Meth accused acquitted due to lack of evidence [1]
Monday, September 2, 2019 - 18:46
Pangi Puloka was acquitted of possession of the illicit drug, methamphetamine due to insufficient evidence, in Supreme Court ruling on August 29.
Hon Mr Justice Cato said no prima facie case was established.
Puloka was charged with one count of possession of methamphetamine initially said to be about 0.94 grams but by the end of the prosecution case this amount had decreased to a significantly lesser amount.
The Court heard, a police search on June 1, 2018 was held under the control of a former Inspector Sateki Tu'utafaiva and other police officers.
Police entered the accused’s residence at Hofoa, which was a caravan on his parent’s property to find him sleeping. When the accused came out of the caravan he was searched by police instructed by Tu'utafaiva.
A Constable Fifita saw what appeared to be a small pocket on the front of Puloka's t-shirt and located a small plastic bag of a white substance subsequently identified by the ESR inAuckland to be methamphetamine.
At the close of the Prosecution case, the defence counsel submitted his client had no case to answer.
He contended that the affidavit of Tu’utafaiva lacked sufficiency and there was no basis established to justify the warrant being issued under section 51 of the Magistrate's Court Act, which required a Magistrate to be satisfied that reasonable grounds exist for believing that any property upon or in of which any offence has been committed is in any house or premises.
Inspector Tu'utafaiva who had since left Tonga Police and is overseas in an affidavit, said Tonga Police had reasonable and reliable information regarding illicit drugs, namely cannabis and ice that were kept at this residence.
Warrrantless
Defence submitted that this was an insufficient foundation for grounding a genuine belief in the Magistrate and the search of the premises was illegal.
"What is relevant here is the warrantless search by the police officers of the accused himself that resulted in a small quantity of methamphetamine being found."
The judge, said searches of the person are more intrusive than searches of residences and they may be carried out under section 13 of the Illicit Drugs Control Act, which provides; if a police officer have reasonable cause to suspect that any person has committed an offence under this Act; he may detain or search the person and seize anything under this Act.
The standard of belief required under section 122 of the Police Act, that satisfaction on reasonable grounds, would seem a slightly higher standard than reasonable cause to suspect under the Illicit Drugs Control Act.
The judge, said whichever standard was adopted, the state of mind of the officer who initiated the warrantless search must be more than a hunch.
“The defence counsel said that he wanted to cross-examine Tu'utafaiva on this issue. Probably, fortuitously for the defence, it was known that Inspector Tu'utafaiva had left the police, is overseas and could not be contacted.”
The judge also did not have his evidence before him on the threshold reason for giving the instruction to search the accused. Prosecution however, submitted that he could draw an inference from all the circumstances of the case that Tu’utafaiva had reasonable cause to suspect.
"In the absence of evidence from Inspector Tu'utafaiva as to his reasons for ordering the search, I was unable to conclude that the search was conducted in good faith."
He also cannot speculate about the state of belief of the former inspector's mind.
There being no admissible evidence of methamphetamine for the reasons given, there is no prima facie case established and the accused is acquitted of the charge of possession of an illicit drug, said the judge.