R v Satini [2024] TOSC 85; CR 62-64 of 2024 (25 October 2024)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

CR 62 -64 of 2024

BETWEEN :

REX

- Prosecution

AND :

1. HARRIS SATINI

2. PALETILI AFU

3. SAIA TUFUI

- Accused

VERDICT

BEFORE: HON. JUSTICE TUPOU KC

Appearances: Mr. James Lutui & Mr ‘A. Fisi’iahi for the Prosecution

Harris Satini in person

Paletili Afu in person

Saia Tufui in person

Date: 25 October, 2024

Preliminary Matters

Before the matter commenced, I took the opportunity to explain to the Accused persons the trial process, the burden and standard of proof and that it rested with the Prosecution throughout the trial. I explained the process in terms of the evidence called and their right to cross-examine witnesses and that at the end of the Prosecution’s case; they could give evidence or call others to give evidence on their behalf. That at the end of the trial it would be open for them to make submissions to the court regardless of whether they gave evidence or not. That they could ask for clarification or questions at any stage of the proceedings if they wished. I took guidance from the Information for self-represented Defendant on the criminal trial process document issued in March 2020.

The Charges

CR 62 of 2024 – Harris Satini (“Satini”)

1. On 20 June, 2024, the Accused pleaded not guilty to one count (Count 1) of possession of an illicit drug, contrary to section 4 (1)(a)(iv) of the Illicit Drugs Control Act, one count (Count 2) of possession of an illicit drug, contrary to section 4(1)(a)(i) of the said Act and one count (Count 3) of possession of utensils, contrary to section 5A of the said Act.
2. The particulars of the offendings were:

Count 1 – Satini of Vaini, on or about 27 August 2023, at Vaini, you did knowingly without lawful excuse, possess a Class A illicit drug, when you had in your possession 10.64 grams of methamphetamine.

Count 2 – Satini of Vaini, on or about 27 August 2023, at Vaini, you did knowingly without lawful excuse, possess a Class B illicit drug, when you had in your possession 8.40 grams of cannabis.

Count 3 – Satini of Vaini, on or about 27 August 2023, at Vaini, you did knowingly without lawful excuse, possess utensils, when you had in your possession 1 weighing scale, 2 smoking pipes, 1 straw and 38 empty packs.

CR 63 of 2024 – Paletili Afu (“Afu”)

3. Afu also pleaded not guilty on 20 June, 2024 to one count (Count 4) of possession of an illicit drug, contrary to section 4(1)(a)(iii) of the Illicit Drugs Control Act, one count (Count 5) of possession of utensils, contrary to section 5A of the said Act, one count (Count 6) of possession of an illicit drug, contrary to section 4(1)(a)(i) of the said Act and one count (Count 7) of possession of utensils, contrary to section 5A of the said Act.
4. On 27 August, 2024, the Crown sought to amend the indictment against Afu in relation to Counts 4 and 6 and, in particular, to the weight of the drugs involved. For Count 4, the Class A drug weight Afu was charged with was 0.15g to be amended to 0.24g. For Count 6 the weight of the Class B drug he was charged with was 0.20g to be amended to 0.10g.
5. On 9 September, 2024, Afu wrote to the Court to express his dissatisfaction and wish to address the matter in Court. He was afforded the opportunity to raise the matter in court and was satisfied after hearing the reasons for the amendment sought as provided by the Crown. I granted leave for the Prosecution to amend the indictment accordingly.
6. At the close of the Crown’s evidence, Afu indicated his intentions to change plea. He was re-arraigned and pleaded guilty to Counts 4 and 5 on his indictment. The Crown withdrew the charges against him under Counts 6 and 7. Afu now awaits sentencing.

CR 64 of 2024 – Saia Tufui (“Tufui”)

7. Tufui also pleaded not guilty on 20 June, 2024 to one count (Count 8) of possession of an illicit drug, contrary to section 4(1)(a)(i) of the Illicit Drugs Control Act.
8. The particulars of the offending were:

Count 8 – Tufui of Vaini, on or about 27 August 2023, at Vaini, you did knowingly without lawful excuse, possess a Class B illicit drug, when you had in your possession 0.15 grams of cannabis.

9. Section 4(1)(a) (i), (iv) of the Illicit Drugs and Control Act, reads:

“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; ........., commits an offence and shall be liable upon conviction —

(i) in respect of a Class B drug in the quantity of less than 28 grams, to a fine not exceeding $5,000 or imprisonment for a term not exceeding 1 year or both;....

(iv) in respect of a Class A drug in the quantity of 1 gram or more, to a fine not exceeding $1,000,000 or to imprisonment for any period not exceeding life or both.”.

10. Section 5A of the Illicit Drugs and Control Act, reads:

“Any person who knowingly without lawful excuse, the proof of which shall lie on him, imports, exports, possesses, manufactures, uses or supplies utensils or any equipment or article that is capable of being used in the commission of an offence under this Act commits 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.”

The elements

11. To secure a conviction against the Accused persons, the Crown must prove beyond any reasonable doubt, each and all of the following elements:

CR 62 of 2024 – Satini

Count 1 – That on or about 27 August, 2023, at Vaini:

1. Satini;
2. knowingly without lawful excuse possessed;

100. a class A drug, namely, 10.64 grams of methamphetamine.

Count 2 – That on or about 27 August, 2023, at Vaini:

1. Satini;
2. knowingly without lawful excuse possessed;

100. a class B drug namely, 8.40 grams of cannabis

Count 3 – That on or about 27 August, 2023, at Vaini:

1. Satini;
2. knowingly without lawful excuse possessed;

100. utensils capable of being used in the commission of an offence, namely, 1 weighing scale, 2 smoking pipes, 1 straw and 38 empty packs.

CR 64 of 2024 – Tufui

Count 8 – That on or about 27 August, 2023, at Vaini:

1. Tufui;
2. knowingly without lawful excuse possessed;

100. a class B drug namely, 0.15 grams of cannabis

Cautions

12. In considering a verdict for the cases against Mr. Satini and Mr. Tufui, I have reminded myself of the following important matters. Firstly, that the Crown bears the burden of proving each element that constitutes the charges it has brought against the Accused persons beyond reasonable doubt. That burden and standard is unchanging throughout the trial.
13. Secondly, that the Accused persons are under no obligation to prove or disprove anything. It follows that there exists no obligation for them to give or call any evidence unless they so choose. Mr. Satini elected to give evidence but there is no significance in that or that Mr. Tufui chose not to give evidence. The onus and the standard are unchanging and rest on the Crown throughout the trial.
14. Thirdly, 1 remind myself that I must judge the matter only on the evidence which I have heard in this Court and that the Crown’s case must stand or fall on the admissible evidence the parties choose to call before me in this court.

The Crown’s Case

15. The following documents were produced by consent:
    1. P1 – Investigation Diary;
    2. P2 – Search list;
    100. P3 – Sketch map of Afu’s residence;
    4. P4 – photographs (15 pages).
16. The certificates of Analysis of the tests done on the illicit drugs seized from the accused were produced by Sgt. Carsten Leveni. They were:
    1. P5 – certificate of analysis of illicit drugs found on Tufui;
    2. P6 – certificate of analysis of illicit drugs (meth) found on Afu;
    100. P7 – certificate of analysis of illicit drugs (cannabis) on Afu;
    4. P8 – certificate of analysis of illicit drugs (meth) on Satini;
    5. P9 – certificate of analysis of illicit drugs (cannabis) on Satini.
17. On Sunday 27 August, 2023 at around 8pm, Sergeant Tu’amelie Fifita (“Fifita”) of the Police Drugs Squad received information that Satini was driving around Vaini, selling drugs. He was using his own white land rover and a red car owned by Afu. Sergeant Fifita called his team and briefed them. They left for Vaini. As they came close to Afu’s house they slowed down. About 7 metres away he could see a light. It was a car reversing out to leave the home. He got out when he saw Satini was the driver. Satini quickly threw a pipe down before he opened the car door and got out.
18. Sergeant Fifita detained Satini, while the other officers apprehended a couple of men who had made a run for it from the house.
19. After Satini was detained and his body was searched, the officers moved inside to complete the search. Satini requested a bathroom stop. He was taken by Constable Lea’aepulu with instructions to remove his pants from him before he went to the bathroom. When they returned from the bathroom, the female officers with the action diary also arrived. Afu was searched before the police moved outside to search Afu’s car and then they went back inside Afu’s house and conducted a search there before they went back outside and searched Satini’s vehicle. The last part of the operation was to move to Satini’s house and conduct a search there and Tufui who was there with others.
20. Fifita led the operation, the searches, informed the parties at the crime scene that they were police officers, why they were there and the legal authority relied on to conduct a search without a warrant, read them their rights and appropriate legal cautions. He took the photographs produced as Exhibit P4 and drew the sketch map produced as Exhibit P3.

Search of Satini

21. At P4, page 1, the first photo was taken during the search of Satinti. The gloved hand was Fifita. Satini is shown still wearing the red bag around his waist. The content of the red bag is on the second photograph. The photos at page 2 were the content of his front left trouser pocket. The photos at page 3 were the contents of his front right trouser pocket. Those items are recorded on the diary of action^[1] and the search list^[2]. The illicit drugs were tested in the presence of Satini. Exhibit 1.1 tested positive for methamphetamine and exhibits 2, 2.1 tested positive for cannabis.

Search of Afu

22. The photos at page 4 were taken inside the house. As a crowd were beginning to gather, they moved inside for safety. The items shown were the content of Afu’s trouser pocket. The gloved hand holding the items is Fifita. Page 5 photo 1 was the items found on Afu. Those items are recorded on the diary of action^[3] and the search list^[4].

Search of Afu’s red car and house

23. Page 6 photo 1 is the car Satini was reversing when the police arrived. Photo 2 is the pipe Fifita saw Satini threw down. Photos at page 7 were taken inside Afu’s house. Photo 2 is the straw with empty packs inside. Page 8, photo 1 are the empty packs inside the straw. Photo 2 is the bong bottle which is opened and a tube is inserted in the opening and used to smoke cannabis. It was found in Afu’s bedroom who said it is also accessed by others. Page 9 is of a sofa inside Afu’s room with empty packs that were scrammed inside the rolled piece of paper on the side which was a leaf from the book of the disciples used by prisoners in prison. Afu was charged after the search was completed.

Satini’s white vehicle

24. A white vehicle was parked outside which Satini admitted belonged to him. He voluntarily admitted there was cannabis inside and it was his. Page 10, shows the vehicle and Satini in the green hood. Photo 2 is the compartment on the driver’s side containing the cannabis. Page 11 shows the cannabis and items when the door was opened, and photo 2 is a close up of the cannabis and $20 shown on the door on photo 1. Page 12, photo 1 shows a scale and photo 2 are empty packs. Page 13, photo 1 is the back of the front passenger seat showing 2 pipes and toilet paper. Photo 2 is a close up of the same. Page 14 is a photo of the 2 pipes and toilet paper after they were taken out from the back of the front seat. Page 15 shows the driver’s door where a black mask was wrapped around a straw. Satini was present during the search. He admitted the cannabis was his but said the pipes at the back seat were Kapuana’s. He was cautioned and was accepting of it. In fact, no one objected to anything.
25. P2 is the search list which Tu’ipulotu recorded and he numbered the exhibits as they were discovered. It was signed by him as officer in charge and given to the Accuseds for their signatures after the search and after it was explained to them. Exhibits 1-1.1, 2-2.1, 3, and 4 were all found on Satini.
26. Exhibits 5-5.1 and 5.2 were found on Afu.
27. Exhibit 6 was found in vehicle C22181.
28. Exhibits 7, 8, and 9 were found in Afu’s house in the living room area. Exhibit 10 was found in his bedroom.
29. Exhibits 11, 12, 13, 14, and 15 were all found in Satini’s vehicle.
30. Fifita referred to P3, page 1 as a sketch of Afu’s home showing the gate they entered via the internal road inside the village of Vaini. Page 2 is the plan of his house.
31. Fifita explained that straws are used to transport the meth onto the meth pipe for consumption. The scale at page 12 of P4 is used to weigh each pack for pricing. The pipe shown at page 14 is used to smoke meth and the empty packs are used to pack both meth and cannabis. The bong at Page 8 is used to smoke cannabis using the mouth of the bottle.
32. At entry 12 of P1, it records that Satini did not wish to sign as well as entry 34. He drew attention to entries 14 to 16 which recorded the tests taken in the presence of Satini. Entries 20 to 21 show the test was positive for meth. Entry 38 refers to the ziplock found under the steering wheel of his vehicle which was tested for cannabis, refer entry 39.

Search of Tufui and Satini’s house

33. The officers then moved to Satini’s home. A sketch of the home is shown under P3 as Crime Scene 2. When the police arrived there were 2 people inside. They were cautioned and searched. There was nothing on Tufui but they found cannabis on his phone. Nothing else was found in the house and Tufui was taken into custody. Entries 47-57 record the activities in Satini’s home and entry 52 recorded the search of Tufui’s phone who admitted the cannabis was his.
34. The diary of action, entries 58-60, was recorded by Fifita. Entry 57 records the operation finished around 1.05am.
35. Satini started his cross examination of Fifita by stating “I believe that this is the whole truth that you have just given”. Many, if not, all of his questions focused on challenging minor facts that were not relevant to the issues of the case against him. It did not advance his case in any form. It was the same for Afu and Tufui’s questioning of Fifita.
36. Constable Emily ‘Otuhouma (‘Otuhouma”) produced the diary of action. She is a member of the Drugs Squad with the Central Police Station. She was at the crime scene at the material time and was responsible for recording police movements in the diary of action. Entry 2 records the members of the operation as: IP Vi, Sgt. Fifita, CFC. ‘Otuhouma, PC. Feinga, PC. Tomu, PC. Mafi, PC. Lea’aepulu, PC. Folau and WPC. Tu’ipulotu. She personally recorded entries 1-46 and 61 – 84 on the diary of action, produced as exhibit P1. Entries 47 to 60 were recorded by PC Tomu. Each of those entries record activities undertaken by members of the squad as they occurred.
37. Satini questioned ‘Otuhouma on two points. Firstly, he challenged her evidence that he did not wish to sign the action diary. He suggested it was because he was handcuffed. Secondly, he challenged the weight of the illicit drugs found on him because he was not present when it was weighed. ‘Otuhouma said that equipment could not be transported safely to crime scenes for that to occur.
38. I heard from Constable Lea’aepulu who explained that they were briefed by Sergeant Fifita on the location being Afu’s residence with Satini as the target. As they were arriving at Afu’s residence, Satini was reversing out in a red car. Sergeant Fifita apprehended Satini while he chased two people attempting to run from the house and brought them back.
39. Assisting Sergeant Fifita, Lea’aepulu searched Satini and the following items were found on him:
    1. a red bag tied around his waist which contained a large pack containing a white substance. That substance tested positive for methamphetamine;
    2. in his left trouser pocket were 2 packs containing a plant substance which tested positive for cannabis, 8x$50 dollar notes;
    100. in his right trouser pocket were 1 smoking pipe, a lighter and 90 seniti.
40. The red car with registration number C-22181^[5] was searched in Satini’s presence. Items found were:
    1. 1 smoking pipe between the front seats, (Satini said it fell out of his hand as he pulled the hand break).
41. Satini’s vehicle with registration number L-21913, also parked at Afu’s residence was searched in Satini’s presence. Items found were:
    1. a large sized pack with shreds of plant material and a $20 dollar note in a compartment near the steering wheel;
    2. 1 silver coloured weighing scale in the compartment between the front seats;
    100. 31 empty packs beneath the hand breaks;
    4. 2 smoking pipes inside the back pouch of the front passenger seat;
    5. 1 half yellow in the driver’s door box.
42. Next, the drugs were tested in the presence of Satini. The white substance found in the red bag tested positive for methamphetamine and the plant substance found in his left trouser pocket and in his own vehicle tested positive for cannabis.
43. Lea’aepulu was referred to P4. He identified Satini on the first photograph at page 1. Pages 2 and 3 were photographed as he searched Satini. He can be seen on the first photograph of page 3. At pages 13 and 14 he showed the items found in Satini’s vehicle.
44. Satini challenged Lea’aepulu to look at him and to confirm whether it was him that he searched that night. Lea’aepulu confirmed he was the person he searched. Then he took him to P1, page 3, entry 9 which recorded that Lea’aepulu removed the bag from Satini’s waist to suggest it was inconsistent with his evidence that he removed his trousers. Lea’aepulu confirmed that he removed his trousers with the bag still attached to it.
45. Police Officer Manu Tu’ipulotu (“Tu’ipulotu”), is also in the Drugs Squad. On this night he was responsible for compiling the Search List, produced as exhibit P2. He explained that it was his duty to list all items found, where they were found as they were found. At the bottom of each of the search lists are signatures on the right of Fifita as officer in charge and on the left are signatures of the persons who own the items listed except for the last search list which was signed only by Satini after the search of his home.
46. Satini questioned Tu’ipulotu about the registration number of the vehicle recorded on the 3^rd search list and suggested it was 91213 instead of 21213. The first number has obviously been written over but I accept the registration number is 21213. There is a photograph of it at P4, first photograph at page 10.
47. Afu asked which items on the first search list belonged to which of the 5 signatures at the bottom of the list. Tu’ipulotu responded that the items belonging to him, is item 6 which states, “found in upper right trouser pocket of Paletili”.
48. Constable Uatahausi Tomu (“Tomu”) was also part of the operation on the material night. He was responsible for taking custody of all the exhibits found and tested on site to be handed over to the exhibit room at the police station. He also took over from ‘Otuhouma when the search moved to Satini’s home and recorded entries 47 – 57 of the diary of action at exhibit P1 at pages 12 – 14.
49. Tomu explained that on the night the incident occurred and exhibits were seized and by the time they returned to the station, it was well after midnight and the officer in the exhibit room was not on duty. In such circumstances, naturally, they would keep the exhibits in their locked cabinets until they can be weighed and handed over to the exhibit room. Entry 61^[6] records the handover of the white substance and plant substance found on Satini to Sergeant Leveni to be tested and weighed. After those results are recorded the exhibits are handed back to him for delivery to the exhibit room.
50. He explained that exhibits are weighed immediately or as soon as they are seized to achieve accuracy. In the case of cannabis, it is before the leaves wilt.
51. Satini asked Tomu why the exhibits could not be weighed in their presence. Tomu said it was to avoid owners from attempting to destroy them. He said such an incident had previously occurred and they adopted the present method.
52. Tufui asked Tomu how many times his phone was searched. Tomu responded that he was not part of the search team; he recorded the items found only.
53. Training Officer ‘Ilaise Feinga (“Feinga”) is also in the Drugs Squad and was a member of the operation team. She said that when they arrived through the gate near the inroad at Vaini on page 1 of P3, they saw the red car reversing with Satini inside. She got off and walked up the driveway when she saw a person running towards the Tauafa’ahau Road. She apprehended him and saw it was Afu and brought him back into the house.
54. When she was directed to search Afu, she found in his right trouser pocket 1 pack with white substance in it; still on his right side in another pocket was 1 empty pack with another 5 empty packs inside. She also participated in the search of Satini’s house.
55. Satini questioned Feinga about the items she found on him and whether she could confirm her evidence was correct. She said they were 2 packs of cannabis and cash which she handed to the officer responsible for the search list to record the details. Satini suggested diary entry 11 was unreliable because she did not show how much cash she found on him. He asked her if she counted it, she said no.
56. Training Officer ‘Alipate Folau, said that he was responsible for guarding Satini and the crime scene to ensure no one left or entered. When the team moved to Satini’s house, he searched the house and took photographs there. He found nothing.
57. Sergeant Carsten Leveni (“Leveni”) is in the Forensic Analysis of the Drugs Division. He examined and weighed the illicit drugs seized in this operation. He produced Exhibits P5-P9 which he compiled after he examined and weighed the exhibits concerned. He referred the court to P1, entries 61-69 and explained that was the handing over of the exhibits from Tomu to him. His signature is at the bottom of those entries.
58. He explained that at handover stage, he would proceed and label each exhibit. He will then weigh each exhibit one by one. Then he will test them again using the trunarc analyser.
59. For exhibit 1.1 on the search list, the results are contained in the Certificate of Analysis at P8 being the white substance found in a pack in the red bag tied around Satini’s waist. The gross weight is the whole package and the net weight is the content only. The net weight was 10.64 grams and the trunarc analyser provided a positive test for methamphetamine.
60. For exhibit 2, 2.1 and 11 on the search list, the results are contained in the Certificate of Analysis P9 of the plant material found on Satini’s body and car. The net weight for exhibit 2 was 1.09 grams; exhibit 2.1 was 1.96 grams and exhibit 11 was 5.35 grams. The trunarc analyser produced a positive result for cannabis.
61. For exhibit 5 on the search list, the results are contained in P6. This was the white substance found in Afu’s upper right trouser pocket. The net weight of the white substance was 0.24 grams and the trunarc analyser produced a positive result for methamphetamine.
62. For exhibit 9 on the search list, the results are reported in P7. This was the plant material found inside a cone on a handmade bong inside Afu’s bedroom. The net weight was .10 grams and the trunarc analyser produced a positive result for cannabis.
63. For exhibits 3 as recorded at entry 68 of the diary of action, the results are reported in P5. This was the plant material found in the cover of Tufui’s phone at Satini’s house. The net weight was .22 grams and the trunarc analyser produced a positive result for cannabis.
64. Satini told Leveni that he did not question how he conducted the examination but wanted to know why is it that he was not allowed to be present at the weighing of the exhibits. Leveni said there are rules observed in the area where these tests are undertaken and those rules mean he would not be allowed in there.

The Defence Case

CR 62 of 2024 – Satini

65. At the close of the Crown’s case, Satini elected to give evidence.
66. He said he recalled having breakfast on the morning of 27 August, 2023. He was with a Kapuana Unga when he noticed a lot of vehicles coming to his home. He was not familiar with a lot of them. He asked Kapuana if she was selling illicit drugs and she said no. She was staying with him because she was facing serious charges of causing bodily harm in Vava’u.
67. He did not like that and took her to Halaleva. Then he went to Pangaimotu with one Siovani. When he returned, Kapuana was sitting on the fence at the Primary School at Vaini. When he went inside his house, it was in a mess and his wife’s phone was missing.
68. He called Tufui to come because she had threatened she would burn his house. Then Afu called asking for food and he said he would bring the meat if he cooked the haka. Then he told Tufui to search and sweep the house because he was concerned Kapuana would call the police.
69. He told Tufui to stay there while he went to see Afu. He walked to a female friend’s house about 50-70 metres from Afu’s house to get the meat. Before he got there and at a place known as “Lalo Tava” at Vaini where a lot of ice users congregate, he saw Kapuana. Then his foot hit a package and at the same time heard the sound of broken glass inside. He took the package and returned to his vehicle and opened it. Inside was the packet of methamphetamine that was found on him.
70. He said it is uncommon to find such a large amount lying around like that. He took a sample, one pipe, cannabis and an empty pack and put it inside. He gave it to Afu to try and he said it was good.
71. Then he took the pipe he used and put it inside and took Afu’s car keys, to take it all to the police station. He said he did not put it inside his pocket in case it fell out. Instead, he put it on his belt so he can keep his hands on it until he got to the police station. He said this all took place within 18 minutes.
72. Then Afu’s phone rang, it was his girlfriend and then it rang again and he could see it was his wife’s number. He said when he found the package he felt strange as he knew it meant he was in custody and control of it – and he decided to take it to the police station.
73. Under cross examination Satini accepted that:
    1. when the police arrived, the little red bag was around his waist as shown on the first photograph at page 1 of P4;
    2. the illicit drugs were inside the bag^[7];
    100. everything on P4, page 2 were from his pockets;
    4. everything on the second photograph at page 3 of P4 were from his trouser pocket;
    5. that he threw the scale into the box in his car;
    6. that there was a lot of cannabis but he took 2 packets and threw the rest down and threw a scarf over it and the straw fell out from the scarf;
    7. that the pipe shown on the second photograph at page 6 of P4 was the pipe he took from Afu;
    8. that the photographs at pages 10 -11 of P4 are of his vehicle and the second photograph on page 11 is cannabis;
    9. that the scale is shown at page 12 and the second photograph are empty packs;
    10. that page 15 shows the straw inside the parcel.

CR 64 of 2024 – Tufui

74. Tufui elected not to call any evidence.

Submissions

CR 62 of 2024 – Satini

Satini

75. Satini submitted that the court just heard the facts. He, himself was no longer using illicit drugs but the company he kept were still using it. He told me that Acting Justice Langi had given him strong advice that weighed heavily on him. He was charged in 2021 for illicit drugs offences for which he was acquitted. He had undergone training with the salvation army and he understood his behaviour needed to stop. He said he was at the wrong place and was caught with the package.
76. He complained that statement reports were questionable, he was not aware of Sergeant Tu’amelie’s statement, the evidence was inconsistent and the whole thing was handled poorly.

Crown

77. Mr. Lutui submitted that Satini had accepted everything that was found in his control and that was sufficient to convict him. The Crown had proven its case.
78. He urged the court not to accept Satini’s evidence as it was unreasonable and untrue. No reasonable person would find something like that, disperse, distribute as he said and then claim he was taking it to the police.
79. Satini in reply reiterated his doubts about the weight of the drugs found on him and submitted that he was deprived of the right to see it for himself. He said that if he saw it for himself he would not dispute it. After all, mere humans are subject to failure.

CR 64 of 2024 – Tufui

Tufui

80. Tufui proceeded to give evidence as opposed to making submissions. He said that Satini called him and he was there for about 5 minutes before he told him to stay and look after the house. Two hours went by and he was scared so he called his brother-in-law. It was 5 minutes after that the police arrived. They took his phone and searched the house twice and he thought that what they found belonged to the police.

Crown

81. The Crown relies on Fifita’s evidence and entry 52 of the Diary of Action. That entry reads:

“D/Fifita discovered on the cover of the Saia Tufui’s telephone plane material suspected to be cannabis inside the cover of his phone. D/Fifita read Saia his right to answer or not answer any questions and Saia confirmed he understood. D/Fifita asked Saia whose plant material it was and Said the “pongo” was his.”

82. Mr. Lutui submitted the entry was sufficient to convict Tufui. The court was informed that the weight of the cannabis was amended to include only what was found inside the cover of his phone and to deduct the material found on the table.
83. It was his submission that entry 52 was sufficient to convict Tufui.

Considerations

CR 62 of 2024 – Satini

84. Consistent with the records on the diary of action, none of the Accuseds, including Satini, raised any objection to the search undertaken by the police on 27 August, 2023. The diary of action record that they were all satisfied about the actions of the police in that respect and had no questions.
85. I found all of the officers called by the Prosecution to be witnesses of truth. Their evidence was clear, consistent, strong and unwavering under cross examination.
86. The Prosecution, in its opening submissions, directed my attention to the relevant applicable principles to establish possession. In R v Uasike [2020] TOSC 88, this court held that possession requires physical custody, control and knowledge of its presence.
87. For Count 1, after assessing the evidence, I am convinced that Satini had physical custody and control of the red bag that contained the 10.64 grams of methamphetamine. He admitted that much.
88. His evidence that he picked the package up, took it to his vehicle, unpacked it for distribution and then put some in a pipe and gave it to Afu to try establishes all of the elements identified in R v Uasike.
89. I do not find Satini to be a genuine and honest witness. I do not believe he was on his way to the police station at all because it was not just the white substance that was on him when he was apprehended. He had in his possession other incriminating items such as the cannabis and equipment on his person and the car.
90. The presence of those items, the scale to weigh, a straw to scoop the drugs and 38 empty packs are all evidence of what appears to me to be a person involved in the supply of illicit drugs.
91. Satini did not so much challenged the accuracy of the weight he is charged with, his problem was that he was not present. He has not produced any evidence to sufficiently rebut Officer Leveni’s evidence.
92. I found the officers involved observed the proper procedures in handling of the exhibits and the examinations conducted by Sergeant Leveni was credible and there was no reason for him or any of the other officers to fabricate any part of their evidence. As a result, I am satisfied beyond any reasonable doubt that the Prosecution has proven all of the elements required for Count 1 and accordingly, I find Satini guilty and convict him.
93. For Count 2, I also find that the Prosecution has proven beyond any reasonable doubt that Satini had custody and control of the cannabis found on him and his vehicle. Satini accepted that the plant material found in his pocket and in his vehicle was cannabis and that it was his. I found the evidence of Sergeant Leveni credible. I find Satini guilty of Count 2 and convict him accordingly.
94. Similarly for Count 3, I find the Prosecution has proven to the required standard all of the elements of the charge in Count 3. The scale was found in Satini’s vehicle. He said he threw it in there. One of the pipes was found on his person and the other he admitted he dropped when he pulled the handbrake of Afu’s car. The straw and empty packs were also found in his car. I bear in mind R v Motuliki [2002] TOSC 22;CR 92/01 (May 2002) where Ford J cited Archbold, 2001 edition which stated:

“A person is in possession of something when he has knowledge of its presence and some control over it; but he would not have possession unless he either knew, or the circumstances were such that he had the opportunity, whether he availed himself of it or not, to learn or to discover in a general way, what the items were.”

95. On his own evidence, Satini confirmed he knew the items were there. In addition, he was there unpacking the package containing the methamphetamine in Count 1. As a result I find him guilty on Count 3 and convict him accordingly.
96. In his submissions, Satini made an issue of the fact Sergeant Fifita’s statement was not provided to them but he was called during the trial. It is not uncommon that this is done by any party when and if their case requires it. In this, case it arose that the photographs on P4 were taken by Fifita and he had to be called to produce and speak to them.
97. Satini, in an elaborate statement, told the Court that Acting Justice Langi had earlier given him an opportunity and strong advice to change his ways and turn from illicit drugs. He has ignored that advice. The illicit drugs involved, the paraphernalia, his evidence that a lot of people were coming to his house, having his house searched and cleaned by Tufui, and use of multiple vehicles are, to my mind, indicative of someone involved as a supplier.

CR 64 of 2024 – Tufui

98. I agree with Mr. Lutui that entry 52 of the diary of action proves that Tufui knew the cannabis was in his phone cover and that he was in custody and in control of it. He did not challenge the content of entry 52 and it must stand along with the evidence of Sergeant Fifita who searched Tufui’s phone and found the cannabis on the cover. I am satisfied that the Prosecution has proven each of the elements required under Count 8 beyond any reasonable doubt. I find Tufui guilty of Count 8 and convict him accordingly.
    

P. Tupou KC
Nuku’alofa: 25 October, 2024 J U D G E

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^[1] P1, entry 11, 13
^[2] P2, exhibits 1. 1.1, 2-2.1, 3, 4
^[3] P1, entry 19
^[4] P2, exhibits 5-5.1 and 5.2
^[5] Afu’s car
^[6] On the diary of action
^[7] P4, page 1, second photo