Manulevu v R [2024] TOCA 7; AC 17 of 2023 (28 May 2024)

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

AC 17 of 2023
[CR 12 of 2023]

BETWEEN
NOMANI KAMA MANULEVU

- Appellant

AND
REX

- Respondent

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JUDGMENT OF THE COURT
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Court: Randerson J

de Jersey J
Heath J

Counsel: Mr. D. Corbett for the Appellant
Mr. J. Lutui - DPP for the Respondent

Hearing: 22 May 2024
Judgment: 28 May 2024

[1] The appellant was convicted after jury trial of the unlawful export of the illicit drug methamphetamine, and sentenced to life imprisonment. He now appeals against conviction.

[2] It is necessary to say something briefly of the facts. In July 2021, the New Zealand Police and Customs located methamphetamine in a container from Tonga. The Appellant was responsible to its owner for loading it. The appellant was asked by the director of the operation, Ronnie Kivalu to retrieve two bags from a house at Tatakamotonga and load them into the container.

[3] The appellant’s admission to the house was facilitated by contact from Ronnie Kivalu’s wife Jessie Forbes to the occupier Sione Ongolea. He admitted the appellant and the appellant retrieved the bags. They contained the drugs which ended up in the container. The weight of the methamphetamine was 29.7kg.

[4] The bags were in a locked room at the house. The appellant unlocked the room and then locked himself inside. On the evidence of Sione this was for 3 minutes, before emerging with the two bags and locking the door behind him.

[5] In light of the admitted facts, the only issue in the case was whether the appellant was shown beyond reasonable doubt to have known that the bags he retrieved from the house contained illicit drugs of some description. It was a circumstantial case.

What follows addresses the only grounds of appeal which were pursued (grounds 3(a) and 3(c) were not pursued and 4 was added by leave).

The first ground

[6] The first ground of appeal is that the learned trial Judge erred “by directing the jury to the word the ‘significant’ time in the room – 3 minutes is not a significant amount of time”.

The Judge said in his summing-up:

“... significantly they (the Prosecution) say he locked himself in that room for 3 minutes and whereabouts. They say that is significant when you consider the question of knowledge...”

... that is, whether the prosecution established the appellant’s knowledge of the presence in the bags being retrieved of illicit drugs.

[7] The respondent had submitted to the jury in closing, “why did the defendant go into the room... lock the door and stay there for 3 minutes, before coming out? It was because as he suggested it, unsafe because he knew he was getting the bags with illicit drugs in them...”

[8] In referring to the 3 minutes, the Judge was simply recapitulating the prosecution’s final submission. He was not putting a position independently as trial Judge. Mr Corbett for the appellant appeared to suggest that the Judge at least implicitly showed some support for the prosecution’s submission. The Judge’s comments did not however go beyond inviting the jury’s consideration of the point advanced by the prosecution. As he put it, “members of the jury those might be matters you might want to consider.”

[9] In any case, in using the term ‘significant’, the focus was not just on length of time – short or long – but inviting consideration of the appellant’s being alone in the locked room for any appreciable period. The Judge was inviting the jury to consider whether this was a sensible assessment of what was going on.

The third ground

[10] The appellant challenges what the Judge said as follows in the summing-up: “Put all the evidence together and you can be sure he knew there was some form of illicit drugs when he put them in the container”.

[11] The passage in the summing-up begins with the words “Prosecution say...”. In no way was the Judge misleading or overbearing the jury. Immediately following he said: “The defence say the allegation is speculation the text message is totally innocent and you can’t be sure of the case”.

The fourth (added) ground

[12] This focuses on the Judge’s direction to the jury on the standard of proof. The judge said, amongst other things that “the Crown has to make sure (the appellant) knew there was some illicit drug in the bag...” and later, “Have the prosecution made you sure that (the appellant) knew the bags contained illicit drugs...”

Mr. Corbett drew attention to 4 other such references.

[13] The appellant characterizes this terminology as confusing and misleading as to the relevant standard of proof, which is “beyond reasonable doubt”.

The summing-up also contains these relevant statements:

(1) “This is what the prosecution must prove to you beyond reasonable doubt." (page 42. Line 16-17)

(2) “Now you only need to decide as much as necessary to answer the question has the prosecution made you sure on the counts the defendant faces. What I mean you don’t have to decide every issue of the case. Just focus on that one question have the prosecution made you sure about knowledge.” (pare 43, lines 6-11)

(3) “Question you must always ask yourself is have the prosecution proved its case beyond reasonable doubt. What does that phrase beyond reasonable doubt means? It means have they made you sure” (page 43, lines 22-25)

(4) “Members of the jury it is entirely a matter for you. Prosecution say that when you put all the evidence together you can be sure he knew there was some form of illicit drugs in those bags when he put them in the container. The defence say the allegation is speculation the text message is totally innocent and you can’t be sure of the case.” (page 45, line 37-42)

[14] In Onedera v R (1991) Tonga LR 28, the Court of Appeal rejected a challenge to a summing-up which contained this passage:

“This is a Criminal Case and in every criminal case we start from the presumption that the accused is innocent. The Defence does not have to prove anything at all. The prosecution has to prove that she is guilty of these charges and they have to prove every element of each charge to the extent that you can be sure that she is guilty. In respect of each of these charges, if you think that she might be guilty that is not enough and you should acquit her. And even if you think she is probably guilty, that is not enough and you must acquit her. You only convict her if you are sure that she is guilty.”

It will be noted that summing up contained no references to proof “beyond reasonable doubt”.

[15] It would have been plain to the jury from this summing up, listened to in its entirety, that the standard of proof resting on the prosecution was proof beyond reasonable doubt and nothing less. A matter being proved “beyond reasonable doubt” and the jury being ‘sure’ of it, were used interchangeably, as synonyms. This ground of appeal is not established.

Order

[16] There being no risk of a miscarriage of justice arising from the grounds advanced, the appeal is dismissed.

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Randerson J

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De Jersey J

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Heath J