Prosecutions for illicit drugs in Tonga may be in jeopardy, a judge has warned, after discharging a man charged with possession of methamphetamine, due to the prosecution's failure to admit analyst evidence, at the Supreme Court in Nuku'alofa on August 29. Hon. Mr Justice Cato said legislation is urgently required in Tonga regarding analyst evidence of drug identity.

Ma'ati Voni Lino (47) from Nukunuku was discharged on one count of possession of the illicit drug methamphetamine, after the prosecution could not establish a prima facie case due to its failure to admit analyst evidence to the court.

The accused, who was unrepresented during trial, was charged with possession of 0.4 grams of methamphetamine seized on May 17 by Tonga Police, from a home in Tu’atakilangi.

The judge in a ruling on August 29, discharged Lino after the prosecution, at the end of the case, admitted it could not comply with provisions in Section 36 of the Illicit Drugs Control Act, particularly section 36(2) because it did not serve a required letter.

The provisions of Section 36 provides:

1. In any proceedings under this Act, the production of a certificate purporting to be signed by a scientific analyst shall be prima facie evidence of the facts therein stated; 
2. Such a certificate shall only be admissible under subsection (1) if a copy of the scientific analyst’s certificate has been served by or on behalf of the prosecution on the accused or his counsel at least 28 days before the hearing at which the certificate is to be tendered in evidence and at the same time the accused has been served with a written notice that the prosecution does not propose to call the analyst as a witness;
3. The accused shall give written notice to the prosecution at least 21 days before the hearing that he requires the person who made the analysis to be called by the prosecution as a witness.

"The prosecution cannot consequently rely on the certificate and prove the substance was methamphetamine. Accordingly, it cannot establish a prima facie case and the charge against the accused is dismissed," ruled Mr Justice Cato.

Timely warning

The judge in his view, said legislation is urgently required in Tonga to accommodate the position of analyst evidence of drug identity or else more prosecutions for illicit drugs in Tonga may be in jeopardy.

"This is a timely warning for Tonga. Methamphetamine is becoming more popular and prosecutions are becoming more common for this kind of drug."

He said the practical reality for Tonga is that it will be extremely expensive and sometimes difficult to require an analyst to come to Tonga to give evidence where a defendant does give notice under Section 36(3) that the analyst is required.

In addition, attendance of an overseas analyst can only be voluntary since a subpoena cannot have extraterritorial effect.

In this case, Lino was unrepresented and it was incumbent upon the prosecution to prove the identity of the drug. The fact that he did not know anything about the requirements of Section 36 and may have unwittingly given his consent for the admission of the certificate, by not challenging its admission, cannot be held against him now, he said.

The judge said in cases involving representation by counsel, it may as a consequence of this decision become routine to require the analyst to give evidence because it will be known that a failure to call the analyst, where notice is given, will inevitably mean that the prosecution fails.

Serious consequences

"This may have very serious consequences for law enforcement and the welfare of Tongans if it results in the failure to obtain convictions in drug cases of this kind. In Lino, the amount of the drug was very small, but the consequences will be far more serious in cases of large-scale importations, manufacturing or supply cases."

"Over many years involved with drug prosecutions, I have never seen an accredited analyst successfully challenged as to the identity of a drug. In my view, so long as the laboratory is a properly accredited laboratory for the substance in issue (and this should be covered in the analyst's certificate), the results should be regarded as conclusive on the identity of the drug and the need to call the analyst can be safely dispensed with."

Mr Justice Cato said if this view was considered too rigorous, then an alternative was that the certificate should be admitted without any need to call the analyst as prima facie evidence of the identity of the drug, having been served as part of the prosecution case at committal.