IN THE SUPREME COURT OF TONGA                                            	
CRIMINAL JURISDICTION		
NUKU’ALOFA REGISTRY	                            	             
CR 6 and 14 of 2025

BETWEEN:		       
R E X                                                                          
- Prosecution

AND:                                
[1] TEVITA ‘ELONE TU’I’IEL’ILA SHOJI 
[2] 'ENEASI TANGI TAUMOEFOLAU
- Defendants
VOIR DIRE RULING 

Before:	          LORD CHIEF JUSTICE MALCOLM BISHOP KC 

Appearances:            Mrs T Vainikolo, Mr K Tamo’ua the Crown Prosecution
                                  Ms H Aleamotu’a for Mr T Shoji 
                                  Mr W Edwards for Mr T Taumoefolau
Hearing:                    4 – 5 September 2025
Date:	                      9 September 2025 

A.	BACKGROUND
1.	Counsel for the Defendants Mr Shoji and Mr Taumoefolau challenged the reception of all prospective evidence in this trial because of alleged police misconduct. I am now told that Mr Taumoefolau withdraws his application in relation to this issue and I proceed as such.
2.	Unusually, the arrests of each Defendant and what happened immediately preceding those events has been captured on a video by an aerial placed drone, I infer without the knowledge of the participants on the ground.

B.	THE EVIDENCE
3.	The drone footage in question has been viewed, and we have been helpfully provided with a written summary of its contents by the Prosecution. It is not necessary at this stage to go into detail as to the whole of the video. 
4.	The material parts can be summarised in this way: 
a.	Outside a residence said to be that of the Defendant, Taumoefolau were parked, black and white motor cars. Someone called Joseph Taufa who was originally charged in the indictment, but which is now given immunity and is expected to be called as a prosecution witness got out of the black voxy van walked toward Taumoefolau’s house. 
b.	Taufa is seen carrying something red as he walks into the covered portion of the driveway. There is another white car parked in the driveway in the front of the black Van nearby. 
c.	Shoji is working on a poster, and he eventually walks into the residence and picks up a package on the lawn between a black and white vehicle. 
d.	He is then carrying what appears to be a black and yellow bag and puts it into the back passenger seat of the black car behind the driver’s seat then walks away from the vehicle and appears to be looking for something down the nearby road. 
e.	He then returns to the garden, at a similar time Taufa returns to his van, gets in empty-handed and then Taumoefolau returns from his house carrying a red bag which he places in his front passenger seat of the black vehicle that Mr Shoji had just placed the yellow package into and he leaves the scene. 
f.	Eventually Shoji gets into the black van picks up the red bag from the front passenger seat and places into the places into the rear of the vehicle while Taumoefolau stands next to the driver seat and appear to be in conversation with Shoji, then Shoji shortly after departs from the residence.
g.	Taking it shortly his journey is intercepted when an unmarked TRG vehicle blocks its path, he then reverses the vehicle and at this point members of the TRG get out of the vehicle and one of the officer’s shoots at the bonnet of the vehicle as it continues to reverse. 
h.	He appears to be in some distress because he urinated in his shorts. Meanwhile, Taumoefolau goes into the white vehicle and drives away from the resident turning in the opposite direction of Shoji’s car, his vehicle is stopped by another TRG contingent. Police vehicle officers get out of the vehicle approach this target and officer Vaka attempted to open the door, but it appears to be locked that knocks twice on the driver’s door and eventually the door is unlocked and Taumoefolau is removed without ceremony placed on the ground and detained. 
i.	Kailomani gave evidence that it was he who fired the shot at the black vehicle whilst it was reversing. Two shots in all, they both landed according to him at the front of the vehicle and oil was seen seeping from the vehicle shortly thereafter this appears to have been the contents of a radiator the effect of which was to immobilise the vehicle. 
j.	This officer said that the purpose he fired two shots was to prevent the escape of the black car. 
k.	Meanwhile shortly thereafter Taumoefolau was also arrested. His vehicle was stopped. He was told to get out of the car via police officer who were pointed his weapon in the ready position saying, “police with firearms stop and get out of the car with your hands up!” 
l.	This defendant was told to unlock the door which he did after 2or 3 instructions to do so. He was handcuffed, while he was getting out of the car, the officer placed his weapon in the ‘rest’ position. 
5.	Before any of this occurred Sargent Fifita  had undertaking  a briefing operation in which he explained that this was a high risk operation that the target was an important drugs dealer that the precise location of the drugs was unclear but that the situation was a dangerous one it was for that reason that some of the officers who attended the scene were part of the tactical response unit authorised to carry arms. 
6.	Sargent Fifita told his men that the defendant Taumoefolau had been deported from Australia and was highly dangerous. I make it absolutely plain that that is evidence which has not been substantiated and in no way do I take that into account in deciding anything other than the state of mind of the officers who attended the scene. 

C.	DISCUSSION
7.	Let me make it plain I am not finding that the information given by the Sargent was accurate or balanced. I simply record it to indicate the effect which it must have had on those who attended the scene and the way in which they behaved in the use of firearms. 
8.	Now as I understand the current allegations, the complaint is that these officers were too gun happy as it were and there were other means of stopping the black car than firing at the bonnet and at the driver as put to the officer in cross-examination but denied.
9.	So, the complaint is that by pointing the loaded fire at him, it was an unnecessary use of force and again is indicative of an overreaction by the officers.
10.	For these reasons it is submitted the evidence which the Crown rely on should not be admitted. Of course, the determinative evidence which might lead to a finding of guilt was the handover of a parcel which in due course I apprehend will be found to contain illicit drugs. 
11.	That happened of course before there was any contact between the police and so cannot in anyway be a ground for the exclusionary rules to apply, however it may be the case that evidence which I have not yet heard but which will be called should the trial proceed is said to be contaminated by the behaviour of the police in firing at the black car and the  alleged mishandling of both defendants when they were arrested and so all of that should be rendered inadmissible.
12.	During preliminary discussions before the matter proceeded, I suggested that a voir dire is less helpful than dealing with each piece of evidence as and when it arises in the trial, but this did not find favour with the bar and I exceeded to their request to entertain the application which took two days to complete.
13.	The application accordingly engages the question of discretion.  It is well recognised that a judge in a criminal trial has a discretion to exclude unfairly obtained evidence as by applying his discretion to exclude evidence the probative value of which is out of weighted by its prejudicial tendency. This involves a balancing exercise on the one hand comparing and evaluating the probative nature of the evidence, against it prejudicial effect. 
14.	Ultimately the question is this; would the reception of this evidence deprive the defendant of his right to a fair trial?
15.	There is some conflict of authority on this issue in R v Sang [1980] AC 402, it was held by the House of Lords that a judge had no discretion to refuse to admit irrelevant admissible evidence on the grounds that it was obtained by improper or unfair means. 
16.	However, this was not followed it by the New Zealand Court of Appeal or the Scottish or Irish courts. I prefer to follow the New Zealand jurisprudence and hold that if evidence has been obtained unfairly the question arises whether the probative value of the evidence outweighs its prejudicial effect. 
17.	I am satisfied that what happened before the arrest is concerned namely the handover of the alleged drugs occurred without any contact with the police and so no question of any misconduct on their part can arise. I also find that what the officers did in effecting the arrests was not unreasonable for the following reasons :
a.	They had been briefed by a superior officer that the situation was fraught with danger and that the target in question was high risk. With that information one of the vehicles present outside the residence, the black vehicle, attempted putting it frankly to make good its escape. 
b.	In those circumstances, the officer was perfectly entitled to disable the vehicle to prevent it progress by firing at the bonnet and in a settled and calm situation that may be undesirable but bearing in mind the exigencies of the situation, I cannot find that the behaviour in questioning was so agreed egregious as to exclude any evidence which followed their arrest. 
c.	I repeat the evidence of the handover which proceeded it is in no way affected by what happened. 

D.	FINAL RESULT
18.	Accordingly in my view ,the defence have not established that any of this evidence should be excluded. This of course does not mean that they are prohibited from renewing their application on an incident-by-incident basis during the course of the trial and I will give careful consideration to each as it arises although I do not in any way seek to encourage them to take that course, but that is a matter for them. 
19.	That is the ruling of the court.

    NUKU’ALOFA                             	                         HON. MALCOLM BISHOP KC	
  9 September 2025                         	         LORD CHIEF JUSTICE