By Linny Folau

Tupou Haupeakui who is charged with possession of equipment in relation to an offence against the Illicit Drugs Control Act was remitted to the Magistrates' Court for re-trial, after his case was dismissed at the lower court.

Hon. Mr Justice Cooper made his ruling on November 19,.

He said the prosecution brought this appeal to the Nuku'alofa Supreme Court against a decision of Magistrate Tu'akalau on 6 July this year, when he declined to allow the prosecution to amend summons before him trial.

The Magistrate acceded to the defence submissions that the summons as worded, did not disclose an offence at law.

This case against the defendant concerned a stop and search and the seizure of a set of weighing scales and six empty packets (dealer bags) on 11 December 2020.

He said on that date, at around 6:50pm the police officer saw the defendant drive off in a yellow car along Vuna Road. 

The officer had been given information regarding the defendant and his location and so was making enquiries, so that the defendant sudden driving off, aroused reasonable suspicion as to the commission of offences under the Illicit Drug Control Act. 

The defendant was detained and the officer, acting without a warrant, searched him and his personal effects, including a bag, where he found the items in question. The accused was then arrested.

“The exhibits were handed over to fellow officers shortly on the scene. It is noteworthy $385 was also seized as well as two straws adapted as scoops for drugs; in one of the officer's view, scissors and a lighter,” Justice Cooper said.

No need to amend

On 8 January two summons were issued in relation to two separate allegations.

The judge said, both contrary to section 5 A Illicit Drugs Control Act, alleging the defendant wilfully and without lawful justification was in possession of equipment to be used "...in relation to an offence against the Illicit Drugs Control Act'', respectively they were (i) the weighing scale and (ii) the six empty packets.

When the defendant appeared before the Magistrates' Court and a trial was heard before Magistrate Tu'akalau on 12 May this year, at the close of the Crown's case, the defendant was not called and a number of submissions were made on behalf of the defendant's counsel, Mr Tu'utafaiva. Defence counsel argued that the summonses were legally inadequate; that there is no such offence under Section 5 A of the Act.

Defence Counsel had argued that the summons stated the possession of the equipment "...in relation to an offence against the Illicit Drugs Control Act." Therefore there was no such offence under section 5 A and no such offence at law.

The judge said, the argument before the Magistrates' Court was that the summons did not state the word "commission" of an offence, but rather what was stated was "...in relation to an offence against the Illicit Drugs Control Act".

“The job of a summons is not to state every aspect of a section, but to clearly identify what the alleged transgression is by reference to the legislation. A summons points to what that allegation is, but it is not there to plead the legislation in every detail because the Magistrates' Court is a court of summary jurisdiction,” he said.

“In addition, if a word from the section in question is misplaced, replaced, missed out or substituted in the wording of a summons, in circumstances such as these, where the statute and section are properly identified, the job of the summons is complete as it has identified the date of the allegation, the nature of the transgression, the person against whom it refers and where and when that person should attend court,” said the judge.

"The case here is for possession of both the scales and the empty bags, in the context of the facts as they were, amounted possession of drug related equipment, so an offence under section 5 A of the Act."

The judge therefore concluded there was no need for any amendment in the first place.

"As there was no need to amend the summons then the case ought not to have been concluded on the ruling as it was."

The defence then conceded.

The appeal was allowed and the case was remitted back to the Magistrate's Court for a re-trial before another Magistrate.