the living room in his house while the other two were putting cannabis in the packs. He was found sitting right in front of them, staring at them. There is no evidence that the other two was trespassing or that Manu tried to distance himself from what they were doing. I am satisfied therefore that he had full knowledge of the existence of the cannabis in his house that day. 
51.	However, similar to the case of R v Tu’itavake [2007] Tonga LR 180, even though the cannabis was in Manu’s house while he was there and he had knowledge of it, I am left on the evidence with doubt about whether he had sufficient control over the drugs to impute to him, beyond reasonable doubt, an intention to possess the drugs. There is no evidence of any actual dealings between he and ‘Atapani or Matangi in relation to the cannabis found that day. Had there been, then perhaps a prosecution for an offence under s 4(1)(b) - engaging in dealings with others for the possession of an illicit drug - may have been opened. But that is not what he was charged with. Nor did the Prosecution apply to amend the indictment. 
52.	It is also curious that apart from the recently inserted s 37A, the Illicit Drugs Control Act does not contain any provision comparable to that found in Part II of the Criminal Offences Act in relation to offences involving abetment. 
53.	That being the state of the legislation, and the evidence in this case, I must therefore find Manu not guilty and acquit him on count 1. 
54.	In relation to count 3, I am satisfied on the evidence beyond reasonable doubt, and thus find that:
(a)	two of the cans were found in his bedroom and the other one was found in his outdoor kitchen;
(b)	Manu admitted that the three cans in question belonged to him; and
(c)	as Officer Vea testified, from his experience, the cans were capable for use in smoking cannabis and that, from smelling them, they had the scent of having in fact been used for smoking cannabis. I reject Manu’s unsworn statement from the Bar table that the cans were used for smoking tobacco. The police did not find any tobacco in the house. 
55.	Accordingly I find Manu guilty on count 3. 
56.	In relation to count 4, I also reject Manu’s unsworn statement that he did not give ‘Atapani or Matangi permission to be in his house. As I have already determined, Manu was found sitting in front of the other two while they were putting cannabis in the pack. There was nothing in the admissible evidence which I have accepted to suggest that Manu did not permit them to be there or to be doing what they were doing. 
57.	For those reasons, I am satisfied beyond reasonable doubt that Manu knowingly permitted his house to be used by ‘Atapani and Matangi for possession (and deemed supply) of cannabis. He is therefore convicted of count 4.
Verdict
58.	For those reasons:
(a)	‘Atapani is found guilty on both counts 1 and 2; and
(b)	Manu is found not guilty on count 1 but guilty on counts 3 and 4.

NUKU’ALOFA		M. H. Whitten QC	
9 June 2021		LORD CHIEF JUSTICE