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

CR 101 of 2022

BETWEEN	:		

REX
Prosecution

AND		:		

RAJ KUMAR
Accused

VERDICT

Before: 		Justice P. Tupou KC
Appearances: 	Mr. J Fifita for the Prosecution
		   	Mr. D. Corbett for the Accused
Trial:			31 October, 2022
Date: 			14 February, 2023

The Charge
1.	On 6 September, 2022, the accused pleaded not guilty to a charge of knowingly destroying suspected illicit drugs, capable of being used as evidence in the commission of an offence, contrary to s. 37A of the Illicit Drugs Control Act. 

2.	Section 37A of the Illicit Drugs Control Act states;

“Destruction of evidence in relation to commission of an offence (1) Any person who knowingly conceals or destroys any article, substance, goods or property capable of being used as evidence in relation to commission of an offence under this Act, shall be liable upon conviction to imprisonment for a term not exceeding 15 years. 

(2) An attempt or abetment to commit an offence under subsection (1), is an offence under subsection (1). 

(3) For the purposes of subsection (1), “conceals” or “destroys” includes the ingesting or dissolving or disposing in liquid of any article, substance, goods or property.” 

3.	The particulars of the offence are as below;

“Rajh Kumar of Kolofo’ou, on or about 11 December, 2021, at Havelu, you did knowingly destroy suspected illicit drugs, capable of being used as evidence in the commission of an offence, when you threw a pack containing suspected methamphetamine out of a vehicle and you stomped on it.”  

4.	Prosecution submitted the elements of the charge were;
a)	that the accused;
b)	knowingly destroyed;
c)	suspected illicit drugs; and
d)	capable of being used as evidence in the commission of an offence. 

5.	The elements in contention in this case are restricted to (b) and (c).

6.	Here, as in all criminal cases it is important to identify that:

a)	the Accused is presumed innocent until proven guilty;
b)	the Crown bears the burden of proving each element of the offences beyond reasonable doubt;
c) 	the Accused is under no obligation to give or call any evidence at his trial. 

The Evidence 
7.	The Prosecution produced the following documentary evidence:

a)	Police Diary of action – P1
b)	Movement Diary – P2
c)	Clear plastic pack – P3
d)	TruNarc Scan Report – P4

8.	Four witnesses were called for the Prosecution. Inspector Malolo Vi (“Vi”), has been a police officer for 15 years. He had previously been second in command at the Police Drugs Enforcement Taskforce for 3 years. He currently serves at the Watch House Division at the Nuku’alofa Central Police Station and has been there for over a year. 
  
9.	On 11 December, 2021 he was in charge of the response unit to complaints relating to order in public places. He and 3 other officers including Police Officer Uatahausi Fohe Tomu (“Tomu”), were on road patrol in an unmarked vehicle that day. Vi was seated on the front passenger seat next to Tomu.  

10.	Tomu is 22 years old and has served in the police force for 2 years and the driver. 

11.	The officers were heading back from Veitongo into town on Vaha’akolo Road. At around 2:20pm they were near the Tonga Amateur Sports Association (TASA).  

12.	They spotted Sione Fifita (“Sione”) a known drug offender who was familiar to them. He was standing near a parked car at the mango trees at the intersection near TASA.

13.	‘Afa Manu (“Afa”), a police officer lived across the road opposite TASA. Vi had received information that ‘Afa was involved in selling drugs but had not looked into it. 

14.	Sione was calling out to someone at ‘Afa’s home, asking where ‘Afa was. Someone from the home said that Afa was on his way. Both Vi and Tomu saw and heard this exchange.  As they drove near Sione, he turned and returned to his vehicle. 

15.	Vi suspected a drugs sale was imminent. They turned around and conducted surveillance of Sione’s car and then parked on the right side of the road near a shop facing Sione’s car approximately 20-30 metres away. 

16.	Vi briefed his officers and called Sergeant Finau for back up from Havelu Saafa road to block that route in the event Sione tried to escape. 

17.	Within 5 minutes, Afa drove up and into his next door neighbour’s property. He parked the car there. Tomu said he saw ‘Afa come onto the sidewalk and waved across the road. Sione crossed the road from TASA and exchanged something with Afa and then ran back to his car.

18.	Vi saw a hand through the tanetane bush from which Sione grabbed something and ran back to his car.

19.	The police moved in on Sione’s car. There were 3 people inside. The driver was Tevita Fainga’a, next to him was the defendant on the passenger seat and seated at the back was Sione. 

20.	Vi alerted the occupants of the car they were police officers and that pursuant to ss.12-13 of the Illicit Drugs Act they had the authority to stop and search any vehicle or occupant of such vehicle for drugs. The driver said they understood and a request was made for them to step out of the vehicle. 

21.	While still seated in the police vehicle, about 2-3metres away from Sione’s car,  Tomu saw the defendant put his hand out and drop something out of the car. 

22.	Tomu went up to the car and got the defendant out. When the defendant stepped out, he put his foot on something on the ground and was dragging it with his foot. When he asked the defendant to move his foot, he refused. Officer Tomu proceeded to remove the defendant’s foot and saw the item underneath the defendant’s foot was a small clear plastic, now crushed. 

23.	Vi had also seen the defendant looking at his feet and dragging it up and down on the ground. When he was alerted by Tomu to what was under the defendant’s foot, Vi picked up the small clear plastic bag and tapped it. Some white substance collected to one side. The defendant was informed he will be charged with possession of illicit drugs.  

24.	Tomu searched the defendant and opened the door of the car on the front passenger side. He saw white powder spread on the passenger seat.

25.	A crowd had gathered and Inspector Vi decided to take the defendant and the other 2 occupants of Sione’s car to the police station to complete the search. 

26.	At the Police Station, the defendant told Vi and other police officers that he got the drugs from Sione who got it from Afa. That statement was recorded by Police ‘Officer ‘Otuhouma and signed by Vi, the defendant and Sione. Vi identified the first signature belonged to the defendant, the second signature was Sione’s and the third signature was his. 

27.	Police Officer Minola Pousima has been serving in the police force for over 8 years. She is employed in the Exhibit Unit at the Nuku’alofa Central Police Station. 

28.	She produced P2 and P3. She said she’s responsible for the exhibit register and keeping of the exhibits. The register records the case number in this instant as CR13, the suspect as Rajh Kumar, 31 yrs of Kolofo’ou – item – 1 empty pack. Time of finding was recorded as 1500hrs on 11 December, 2021 at Havelu under “Tanetane Opr”. 

29.	It further records, that it was received by her on 13 December, 2021 and handed over to IP Pale for testing on 17 October, 2022 at 1730hrs and returned to her after testing by IP Pale on the same date at 1745hrs. 

30.	Inspector Leniti Pale has served in the police force for 20 years. He is in charge of the forensic unit and has been certified and trained on using the TruNarc device safely and securely. 

31.	He explained and demonstrated the procedures he undertook in court and confirmed that the testing of P3 resulted in a positive test for methamphetamine. That report was produced as P4.

32.	The defendant called no evidence and closing submissions were timetabled. I later requested further submissions on the application of s. 37B and clarification on issues raised in earlier submissions.  

Submissions

33.	Mr. Corbett’s principal submission was that the defendant’s indictment was deficient because it was brought under s.37A(1) and not (2). I have ruled on this point and held that clause 13(a) of the Constitution allows an alternative verdict and that it applies in this case. 

34.	There was no real challenge to any of the Prosecution’s evidence in relation to the contested elements. 

35.	I am satisfied beyond reasonable doubt that the Prosecution’s evidence established an attempt to destroy illicit drugs. That is, that;

a)	on the relevant day at Havelu, the defendant threw a packet out of the car   he was in;
b)	the said packet contained white substance;
c)	the defendant once out of the car, used his foot to crush the said packet;
d)	the said packet was surrendered into the custody of Officer Pousima;
e)	the said packet was delivered by Officer Pousima to Officer Lenati for          testing;
f)	the white substance in the said packet tested positive for methamphetamine.  

36.	I am also satisfied that the TruNarc Scan Report was properly admitted. 

37.	I am grateful to both counsels for their further supplementary submissions relevant to s.37B of IDCA. I accept the consensus that the burden had remained with the Prosecution throughout this trial.

38.	In his supplementary submissions filed on 24 January, 2023, Mr. Fifita submitted that, should I accept the argument by the defendant that the indictment was bad, then he seeks to amend indictment to read “an attempt to knowingly destroy”. 

39.	In support of this submission he refers to  Police v Matiu Pilikimi He Lotu Faletau as authority and said Lord Chief Justice Whitten noted:

“…c) However, where at any stage of a trial (that is even after verdict), it appears to the court that the indictment is defective, the court must make such order for the amendment of the indictment as the court thinks necessary to meet the circumstance of the case, unless having regard to the merits of the case, the required amendments cannot be made without injustice….

h)	Clause 13 of the Constitution does not itself prohibit alterations of an indictment, provided again that no injustice results to the accused. That is to be contrasted with the situations where, for example, there being no evidence to support a particular count in an indictment, an application is made to amend the charge to an entirely different offence.

j)	Any proposed amendment in matters of description and other respects in order to meet the evidence in the case, or which does no more than take forward a case already laid on the evidence, reformulating it possibly with the assistance of some additional evidence, may be made so long as the amendment causes no injustice to the accused. 
m) The essential question is whether the accused will be prejudiced. 
n) The overall aim must be justice both to the prosecution and the defence.”

40.	Mr. Corbett opposes the proposed amendment and submits that it will prejudice his client. He argues that the defence should know the case it is to meet before trial. 

41.	He submitted that “had the prosecution charged the defendant with attempt then the position would be different as attempt, section 37(A)(2), can be the same as an offence for destruction 37(A)(1) but a destruction cannot be an attempt as the bag has been destroyed there can be no attempt, so the offences are totally different.”

42.	Under the particular circumstances of this case, I agree with Mr. Corbett. It was clear from the outset that his client’s contention was mainly with the charge being made under s.37A (1) and not s.37(2). If I were to amend the indictment at this stage it would prejudice his client. For example, if the charge had been brought under s.37A(2), it may have weighed on his client’s plea.  

43.	Again, as I have earlier ruled, that does not render the Prosecution’s case inherently deficient as clause 13 (a) permits a Court in a situation such as this;

“where the complete commission of the offence charged is not proved but the evidence establishes an attempt to commit that offence the accused may be convicted of this attempt and punished accordingly…”

44.	Therefore, by virtue of Clause 13(a) of the Constitution I find the defendant guilty and convict him for attempting to knowingly destroy suspected illicit drugs capable of being used as evidence in the commission of an offence. 

P. Tupou KC
J U D G E

Nuku’alofa: 14 February, 2023