R v Na'a [2023] TOSC 48; CR 183 of 2021 (26 January 2023)

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

CR 183/2021

REX

-v-
Temateli Na’a

Ruling

BEFORE: THE HONOURABLE COOPER J
Counsel: Mr. Lutui, DPP for the Prosecution
Mr. Tu’utafaiva for the Defendant
Date of : 26^th January 2023.

1. The defence have made a submission of no case to answer at the close of the prosecution case; that there is insufficient evidence adduced by the Crown to convict Miss Na’a.
2. Miss Na’a faces an allegation under section 4 (1) (b) (iv) Illicit Drugs Control Act (the Act) that on or about 13^th July 2021 she did knowingly without lawful excuse engage with another person for the transfer of an illicit drug, namely when she made arrangements with Mele Pale to transport 3 bricks of cocaine from Vava’u to Tongatapu. Her trial is being heard before Judge and jury.
3. The evidence amounts to this :
4. Mele Pale’s de facto partner, Normani Naeata in July 2021 found what was alleged to be cocaine.
5. The subsequent investigation into the discovery that a large quantity of suspected cocaine had made its way to Vava’u led the police to Mele Pale. She was arrested on 30^th July 2021.
6. Her mobile phone was seized and Officer Fifita had the job of going through its contents as part of the investigation. He found a photograph/screen shot in the deleted folder of the photograph application of her phone.
7. That screen shot became exhibit 1.
8. That screen shot was of an excerpt from a Facebook Messenger conversation of what the police believed to be a discussion with another person concerning cocaine.
9. The discussion included “...[whether it] was safe to be send (sic) via airplane but it is uncertain....just send through that boat crew member....3 will be send over, 2 for us and 1 for you.”
10. Those were the words of the person sending the messages, as translated from the Tongan.
11. After a conversation between the investigating officers and Mele Pale the police contacted colleagues in Tongatapu and a search of Temaleti Na’a’s home address was conducted on 11^th August 2021, pursuant to a warrant issued the proceeding day.
12. No illicit drugs were found, but a mobile phone belonging to Temaleti Na’a was seized. It was investigated. The Facebook Messenger application was scrutinised and the whole of the text message conversation that took place on 13^th July 2021 was found, that exhibit 1 was an extract of. The full conversation was subsequently downloaded by Officer Vea.
13. That download became exhibit 6.
14. That exhibit is entitled “Mele Pale Na’a Facebook” and is a print out of Mele Pale Na’a’s ‘page’ on the Facebook application installed on Temaleti Na’a’s mobile phone.
15. It details that the sender of the messages using the account of Mele Pale Na’a is telling the person who was using Temaleti Na’a’s mobile phone that she and her boy friend had found what they believed was cocaine.
16. Each pack was 1 kilo.
17. She had 17 packs, it was then stated by the sender of the messages she would go to where the packs have been hidden. There then followed a video call between those two parties.
18. After which the sender of the messages refers to it being buried. Then later stated:
19. “It is 3 packs that will be send over but ask your husband about the dollar that he will get from it sis”
20. All the while there are what can be described as active comments concerning arrangements to bring these packs to Tongatapu, by the person who was using the Facebook Messenger Application on Temaleti Na’a’s phone.
21. From what I have detailed above, that necessarily means it included those exchanges in the extract of this conversation, exhibit 1, I have already alluded to.
22. The sender of the messages from Temaleti Na’a’s phone discussed how that person will ensure they sell these packs once they arrive and send the other their share of the proceeds. That all took place on 13^th July 2021.
23. There is no evidence that any cocaine was ever sent to Temaleti Na’a. It is the Crown’s case none actually was.
24. When Temateli Na’a was arrested and 8 days later interviewed by the police on 19^th August 2021 she told them that none was ever sent.
25. The record of interview became exhibit 3.
26. She stated (answer 16) that she did not know it was cocaine but that was what Mele Pale had told her it was.
27. In answer to questions put, she identified the person she was having the Messenger conversation with as Mele Pale, her cousin, alluding also to how there was the video call, the record of which is noted in the text of the Facebook Messenger conversation, as having taken place 13^th July 11:00 AM.
28. Temateli Na’a stated (Answer 23 ) “...I told her no and for and for it to come with one of the boat crew that is acquainted with a female person in our home and to tell them it is my package to come with it.”
29. She stated that she and her husband would sell the cocaine after it had been sent over (answer 24).
30. That is the essence of the Crown’s case.
31. Before I turn to the submission I note this. The Court has been told there is to be agreed evidence given to the jury of the fact that Mele Pale has pleaded guilty to offences concerning the cocaine, she being a co-defendant of Temateli Na’a.
32. The Crown opened their case on that basis.
33. That has yet to be done, but part of the submissions are predicated on that happening.
34. The relevant words in the opening as to any such admission when considering these submissions are these:
35. “Mele Pale was convicted together with several others on cocaine related offences in Vava’u.”

The law

36. S.4 Illicit Drugs Control Act (the Act) states :

(1) Any person who knowingly without lawful excuse, the proof of which shall lie on him —

(a) possesses, manufactures, cultivates, uses or supplies an illicit drug; or
(b) engages in any dealings with any other person for the import, export, possession, manufacture, use, cultivation, supply, transfer, transport,

offer or sale of an illicit drug,

commits an offence...

Submissions

37. Mr. Tu’utafaiva, on 25^th January 2023, made oral submissions. This was a result of the Crown opening on the basis that the offence can be made out regardless of whether illicit drugs were actually transported or not. They submitted that it is the arrangement to transport some illicit drugs that is the mischief the section is concerned with.
38. There is no binding case law on this point, though a decision on appeal from the Magistrates’ Court of Lord Justice Whitten KC was referred to in submissions.
39. The defence submissions come after the Court having stated that a preliminary view of the law, subject to any submissions, was that the section in question operated in the same was as in the United Kingdom’s law when there was an “offer” to supply a controlled drug as criminalised by section 4 (3) (b) Misuse of Drugs Act 1971.
40. It was noted the relevant section of Archbold 2023; chapter 27-42, seemed to offer guidance on the correct approach when dealing with the instant legislation, especially, paragraph 27-43, the case of R v Gill (1993) 97 Cr. App R 215.
41. The defence have submitted the following argument:
42. The Crown need to prove, as an element of the offence, there were 3 kilograms of cocaine. When looking at the scope of activities envisaged by section 4 (1) (b) of the Act, “manufacture” suggests that there has to be an illicit drug proved to be in existence. Much in the same way that to manufacture connotes creation and therefore the existence of something.
43. It was further submitted that since sentencing turns on quantities of illicit drugs, for example possessed or supplied, that further underlined the need to prove the existence of illicit drugs as an element of the offence.
44. That the section also prohibits engaging with another to supply an illicit drug in fact demonstrates that proving its existence is a necessary element, as that word “supply” is predicated on the existence of the item.
45. The case of Police v Saieti & Tupouata an appeal from the Magistrates’ Court, AM 26 of 2020 was submitted to assist in the interpretation of section 4 (1) (b) of the Act.
46. In it Lord Chief Justice Whitten KC stated this

On its proper interpretation, s.4(b) places the focus on the dealings between the

persons involved and whether the intention or purpose of those feelings (sic) was for the possession of illicit drugs. If a successful prosecution on that charge

depended on the persons engaged in the dealings also having to end up with

the drugs in their possession, then the provision would in fact have no work to

do because subsection (a) - possession - would cover the field.

To illustrate, imagine six persons conspired together and undertook various

roles for the common purpose of obtaining illicit drugs. However, assume that

by the time of apprehension, the last person in the chain was the only one who

actually had the drugs in their physical possession. On the Magistrate’s

analysis, the other five, without whom the plan to obtain the drugs could not

have been effected, could never be charged with any offence under the Act. In

my view, that analysis and interpretation is incorrect.

The evident purpose of the charge in subsection (b) is to ensure that all those

engaged in dealings with the intention or purpose of obtaining drugs may be

prosecuted even though any one or more of them do not actually end up with

the drugs in their possession at the time of apprehension.^[1]

47. Mr. Tu’utafaiva made two points, (i) in the example given, there was the existence of illicit drugs within the chain, as discussed. (ii) The Lord Chief Justice did not specifically say that there could be an example were there was no evidence of any illicit drugs yet the offence made out.
48. Addressing a further hypothetical scenario the Court had raised: if two people were to decide and agree to go and see their drug dealer to buy illicit drugs, but on going there he had run out; Mr. Tu’utafaiva submitted that also was predicated on the existence of illicit drugs at some time, since the people in that example were going to a drug dealer, by definition, someone who supplies, therefore possessed illicit drugs, inter alia, for that purpose.
49. On behalf of the prosecution, Mr. Lutui submitted that this section of the Act works rather as if it was a section that dealt with conspiracy. It is an offence that relates to a “meeting of the minds”, as he put it.
50. The transportation of the illicit drugs does not need to have taken place. But there does have to be some evidence as to the existence of illicit drugs, albeit the specific amount pleaded is not a necessary an element of the offence the prosecution need to prove, but rather is relevant at sentence. He described it as there being a need to have “access” (or potential access, I think was also part of that suggestion) to illicit drugs.
51. That meant the Crown had to prove that Mele Pale had access to 3 kg of cocaine. Mr. Lutui submitted that had been proved because of what was in the Messenger conversation, exhibit 6, that she had access to up to 17 kilograms.
52. The section must work in the way he submitted, or the scenario where a defendant’s importation is intercepted and replaced by a harmless substance by the police so that those involved in the supply are not alerted, and yet in due course identified and arrested would not be covered. In that scenario they would escape prosecution as the interception had replaced the illicit drugs. That, he submitted, could not be the right result.
53. The agreed fact as to the plea of Mele Pale to being involved in this cocaine was evidence he could rely on, he submitted. It was an agreed fact to be adduced not to prove the conviction on its own. It was before the jury so they were under no misapprehension as to her character or her evidence.
54. In response Mr. Tu’utafaiva submitted (i) the jury would have to be directed that they had to consider whether the guilty plea was sufficient to prove the existence of drugs (ii) It was evidence of co-accused and so needed to be corroborated pursuant to section 126 Evidence Act.

Discussion

55. First I address my mind to the specific argument that I have to rule on. The defence submit there has to be proof of the drugs as an element of the offence. The Crown argue that is correct but that has in fact been established.
56. Mele Pale pleaded guilty at the conclusion of the Crown’s case at her trial.
57. Section 126 Evidence Act deals with the testimony of an accomplice and that it must be corroborated. But, a guilty plea is not testimony.
58. I rule as a matter of law that section 126 Evidence Act can not extend to a guilty plea, as it is not a matter given in evidence. Therefore it is not a matter that needs corroborating before the jury can go on to consider its implications.
59. In the Messenger chat, there is evidence that Mele Pale had access to 17 kilograms of what she said was cocaine and was planning to send 3 to Temaleti Na’a.
60. In her police interview Temaleti Na’a, whilst stating she only took Mele’s word for it that it was cocaine, that she did not know it for a fact, she did act on that suggestion. Her husband, she stated in that exchange, had already found two potential buyers for $2,000 a pack each (page 17 of original; entry 8 page 4 of 4 of translation).
61. That it was Mele Pale stating this to Temaleti Na’a; that they were the parties corresponding, as set out in exhibits 1 and fully in exhibit 6, is in evidence, as stated in the latter’s police interview.
62. Taking those disparate strands of evidence together, it is clear that the Crown have adduced evidence that Mele Pale was in possession of a substance that she believed was cocaine.
63. Also, that Mele Pale was in possession of a substance that Temaleti Na’a stated in the Messenger chat that she accepted was cocaine.
64. Yet, without adducing the evidence of the annalist’s reports (which from the trials of the co-defendants I know the Crown possess), they have not proved it.
65. All the Crown have established is that was the belief of Mele Pale, apparently of Temaleti Na’a also and indeed, the police officers who have given evidence.
66. That is not the same as proving the substance was actually cocaine.
67. Turning to the admission that concerns Miss Pale’s plea to being involved in cocaine as a co-defendant in these proceedings.
68. I remind myself that at this stage that piece of evidence has not yet been adduced, merely referred to in opening.
69. The terms in which it was opened were that she was involved and convicted of “cocaine related offences in Vava’u.”
70. In my estimation that does not help the Crown with their submission.
71. If they rely on the admission as the only evidence of possession of cocaine within the chain, as they must, they are faced with the dilemma that there is no quantity proved. Given that would mean there was no evidence that Mele Pale had 3 kilograms of cocaine, the question would then be : without evidence she had as much as 3 kilograms, how could Miss Na’a be engaging with her for the transport of 3 kilograms ? Bearing in mind, as I do, that as yet the Crown have to adduce that admission and this whole argument is predicated on their undertaking to the Court that they will.
72. Given the dilemma I have identified I do not think the Crown’s submissions advance their position.
73. I note this : that after I gave my ruling and before the jury heard speeches I invited Mr. Lutui for the Crown to proceed to the final piece of evidence, the admission, as he had undertaken he would.
74. In front of the jury he declined to and no evidence of Mele Pale and her conviction was ever adduced.
75. Accordingly, there never was any evidence of possession of any illicit drugs in this case.
76. In coming to a view as to the scope of the section in question I have considered another hypothetical situation; a person who is caught with all the raw chemical materials for making methamphetamine (or, for example MDMA), none of which is unlawful on its own. He has with him a text that describes how to create methamphetamine (or MDMA; “Ecstasy”), detailing all the steps that need to be taken.
77. He has the equipment for making it and the police also discover on his person a mobile phone that has messages on it, sent to another, where the other person, “X”, has agreed to help him manufacture the illicit drug.
78. “X” will then surely have engaged with another to manufacture methamphetamine, for example, so committing an offence under section 4 (1) (b) albeit, at that stage, none of the chemicals in their possession had been turned into an illicit drug.
79. Chief Justice Whitten KC, in his analysis of section 4 (1) (b) of the Act looked at that section as a whole to understand how it worked.
80. Section 4 (1) (b), he noted, would be, effectively, almost identical to 4 (1) (a), if the need to end up with an (illicit) drug in the possession of a defendant was an element that needed to be proved.
81. The defence made the point that in Police v Savieti & Tupouata an illicit drug existed at the early stage of that case, as it was imported into Tonga.
82. The Crown also submit that there needs to be the potential for an illicit drug to exist, in this case to be transported, as an element they have to prove.
83. I do not agree with those submissions.
84. Or, as Lord Chief Justice Whitten stated “...then the provision would in fact have no work to do because section (a) – possession – would cover the field.”
85. Granted, 4 (1) (b) offers a wider variety of acts and “transports” is not one in section 4 (1) (a).
86. Yet, I do not consider that broader choice of prohibited dealings is what is key to the interpretation of section 4 (1) (b); it is, in my view the “engaging in any dealings...” that is at the heart of that sub-section.
87. The use of the word “any” has not been the subject of the submissions before me.
88. Yet, I am quite sure, it is crucial.
89. It means, in my view, any scheme, to import, export, possess et cetera an illicit drug is prohibited. As a matter of logic, it underscores that it is the plan itself that is the prohibited act, not the consequences or whether there really was an illicit drug.
90. Turning to a comparison with a similar legislation in the United Kingdom.
91. Section 4 Misuse Drugs Act 1971

(1) Subject to any regulations under section 7 of this Act or any provision made in a temporary class drug order by virtue of section 7A, for the time being in force, it shall not be lawful for a person—

(a) to produce a controlled drug; or

(b) to supply or offer to supply a controlled drug to another.

(2) Subject to section 28 of this Act, it is an offence for a person—

(a) to produce a controlled drug in contravention of subsection (1) above; or

(b) to be concerned in the production of such a drug in contravention of that subsection by another.

(3) Subject to section 28 of this Act, it is an offence for a person—

(a) to supply or offer to supply a controlled drug to another in contravention of subsection (1) above; or

(b) to be concerned in the supplying of such a drug to another in contravention of that subsection; or

(c) to be concerned in the making to another in contravention of that subsection of an offer to supply such a drug

92. The word “engage” is very similar in meaning with the word “concerned” in the United Kingdom’s Misuse of Drugs Act 1971. In this context “engage” means to participate or be involved. “Concerned” means to be involved.
93. It is with this in mind that I also move to the next point, that the section we are considering, has as one possible illegal activity “supply”, just like the United Kingdom’s offence of being concerned in the supply of an illicit drug.
94. I also note that the comment in R v Gill, (Ibid) at page 216, quoting the words of Swinton-Thomas J in R v Goddard [1992] Crim L.R. 588, that this sub section does not go on to say “with intent that the illicit drug is imported, exported, possessed etc”.
95. It goes on “...in our judgement it is quite plain that the offence is completed when the offer to supply a controlled drug is made, quite regardless of whether the offerer intends to carry out the offer into effect by actually supplying that drug.”
96. Further, section 4 (1) (b) so closely correlates to section 4 (1) (b) United Kingdom’s Misuse of Drugs Act in the way it covers the situation whereby it is unlawful for a person to be concerned in supply/ or in Tongan statue “engage in supply” there is the clear overlap of exactly that same level of involvement between the two sections, there is, in my view, good reason to be persuaded that the approach in R v Gill is the correct interpretation of section 4 (1) (b) of the Act.
97. It follows from this that I rule the Crown do not have to prove the existence of an illicit drug as an element of the offence.
98. All they need prove is there was some plan to possess, supply, transport etc an item said to be an illicit drug, whether it was or not.
99. I reject the submissions on behalf of the Crown insofar as they argue that they had to prove some existence of an illicit drug.
100. I reject the defence submissions that the Crown needed to prove the existence of the cocaine as advertised in the messages of Mele Pale (3 kilograms) .
101. I rule that a scenario exactly like that in R v Gill would fall under the aegis of section 4 (1) (b) of the Act, so rule there was no need for the Crown to prove there ever was an illicit drug.
102. To return to the point Mr. Tu’utafaiva raised as to the necessity of proving the existence of a drug and its quantity because of the approach to sentencing, the effect of my ruling is to acknowledge there is a lower level of culpability attached to section 4 (1) (b) than section 4 (1) (a); therefore any sentence, in the event of a conviction or a guilty plea to an offence under that section, would have to reflect that.

Result

103. I reject the defence submission. I find the Crown have made out the necessary elements of the offence, to the required standard, so as to raise a prima facie case.
     

Cooper J

Supreme Court, Nuku’alofa

26^th January 2023

---

^[1] Police v Saieti & Tupouata an appeal from the Magistrates’ Court, AM 26 of 2020 paragraphs 32 - 33