A senior judge has warned that Tonga needs to modify its rules on the use of scientific evidence if it is to fight the sale of methamphetamine successfully.
He said the need for change was urgent and that cases could be lost if laws regarding scientific evidence were not amended.
The Hon Justice Cato made his remarks while discharging a prisoner who had been charged with possession of a small amount of the drug.
(As Kaniva reported at the time, Tevita Soakai and Maʻati Lino were arrested in Kolomotuʻa on May 17 last year with a total of 3.86 grams of methamphetamine. Lino was found in possession of 40 grams of the drug.)
Because the police did not follow the rules regarding the production of a certificate attesting that scientific analysis had clearly identified the substance found by police to be the drug, the judge released the accused, Ma’ati Voni Lino.
Under the rules such a certificate has to be served on the accused at least 28 days before the certificate is used in court as evidence.
The accused was also supposed to notify the prosecution at least 21 days before the hearing that they required the person who made the analysis to be called by the prosecution as a witness.
Because no such letter was served, the prosecution could not rely on the certificate and the case was dismissed.
“This is a timely warning for Tonga,” Hon. Justice Cato said.
“Methamphetamine is becoming more popular in Tonga and prosecutions are becoming more common for this kind of drug.
“It has had devastating consequences for other countries where it has proved to be difficult to control and even more to eradicate, but has only recently acquired a noticeable presence in Tonga.
“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 that the analyst is required. Attendance of an overseas analyst can only be voluntary.
“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.
“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.”
Hon Justice Cato said while the amount of drug involved in the Lino case was very small, the consequences would be far more serious in cases of large scale importations, or manufacturing or supply cases.
The judge said that he had 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,” he said.
As an alternative, the certificate could 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.
Before the defence could dispute the identity of the drug an analyst’s certificate to the contrary should be served on the prosecution no later than a month before trial. This would give the prosecution the opportunity to decide whether it should require its analyst to be present to give evidence, or risk the prosecution failing.
This proposal would have the desired effect of requiring the prosecution to call expert evidence on the identity of the drug only where a plausible case has been raised by the defence.
“In my view, 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.”
The main points
- A senior judge has warned that Tonga needs to tighten its rules on the use of scientific evidence if it is to fight the sale of methamphetamine successfully.
- The Hon. Justice Cato made his remarks while discharging a prisoner who had been charged with possession of a small amount of the drug.
- Because the police did not follow the rules regarding the production of a certificate attesting that scientific analysis had clearly identified the substance found by police to be the drug, the judge released the accused, Ma’ati Voni Lino.
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