PacLII Home | Databases | WorldLII | Search | Feedback

Supreme Court of Tonga
You are here:  PacLII >> Databases >> Supreme Court of Tonga >> 2022 >> [2022] TOSC 42

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

R v Selu [2022] TOSC 42; CR 4, 5, 6 of 2022 (21 June 2022)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY CR 4, 5 & 6 of 2022


REX
-v-
LATU SELU
KAE TAU’AIKA
JOE TUPOUMALOHI


REASONS FOR VERDICT


BEFORE: LORD CHIEF JUSTICE WHITTEN QC
Appearances: Mrs H. Aleamotua for the Prosecution
Ms Kafoa for Latu Selu
Kae Tau’aika in person
Mrs Tavo-Mailangi for Joe Tupoumalohi
Trial: 4, 5, 6 May 2022, 16 and 21 June 2022
Verdict: 21 June 2022


The charges

  1. Upon their arraignment in these proceedings, all three accused pleaded not guilty to:
  2. Latu Selu and Kae Tau’aika also pleaded not guilty to separate counts of each knowingly destroying a test tube, being property capable of being used as evidence in relation to the commission of an offence under the Act, contrary to s. 37A of the Act [counts 3 and 4 respectively].

Passing of Latu Selu

  1. The trial of the proceeding commenced on 4 May 2022. On 6 May 2022, at the end of day three and the allocated trial period, the trial was adjourned part heard during the evidence of the then last Prosecution witness.
  2. On 30 May 2022, Police attempted to apprehend Latu Selu pursuant to a bench warrant issued in respect of another matter. He fled. After a high-speed vehicular chase followed by an on-foot pursuit, Latu Selu was eventually arrested. He was observed to be experiencing breathing difficulties and was transported to hospital where he was pronounced dead on arrival.
  3. On 16 June 2022, the trial resumed on the charges against Kae Tau'aika and Joe Tupoumalohi.

Prosecution evidence

  1. The Prosecution tendered the following documentary exhibits:
  2. The Prosecution also called evidence from Officers Tevita Pohiva (former), Carsten Leveni, Sione Punaivaha, Taniela Finau, ‘Uluaki Havea, Sione Vea, Patelosio Tu’itavuki, Minola Pousima and Fe’ofa’aki Moala. The relevant entries in the Police Investigation Diary were recorded by Officer Emily ‘Otuhouma. As the accuracy of the diary entries was not challenged, Officer ‘Otuhouma was not required to give evidence.
  3. The collective evidence given by the officers provided the following account of “Operation Unga”. For the sake of brevity, they will be referred to hereinafter only by their surnames.
  4. At about 2pm on Sunday, 30 May 2021, Pohiva received information from one of his informants that Latu Selu, who was known to police, was selling drugs with others from a residence on Unga Road in Kolofo’ou which was being rented by Joe Tupoumalohi. Shortly after, the informant again contacted Pohiva and told him that the men had left the house but would return.
  5. Pohiva considered the information to be reliable because he had worked with that informant for approximately two years and all information received from the informant during that period resulted in approximately ten successful operations. Pohiva passed the information on to Leveni.
  6. However, in order to double check the accuracy of the information and to ensure that Latu Selu and the others were at the premises, Pohiva drove to and parked about 20 metres south of the residence. During the next two hours, he saw a number of vehicles going in and out of the property. Pohiva recognised the vehicles as belonging to DET suspects. Then, he saw Latu Selu standing on the side of the road at the entrance to the residence. After a short while, another vehicle parked in front of the residence and Pohiva saw Latu pass something in through the passenger side window before the vehicle drove off. With that, Pohiva considered that police had to act.
  7. Around 6 pm, Pohiva contacted Leveni about what he had observed. Leveni determined that the police had to act urgently to avoid the risk of evidence being lost, destroyed or sold. He therefore quickly organised a team of officers from the Tactical Response Group (“TRG”), DET and Detector Dog Unit and briefed them.
  8. The team arrived at the residence at approximately 6:40 pm. Pohiva was still out the front conducting surveillance to make sure neither Latu or any others left the residence.
  9. The dwelling consisted of two conjoined houses or apartments. The target residence was at the rear. The officers surrounded the property to prevent escape.
  10. Finau went into an adjacent property on the north-east and climbed up on the fence. Through the window, he saw Joe Tupoumalohi standing in the living room of the residence appearing to be ironing whilst talking on the phone. He called out to Joe and asked him whether Latu Selu was there. Joe just shook his head and closed the curtain. The wind blew the curtain and Finau saw another male wearing a white shirt near the door. As the photographs plainly depicted, the only person wearing a white shirt was Kae Tau'aika. Finau saw Kae move suddenly and then he heard the sound of breaking glass. Finau yelled out to the other officers that he could hear someone smashing something inside the house.
  11. Usually, the TRG officers were the first to enter during a raid such as this. However, as he was about to pass the sole doorway on the north side of the residence, Punaivaha (who was the supervisor of the Dog Detector Unit, with Havea and Pekipaki) also heard the sound of smashing glass. He knew from experience that he had to act quickly. So he pushed the front door open and entered the premises. The residence measured approximately 6 m x 3 m. It comprised one large living room with a bed at the southern end flanked by a hallway to the shower area which led to a corridor to the toilet room. He saw Joe Tupoumalohi and Kae Tau'aika in the living area. Joe was ironing. Kae Tau'aika was sitting on a chair (Photo 8).
  12. Punavaiha knew Latu Selu and that he was the main target of the raid. As he did not see Latu in the living area, Punavaiha went to the toilet room. The door was locked. He could hear someone inside trying to break glass.
  13. Meanwhile, outside the toilet window, which was higher than eyelevel and had a curtain covering it, Havea saw a glass test tube being thrown out of the window. The tube hit the concrete path below and broke into two pieces: the bottom bulbous section and the long cylindrical shaft (photos 5 and 28 to 34).
  14. Back inside, Punavaiha told the occupant to come out of the toilet. The occupant failed to comply. The officer then kicked the door handle off, opened the door and found Latu Selu standing there looking "startled". Punavaiha told Latu to sit down. Latu refused and tried to attack Punavaiha who continued to tell Latu to sit down. When Punavaiha reached out to grab him, Latu twice slapped Punavaiha’s hand away with force. Latu then tried to tackle Punavaiha. They hit the door and wrestled out into the hallway. Latu continued to resist. Havea had hurried around from the southern side of the residence to tell Punavaiha about the test tube thrown out of the toilet window. He saw Punavaiha struggling to restrain Latu Selu. Havea then assisted Punavaiha to sit Latu down in the hallway near the shower area (photo 10). Havea also later told Leveni about the test tube thrown out of the toilet window.
  15. When Leveni entered, he saw the two officers trying to hold Latu Selu down in the hallway. Joe Tupoumalohi was seated on the bed. Kae Tau'aika was seated on a couch near the front door (photo 7). Punavaiha told Leveni what had occurred with Latu. Leveni told the Accused that police were exercising their powers under s. 24 of the Act to enter and search the premises without warrant where there was suspected possession of illicit drugs. The Accused all said they understood.
  16. Before Finau, Vea and Pohiva were tasked with conducting the search, Leveni searched each of them at the doorway to the residence and removed their personal belongings (entry 8 in the diary). Each of the Accused were then searched but nothing of interest was found.
  17. The search of the premises then began in the toilet area because that was where Latu Selu had initially resisted when he was first ordered to come out of the toilet. On the floor of the toilet cubicle was a small black Adidas bag, the contents of which were mostly on the floor around it (photo 20). Leveni then instructed Finau to search the inside of the toilet area. Leveni and Latu Selu watched from the doorway (photo 25). Finau found three small packs of white powder, later tested to be methamphetamine, wedged in between the back of the toilet cistern and the wall (photos 22 and 23 [2 thereof]).
  18. When the packs were laid out on top of the cistern, Latu Selu remained silent. After being informed of his right to remain silent, Latu admitted to owning the bag and its contents but said he knew nothing about the three packs of methamphetamine (signed entries 13, 24 and 25 in the diary). Kae Tau'aika and Joe Tupoumalohi were then brought in and cautioned. They too said they did not know who owned the methamphetamine.
  19. The search then moved to the living room. The black Adidas sports bag and its contents were laid out on the lounge room floor and photographed (photos 39 to 42). They included $820 in cash, two mobile phones, a pink plastic straw which had been cut in a certain shape said to be used for scooping methamphetamine and a high-pressure cigarette lighter.
  20. Finau collected fine glass fragments from the floor which he considered were from a test tube that Kae Tau'aika threw on the floor immediately before the police entered (photos 11 to 16). After he was cautioned, Kae was asked what he smashed. He said it was ‘just a glass’. Finau maintained that it was a test tube because some of the fragments of glass were finer than one would expect from a drinking glass and some were in the (parabolic) shape of the bulb of a test tube. Finau opined, from his experience, that they were consistent with a test tube used for smoking methamphetamine.
  21. The detector dog was handled by Officer Pekipaki during the search inside the residence. He reported to Punaivaha the dog’s ‘change of behaviour’ when the money was found, during the search of the tables in the living room, where Joe Tupoumalohi was standing and the bathroom area.
  22. Pohiva found a plastic bag on a coffee table in front of the couch. The bag was found to contain 181 empty dealer packs (photos 8, 10, 39, 41, 42, 43 and 45). He also searched a round dining table in the northern corner of the living room which had various items on it and a large rectangular mirror standing towards the rear of the table leaning against the corner walls (photo 9). When the mirror was removed, and while the Accused were all present, Pohiva found a navy blue and white bandanna containing six test tubes each wrapped in toilet paper. The bandanna was tied in a knot sitting on an electronic weighing scale (photos 46 to 54).
  23. All items found during the search were photographed in situ and then handed to Vea who was the exhibit keeper for the operation. He prepared the search list which was then signed by Leveni.
  24. Vea drove with the Accused to Central Police Station (“CPS”) where they were remanded in custody. He tried to contact the Scenes of Crime Office for someone to come and weigh the suspect methamphetamine. He also tried to contact the exhibit keeper at CPS. However, as it was late on a Sunday evening, he was unable to contact any of them. Vea therefore decided, with Leveni’s permission, to take the exhibits back to his office at the DET. He placed the exhibits in a cabinet in his office. While the cabinet was not able to be locked, the door to his office was locked. Officer Tu’ivai shared the office but only Vea had a key to the office door. The exhibits were kept there overnight.
  25. The next morning (Monday, 31 May 2021), Vea took the exhibits to Laulelei Kava at the Scenes of Crime Office where Kava photographed them and weighed the suspected methamphetamine (entries 45 and 46 in the DET movement diary). He then took the exhibits to Officer Pousima, the exhibit keeper at CPS. The items were recorded in the exhibit register, Vea signed the entries and then handed the exhibits over to Pousima.
  26. The suspected methamphetamine was later tested and verified as such. None of the Accused required the analyst to attend Court to give evidence pursuant to s. 36 of the Act and no issue was taken with the results of the testing during the trial.
  27. Pousima was cross-examined at length by Mrs Mailangi and Ms Kafoa about two seeming anomalies with the CPS exhibit movement register. Entry 54 in the police diary of action (which was not initially included in the excerpts tendered during the trial) recorded that, on 9 June 2021, the police file was checked by a Sgt Moala and given to Crown Law. The record also listed the documents provided which included the analyst’s certificate. However, the CPS register recorded that it was not until 22 June 2021 that the methamphetamine exhibits were given to PC Kava for analysis. Further, according to counsel, the register was given to Crown Law in late 2021 but the copies of the register that were given to the Accused did not contain any entry in the movement columns in relation to 22 June 2021.
  28. Upon the resumption of the trial, Pousima was recalled. She confirmed entry 11 in the Station Diary of the Exhibits Office which also recorded that the suspected methamphetamine was handed to PC Kava for analysis on 22 June 2021. She also confirmed that there were no earlier entries, between 31 May and 9 June 2021, of any other movements of the relevant exhibits.
  29. In an endeavour to clarify this issue, the last witness called by the Prosecution was Sgt Moala. He confirmed entry 54 as his response to what he described as an urgent telephone request by the Police Prosecution office for the file in relation to this operation to be provided to them. He agreed that the request should have been recorded, but that he had not done so. He also confirmed that document number 4, the analyst’s certificate, was among the documents he identified in the file, and that as far as he was aware, there was only one such certificate. He was shown a copy of the analyst’s report (also referred to as a certificate). While he was unable to recall whether it was the particular document he saw on the file, he was able to confirm that it was typical of analyst’s reports filed in drug cases. The analyst’s report did not record the date on which the exhibits were received, only that they were tested on 22 September 2021.
  30. However, Sgt Moala was unable to explain:

Defence evidence

  1. Kae elected to give the following sworn evidence.
  2. He is 48 years of age, from Longolongo and has been employed in plantation work for over 20 years. He had also known Latu Selu for over 20 years. They had both married into the same family.
  3. On the Saturday evening before the day in question, around 11 pm, Kae saw Latu in town in front of the Reload Bar. Latu asked him Kae if he had a charging cable for JBL speakers. Kae said that he did but since it was nearly curfew, he told Latu said he would bring the cable to him the next day. Kae then asked Latu where he lived. Latu gave Kae directions to the residence in Unga Road.
  4. The next day, a couple (who were not identified) drove Kae to the residence in Unga Road. When they arrived, he asked them to wait while he dropped off the charger to Latu. Kae met a person (again, not identified) at the property and asked him if Latu was there. The person said that he was and directed Kae to the residence at the rear where he knocked on the door. When the door opened, Kae saw Latu Selu and Joe Tupoumalohi inside with a girl.[3] It was the first time he had met Joe. Kae showed Latu the charging cable who then tested it on the speakers.
  5. After two to three minutes of being there, Kae heard noises outside, including someone saying something to Joe. He sat on a chair next to the door as the police ‘barged in’ and went straight after Latu who had run (although he later said that Latu walked) to the toilet. Joe was standing in the living area ironing clothes ‘or something’. Kae said that the police did their work as had been explained in their evidence during the trial, while he sat on the chair, and that ‘that was all that happened’.
  6. Kae denied breaking any glass and said that he knew nothing about it. Later, when asked who broke the test tube, Kae said “it was probably the wind”.
  7. Joe Tupoumalohi elected not to give evidence.

Submissions

  1. Mrs Aleamotua and Mrs Mailangi filed helpful written submissions and spoke to them.

Prosecution

  1. The Prosecution submissions may be summarised as follows.
  2. The search conducted by Police pursuant to s. 24 of the Illicit Drugs Control Act was lawful because:
  3. The integrity of the chain of custody of the methamphetamines was maintained:
  4. The evidence against Kae and Joe proves the charges against them beyond reasonable doubt:

Defence

  1. Kae submitted that his evidence was the truth and that he was simply in the wrong place at the wrong time. The balance of his remarks were not relevant for present purposes.
  2. Mrs Mailangi submitted that the Prosecution had failed to prove the charges against Joe Tupoumalohi for the following reasons, in summary.
  3. The warrantless search was unlawful because:
  4. Inconsistencies and contradictory evidence also gave to rise to questions in relations to the chain of custody of the methamphetamine exhibits. The analyst’s certificate showed that Kava conducted the analysis on 22 September 2021. Moala’s evidence raised a question as to whether there had already been an analysis of the illegal substance by 9 June 2021 or whether he did not carry out his job properly. Even though Pousima gave evidence that the drug exhibits were only moved from the exhibits room on 22 June 2021, the question remains as to why Moala, who had 19 years of experience in the Police Force, and not yet a year with the DET, was given the responsibility of checking the contents of the file, and how he could have made “such a big mistake”.
  5. After referring to the principles of possession discussed in Lasike v Rex [2012] TOCA 1 at [19] to [21], R v Uasike [2020] TOSC 88 and R v Pangi [2021] TOSC 95, Mrs Mailangi submitted, that in relation to counts 1 and 2, the Prosecution had not proven beyond reasonable doubt that Joe had the requisite knowledge and control over the methamphetamine or the utensils to constitute the offence

of possession for the following reasons:

(a) The information received by Pohiva was that there was a house in Kolofo’ou that Latu Selu was staying at with others, that they were selling illicit drugs and that Latu was using his vehicle to distribute illicit drugs. The name he was given for the ‘owner’ of the house was that of Joe. That information was relied on by Leveni. The rest of the police witnesses who were all briefed on the operation gave evidence that the target was Latu Selu and just a premises in Kolofo’ou (Hala ‘Unga) where there were suspected illicit drugs.
(b) When the police forcibly entered the house, Joe was not the only person inside. Kae’s evidence was that Latu Selu and a girl were also there.
(c) The “only illegal substance found” was in the toilet, hidden between the cistern and the wall. Latu Selu was the only one inside at the time when the police entered the house and was the only one present when the search took place in the toilet. Joe was in the living room area ironing or on the bed.
(d) There was no evidence that Joe attempted to flee when the police forcibly entered the house or that he tried to conceal anything when the search was taking place.
(e) Joe was not present while the search was conducted in the toilet. He was only taken in after the search was completed and the methamphetamine was laid out on the cistern, and of which, he denied any knowledge.
(f) The six wrapped test tubes and weighing scale were found by Pohiva only after he removed the mirror.
(g) The 181 empty dealer packs were contained in a plastic bag on the coffee table wrapped with white tape which Pohiva had to remove, and there were “other items scattered on top of it”.
(h) Joe was not the only person “occupying” the house.
(i) Joe “was unaware” of the drugs or the utensils which were either hidden or covered up.
(j) Joe “did not have the opportunity to learn [of] or discover” the drugs or utensils.
(k) On the evidence, the only reasonable explanation is that the drugs and utensils belonged to Latu Selu.
  1. There were also substantial instances of other contradictory or inconsistent evidence which cast doubt on the credibility and reliability of the Prosecution witnesses:

Consideration

  1. The Prosecution bears the onus, at all times, of proving the elements of each of the charges against Kae Tau'aika and Joe Tupoumalohi, beyond reasonable doubt. On the possession charges, the only elements in dispute were knowledge and control.
  2. Before turning to them, and the evidence adduced from the search, I will first consider whether the search was lawful.

Lawfulness of the search without warrant

  1. Sections 23 and 24(1) of the Act provide to the effect that a police officer may, without a warrant, enter a place, search for any illicit drug or thing, and if found, seize it and search any person found at or in the place, if:
  2. Pohiva’s evidence as to the reliability of the information he received from his then informant that Latu Selu and others were selling drugs from Joe Tupoumalohi’s premises was not challenged, and I accept it. Recently, in Moala & Alatini v R (AC 13 of 2021, 27 May 2022), the Court of Appeal rejected a submission that additional evidence was required to confirm the reliability of similar information.
  3. The Court of Appeal also held that, in the circumstances of that case, it would have been impracticable, unreasonable or not in the interests of justice for the police to have applied for a warrant, and rejected a submission that surveillance should first have been conducted.
  4. Here, however, Pohiva took the additional precaution of verifying the information by conducting surveillance of the premises for at least two hours before the search was conducted, to ascertain whether Latu Selu and any others with him were there. During that surveillance, Pohiva observed the vehicles of known or suspected drug offenders coming and going from the premises. On the basis of the information from the informant and Pohiva’s surveillance, to that point, I am satisfied that police had reasonable grounds for suspecting that there were illicit drugs on the premises and/or evidence relating to the commission of an offence against the Act.
  5. Mrs Mailangi submitted to the effect that in the time Pohiva spent conducting surveillance, he should have instead applied for a search warrant. For the following reasons, I do not agree:
  6. I am also satisfied by that evidence that the decision by Leveni to conduct a warrantless search, and the timing of it, was based on reasonable grounds for suspecting that it was necessary to do so in order to prevent the concealment, loss or destruction of any illicit drugs or other evidence of an offence under the Act and that the circumstances were of such seriousness and urgency as to require the immediate exercise of that power.
  7. Accordingly, I find that the warrantless search was lawful.
  8. For completeness, I record that there was no evidence, and none of the parties made any submissions, in relation to, whether, had the search been declared unlawful, the evidence found, or any of it, should have been excluded or whether the Court’s discretion should have been exercised to admit it, as discussed in decisions such as Attorney General v Tomasi [2019] TOCA 19.

Count 1 - Possession of methamphetamine

  1. In the recent decision of Puloka v R [2021] TOCA 15, the Court of Appeal summarised, with apparent approval, the principles of possession as including, relevantly:
  2. The case against Latu Selu on this count was strong:
  3. When viewed as a whole, that evidence amply supports an inference that the methamphetamine belonged to Latu Selu, that he had knowledge, custody and control of them, and that he therefore had legal possession of them. It may further be inferred that it was Latu who attempted to conceal the packs by secreting them behind the cistern while Punaivaha was trying to get him out of the toilet.
  4. However, the same cannot be said of the case against Kae Tau'aika and Joe Tupoumalohi. Apart from the three of them occupying the residence at the time of the police search, there was no direct evidence to link Kae or Joe, by way of knowledge or control, with the methamphetamine found in the toilet.
  5. As stated, on a consideration of all the evidence, I am inclined to the view that it was Latu Selu who owned the methamphetamine and that he was at Joe Tupoumalohi’s residence that day for the purpose of supplying drugs to Kae, Joe and others. However, there was no evidence that either Kae or Joe were themselves in possession of or had used methamphetamine that day while Latu was there. For instance, there was no evidence that either of the test tubes that were broken were found to contain any particles of methamphetamine and no drugs were found on their persons. I am also not satisfied that the evidence is sufficient to safely support an inference that Kae or Joe were assisting Latu in supplying drugs to others that day.
  6. For those reasons, I find that that the Prosecution has failed to prove count 1 as against Kae Tau'aika and Joe Tupoumalohi beyond reasonable doubt.
  7. Upon that finding, it is unnecessary for me to determine any actual or perceived controversy arising from Sgt Moala’s evidence of the analyst’s certificate being on the file as at 9 June 2021 whereas the evidence of Pousima and the exhibit movement register and CPS exhibit diary were all to the effect that the only time the methamphetamine exhibits were moved was on 22 June 2021 for analysis by Kava. Suffice to say, that on an examination of the handwriting in the police investigation diary, it appears most likely that:

Count 2 - Possession of utensils

  1. The evidence of the information received that drugs were being sold by Latu Selu and others from Joe’s residence and that Latu was living with Joe there at the time, went unchallenged. While there was no evidence as to how long Latu had been living there at the relevant time, the photographs did not depict any indicia of a short term stay such as a suitcase, nor was there any suggestion to that effect. As such, the two of them were living in essentially a one room residence with bath and toilet facilities. In such a small space, as the photographs clearly depicted, it is inconceivable that Joe would not have known what Latu had stored in the residence, and vice versa. It follows, in my view, that at all material times, Joe knew what items were in his residence and where they were.
  2. I do not accept Kae’s evidence in relation to his attendance at the residence prior to the police arriving for the following reasons:
  3. Having regard to Pohiva’s evidence that he monitored the property for more than two hours, I find that Kae was at the residence for significantly longer than two or three minutes prior to the police arriving.
  4. The plastic bag containing 181 empty dealer packs was found in plain sight on the coffee table in the living room. Kae and Joe were both nearby. That neither Joe nor Kae attempted to flee or conceal anything (apart from the smashed test tube discussed below) when police arrived is hardly surprising given the number of officers who surrounded and entered the premises, some of whom had to physically restrain Latu Selu.
  5. I am therefore satisfied that both Kae and Joe had knowledge of, and some control over, the empty packs.
  6. The six test tubes and weighing scales were found behind the mirror on the round dining table. Photo 9 shows the bottom of the mirror, before it was moved, angled out so as to provide a space to see what, if anything, was behind it, particularly on the right-hand side, and for access to the space behind. The bandanna containing the test tubes and scales were found on the right-hand side and toward the front of that space.
  7. Again, both Joe and Kae were close by, that is, within approximately two metres according to the photographs, of those items, when they were apprehended.
  8. Mrs Mailangi’s submission that Joe “was unaware” of the utensils cannot be accepted. By his election (and right) not to give evidence, there was no direct evidence as to Joe’s state of mind.
  9. By reason of:

I consider it appropriate to impute to Joe knowledge of the test tubes and scales and an intention to possess them.

  1. I am also satisfied that, given they were concealed in his rental property behind furniture which formed part of the property, Joe had control over them, even if he did not avail himself of the opportunity to ascertain what they were: R v Tau, ibid, citing Archbold (2005 edition, para 26.61).
  2. For the reasons discussed in relation to count 4 below, I am satisfied on the evidence that Kae had a test tube in his possession immediately prior to police entering the residence. The observable characteristics of the fragments of glass found on the floor near him were consistent with the other test tubes found on the property, both the one thrown out the toilet window by Latu Selu and the six found behind the mirror. That connection is sufficient, in my view, to also impute knowledge of, and an intention to possess, the test tubes and scale to Kae. He was also sitting very close to the round table on which they were found. The combination of that evidence leads me to conclude that he also had some control over those utensils.
  3. For those reasons, I am satisfied beyond reasonable doubt that the Prosecution has proven count 2 as against Kae Tau'aika and Joe Tupoumalohi.

Count 4 - Destruction of test tube

  1. The evidence of Punaivaha and Finau in relation to this issue was never seriously challenged. Finau’s evidence of a person in a white shirt moving quickly or suddenly, immediately before the sound of breaking glass, could only have applied to Kae. As the photographs depicted, Latu had no shirt on. Both Punaivaha and Finau then heard the sound of glass smashing in the area Kae was apprehended.
  2. The photographic evidence plainly shows the fragments of glass found in the living room near to where Kae was apprehended as being much finer than a normal drinking glass and some of the fragments maintained their curved shape, consistent with the bulb end or spout top of that kind of test tube. It is also notable that none of the photographs depicted any drinking glasses elsewhere in the residence.
  3. The inference that it was a test tube that Kae smashed is also supported by the evidence of Latu Selu throwing a similar test tube out of the toilet window and the discovery by Pohiva of six similar test tubes behind the mirror on the round dining table.
  4. I also do not accept Kae’s evidence in relation to this count. His inconsistent accounts to Finau (whose evidence in this regard was not challenged) at the time about the broken glass being “just a glass”, thereby tacitly admitting that it was he who broke the glass, compared to his evidence at trial that he knew nothing about any broken glass and that “it might have been the wind”, diminished his credibility and exposed a consciousness of guilt.
  5. The evidence of the officers that the test tubes were of a kind used for smoking drugs was also never challenged, and I accept it.
  6. There was no evidence from the police witnesses, or even a suggestion when Kae was first asked about it (other than the belated reference at trial to “the wind”), that the test tube was smashed accidentally.
  7. It is extremely unlikely, and there was no suggestion that he did, that it was Joe who smashed the test tube as he had an iron in one hand and a phone in the other when the police entered.
  8. For those reasons, I am satisfied, beyond reasonable doubt, that Kae Tau'aika knowingly destroyed a test tube, being evidence in relation to the commission of an offence under the Act. Therefore, the Prosecution has proven count 4.

Other ‘discrepancies’ in the Prosecution evidence

  1. I conclude by considering Mrs Mailangi’s submissions referred to in paragraph 53 above. In my assessment, none of the apparent discrepancies in the Prosecution evidence cited at subparagraphs (a) to (d) were consequential nor did they give rise to any reasonable doubts about any element of the proven charges.
  2. The glaring omissions in former Officer Pohiva’s witness statement were most unfortunate and, as he appeared to accept, unprofessional. His explanation that among hundreds of other operations and statements he provided during his time on the Force to December 2021, this was the only one where he simply “forgot to include” an account of his involvement in the search, and that it was an “honest shortfall in recollection”, was never seriously challenged, and I accept it. I also accept the evidence he did give from his recollection of his part in the search, all of which was independently verified by the photographic exhibits and the relevant entries in the police investigation diary, none of which were ever challenged.

Result

  1. The trial as against Latu Selu was abated and counts 1, 2 and 3 on the indictment as against him are discharged by reason of his death during the trial and prior to verdict.
  2. Otherwise, and for the reasons stated, I find:

NUKU’ALOFA
M. H. Whitten QC
21 June 2022
LORD CHIEF JUSTICE

[1] The English translation for entry 53 showed the time as 15:45 hours. It was agreed that that was a typographical error, and that the Tongan original showed the correct time as 14:15 hours.

[2] The other handwriting was marked by a definite and consistent slant to the right whereas Sgt Moala’s handwriting was more vertical.

[3] Whom the Prosecutor explained was the subject of separate proceedings.

[4] Citing R v Motuliki [2002] TOSC 22; CR92/01 (24 May 2002); Warner v Metropolitan Police Commissioner [1968] 2 All ER 356, 392 (HL) at 393 per Lord Wilberforce; R v Boyesen [1982] 2 All ER 161, 163 (HL); R v Lewis (1988) Cr App R 270 (CA) and R v Cox [1990] NZCA 13; [1990] 2 NZLR 275.

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/to/cases/TOSC/2022/42.html