R v Ta'ai [2022] TOSC 15; CR 127 of 2021 (31 March 2022)

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

CR 127 of 2021

REX

-v-
Fili Langi TA’AI

JUDGMENT

BEFORE: THE HONOURABLE COOPER J
Counsel: Mr. T. ‘Aho for the Prosecution
Mr. S. Tu’utafaiva for the Defendant
Date of Judgment: 31 March 2022

1. The case was opened in Tongan and the Court followed the English language opening note.
2. There was an application to amend the indictment in relation to the date. There being no objection the date was amended to 13^th may 2019.

Officer Siosateki Vainikolo

3. He was the investigating officer in charge of this case. He had been part of the team of officers who had conducted a search of the Customs’ facility at Ma’ufanga and was present when the suspected drugs were found. That was on 10^th May 2019.
4. Exhibit 1 (a) – (c) were produced, three photographs of the suspected drugs and the containers they had been in, taken on 10^th May.
5. The suspected drugs were wrapped in plastic and formed 5 packages, they had been recovered from two “Oxi clean” washing powder buckets, where they were hidden with washing powder over them.
6. This officer stated he and his colleagues worked with Custom’s officer to determine who the suspected drugs were destined for.
7. He then stated that there was a plan to take them to a quarry at Mataki’eua. He understood that came about after Customs officers contacted the intended recipients of the drugs, that being done through Facebook messenger and a phone call. He did not elaborate.
8. First the suspected packages of drugs were removed leaving only washing powder inside. The buckets were taken to Mataki’eua on 15^th May 2019 and police officers lay in wait for who would collect them. The police set up their surveillance at about 1900 hrs.
9. The old quarry was where the buckets were left. There were two old vehicles there. The buckets were left in one.
10. The person dropped them off and left, then police then took their positions. This officer could not see the vehicle the buckets had been left in from his position. Though he was aware of other officers circling the general area.
11. There was a time when he became aware of a car coming to their area. It then was dark and he could not see how many people were inside.
12. The car left, it evaded police attempts to stop it; the police ran from their positions but it sped off. The buckets had been taken.
13. Then, moving on, at a later occasion this officer was responsible for collecting from Tonga Communications Corporation (TCC) the paperwork that was the result of the warrant 53/19 that had been issued.
    

Cross-examination

14. Officer Vainikolo could not confirm what date he had taken over as the officer in charge of the investigation. It was after the initial search and seizure of the suspected drugs. He could not recall who was initially in charge.
15. He was not aware of an officer searching the consignment at the Custom’s office in Ma’ufanga the day before, on 9^th May 2019. He was not aware of any statement by an Officer Punaivaha.
16. Officer Taufa had been in charge and had instructed them to attend the Custom’s office in Ma’ufanga.
17. According to this officer, Officer Vainikolo, the suspected drugs should never have been taken from the bucket and it would have been more prudent to leave them there for the purposes of the operation.
18. He was asked more about this but would only reply by saying he stood firm with his previous answer.
19. He was asked if the suspected drugs were stored securely after the police seized them, he would not answer.
20. He repeated that the suspected drugs should not have been removed from the buckets they were found in.
21. Asked if the suspected drugs had been seized by the police and taken to their office, all he would answer was that in a police operation any item suspected of being connected to criminal activity should be retained.
22. Asked if the 5 packages of suspected drugs were taken by him to the police station, all he would say was that he would answer if he was forced to.
23. When he left the venue the buckets were still there. He then repeated that the suspected drugs should have been left inside.
24. He then stated that to his mind, that was the best thing to do in case a mistake was made, as had happened in this case.
25. He was not asked what he meant by that.
26. The officer was asked about the time from 10^th May to end of May 2019 and whether the drugs had been stored securely at the police station during that time. He answered by say once again that the packages of suspected drugs should have been left in the buckets. He stated that the officers did their work and all the items ought to have been stored in the police station.
27. He confirmed again that the date the buckets were taken to Mataki’eua was 15^th May 2019.
28. Asked again about the contents of those buckets when they were taken to Mataki’eua, he stated that the things inside should have stayed inside but he could not give a direct yes or no as to what the contents had then been.

Re-examination

29. Officer Vainikolo repeated that the items discovered in the buckets should not have been taken out.
30. He then one more repeated this.
31. He confirmed any item seized and suspected as being part of a criminal offence ought to be taken and stored at the police station.
32. He stated that he had seen again these packages of suspected drugs at a time after their initial seizure, but was not any more specific than that.

Inspector Pale

33. He is the officer in charge of the forensic unit and familiar with Operation “Rader”. It was a drug operation and he had taken the exhibits in question from Tonga to New Zealand to The Institute of Environmental Science and Research (ESR) for then to be forensically examined.
34. He confirmed that he was present when the photographs exhibits 1 (a) to (c) were photographed at the Custom’s Office in Ma’ufanga. He had written the labels shown in those images. He was not present when the items had been discovered.
35. This officer weighed the items before taking them to New Zealand.
36. They had been packaged in a manner whereby the suspected drugs were in plastic Ziplock bags and those had been wrapped in layers of plastic, sometimes two and sometimes three layers.
37. He pointed out the off white substance seen in the photographs that was the suspected drugs. He then stated that to weigh them he unwrapped the plastic and weighed the suspected drugs inside their respective Ziplock bags.
38. He was shown the form “Exhibits for Laboratory Examination” which was dated 21^st June 2019 as the date that he had taken 5 suspected packages of methamphetamine weighing 2146.94 g and delivered them to Miss Hannah Partingdon at 1915 hrs that day, who works for ESR who had signed for their receipt in front of him.
39. The form became exhibit 2.
40. He started that the Operation name marked on the form was “Rader”
41. The form actually has typed in that section the words “Raider Operation” which is crossed out and in manuscript written what looks like “RADAE”.
42. He stated that the weight, 2146.94 g, reflected the weight of the suspected drugs inside their respective Ziplock bags.
43. He agreed that in the Diary of Action Officer Pohiva had on 13^th May 2019 noted the total weight of suspected drugs to be 2287.12g.
44. This was something outside this officer’s immediate knowledge and so he could not explain that.

Cross-examination

45. He had arrived at Customs to find Officer Punaivaha was already there. The blue drum that contained the 2 Oxi washing powder buckets, that in turn contained the 5 packages of suspected illicit drugs, was marked for the attention of Seluni Iloa, whom he was later told was a Customs Officer.
46. On the lids of each of the washing powder buckets was marked the name “Semisi Masila” and the phone number “773532”.
47. It was the job of the Task Force to label and secure the exhibits.
48. This officer could not confirm that the 5 packages of suspected drugs he saw at the Customs’ Office in Ma’ufanga were taken to the police station as he had left before they were taken away. It was the responsibility of the Task Force.
49. He was unaware if Officer Pohiva had weighed these items on 10^th May 2019.
50. He had weighed them with Officer Fusikata on 15^th May 2019 and another officer had made the relevant entry in the Diary.
51. Entry 52 at 2143 hrs stated that Pale weighed exhibit 1.1 512.33 g. Pale unwrapped wrappings and sealed again. It was weighed by Fusikata 457.89 g. That process completed at 2151 hrs. From that description it is not clear whether the weight included the Ziplock bag.
52. He could not recall if the Ziplock bags used were the same size in each package.
53. The officer was then asked about the two different weightings of suspected drugs, the weighing by the Tongan police and the weighing at ESR.
54. Exhibit 1.1 police weight 458.09 g, ESR weight 445.2 g the difference in weights was 12.89 g and he ascribed that to being the weight without the Ziplock bag, the suspected drugs having been weighed within the Ziplock then decanted and weighed on their own.
55. Exhibit 1.2 police weight 335.42, ESR weight 324.1 g a difference of 11.3 g.
56. Exhibit 2.1 police weight 451.85 g, ESR weight 446.1g a difference of 5.74 g.
57. Exhibit 2.2 police weight 450.07 g, ESR weight 444.1 g a difference of 5.97 g.
58. Exhibit 2.3 police weight 451.72, ESR weight 445.5 g a difference of 6.22 g.
59. Across the 5 separate packages that was a cumulative difference of 41.92 g.
60. The officer ascribed the differing weight differences to the Ziplock bags; their size and quality and thickness.

Re-examination

61. There was none.

Tevita Savieti

62. He currently lives in Mangaia he comes from Ngele’ia and knows the defendant Mr. Fili Langi Ta’ai. At the time we are concerned with he worked for him. Mr. Ta’ai ran a car rental business and Mr. Savieti work included jobs like cleaning the cars or depositing money at the bank for his boss.
63. In May 2019 Mr. Savieti had a mobile phone with the number 7714646. Mr. Ta’ai had the telephone number 7792824.
64. On 13^th May 2019 Mr. Ta’ai telephoned Mr. Savieti. That day there were 10 calls between them he thought. He asked Mr. Savieti to come and bring Mr. ‘Atunaisa Tupou’ata as he wanted to show him something. He came from Tatakamatonga.
65. He was told by Mr. Ta’ai about the location of the old loader and a yellow car near it at Mataki’eua and that in that car he would find two buckets with something inside them. They were to retrieve the buckets and bring them to him.
66. He told him there was “Ice” in the buckets. That is to say, methamphetamine.
67. First Mr. Savieti and Mr. Tupou’ata drove to Mataki’eua, to the quarry and located the vehicle in question. They simply drove past and did not stop so as to see whether there were buckets inside or not. They then reported back to Mr. Ta’ai. They told him what they had done, he told them to go and get the buckets before something happened to them.
68. They returned later that night about 2200 or 2300 hrs, this time taking Mr. Tupou’ata’s brother, Mesui. They went there in one of Mr. Ta’ai’s cars that Mr. Savieti drove. During this time there was no contact from Mr. Ta’ai.
    
69. As they arrived at the quarry they told Mesui to get out the car, seemingly to act as look out. They then drove to the yellow car. Mr. Tupou’ata found the buckets and put them in their car. Then they saw the flash of lights and a lot of people and they feared the worst; the police were going to catch them. They fled in their car not even stopping to pick up Mesui, they were so scared.
70. They escaped capture and drove to Tatakamatonga. Mr. Ta’ai telephoned them as they were driving there. They told him they had the buckets but the police had arrived. They went to Tatakamatonga to get as far away from the Police as possible and also to have the opportunity to look inside the buckets.
71. When they arrived, that is what they did, but found only washing powder inside. They then did not know what to do and Mr. Savieti called Mr. Ta’ai. Mr. Ta’ai then asked to speak to Mr. Tupou’ata and after that he did not hear what Mr. Ta’ai said. He then poured the out the washing powder and threw the buckets away.
72. They stayed at Mr. Tupou’ata’s home lying low there.
73. Eventually he turned himself into the police, they had been in touch with his parents and got his number; he knew something had gone wrong.
74. He had got in touch with Officer Vi, seemingly trusting him as they had grown up together in Afa.
75. He confirmed he had signed an agreement, dated 27^th March 2021, with the police to offer his cooperation and give truthful evidence against Mr. Ta’ai.

Cross-examination

76. The events he recounted had taken place 13^th May 2019. On 12^th he had been at his residence in Ngele’ia and on 14^th he was at the police station being charged with an offence in relation to 13^th.
77. He had been charged with and pleaded guilty to an offence of possession of Ice, he said.
78. He had been told by Mr. Ta’ai to retrieve the Ice with Mr. Tupou’ata and bring it to him.
79. Instead they drove to Tatakamatonga, taking the back roads, going via Lomaiviti and Tokomololo, so taking them in the opposite direction to where Mr. Ta’ai lived in Puke. That is all Mr. Savieti would say when challenged that there had, in fact, been no arrangement with Mr. Ta’ai involving him in any plan to possess illicit drugs.
80. They had brought Mesui with them because they were scared and they reckoned on safety in numbers.
81. They had assumed it must be the police at the quarry because they knew what they were involved in and the numbers of people who appeared. He thought he may have also heard a gunshot.
82. The police did not show him the Ice they were charged in relation to.

Re-examination

83. There was none.

Superintendent Taufa

84. He is Acting Commissioner of Police. He knew of “Operation Rader”. The person of interest identified was Mr. Ta’ai. He was arrested at Fua’amotu international airport having travelled from New Zealand.
85. Upon arrest he was searched and from his baggage were recovered 4 pieces of paper. He produced those documents and they became Exhibit 3 (a) – (d). They are photocopied with the agreed translations at pages 13 – 16 of the booklet and pages 10-12 respectively.
86. The search was conducted by Inspector Vi and a Customs’ officer, Officer Cokanasiga.
87. Superintendent Taufa arrested Mr. Ta’ai.

Cross-examination

88. He was arrested for importing illicit drugs.
89. He could not recall the date, but it was in 2019.
90. It related back to the operation at the Customs’ facility in Ma’ufanga. He had been present on the occasion of the search and seizure there on 10^th May 2019. The 5 packages recovered had been taken back to the police station.
91. It was on 15^th May 2019 that the buckets were taken to Mataki’eua.
92. He confirmed he was in charge of this investigation.
93. The Diary of Action at entry 22, timed 1821 hrs noted that Acting Superintendent Taufa had briefed a number of officers in relation to a “controlled delivery”.
94. Those officers were instructed to go to Mataki’eua and told to wait for whomsoever came for the buckets.
95. The buckets were placed there, he thought, by Seluini ‘Iloa a Custom’s officer and the person to whom the drum shown in Exhibit 1 (c) was addressed.
96. He did not recall the name Semisi Masila being on the lids of the washing powder buckets.
97. The plan was that whoever retrieved the buckets would be arrested. They would be charged upon those exhibits found, but there were no exhibits in the buckets.
98. The following evidence was adduced by way of agreement between the parties:
    1. Application for registration of business name. Warlord Rental Cars.
    2. The date that Mr. Ta’ai arrived in Tonga and was arrested at Fua’amotu airport was 25^th May 2019.
    3. The paperwork concerning the warrant for TCC to provide call and text messages between 5 specifically identified telephone numbers, the call data it generated and that summary.
    4. The ESR drug analysis report.
99. The prosecution then closed their case.

Defence Case

100. The defence did not call any evidence.

Submissions

101. Crown submits that there does not need to be drugs found, only evidence of a plan for someone to knowingly possess the illicit drugs.
102. They point me to the case of Police v Tevita Savieti & ‘Atunaisa Tupou’ata AM 26 of 2020.
103. They submit that the evidence of Officer Vainikolo fits in with the evidence of Mr. Savieti; the placing of the buckets in the vehicle at the quarry and the instructions to retrieve them said to come from Mr. Ta’ai, specifically directing them where to go and that it was Ice that was being recovered.
104. My attention is also drawn to the phone calls and the time of those calls on 13^th May 2019.
105. They say that it is also highly relevant that the car that Mr. Savieti and those with him used was one of Mr. Ta’ai’s.
106. Any complaint about the precise detail of the form with the phone number 7792824 given as the contact details for the registering of the name “Warload Cars” as a firm run by Mr. Ta’ai, in August 2017, can be put aside as it was written with the plain intention of being associated with him and he signed the form.
107. Mr. Savieti signed an undertaking and it is in his interests to give an honest account.
108. His evidence is clear and he has named Mr. Ta’ai as being the person getting him and his associates to pick up the illicit drugs.
109. His evidence needs to be corroborated under section 126 of Evidence Act as he is a co-defendant. It is in two ways (i) the phone number on the form, page 8, the business name register, and (ii) the pieces of papers, exhibit 3, found on my Ta’ai’s person that at page exhibit 3 (a) indicate a familiarity with a scheme to bring in some form of contraband, they say drugs, in circumstances that are exactly the same as the drum names to be for Seluini ‘Iloa, with washing powder buckets in that contained the contraband.
110. The defence submit that the evidence of Officer Vainikolo is highly troubling. He could not give straight answers to simple and fundamental questions about finding of the alleged drugs or their secure transport from the depot in Ma’ufanga to the police station.
111. The continuity of the exhibits, by virtue of the packaging that the police found the alleged drugs to be in and what was given to the lab, is totally different and no explanation has been proffered.
112. The variation in the weights is said to be by virtue of the Ziplock bags, but no Ziplock bags have been exhibited or weighed or produced.
113. Mr. Savieti has every reason to lie and will say anything to save his neck.
114. The form for business registration is dated 2017 and we are dealing with events in 2019. There is no other evidence to associate Mr. Ta’ai with the number 7792824, save Mr. Savieti’s word. The form associates the number with “other contact details” and the box to state the name of the person who lodged the form is blank.
115. When dealing with the hand written note in exhibit 3 (a) the height of the Crown’s case at that point is that the defendant was aware that there was in the container coming to Tonga “...something inside it that dogs can not smell.” That could just as easily point to his being involved in a scheme to smuggle any contraband and not necessarily methamphetamine.

Elements of the offence

(a) That on or about 13 May 2019;
(b) the defendant;
(c) knowingly and without lawful excuse engaged with others (Tevita Savieti and ‘Atunaisa Tupou’ata);
(d) to possess;
(e) a Class A drug, namely methamphetamine.

Discussion

116. The Crown’s case is that methamphetamine was smuggled into Tonga and arrived here, being found and seized on 10^th May 2019 in a consignment addressed to Seluini ‘Iloa.
117. The first question I must turn my mind to, is whether there is evidence that can corroborate Mr. Savieti’s, pursuant to s.126 Evidence Act.
118. Mr. Savieti plainly is an accomplice of Mr. Ta’ai’s, on their case and they rely on his evidence as against the defendant.
119. Consequently section 126 provides that evidence must be corroborated otherwise all of Mr. Savieti’s evidence would fall away.
120. The Crown seek to argue that it is corroborated in two ways (i) the telephone number Mr. Savieti stated was Mr. Ta’ai’s and was used to instruct Mr. Savieti on the day of the retrieval of the buckets from Mataki’eua, and (ii) the paper (exhibits 3 (a) – (d)) found in Mr. Savieti’s baggage on arriving in Tonga at the Fua’amotu airport 25^th May 2019.
121. (i) The evidence said to corroborate Mr. Savieti is that 7792824 is Mr. Ta’ai’s phone number as demonstrated in the business registration form for his Car Rental Business, dated 23^rd August 2017, where the form has that number filled in under “Other contact details” next to the box for writing who the form was “lodged by”, but the information is blank.
122. This is a single instance almost two years before the time we are dealing with when that number can be said to be associated with Mr. Ta’ai.
123. I do not think that of itself is enough to corroborate Mr. Savieti’s evidence.
124. (ii) exhibits 3 (a) – (d) has as the first sheet of paper a hand written note that documents a scheme to import something into a country, where it was addressed to Seluini Iloa and there was a washing up powder bucket inside that had, apparently, contraband inside.
125. Whilst I can see that this corroborates aspects of the allegation against Mr. Ta’ai, the question is whether it corroborates Mr. Savieti’s evidence, which is what section 126 Evidence Act demands ?

“An accused person shall not be convicted upon the testimony of an accomplice unless it is corroborated in some material particular by other evidence.”

126. “...unless it is corroborated...” The evidence of the accomplice needs to be approached with care because, as in the words of Cheema [1994] 1 WLR 147 “An accused may have a purpose of their own to serve by giving evidence against a co-accused.”
127. It follows the purpose is to tests and show the evidence can be trusted. That needs, in my view, for aspects of it to be separately verified; to give credence to what the witness has stated in evidence, in other words.
128. The evidence of what was written in the manuscript document seemingly relates, in the main, with an earlier part of the case. That is the arrival of the alleged contraband to Customs’ Office in Ma’ufanga, addressed to Seluini Iloa in a washing powder bucket inside a drum. This is not something Mr. Savieti was party to and his evidence did not touch on this.
129. The only part of that exhibit that could be said to relate to the evidence that Mr. Savieti gave is on second page, first sentence: “...I told him I couldn’t but will find someone who can and the boys then went to pick up the package.”
130. My view is that is not sufficiently clear or precise to corroborate the evidence of Mr. Savieti concerning what he said were the instructions to retrieve two washing powder buckets from an abandoned car at a quarry in Mataki’eua.
131. The mention of the “Omo” (washing powder) bucket, in the previous paragraph of text, is not said to play a part in what “...the boys went to pick up...” in the text on the next page.
132. Consequently I do not consider there is a sufficiently detailed factual overlap between the evidence of Mr. Savieti and the hand written note found in Mr. Ta’ai’s baggage, to justify a finding that Mr. Savieti evidence has been corroborated.
133. That being so I am of the view that his evidence must be excluded.
134. That would leave the only evidence against Mr. Ta’ai as the hand written pages, exhibit 3 and evidence of some calls to a phone number seemingly associated with him, but no evidence as to who it was calling his number or why.
135. I am confident that on its own would not be enough to sustain a case against any defendant on the first limb of R v Galbraith^[1], the sufficiency of evidence test, and even if it did, I have absolutely no doubt that of itself would not be enough to convict.
136. My clear view is the Crown’s case has failed at this stage and it is at this point an acquittal ought to be entered against Mr. Ta’ai.

The alternative scenario

137. But, I have gone on to consider the alternative scenario, that the scant information in the note that did overlap with Mr. Savieti’s account did corroborate his evidence.
138. That would mean I had before me all the evidence of the note and Mr. Savieti’s account and all the other evidence adduced in the case.
139. I start, again, from the beginning. The Crown’s case is that methamphetamine was smuggled into Tonga and arrived here, being found and seized on 10^th May 2019, when it was discovered in the consignment addressed to Seluini Iloa.
140. I am told by Officer Vainikolo that Seluini Iloa is a Customs officer.
141. There has not been any evidence from this person to explain why their name was on a drum allegedly containing methamphetamine.
142. The search and seizure there is scant evidence of. No paper work has been presented nor do any evidence how the alleged drugs were discovered there.
143. All I have are the three photographs in exhibit 1 and some evidence from Officer Vainikolo and some scant evidence from Officer Pale.
144. I would have expected a whole story board worth of photographs that showed the critical steps and the persons involved. There was nothing like that before me.
145. The officer in charge of the investigation, Officer Vainikolo, gave evidence first that he was present during the search and seizure on 10^th May 2019.
146. Time after time the officer declined to answer the question put by defence Counsel. The clear impression he gave to me was that something had gone badly wrong with this operation and it was directly to do with the alleged drugs themselves.
147. I say that because when he was asked in cross-examination if the alleged drugs found, the 5 packages, were taken to the police station he replied “...These packages should have been put in the buckets and I will only answer yes or no if I am forced to. When we left [the Customs’ office in Ma’ufanga] the buckets were still there, but I say again, the packages should have been left in there in case we made a mistake like we did in this operation.”
148. This was a theme he kept returning to that the alleged drugs “...should have been kept in the buckets” he stated at least 5 times in cross-examination.
149. When directly asked if the alleged drugs had been stored securely after extraction, he refused to answer at all.
150. Unlike, I think, every drugs trial I have tried in Tonga, I have not been presented with the Exhibit Movement Diary or indeed the Diary of Action. There was no paperwork to demonstrate continuity.
151. I next consider the question of continuity as through the description of the exhibits.
152. Defence Counsel had teased out the difference in weights between the items the police weighed and the lab weights. The explanation given, on the Crown’s case, has been the Ziplock bags, the weightings being first in those bags, but at the lab out of the bags.
153. No Ziplock bags have been provided with their weights to enable that explanation to be proved.
154. The prosecution evidence is that the alleged drugs were not weighed out of their Ziplock bags by Tongan police. They would therefore have gone to the ESR lab in New Zealand in that state, on evidence before me.
155. Instead, at page 5 of the booklet, the ESR report mentions exhibit 1.1 to have been in a “heat sealed” plastic bag and all the others in “self -sealing” plastic bags.
156. Self-sealing and Ziplock bags are entirely different. As indeed is a heat sealed plastic bag entirely different to a Ziplock bag.
157. Or, to put it differently, there is nothing before me to explain how the alleged drugs supposedly recovered from the consignment addressed to Customs Officer Seluini Iloa ended up in entirely different packaging by the time they reached the lab. Or, how there was a weight discrepancy of between 5.74 to 12.89 g per package between the weights when the police seized them and the items the lab were given.
158. That difference is attributed to the plastic bag each was in, yet no evidence of the weight of those plastic bags has been called.
159. I pause to state this, I cannot believe a plastic Ziplock bag would either weigh 12.89 g or that there would be such a variety of weights as between the 5 bags.
160. Regardless, the logic of Police v Tevita Savieti & ‘Atunaisa Tupou’ata AM 26 of 2020 is irresistible and it would not matter what the end product was, as it were, as long as there had been a plan to possess the illicit drugs in question and Mr. Ta’ai had been knowingly involved in that plan.
161. Thus, it does not necessarily follow that a break down in the continuity, meaning that the alleged drugs in the case may not have been proved, ought of itself mean this prosecution should fail.
162. The difficulty for the Crown here is that the continuity of the drugs, as well as the answers of Officer Vainikolo are the lens through which one finally views the credibility of Mr. Savieti’s evidence.
163. Putting it another way, by the time I turn to his evidence I have heard evidence from an officer to give me real concern that something was not as it should be in relation to the finding and handling of the alleged drugs. There was also adduced evidence of the alleged drugs inexplicably arriving at the New Zealand laboratory in totally different packaging to that it was discovered and photographed. There being also an unaccountable weight difference in those packages.
164. Officer Vainikolo’s concern that something had gone wrong may quite easily be true and that the evidence of Mr. Savieti in implicating Mr. Ta’ai in a methamphetamine importation may just as easily be an attempt to put it right and fill the gaps.
165. Gaps such as which people were involved in the plan to take the washing powder buckets to Mataki’eua and leave them there in the vehicle. The evidence of Officer Vainikolo was of a Facebook chat and a phone call, but nothing was placed before me beyond that bald assertion.
166. Gaps like why the police did not apprehend the people who came in the car to get those buckets in Mataki’eua?
167. And a gap such as what can properly be proved, was being referred to, by the phrase “something inside it that dogs can not smell.”
168. There was certainly no evidence before me that methamphetamine cannot be detected by trained sniffer dogs. Even had there been, it would not exclude many other possibilities.
169. I conclude that the evidence of Mr. Savieti falls under the head of evidence one should approach with special caution. I form this view as he is potentially a witness tainted by improper motive. Following the finding in Chan Wai-Keung 1 WLR 251 in a case where the witness in question was a prisoner awaiting sentence giving evidence in an unrelated case.
170. Here it is a related case so making the danger for the defendant more acute. Thus, the caution required all the more necessary.
171. When I consider his evidence, it is against a back ground of a badly damaged case. One that in two regards raises real concerns of improper conduct in the investigation.
172. It would be quite wrong to simply cast all that aside and, in this case, say Mr. Savieti’s evidence can stand regardless.
173. Putting his evidence aside it leaves only the evidence of the pieces of paper found and phone calls to a number associated with Mr. Ta’ai approximately 2 years before the events we are concerned with.
174. Consequently it means when reviewing the remaining evidence as a whole, I am not satisfied the prosecution have proved their case beyond a reasonable doubt.

Verdict

175. On the evidence before me the prosecution have not proved to the high standard that they must, that Mr. Ta’ai engaged in dealings with others to possess methamphetamine.
176. Accordingly I acquit him on the single count he faced.
     

NUKU’ALOFA N. J. Cooper

31 March 2022 J U D G E

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^[1] [1981] 1 WLR 1039; (1981) 73 Cr.App.R. 124 (CA).