Home | Databases | WorldLII | Search | Feedback Supreme Court of Tonga

R v Laimani [2025] TOSC 43; CR 129 of 2023 (12 May 2025)

In the Supreme Court of Tonga
Criminal Jurisdiction
Nuku’alofa Registry

CR 129 of 2023

Rex v Epuefi Laimani

VERDICTS AND REASONS

BEFORE: Hon. Justice Paul Garlic KC

Appearances: Mr. Joseph Fifita for the Prosecution
Ms. Alyssa Kafoa for the Defence

Date(s) of trial: 8^th, 9^th and 12^th May, 2025

The charges

1. By indictment, dated the 8^th day of September 2023, Epworth Holiday Laimani (whom, hereafter, for convenience, I will refer to as “the defendant”) is charged with the following offences, all alleged to have occurred on 18^th May, 2023, at Sopu:
   1. Count 1 – possession of a class B illicit drug, namely 13.27 grams of methamphetamine, contrary to section 4(1)(a)(ii) of the Illicit Control Act (Chapter 4.06) 2020 (“the Act).
   2. Count 2 – possession of a class b illicit drug, namely 1.87 grams of cannabis, contrary to the same section as count 1.
   100. Count 3 - possession of a class b illicit drug, namely 0.42 grams of cannabis, contrary to the same section as count 1.
   4. Count 4 – possession of possesses utensils capable of being used in the commission of an offence under the Act, contrary to section 5A of the Act.

The relevant law

2. Section 4 of the Act, provides, relevantly, that 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 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.

3. By the Illicit Drugs Control (Amendment) Act 2020 Act 15 of 2020, section 4 of the Act was amended as follows:

“(2) For the purposes of this Act and any other enactment, if any person under section 3 or 4 of this Act is in possession —

(a) in respect of a Class B drug in the quantity of 7 grams or

more; or

(b) in respect of a Class A drug in the quantity of 0.25 grams or

more,

such person shall be deemed to be supplying such Class B or Class

A drugs.

4. Section 5 A of the Act provides that any person who knowingly, without lawful excuse, the proof of which shall lie on him, possesses utensils capable of being used in the commission of an offence under the Act, commits an offence.

Procedural history

5. On the 9 day of October 2023, the defendant pleaded not guilty to counts 1, 2, 3 and 4, all the counts on the indictment, in which he was charged.

The trial

6. The trial of these proceedings commenced on the 7^th of May 2025, and continued, part heard, into the 8^th and 9^th days of May 2025. I am indebted to counsel, both for the prosecution and the defence, for the clear and professional manner in which they conducted their respective cases. The evidence concluded on the 9^{th of} May, and the closing submissions for each party were made to me on the same day. I was greatly assisted by the written submissions that were provided to me by counsel for the defence, Ms Alyssa Kafoa, and the oral submissions made by counsel for the prosecution, Mr Joseph Fifita. After counsels’ closing submissions, I adjourned to this morning to consider the evidence and submissions, before delivering my verdicts and reasons.
7. There is one matter that I can deal with immediately. In his closing submissions, Mr. Fifita, very fairly, conceded that there was no evidence against the defendant to sustain count 3 in the indictment. Accordingly, he invited me to return a verdict of not guilty on that count, which I now do.
8. In coming to my verdicts in the case, I have considered the evidence which has been adduced on behalf of both the prosecution and the defence. I have also had regard to the submissions made by counsel in their closing submissions. I do not have to resolve every issue in the case, only those issues that I consider necessary to determine whether the prosecution has, or has not, proved the case against the defendant. I am entitled to draw reasonable inferences from the evidence that I have heard, but only if I am sure that it is proper and fair to draw such inferences. Of course, I must not speculate on evidence that might have been called. In that regard, I make it clear that I have not drawn any adverse inference against the defendant, solely from his decision not to give evidence on his own behalf in this case.

Burden and Standard of proof

9. It is for the prosecution to prove each element of the offence against the defendant. The defendant does not have to prove anything. How then does the prosecution prove the case against the defendant? The answer is that the prosecution must satisfy me, beyond any reasonable doubt, that it has proved each element of the offence(s). Put another way, in more modern wording, the prosecution must make me sure that it has proven each element of the offence in the relevant count that I have to consider. These expressions of the burden and standard of proof amount to the same thing.

Separate consideration of the verdicts in relation to each count

10. The defendant now faces three counts in the indictment; counts 1, 2 and 4. Whilst the evidence in this case does, to a great extent overlap, in its relevance to these counts, I must consider each count separately, and reach separate verdicts on each count.

What the prosecution must prove in this case

11. In relation to counts 1 and 2, in order to prove its case the prosecution must satisfy me so that I am sure, that the defendant was knowingly, without lawful excuse, in possession of an illicit drug, as particularised in the respective counts of the indictment.
12. In relation to count 4, in order to prove its case the prosecution must satisfy so that I am sure, that the defendant was knowingly, without lawful excuse, in possession of utensils capable of being used in the commission of an offence under the Act.
13. Having heard the evidence and the submissions made on behalf of counsel in this case, it has become clear that the only real issue in the case is whether the defendant was in possession of the drugs particularised in counts 1 and 2, and whether he was in possession of the utensils mentioned in count 4, knowing that they were capable of being used in the commission of an offence under the Act.
14. I shall explain what amounts to possession of articles later in this decision.

The evidence given at the trial

15. In the professional way that the court expects counsel to proceed, as there was no issue of fact between the parties about the majority of the evidence, there was agreement in relation to nearly all of the primary, factual evidence. The only dispute as to the prosecution evidence was in relation to the words spoken by the defendant when taken to his residence when the cannabis was discovered by the police, concealed in the side of a sofa in the living room. I will deal with this dispute later in my decision.
16. The provenance of the exhibits and the continuity of the evidence dealing with the production of the exhibits is not disputed by the defence. Again, the court is grateful to counsel for this agreement.

Evidence of the events that took place on the 18th of May 2023

17. I heard evidence from several police officers from the Tonga Police. As I have already stated, there was very little dispute as to their primary, factual evidence. Such cross-examination as there was by defence counsel was directed more to the inferences that should be drawn by me from their evidence. I say, straight away, that having seen and heard the witnesses who gave evidence on behalf of the Crown, and having considered the exhibits that have been produced during the trial, including the plan (included on page 40 of the trial booklet) and the photographs (included at pages 41 to 55 of the trial booklet), the search lists at pages 56 to 58 of the trial booklet), as to which there has been no dispute, merely clarification, I accept, without reservation, the evidence called by the Crown. In my judgment, the evidence of all of the police officers that were called in the trial by the Crown was credible, reliable and accurate. As I have observed, the evidence of these witnesses was not severely criticised, nor disputed, in cross-examination by defence counsel, except to the extent that counsel for the defendant put to the witnesses that the search of the car at Sopu, which is situated within the Kolomotuʻa district, and the defendant’s residence should have been carried under the authority to sections 23 and 24 of the Act, rather than sections 12 and 13 of the Act. I shall address this submission later in my decision.

Evidence of the police officers
Police Officer Malolo, Vi

18. The substance of this police officer’s evidence was as follows.

He was in charge of the drugs enforcement unit.

He recalled the events of 18 May 2023 clearly.

At about 1400 hrs, he received reliable information that a person was selling drugs.

He identified the person as the defendant.

After he received the information, he briefed his officers.

The information that he has received was to the effect that a person was selling drugs in the area of Sopu.

He drove to the area with other officers, to confirm that the vehicle was in that area.

When he arrived at the area he noticed a vehicle parked at the end of Sopu, on the right side. He identified the vehicle as the vehicle that the defendant uses. The vehicle was a grey, license L29557 or close to that number.

Before he got to where the vehicle was parked, he could see that the defendant was standing outside this vehicle.

He was shown the photograph at page 41 of the trial booklet. He identified the area where the defendant had parked his vehicle.

He confirmed that he was able to see the defendant, he was standing outside the vehicle and walking around the front passenger seat area, beside the vehicle. He altered the position of his police vehicle and saw that the defendant was standing beside the Toa tree. He identified the area on the photograph, and marked the exhibit accordingly.

He was shown photo p.42 and he confirmed that he recognised the Toa tree in the top photo. [He marked the exhibit.]

He then contacted Sgt Fifita and the other officers, for them to come to the area to see if they could stop what was going to happen.

He then drove towards the eastern side, where he met Sgt Fifita, who was driving to the area. He did that so that he could confirm that the person was still in the area and the officers could conduct their work.

When the officer’s vehicle passed him, he went to the area, where they were already conducting their work, to detain the defendant.

He was involved in detaining the defendant. He directed Sgt Fifita to continue the work, whilst he observed what was going on.

When they were searching the vehicle, he remembered seeing the defendant on the front passenger side of the vehicle, and he looked around the area whilst they conducted the search.

He remembered seeing the defendant when he was next to the Toa tree. That is when he noticed the little shoe. There was a plastic bag inside the shoe and inside it were some packs. He didn’t touch it but he informed Sgt Fifita, for them to come and look at it when they were done.

He confirmed that there was a police dog present, and it picked up the scent of the plastic bag in the shoe. He was present when this occurred.

He was cross-examined on behalf of the defendant.

He told me that he didn’t obtain a search warrant because of the nature of the information that he had received. Because the nature of the work was a drug case, they needed to act quickly. I accept this evidence and his explanation completely.

He said that he acted under sections 12 and 13 of the Illicit Drugs Act.

He gave evidence that he and his fellow officers had seen the defendant using this vehicle on a daily basis.

He was cross-examined on some minor inconsistencies between his oral evidence and his witness statement. Those minor inconsistencies were, in my view, insubstantial and can properly be explained by the passage of time since the incident and the day on which he gave his oral evidence. None of the matters complained of by defence counsel cause me to doubt the accuracy and reliability of this witness’s evidence.

This witness did confirm that he did not find any drugs on the defendant’s person when he was arrested.

He confirmed that it was the police dog who found the drugs under the Toa tree.

He confirmed that he was present at the scene before the police dog arrived.

P.O. Tu’amelie Fifita

19. This police officer has been in the drugs squad, for going on 9 years. He led the operation and the taking of photographs.

He was part of the team of officers who carried out the work in the Sopu area.

He was in charge of the officers who carried out the work. When he got to the Sopu area, he saw the defendant standing beside the driver’s side of the vehicle. He walked over to the vehicle and saw the defendant and his wife in the front passenger seat, and in the back seat, there was their son.

He informed the defendant why they were there. He told the defendant that it was in relation to drugs and told the defendant that they were going to search his person and his vehicle under sections 12 and 13 of the Act.

He searched the defendant and he was clean.

He searched the vehicle, and the officers found four empty packs under a cushion on the right side of the back seat. Police Officer Tomu found the empty packs.

At this time, the defendant was outside of the vehicle, on the right side of the rear door.

After finding the empty packs, he then continued reading their legal rights to the defendant and his wife. He asked them if they had any knowledge of the empty packs and they said no. He then informed them that they were cautioned.

He confirmed that he took the photographs in the trial booklet. He then gave the following evidence.

“The vehicle that the defendant was standing outside of belongs to the defendant. I know this because I have seen the defendant drive it numerous times and I have seen it parked outside his house. We have conducted research and it is his.

After searching the vehicle, we then searched the area around the vehicle and the police dog detected the black shoe that contained the packets.

We searched the surrounding area because when we arrived at the scene the defendant was outside the vehicle.

When I initially saw the defendant, he was standing facing towards the tree.

We found one big pack which contained about 14 smaller packs, which contained methamphetamine.

After searching the area we continued to the defendant’s residence in Hofoa, to search for illicit drugs. I was the leading officer.

I cautioned the defendant and he informed me that there was cannabis on a chair in the living room. The police officer referred to the photograph at the top of page 53 top photo showing a officer pointing to the chair in the bottom photo

The defendant said that he and his wife occupied this area. He said that the house belongs to his wife’s parents and they use the other room. The defendant and his wife use the living room and there are partitions. The defendant indicated to me that the chair I marked on the photograph. The defendant said that cannabis was placed on the arm of the sofa, I am not sure whether it was on the left or right arm.”

He referred to photographs at page 54. It shows an officer searching the arm of the couch. The bottom photograph depicts the pack. The photograph at page 55, shows the empty pack, cannabis and paper for rolling tobacco.

The photographs at pages 45 to 49 depict the distance between the defendant and where the shoe was found. The distance was about 4 to 5 metres.

In cross-examination, the witness told me the following.

“I didn’t apply for a search warrant because we prefer to act immediately – it would take more than an hour to get a search warrant and the person would move from the area.”

“We used sections 12 and 13 of the Illicit Drugs Act.”

It was put by defence counsel that the police should have used section 24. He did not accept that.

He told me that they did not say to the defendant that he could not contact his lawyer.

He said that he did inform the defendant that he could contact his lawyer, but his phone was ringing and text messages were coming through. He said that he asked the defendant to unlock his phone, as he could see that there was a message from a person that he knew was connected to drugs. He asked the defendant to unlock his phone and he declined.

He recalled that the defendant said that he did not want us to search without a warrant.

He said that they handcuffed the defendant as it is police procedure, for the sake of the police officers’ safety.

He confirmed that the defendant had no weapon.

He said that he took the pictures at page 50.

He confirmed that no biometrics were taken from the shoe.

He confirmed that no fingerprints were taken from the bags at the crime scene, but he did not know if the packages were fingerprinted at the lab.

He confirmed that he was the person that the defendant told him that the cannabis was in the room.

He said that he knew it was the defendant’s vehicle because he had seen the defendant in the vehicle and at his home.

He said that he searched for the ownership of the vehicle and that he had a copy of the ownership document, showing that it was transferred to the defendant.

He confirmed that he knew the defendant’s residence and he said that he had seen the vehicle at the defendant’s residence.

He said that he had seen the car parked at the defendant’s residence. He said that Hofoa is a village that has been reported for suspicion of drugs several times and every time we went to the area he could see the defendant and the car.

I make it clear that I have not drawn any adverse against the defendant from the evidence that Hofoa is a place known to the police for drugs. The evidence is only relevant to the question of the ownership of the vehicle that was seen in Sopu.

P.O. Tu’itavuki

20. This witness gave the following evidence to the court. He is a Police Sgt and a Forensic Officer. He works at the crime scene taking photos and fingerprints. He has worked in the Tonga police for 28 years and for this division for 22 years.

He recalled the events of 18 May 2023 as follows:

“I attended a drugs matter at Sopu. My duties were to take images of the exhibits (drugs) and to make a sketch of the scene. The sketch was prepared after I took the photo images.

Page 40 of the trial booklet is the plan that I prepared, between 1650 and 1700.

I was told about the location of the defendant by Sgt Fifita.

Fingerprinting was done in our lab. No result was found.

Page 23 of the trial booklet is a diary of work done. It is prepared by the drug officers and not me. I recall dusting the exhibit and there were no fingerprints. I dusted the plastic bag that drugs were found inside and no fingerprint was found. No other item was fingerprinted.

He was cross-examined on behalf of the defendant and confirmed the following matters:

“The information was given to me by Sgt Fifita.

I prepared the sketch based on the measurements that were given to me by the 2 police officers.

After I drew the sketch map I didn’t show it to the defendant. It is for the operation officers to show the sketch to the defendant.

I prepared the sketch after I took photos. I took the photos. I took the photos of the dog. I took the photos at pages: 52, 53, 54, 55.

We use a Nikon digital camera. It is what we use in other operations, but in emergency matters, we use our own cameras.

I was there when the operation commenced.

He was shown on page 50 (top image). He said that he did not fingerprint the shoes because the powder they use does not get together with the nature of the shoes found.

Regarding page 49, he said that they did not take fingerprints, as he was not directed to fingerprint cans and bottles as it was just rubbish from the area. Sgt Vi directed him to fingerprint the packages that we found.

Regarding page 44, he was not aware of this image. He did not fingerprint the packages in the images on page 44.

P.O. Uatahausi Tomu

21. This police officer was the search officer. He has been a police officer in the drugs squad for 2 years 4 months and 25 days. Such precision when giving evidence is commendable.

He related his involvement in the events of 18 May 2023 as follows:

“I joined an operation in Sopu regarding drugs. We headed to Sopu.

I was the officer who searched the vehicle. I discovered 3 empty bags under the cushion on the right side of the car. And I discovered one empty package which was larger and was the 4^th empty bag.

Page 43 (top image) I recognise this photograph, it is me at the back of the vehicle – this is the time that I was conducting the search.

The bottom image shows the seat where they found the empty packages.

Page 44. I recognise the image; it is where the empty packets were found. I took the photograph.

[At this moment in the trial, defence counsel confirmed that there is no dispute that the packets were found in the vehicle.]

After discovering the empty bags, I didn’t search elsewhere in the vehicle. The police dog discovered the package outside the vehicle.

Page 52 (top image). I recognise the image. This is the cash that was found inside the vehicle. I cannot confirm who discovered the cash. The cash was found in the dashboard in the front of the vehicle. This is the position where the cash was found. There was an MBF bank book. I cannot confirm if it is the bankbook of the defendant or his wife.”

P.O. Pekipaki

22. The witness confirmed that he had been a dog handler for 6 years in his division. Because defence counsel confirmed to the court that there is no dispute that the plastic wraps containing the methamphetamine were found in the shoe at the Toa tree and there was no cross-examination of this witness, I do not need to rehearse his evidence in this decision.

P.O. Feinga [exhibits officer]

23. This witness was one of the officers who searched the defendant’s residence. He found the one pack containing cannabis and tobacco paper in the living room of the residence. He found it on the right arm of the sofa in the living room. Since this witness was not cross-examined, I take it that the evidence that I have summarised is not in dispute.

Defence counsel confirmed that the chain of production of the exhibits was not disputed.

He referred to page 56, which is the search list and list of exhibits. He confirmed that he was the person who recorded the search list.

The items found in Sopu were as follows:

One empty pack – [noted by the court as exhibit 01].

Three further empty packs [noted by the court as exhibit 1].

Exhibit 2 – I large pack of methamphetamine – with 14 smaller packs inside

Exhibit 3 –The sum of cash that was found inside the glovebox of the vehicle.

At this point in the trial, defence counsel helpfully accepted that the contents of the certificates of analysis at pages 74 to 83 are admitted. Therefore, there is no dispute that the items which are the subjects of counts 1 and 2 of the indictment are illicit drugs as described in the indictment.

24. In cross-examination, the witness confirmed the following matters:
    1. Exhibit 1 - 3 empty packs are clear, which means that they were never used.
    2. Exhibit 01 – this has never been used for anything.
25. The final witness for the prosecution was Sgt. Fifita, who was recalled to deal with matters outstanding. He produced the letter and document (Exhibit 4) dealing with the transfer of ownership of the vehicle registration number L28557. The document confirms that the vehicle was transferred to the ownership of the defendant on 1^st February 2023. It is to be noted that no positive case has been made on behalf of the defendant that ownership of the vehicle did not pass to the defendant on this date. I can say at this point of my decision that I am sure that at the time of the events which are the subject of the counts on the indictment, the defendant was the person having possession, ownership and control of the vehicle.
26. This witness also dealt with a conflict in the evidence as to who took certain of the photographs. As the provenance and accuracy of the photographs has not been disputed by the defence, I do not need to deal with this matter. I am satisfied that the photographs were taken by the officers detailed when Sgt Fifita was recalled to give his evidence.

The defence case

27. The defendant elected not to give evidence, as is his absolute right. Whilst I have already made clear that I have not drawn any adverse inference from the fact that the defendant has not given evidence; his failure to give evidence means that there is no evidence in the case to explain his presence at the scene in Sopu. He was observed to be standing by his vehicle, just 4.10 metres from where the illicit drugs were concealed in the shoe by the Toa tree. There is no evidence from the defence, whether from the defendant or his wife (who was seated in the car with her son) to explain why he, the defendant, had gone to that particular part of Sopu and parked so near to the Toa tree. I remind myself that it is, of course, for the prosecution to prove the case and that the defendant does not have to prove his innocence. However, in the particular circumstances of this case, there must be a question about the purpose that the defendant had for being at the scene in his vehicle and getting out of the car, so proximate to where the drugs were situated. Whilst there is no legal burden upon the defendant to prove that his presence was innocent, his failure to give any explanation for his presence at the scene means that there is no evidence for me to take into consideration from the defence when deciding whether I can be sure about the submission made by the prosecution that, on a consideration of all the evidence, the defendant’s presence at the scene was not just a coincidence, but rather is clear evidence that he was there for the purpose of collecting the drugs that had been concealed in the shoe, near to the Toa tree. For absolute clarity, I repeat that there is no burden upon the defence to prove that his presence at the scene in Sopu was innocent. Putting it more clearly, there is no evidence from the defendant, or his wife, to put into the balance when I have to consider whether I am sure that the submission made by the Crown that his presence at the scene in Sopu was not accidental, but rather for the purpose of collecting drugs that had been hidden in the shoe. I remind myself, also, that mere presence at the scene is not, in itself (or to use the Latin expression “per se”) sufficient to prove a defendant’s knowledge or intention. Presence at the scene, and the circumstances surrounding that presence are just part of the evidence in the case and must be considered alongside all the other evidence in the case, to determine whether the presence at the scene was accidental, or for the criminal purpose of taking delivery (possession) of the illicit drugs.

The defence witnesses

28. The defendant called two witnesses to give evidence. The first witness was Ms. Sauni Holani, who is the defendant’s sister-in-law. The second witness was Mr. Taniela Vaka, who is a serving prisoner at Hu’atolitoli prison.

Ms. Sauni Holani

29. She told the court that she is 29 years old and lives in Hofoa, in the residence which was searched by the police after the defendant was arrested. She gave evidence that on 18 May, the police came to her home in the evening and carried out a search. She said that her mother father, and sisters were present there, there were six people there. When the police arrived she was out exercising in St Andrews. She gave the following evidence.

“I returned home at around 5:55 pm

When I returned home I saw many police officers outside my home, inside and outside the house.

I just arrived and observed that the search had already been started and they all already found something. They found cannabis.

I just waited and observed what they were doing.

In my home there are only my parents and sisters living there.

The cannabis had been found. The previous night, there was a party in the house. After the party, I found the contents wrapped in foil. I took it up and put it on the chair. The chair was in the living room. There are four leather chairs in the living room. They are brownish / off-white.

The chair is on the right of the photograph (witness indicates).

I put the cannabis on the right arm of the chair. I put it inside the arm of the chair.

The bottom picture shows the foil I put inside the arm of the chair.

I did not do anything else after putting the foil in the chair. It was just put inside and I didn’t remember to take it and destroy it.

30. She was cross-examined and said that she didn’t remember to destroy it because she was part of a team of fruit-picking workers and they called for her and she totally forgot about it. She agreed that she could easily have destroyed the package, but she said that she just put it in the arm of the sofa.

She agreed that she could easily have thrown the package away but he did not do so because she was curious about the package.

She agreed that when she put it away she knew what it was.

She was very vague about where she first saw the package, saying that she found it amongst some empty cans and packages.

She said that she had cleaned the rubbish up before the police arrived.

She said that the defendant and his wife just come and go and stay at their sisters’.

She agreed that the sofa where the drugs were found was on the side where the defendant and his wife slept.

Curiously, she said that when she arrived home, she already knew that the cannabis had been found.

She agreed that she could have talked to the police, but she didn’t tell the police because she was scared, as it was the first time that she had experienced police searching her home.

She said that she picked it up because she was very curious about what the thing was. She already knew it was cannabis and she wanted to see the thing inside that was wrapped and then destroy it. She said that she had no time to unwrap it and destroy it.

She was arrested and detained for about a week at the police station. She agreed that she could have told the police that she put the package on the chair..

She said that she remembered being questioned by the police and telling the police that she would only talk in court.

She said that she didn’t tell the police that she found the package and placed it on the sofa. She said that there was no charge or conversation about that, so she didn’t tell them.

She said that when she spoke to her lawyer, she decided to save the defendant.

In re-examination, she explained that she was trying to save the defendant because the thing did not belong to him, as she explained earlier. She said that it was the first time that police had come to her home and she was scared.

31. It is my function to assess the truthfulness, accuracy and reliability of the witnesses. From her demeanour, and from the answers that she gave, both in the examination in chief and cross-examination, I have concluded that this witness is not a truthful witness. I do not accept that she found the package of cannabis and then concealed it out of curiosity. She described the package as being wrapped in “foil”. Counsel confirmed that her evidence on this point had been interpreted accurately and that the word she used would describe an article wrapped in aluminium, rather than plastic. This is quite inconsistent with the wrapping that the cannabis was found to be in.

Mr. Taniela Vaka

32. The second witness called by the defence was Mr. Daniela Baka. He told me that he is 42 years old and he is a serving prisoner at Hu’atolitoli prison. He gave evidence that on two occasions in May 2023, he went to the Sopu area and concealed a quantity of methamphetamine in a safe area. He said that on one occasion he concealed the drugs under a Toa tree and on the other occasion he concealed the drugs under a rock. He was unable to put a specific date to either of these occasions, other than to say that occurred in May. He said that his customers would contact him and he would give them directions on where to go to collect the drugs. He said that he would set aside the methamphetamine in a safe place and he would set himself apart from the drugs.

As to the occasion in May, he gave the following evidence:

“I recall this day, I was at Sopu, at the very end of Sopu. This is a place that I use to sell meth. I don’t remember the date, but I do remember that it was May when I was at Sopu. In May 2023 I would be in that area every day when I was selling meth at Sopu,. I was there on two days in May.

I always go to a house in Sopu, a house with just grounds but no roof.

When selling meth, when I get to Sopu, customers would contact me and I would give them directions so that they can come over. I would set aside the meth, whatever amount the customers would want I would have with me.

I set aside the meth at a safe area and I would set myself apart from that area at a distance.

He said that he put 14 packs inside one package, inside a shoe that was already there. He said that on another occasion he concealed 26 packages under a rock and the end of Sopu, in a different position to the Toa tree. The distance between the Toa and the rock was about 40 metres.

He then said that he had already contacted his customer earlier. He said that he concealed himself at a safe place the wait for his next customer and then he saw the police officers at the tree. The Toa tree was towards the end of Sopu, on the right side.

He said that the distance from the toa tree to where he concealed himself was between 60-70 metres. He said that he was there for about one and a half hours and that this was in the afternoon going on into the evening.

He said that he saw what happened, but he did not know the exact time that the police were in the area.

He said that after about an hour he saw several vehicles at the toa tree where he had put the drugs. He was scared when he saw a police vehicle and he crossed and hid by the side of the road. He hid there for about two hours until it was evening time, and he then peeked to see if they had left. When he peeked out and saw that there were no vehicles there, he went back to his base.

He was cross-examined. He said that he was not able to count how many police vehicles were there, as he had already hidden himself. When he hid, he lay down on a bush on the right side.

He said that he had seen it was a grey van and he did not know any of the people in the area.

He said that he knew that there was a police vehicle when he walked towards the place where he was going to meet his customer. It was a vehicle that clearly stated, “POLICE.” He believed it was the police van that they use for police dogs.

He then gave this account:

“The only vehicle I saw was the police van, so I concealed myself. There was a grey vehicle parked right next to the police vehicle. I didn’t recognise where it was parked because I was scared. When I saw the grey vehicle parking, I crossed over and hid myself. When I hid myself, I lay without moving, afraid that someone might recognise me.

33. He was then asked about the witness statement that he had made and it was put to him that in the witness statement, there was no mention of either Sopu or a Toa tree. He said that he had told the person who wrote the statement what to write, but that it was written in English, which he could not understand. He said that he did not see the word Sopu or Toa tree in the letter. He said that he told the person about the black shoe, but he did not know if it was mentioned in the statement. He said that that is what he told him to write down.
34. I find this witness to be a wholly untruthful and unreliable witness. The omission to mention either Sopu or the Toa tree in his statement is highly significant, and makes me sure that I cannot rely upon the details of his evidence as being an accurate account of what he saw, or when the incident that he described took place. He is an admitted drug dealer and his evidence may well be based upon the facts of any occasion that he was concealing drugs for his customers. Even if I had found his evidence to be truthful and accurate, it would not necessarily exculpate the defendant, as it is equally consistent with him seeing the defendant at the scene and the defendant being in possession of the concealed drugs in the shoe, which he was either concealing or collecting as part of supplying illicit drugs. I have said that I found this witness to be thoroughly untruthful and unreliable. In my view, his evidence is an account of an incident which may have taken place on a completely different occasion. Alternatively, in his evidence, he has merely transposed the real owner of the drugs from the defendant to himself.

“Possession”

35. The Crown is required to prove each of the elements of each of the offences, beyond reasonable doubt. In relation to the offence of possession of illicit drugs (methamphetamine in count 1 and cannabis in count 2), the elements are:
    1. Possession of the illicit drug;
    2. Without lawful excuse, proof of which lies on the defendant (this element is not relevant in this case, as it has not been raised);
    100. Knowledge that it was an illicit drug.
36. In count 4 the elements of the offence are:
    1. Possession of a utensil capable of being used in the commission of an offence under the Act’
    2. without lawful excuse, the proof of which shall lie on him (again, this is not relevant in this case).

Meaning of 'Possession'

37. In law, there are two elements to possession. There is the physical element, and there is the mental element. (See: the speech of Lord Hope in the case of Lambert [2001] UKHL 37.)
38. The physical element involves proof that the thing is in the custody of the defendant or subject to his control. In the ordinary use of the word “possession”, one has in one's possession whatever is, to one's knowledge, physically in one's custody or under one's physical control' (Lambert, and see also Lord Scarman in Boyesen [1982] AC 768).

Knowledge of Possession

39. A person must be aware of being in possession of something which is, in fact, a controlled drug (regardless of whether the person knows it is a controlled drug or not): see Warner v Metropolitan Police Commissioner [1969] 2 AC 256, Boyesen [1982] AC 768 (at pp. 773–4), McNamara (1988) 87 Cr App R 246, and Lambert [2001] UKHL 37, where, for example, Lord Clyde states, 'The second element involves that the defendant knows that the thing in question is under his control. He need not know what its nature is, but so long as he knows that the thing, whatever it is, is under his control, it is in his possession' (and see Ping Chen Cheung [2009] EWCA Crim 2965, albeit in the context of pornographic images).
40. Whilst all the authorities that I have cited above are decisions of the courts of England and Wales, they are from the highest courts and are highly persuasive authorities. I note, also, that the English authorities all mirror the decisions of the courts in The Kingdom of Tonga, to which I shall refer below.
41. I have been assisted by written closing submissions from counsel for the defendant, and oral submissions from the prosecution.
42. In her closing submission, Ms. Alyssa Kafoa, helpfully, referred me to the following cases: R v Jitendra Singh CR 4 OFF 2002 TLR; Lewis (G) (1988) 87 Cr. App. R, 270; R v Tupou Tafuna, CR 143, 2021. As I have already observed, the decisions of the English courts and the courts of the Kingdom of Tonga are in agreement as to what must be proven by the prosecution to establish “possession”.
43. Upon careful consideration of all the legal authorities, and applying those decisions to the facts of this case, I am satisfied beyond reasonable doubt that the defendant was in possession of the drugs (counts 1 and 2) and the utensils (count 4).
44. There is a further issue that has been raised by the defence, which it may be helpful for me to dispose of in my judgment, though it is not necessary for me to do so to reach the conclusion that I have come, that the defendant was in possession of the items in counts 1,2 and 4. The question raised by Ms Kafoa is whether the search of the defendant’s vehicle and his residence was lawful. For the following reasons, I am satisfied that the searches were lawful.
45. It is clear from the evidence that the police officers in this case regarded the authority to carry out the search of the car and the defendant’s residence as being given under sections 12 and 13 of the Act. Ms. Kafoa submits that the police were wrong, and that any power to carry out the searches must flow from sections 23 and 24 of the Act. Whilst not suggesting that Ms. Kafoa’s submissions were not properly made, I can deal with her submissions in short form, by reference to the legislation.
46. Sections 12 and 13 of the Act provide as follows:

47. Sections 23 and 24 of the Act provide as follows:

48. Significantly, sections 12 and 13 of the Act are contained in separate divisions in the Act from sections 23 and 24. Sections 12 and 13 appear in Division 1 – Powers of Police Officers, whilst sections 23 and 24 appear in Division 3 – Warrants. It is, therefore plain from the wording and distinct division in the Act of the powers contained in sections 12 and 13 (Powers of Police Officers) and sections 23 and 24 (Warrants), that the Act makes provision for two quite separate regimes for the lawful carrying of searches. These two regimes are not to be regarded as mutually exclusive of each other; rather, they are supplementary to each other. The facts of an investigation (and the stage that the investigation has reached) may lead police to exercise their powers under either (or both) of the regimes.
49. In my judgment, the regime provided for by sections 12 and 13 is clearly expressed and is not ambiguous. It gives a police officer the power to search a vehicle or a person if the officer has reasonable cause to suspect that there is in or on any vehicle or craft —

(a) an illicit, controlled chemical or controlled equipment;

(b) evidence relating to an illicit drug, controlled chemical or controlled equipment; or

(c) any other evidence relating to any offence under this Act.

50. In my judgment, in the circumstances of this case, it is clear that the police officers had reasonable grounds to suspect that there were illicit drugs in the defendant’s car. Accordingly, I find that the search of the defendant’s vehicle and his person were lawfully carried out under sections 12 and 13 of the Act.
51. As to the search of the defendant’s residence, I accept the submission that the powers provided by sections 12 and 13 do not extend to a search of premises. However, whatever the view of the police officers as to which section of the Act they were searching under, the fact remains that the officers did, in my view, have reasonable grounds to suspect (and did genuinely suspect) that it was necessary to search the premises without a warrant, to prevent the concealment, loss or destruction of anything connected with an offence under this Act; and the circumstances were of such seriousness and urgency as to require the immediate exercise of the power without the authority of a warrant. Accordingly, I find that the search of the defendant’s premises was lawfully executed, under the power provided for by section 24 of the Act.
52. In light of my findings as to the lawfulness of the searches, I do not need to consider what consequences would follow from a finding that the searches were unlawful. That question will, doubtless, be argued fully in future cases.

Findings of fact

53. Having considered all the evidence (including the exhibits produced by the parties) I make the following findings of fact:
    1. The defendant was in possession of the methamphetamine which was concealed in the shoe by the Toa tree.
    2. The defendant was in possession of the cannabis found on the sofa of the defendants’ residence.
    100. The defendant was in possession of the plastic bags found in the defendant’s vehicle.
    4. The defendant had no reasonable excuse for possession of those articles.
54. Accordingly, I find the defendant guilty on counts 1, 2 and 4 of the indictment. I have already found the defendant not guilty on count 3.

Verdicts

55. For the reasons set out above:
    1. The defendant ‘Epuefi Laimani is found guilty on counts 1, 2 and 4 of the indictment.
    2. The defendant is found not guilty on count 3.
       

Hon. Justice Paul Garlick KC

12th May 2025