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Lea'aetoa v Police [2025] TOSC 67; AM 2 of 2025 (28 July 2025)

IN THE SUPREME COURT OF TONGA
APPELLATE JURISDICTION
NUKU’ALOFA REGISTRY
AM 2 of 2025

BETWEEN:
TOATEPI LEA’AETOA
-Appellant

AND:
POLICE
-Respondent

RULING

BEFORE: LORD CHIEF JUSTICE MALCOLM BISHOP KC

Appearances: Mrs S Fa’otusia for the Appellant
Mr L Vaea for the Respondent
Hearing: 25 July 2025
Ruling: 28 July 2025

1. BACKGROUND

1. This is an appeal from the Magistrate Court on a ruling made by Senior Magistrate Kaufusi who on 28 January 2025 in an extemporary judgment convicted the appellant of the following charge;

“Complaint has been made to me that you on the 18 May 24 at Angaha did carrying about and exposing for sale of liquor, contrary to section 62(1) (2) of the Intoxicating Liquor Act 2020. In which you carried out and exposed for sale liquor in your dwelling house without a license to sell from the liquor licensing authority.”

2. This is an English translation of the original Tongan charge which no doubt explains its grammatical infelicities.
3. Nothing turns on that because the gravamen of the offence and the appeal is perfectly clear. What is suggested is that the Appellant first, did not have a liquor license and second, was exposing for sale liquor and having previously carried it about.
4. The facts may be stated quite shortly because this matter was inextricably bound up with a more serious offence of dishonestly receiving a number of pigs. It seems that some pigs were stolen then exchanged for liquor, here it was beer.
5. As I understand, the crucial concern here in this rather scanty evidence is this Appellant in exchange for a pig provided the thieves with some beer.
6. The crucial evidence was given by Evangelio Kepu who said

“we sold to Toatepi [the Appellant]. There were 4 boxes and 1 wine. It was a big pig that we gave Toatepu and that is why we got several boxes of beer. I went and got 2 boxes later and later got 2 boxes and the wine and that was on the same day.”

7. In the same sentence, he went on to say;

“Yes, my statement was recorded, and I was afraid of being kept in prison for a long time. I was thinking of a way to go back home to my family so, I said it was me. Yes, I believe that what I had said were all lies. The accused is my relative.”

8. During cross examination although it was put to the witness that he was speaking about a different day, the fact of taking the pig to the appellant was maintained and not really disputed.
9. In any event the Magistrate was perfectly entitled to reject the exculpatory part of the statement made by the witness to shield his relative and it has not been submitted that he erred in doing so.
   
   2. GROUNDS OF APPEAL
10. I deal seriatim with the grounds of appeal but first it is necessary to recite section 62(1) (2) of the Intoxicating Liquor Act 2020.

“Liquors carried about for sale to be seized and forfeited.

(1) Any police officer may seize all liquor which he may reasonably suspect to be, or to have been, carded about or exposed for sale in any street, road, footpath, booth, tent, store, shed, boat or vessel, or in any place whatsoever by any person not holding a licence to sell the same therein respectively, and also every vessel containing or used for drinking or measuring the same, and every cart, dray or motor or other vehicle, and every horse or animal carrying or drawing the same, and every boat or vessel conveying the same.

(2) Any person not being the holder of a licence who carries or exposes for sale any liquor as aforesaid, shall be guilty of an offence and shall be liable to a fine not exceeding $100 or in default of payment to imprisonment for any period not exceeding 3 months, and the court may adjudge any such liquor, vessel, cart, dray or motor or other vehicle, horse or other animal, boat or vessel to be forfeited, and may order the same to be sold, and the proceeds thereof shall be paid into general revenue”

1. Ground 1

11. Subsection 1 deals with the power of seizure it gives the police the authority to seize prohibited Liquor from a person not holding a ‘license to sell’ the same, in which the police officer concerned may “reasonably suspect to be, or to have been, carded about or exposed for sale in any street...”
12. In my judgment subsection one merely gives the police the power of seizure, it does not of itself create a separate offence. It is important to note carefully the following words “which he may reasonably suspect to be, or have been, carried about or exposed for the sale in any street...etc” The use of the past tense is instructive.
13. Two situations are envisaged, first the unlicensed person may have his goods seized if he is either taking them to his selling destination (carded about) or having reached his destination has them available (exposing) for sale.
14. Thus, ordinarily carrying beer from say a warehouse or supermarket with the weekly shopping would not enable a police officer to seize the shopping basket because the purpose of the carrying about was not to sell but to consume at home.
15. The second situation envisages that the prohibited liquor has reached its destination and is exposed, (offered or available) for sale either “on the street, road, footpath booth, tent, store shed, boat, or vessel or any place whatsoever” which would obviously include a person's home.
16. In my view it does not create two separate offences but only two ways in which the offense may be carried out
17. The words “suspect to be or have been” simply has temporal significance; was the beer or liquor in question on its way to the destination for sale or had it already reached such a destination.
18. It is not in my view two offences but describes the point in time at which the same offence may be carried out. That ground is accordingly rejected.
19. Subsection 2 sets out the offense. The prosecution must prove to the criminal standard first that the appellant was not the holder of a license to sell liquor and second that the appellant “carries or exposes for sale any liquor as aforesaid.”
20. The words as aforesaid are crucial means that the carrying or exposure must be “for sale.”
21. The determinative offence is that the liquor must be in the hands of an unlicensed seller. If he or she is intercepted whilst in possession of the liquor enroute to the selling point or has already reached such a point and has it available for sale, then the offence is made out.
22. On the facts here, there is evidence which entitled the Magistrate to find that the liquor was exchanged for a pig, in other words it was not a sale in the conventional sense but a barter nonetheless and I see no difference in law. It was an exchange of a thing for value for another thing of value.
23. The elements of the transaction appear to me to be equally within the four corners of the statute, the purpose of which is to prevent the sale of liquor by unlicensed persons.
24. It would be absurd if for example an unlicensed market trader could escape criminal liability by providing liquor to an adjoining stall holder in exchange for electrical equipment. I hold that the section simply identifies one offence which can be committed in two different ways or in at two different stages
    2. Ground 2
25. Ground 2 is that the Magistrate erred in allowing Exhibit B2, (alleged liquor) as evidence at the trial. The Appellant relies on the alleged inconsistency between prosecution witnesses. According to the witness Ananeta Finau who recorded the diary of action, she described the search as being conducted pursuant to section 62 and 70 of the Intoxicating Liquor Act but another officer Manu Tu’ivai alleged that it was conducted under section 123 of the Tonga Police Act.
26. The Magistrate is perfectly entitled to resolve that apparent difference provided he was satisfied to the criminal standard that the search was lawful. He was entitled to so find and this decision is not challenged.
27. But, say the Appellant if the search was conducted pursuant to section 123 then the exhibits could not be adduced in evidence because according to section 123(3) of the Tonga Police Act;

“Tonga police may keep any object that was seized as result of a search under the section only for as long as is reasonably necessary, but for not more than 60 days, less a magistrate, on application by a police officer, has issued an order authorizing the thing to be kept for a longer’.

28. Since the exhibit had been kept for longer than 60 days it is asserted, and no application was made to a Magistrate for authorisation, the exhibit was unlawfully in the hands of the police.
29. Whether that was or maybe so is debatable but not germane to the question of admissibility because it is well settled law that evidence unlawfully obtained may still be admitted to evidence provided no unfairness arises. See Schenk v Switzerland 13 ECHR 242 or Exhibit v Germany 11 EHER 84.
30. These decisions of the European Court of Human Rights established that provided an Accused had a fair trial (Article 6 of the Convention), the admissibility of evidence is a matter for the domestic courts.
31. Here, I cannot see how simply producing in evidence the beer in court by a witness who testifies on oath that he retrieved the object from the home of another Defendant in an associated charge who stated that they had been swapped for a pig, constitutes any unfairness.
32. So, irrespective of the failure to seek authorisation for an extension, the Magistrate was entitled to take the exhibit into account particularly in view of the fact that it was never alleged that the transaction in question had not taken place.
33. It is to be borne on mind that the exhibit in question had not been unlawfully obtained as opposed to retained. For those reasons this ground also fails.
    3. Ground 3
34. It is alleged there no admissible evidence to establish that the Appellant did not hold a license to sell liquor and that although submissions were made in this respect, the Magistrate did not deal with it in his judgment.
35. The evidence before the Magistrate is that defendants convicted of stealing pigs exchanged one of them with the Appellant at her home in return for a box of beer.
36. This in my view raises a prima fascia presumption that the Appellant did not have a license to sell liquor. The Magistrate in coming to this conclusion is entitled to take into account his knowledge of local conditions, he is after all embedded in the local community, and to conclude that prima facie private householders are not normally given license to enable them to sell liquor from their homes.
37. This of course is only a prima facie presumption which can of course be rebutted but here the defendant did not give or call evidence and so in light of that the Magistrate in my judgment was perfectly entitled to take the view of that his presumption, uncontradicted as it was, as the basis of his finding was not rebutted.
38. Submissions of counsel were made at the conclusion of the evidence. But submissions from counsel not evidence in itself.
39. As to the failure of the Magistrate to deal with this submission in his judgment the reality of the Magistrates Court proceedings need to be borne in mind. Of course, a Magistrate or any other Judge must explain why he has come to his conclusion.
40. There is no duty on him to deal extensively with each, and every submission made by Counsel especially those which appeared to him to be insubstantial. See Fanua v Rex [2020] TOCA 5, where the Court of Appeal held;

“Although the giving of evidence is a normal but not universal incident of the judicial process. There are some cases or kinds of cases where they need not be given”

41. Here, in my judgment the reasons given were sufficient for the final verdict and as the Court of Appeal in Fanua also stated, “the giving of reasons all depends on the importance of the point involved and its likely effect on the outcome of the case.”
42. It seems to me therefore that the Magistrate is to be taken to have applied his local knowledge of the situation to raise the presumption I have already adverted to which is not displaced by the failure of the defense to give evidence.
43. This is not to say of course that there is any obligation on the Defendant to do so but if they decide to remain silent then the presumption remains unchallenged.
    
    100. DISCUSSION
44. Although not part of the grounds of appeal, as such I desire to say a word or two about some of the criticisms made. It is suggested that the Magistrate was wrong and refusing to hear submissions of law at the beginning of the hearing but to wait until the end.
45. It would have been better in my view to permit the issue to be raised at the beginning of the trial because that might have avoided the hearing or at least curtailed it but the fact remains, the submissions were made, and the Magistrate had an opportunity of considering them before he came to his final decision.
46. For the guidance of the profession, I would respectfully suggest that should an issue contain a question of law that an application be made for that to be heard separately and at a different time from the trial proper in that event of course counsel would be expected to file written submissions in support of their legal contention that would give the court enough time to appreciate the point at issue and make arrangements for that to be dealt with.
47. Further, if it is the view of counsel that matters raised in the evidence or on submissions were not addressed by the court, they have a duty to raise that with the magistrate or judge at the time once the verdict or decision has been made.
48. It is not appropriate to “keep ones powder dry” and then spring on the Court of Appeal a matter not previously addressed at the court of first instance.
49. I hope that in future counsel will be alert, to raise any points not dealt with when it arises.
    
    4. FINAL RESULT
50. It therefore follows that this appeal is dismissed.