R v Tuitavake [2024] TOSC 75; CR 10 of 2024 (12 September 2024)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY
CR 10 of 2024

BETWEEN:
R E X
-Prosecution

AND:
LAUTAIMI TUITAVAKE
-Accused

JUDGEMENT

BEFORE: LORD CHIEF JUSTICE MALCOLM BISHOP KC

Appearances: Mrs S. ‘Eliesa for the Crown Prosecution
The Defendant in Person
Date: 12 September 2024

1. THE CHARGE

1. On 27 February 2024, the Defendant was arraigned where he pleaded not guilty to the following:
   1. Count 1: Supplying of an Illicit Drug, contrary to section 4(1)(a)(iii) of the Illicit Drugs Control Act (“the Act”).
   2. Count 2: Possession of Illicit Drugs, contrary to section 4(1)(a)(iv) of the Act.
   100. Count 3: Possession of Illicit Drugs, contrary to section 4(1)(a)(i) of the Act.
   4. Count 4: Unlawful Possession of Utensils, contrary to section 5A of the Act.
   5. Count 5: Assaulting a Police Officer, contrary to section 29(a) of the Act
2. On 9 September 2024, trial for this proceeding commenced. I heard closing submissions from the prosecution and the Defendant at the conclusion of the trial yesterday, 11 September 2024.

2. THE ELEMENTS OF THE OFFENCE

3. Before I can convict the Defendant on the offences charges I must be satisfied beyond a reasonable doubt that on or about 29 August 2023:
   1. The Accused, Knowingly, Supplied to Uatahausi Tomu, Without lawful excuse, Count 1 – a class A drug (0.14 grams of methamphetamine)
   2. The Accused, Possessed, Without Lawful Excuse, Count 2 – a Class A drug (1.8 grams of methamphetamine), Count 3 – a Class B drug (1.34 grams of cannabis), Count 4 – utensils (1 smoking pipe, 1 piece of straw, 16 empty packs).
   3. The Accused, Did wilfully, assault Officer Uatahausi Tomu (bit his right shoulder), Whilst he was performing his duty (attempting to arrest the Accused).
      

100. THE EXHIBITS

4. The following was submitted by the Crown as exhibits in this proceeding:
5. Exhibit 1: Photos of the scene
6. Exhibit 2: Sketch map of the scene
7. Exhibit 3: Search List
8. Exhibit 4: Search Report
9. Exhibit 5: Drugs movement register
10. Exhibit 6: Exhibits office register
11. Exhibit 7: Forensics case register
12. Exhibit 8: Photos of the Illicit Drugs being weighed and tested
13. Exhibit 9: Certificate of Analysis (Methamphetamine Result)
14. Exhibit 10: Amended Certificate of Analysis
15. Exhibit 11: Certificate of Analysis (Cannabis Result)
    

4. SUMMARY OF FACTS

16. The Defendant is Lautaimi Tu’itavake, a 40-year-old male from Malapo.
17. On or about 29 August 2023, Police received reliable information that illicit drugs were being sold by the Defendant from his residence in Malapo.
18. Police contacted the Defendant to arrange for a sale, and the Defendant gave them instructions for let a person off at a Chinese shop near a bended road in Malapo.
19. Officer Tomu was dropped off at the Chinese shop and then walked towards the
20. The Defendant handed a pack of methamphetamine to Officer Tomu when the officer asked to see the pack.
21. As soon as the Defendant put his hand down, the officer held the Defendant to apprehend him and told the Defendant he was police.
22. They struggled, and the officer called to his team to move in, through an active call on his phone to assist in apprehending the Defendant. The officer was on an active call the whole time during his exchange with the Defendant.
23. The other officers arrived, and the Defendant was apprehended and cuffed behind his back. During this, Officer Tomu handed Sargent Fifita the pack of white substance that was given to him by the Defendant.
24. Sargent Fifita informed the Defendant that they are police officers and of his rights. He further told them of their intention to conduct a search without a warrant for illicit drugs.
25. Sargent Fifita then searched the Defendant and removed from his trousers $250 and 1 pack of substance suspected to be cannabis.
26. While the Defendant was detained, Officer Feinga spotted a green can and a smoking pope under a soursop tree close to the area the Defendant was. The Defendant was taken to this area where Tomu then removed the contents of the can. It contained several empty packs, 4 small packs all containing white substance suspected to be methamphetamine and a large pack containing 9 empty packs.
27. The Defendant was arrested in relation to items that were found and the items seized were all take to the Central Police Station for photographing, testing and weighing.
28. The Accused was not cooperative and told police he would only speak in Court.
    

5. THE EVIDENCE

29. The prosecution put forward evidence and produced 4 witnesses in total for their case. These witnesses were namely, Sargent Tu’amelie Fifita, Officer Uatahausi Tomu, Officer ‘Ilaisa Feinga, and Officer Michael Mafi.
30. The witnesses gave evidence as to how they received reliable information about the Defendant, contacted him, confirmed he had illicit drugs on him as he gave it to Officer Tomu, then apprehended him.
31. In doing so the witnesses gave their individual accounts of what they recalled, they were individually involved with in apprehending, searching the Defendant, and securing the evidence found on the scene.
32. On cross examination, the Defendant put to the witnesses that the last thing he remembers is Officer Tomu holding him, then when he gained back his consciousness Officer Fifita was showing him a pack of cannabis and bundle of $50. The Defendant put to the witnesses that they planted and set him up with the evidence they alleged to have found on him. This was refuted by the witnesses as false.
33. I accept the evidence of these witnesses and accept them as witnesses of truth insofar as they knew of the evidence pertinent to my findings. They were more robust in arresting the Defendant than they had indicated in evidence, and it may explain the injury to the Defendant.
    

6. THE LAW – Illicit Drugs Control Act

34. Count 1 – a Class A drug in the quantity of less than 1 gram shall be liable upon conviction to a fine not exceeding $10,000 or imprisonment for a term not exceeding 3 years or both under Section 4(1)(a)(iii).
35. Count 2 –a Class A drug in the quantity of 1 gram or more, gram shall be liable upon conviction to a fine not exceeding $1,000,000 or to imprisonment for any period not exceeding life or both under Section 4(1)(a)(iv).
36. Count 3 –a Class B drug in the quantity of less than 28 grams, shall be liable upon conviction to a fine not exceeding $5,000 or imprisonment for a term not exceeding 1 year or both under Section 4(1)(a)(i).
37. Count 4 – Unlawful Possession of Utensils is an offence and shall be liable upon conviction to a fine not exceeding $10,000 or imprisonment for a term not exceeding 3 years or both under Section 5A.
38. Count 5 – Assaulting a Police Officer is an offence and shall be liable upon conviction to a fine not exceeding $10,000 or a term of imprisonment not exceeding 3 years or both under Section 29(a).
    

7. DISCUSSION

39. The evidence in this matter is now complete there will be no more. It now falls to me to sum up the case in doing so I must direct myself as follows.
40. This is a criminal matter and therefore the burden of proof is upon the prosecution they must satisfy to me so that I am sure that the allegations which have been made have been established by the evidence nothing less than being sure, nothing less than certainty will suffice.
41. I also direct myself that I must give individual consideration to each of each count in the indictment and I do so.
42. Although some indications have been made that the Defendant is known to the police, I put that out of mind and treat him on the basis of someone against whom no previous convictions have been established in other words, I treat him as to all intents and purposes a man of good character.
43. The incident arises out of an operation conducted on the 29th of August of 2023 as a result of information obtained. Police officers went to the location of the defendant's home. It is common ground between the parties that the defendant lived near what has been described as a Chinese shop and which is depicted in photograph one of the photography bundle in Exhibit 1.
44. Feinga told me and I accept that those in the vehicle received instructions from the defendant for one person to get off near the Chinese shop and for the vehicle to conduct what I suppose may be termed anti-surveillance techniques by driving away from the scene and proceeding around the bend of the road, the inference I'm invited to draw which I do is that this was done so that no witnesses could see the handover of what happened later.
45. Officer Tomu got out of the vehicle went to the defendant and said I am here for $50 paper i.e a small amount of ice (methamphetamine) worth $50. According to Tomu who gave evidence, the defendant's reply was I don't sell the 50 paper I only sell by the gram he then handed what later transpired on analysis to be 0.14 grams of methamphetamine to Officer Tomu who immediately revealed himself as Police then a struggle ensued, the defendant was taken to the ground.
46. He claims he then lost consciousness and woke up to find his wound to his right ear being attended by the Police. I am satisfied that no such loss of consciousness occurred, what happened I find was that during a struggle the defendant was either accidentally injured while he fell onto the undergrowth or more likely was restrained and injured himself in that way.
47. The evidence continued that as the Defendant was being restrained, two men appeared and then disappeared one of them was the defendant’s son. The Defendant according to Sargent Fifita was anxious to leave the scene saying, “you've done your work let's go” or words to that effect.
48. I am invited to draw the inference that the reason for the defendant hastiness was that nearby was a green can containing various packets of methamphetamine together with a smoking pipe some straw and 16 empty packets.
49. This is the aspect of the evidence which is caused me most concern. I have been helpfully provided with a sketch map marked exhibit 2 which shows that the green can in question was about 8 metres from the location of the Defendant, 6 metres from him and the roadside and 12 metres from the roadside to the can making a right-angle triangle.
50. There is no evidence of any physical contact between the defendant and the can in question. There is no forensic evidence linking him in any way to that can.
51. The only evidence to connect the defendant with a can was the inference I'm invited to draw that he was anxious to deflect attention from it and to persuade the officers to leave the scene.
52. I find this evidence highly suspicious; it seems unlikely that a green can containing methamphetamine would be left in the undergrowth near the defendant home where I find he had at least a small amount of methamphetamine which he was offering to the police officer without there being any connection between the defendant and the can.
53. But suspicion is not enough in a criminal trial and with some misgivings I have concluded that the criminal standard of proof is not satisfied. I am not sure on the evidence that the Defendant was in fact in possession of the contents of the can and it follows that he must be acquitted on that account.
54. However, I have no doubt at all that he had in his possession a small amount of cannabis and some methamphetamine, putting it bluntly the Defendant was caught read handed.
    

8. RESULT

55. I find him guilty of count one, not guilty on count 2, guilty on count 3, not guilty of count 4 and I find that count 5 the assault on the police officer was established to the criminal standard however I observe that any injury was not serious and did not require any medical treatment.
56. The Defendant is acquitted on Counts 2 and 4 and I find him guilty of Count 1, 3 and 5 of the indictment.
    

NUKU’ALOFA HON. MALCOLM BISHOP KC
12 September 2024 LORD CHIEF JUSTICE