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R v Faletau [2026] TOSC 5; CR 199 of 2024 (24 March 2026)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY
CR 199 & 213 of 2024

REX

-V-

[1] TEAU ‘I MO’UNGA FALETAU

[2] MAFI FATONGIATAU LUTUI

VERDICT

BEFORE:

LORD CHIEF JUSTICE MALCOLM BISHOP KC

Appearances: Mr J. Fifita & Mr G. Aleamotu’a for the Crown Prosecution

Mr R. Mansfield KC & Mr H. Smith for the First Defendant

Mr S. Tu’utafaiva & Mr A. Fusimalohi for the Second Defendant

Trial: 14 January 2026 – 4 February 2026

3 March 2026 – 6 March 2026

11 March 2026 – 17 March 2026

Date: 24 March 2026

1. INTRODUCTION

1. I have read and re-read the helpful submissions submitted on behalf of the Crown Prosecution, the First and Second Defendants and have taken them into account in my judgement which follows:
   
   2. THE CHARGES
2. The Defendants are respectively charged with the following offences.

CR 199/2024 – Teau ‘I Mo’unga Faletau

1. Count 1: Engaging in Dealings with Another to Transport Illicit Drugs, contrary to section 4(1)(b)(v) of the Illicit Drugs Control Act (5,846.98 grams of methamphetamine)

CR 213/2024 – Mafi Fatongiatau Lutui

2. Count 2: Engaging in Dealings with Another to Transport Illicit Drugs, contrary to section 4(1)(b)(v) of the Illicit Drugs Control Act (5,846.98 grams of methamphetamine)

3. The Defendant pleaded not-guilty and elected to be tried by judge-alone.
   
   100. BACKGROUND
4. This case has not been without its difficulties, there have been numerous trial adjournments due to judicial and counsel unavailability, and change in counsel from the Defendants to name a few.
5. Counsel for the first Defendant also made an application for the methamphetamine to be exported to New Zealand for independent testing as to the reliability of the initial testing by Tonga police and the purity of the methamphetamine.
6. After considering the Prosecution’s opposition, the memorandum in response for the First Defendant and in the interest of justice, this Court granted the application on 17 December 2025, allowing samples to be taken under certain conditions and having regard to the current stance of the Illicit Drugs Control Act. This included, but is not limited to, the provision which states that if any illicit drug is found mixed in with another substance, the entirety of that substance is deemed to be that illicit drug.
7. As a result of the Court’s Order, the parties continued to liaise and work together with the relevant stakeholders to facilitate the execution of the order. The upshot is that a report helpfully prepared by Dr Somerville, a forensic senior scientist employed by the New Zealand Institute for Public Health and Forensic Science Limited (PHF Science), criticised the use of the Trunarc device and stated it was simply a screening procedure and that other more sophisticated analysis used in New Zealand proved more dependable.
8. That may be so but she also confirmed that the samples did indeed contain methamphetamine. The purity being 42% which she claimed was lower than the current level of similar drugs in New Zealand where levels of the order of 80% are normally detected. I will deal with the statutory provisions to this matter in due course.
9. The trial commenced on 14 January 2026 and the Crown called and completed the evidence of 3 witnesses. These proceedings were then adjourned part heard on 4 February 2026 as the allocated time and availability of both the judiciary and certain counsel could not accommodate the trial any further, noting the original trial estimate provided from the parties were two (2) weeks.
10. This trial resumed on 3 March 2026, set for an additional 3 weeks. The Crown called further witnesses and closed their case on Friday, 6 March 2026.
11. At the close of the Crown’s case, the Counsel for the First Defendant made the half-time submission for the case to be dismissed due to the alleged unreliability and misconduct by police in the manner in which these investigations were conducted. I gave judgement on 11 March 2026 dismissing this application and so the trial continued.
    
    4. THE DEFENCE CASE
12. The First Defendant denies any involvement in drug trafficking. His case is that he had a clandestine business relationship with Mr Ake involving freight services for his coral and fish export business. The telephone calls with Mr Ake were not about drug dealing matters, and the recorded calls have been misinterpreted. Further, both Mr Ake and Mr Taufa are unreliable witnesses with a motive to falsely implicate him and Sergeant Fifita conducted an improper investigation and tampered with evidence.
13. The Second Defendant denies any involvement. His case is that he cannot be reliably identified as being in the car, taking the drugs to Mr Ake’s residence. The CCTV evidence places him at Tanoa Hotel at times inconsistent with the delivery and Mr Taufa's evidence is unreliable, inconsistent and false.
    
    5. EXHIBITS

Crown Prosecution

14. The following exhibits were tendered by the Prosecution as part of their case:
    1. P1 – Court Book [404 pages]
2. P2 – Photos [8 photographs]
3. P3 – Photos [12 photographs]
4. P4 (a to h) – CCTV Footage [Rear Carpark Tanoa Hotel]
5. P5 (a to i) – CCTV Footage [First Floor Tanoa Hotel]
6. P6 – Diary of Action [5/4/24 by Officer Tu’ipulotu]
7. P7 – Video [Phone Call from Ofisi Ake to Teau Faletau on 8/4/24]
8. P8 – Video [Phone Call from Teau Faletau to Ofisi Ake on 8/4/24]
9. P9 – Invoice Tanoa Hotel [Trina Faletau – 3226]
10. P10 – Invoice Tanoa Hotel [Trina Faletau – 3127]
11. P11 – Photograph [from 3/4/24 of Sargeant Fifita’s phone]
12. P12 – Photographs of Weighing & Testing of Drug Exhibits [121 pages]
13. P13 – Station Diary [entered by Officer Pousima] English translation

Defence

15. The following exhibits were tendered by the Defence as part of their case:
    1. D1 – Calendar [March – April 2024]
    2. D2 – ATS Timesheet [27/03 – 9/04/2024]
    3. D3 – Ofisi Ake Statement [18/4/2024]
    4. D4 – Call Logs between Ofisi Ake and Teau Faletau [Digicel & Cellbrite 24/3/24 to 8/4/24]
    5. D5 – Photos [5 Photos]
    6. D6 – Photos [6 Photos]
    7. D7 – Redacted disclosed document [page 14 -15]
    8. D8 – Caselaw – Rex v Pisima’ake [CR 186/2019]
    9. D9 – Redacted disclosed document [page
    10. D10 – Eco Reef Payroll: 1 September to 7 September 2023
    11. D11 – Eco Reef Payroll: 29 September to 5 October 2023
    12. D12 – Eco Reef Payroll: November 2023
    13. D13 – Eco Reef Payroll: December 2023
    14. D14 – Eco Reef Payroll: 5 January to 11 January 2024
    15. D15 – Eco Reef Payroll: 26 January to 1 February 2024
    16. D16 – Eco Reef Payroll: March 2024
    17. D17 (a to d) – Data Extraction [5 pages]
    18. D18 – Eco Reef awards from 2021 – 2024
    19. D19 & D20 – Calls between Mr Lutui and Mr Faletau
    20. D21 – Eco Reef Payroll 28 May 2021 to 3 June 2021
    21. D22 – Eco Reef Payroll 18 June 2021 to 24 June 2021
    22. D23 – Eco Reef Payroll 4 June 2021 to 10 June 2021
    23. D 24 – Eco Reef Payroll 11 June 2021 to 17 June 2021
    24. D 25 – Eco Reef Payroll 25 June 2021 to 1 July 2021
    25. D26 to D27 – PHF Science & Formal Written Statement of Dr Somerville
    26. D28 to D29 – 2 photographs
    27. D30 – 6 Drone photographs of Sunshine Rental parking
    28. D31 – Sunshine Rental Car agreement and Police Statement of Ms Fitaloa ‘Afua

Caution in accepting the evidence of accessories.

16. Both ‘Ofisi Ake and Joseph Taufa are informants and indeed participating informants and so it is necessary to treat their evidence with considerable caution. Mr Ake was caught red-handed and immediately implicated the First Defendant. He obviously had his own interests to serve in doing so, mainly to deflect attention from himself and curry favour with the police who held his fate in their hands.
17. I have considered and reconsidered his evidence with some care. What is significant in my view is that he immediately pointed to the location of the drugs and offered to assist the police in implicating the person he said had arranged for their delivery, namely the First Defendant.
18. I am entirely satisfied that this offer was made before any question of immunity arose. It was the spontaneous, indeed panicked reaction of someone who was caught red-handed and who realised the awful predicament he was in.
19. His motive in offering to assist the police was of course self-serving. It was not in any way actuated by motives of public spiritedness; it was to save his own skin.
20. Nevertheless, I am satisfied that this aspect of his evidence was truthful, reliable and credible and I believed him. Further, the suggestion is that the drugs had been brought to him not by the First Defendant or on behalf of the First Defendant but by a member of the Comanchero gang, this I understand and accept, is a violent association of criminals heavily involved in drug dealing and that such is their reputation that the witness would fear for his own life if he implicated them.
21. Now, that may be so, but why would he mention the First Defendant – a man with whom he had a cordial relationship, indeed one of friendship? I recall the evidence that he, Mr Ake, had been friendly with the First Defendant and indeed was employed by him on and off for some time and that as a token of his friendship, he had donated a pig for the funeral ceremonies of a relative of his friend, the First Defendant.
22. So, if he was naming an innocent party because of his fear of the violent gang, why not say it was AB or C, someone he did not know or somebody who was overseas etcetera? Why should he name his friend? I am quite satisfied that he was telling the truth when he said that the First Defendant asked him to receive a package of drugs and then use his position as a supervisor baggage handler to arrange for that package to be put on an aeroplane bound for NZ.
23. The next witness who is also granted immunity is Joseph Taufa. Now he poses a similar challenge to a judge of fact in a criminal trial. He was plainly a participating informant. He says that he decided to assist the police and act, as it were undercover, because following an approach from the police lawyer he was concerned about the damage to young people by the prevalence of drugs in Tonga and was affronted at some sleight to his sister.
24. In my view, his motivation was much more self-centred. He stood to be accused of large-scale drug dealing and realised his only escape route was to become a police informant. Although, he says he approached the police via the lawyer following initial discussions, I remind myself that he was arrested on the 8^th of August 2024 and was incarcerated until December of that year when the police no longer objected to his application for bail.
25. It is said that he was kept in custody to allay suspicion of his dealings with the police, but I am unconvinced that his release in December was in any way unconnected with an offer of immunity. True it is that apparently no immunity was granted until just before the previous trial on the 2^nd of September 2025. But the fact remains that when he gave evidence in the trial, he was the beneficiary of immunity and so had an interest of his own to serve in implicating the defendants.
26. I repeat, I must and I do regard him as someone who also has his own interests to serve in implicating others in an attempt to obtain leniency for himself. In the result, he has been granted immunity and so it can be said that what he has done is simply to save himself at the expense of others.
27. I must take the view that at least in his own mind his liberty was obtained on the basis that he would give testimony against his then co-accused. This means that he must be treated with caution and I do so. Nevertheless, if having regard to the caution that must be exercised here, I am satisfied to the criminal standard that the witness whose evidence I am considering is truthful and accurate in certain respects then I can accept that evidence is reliable.
28. But after watching and listening to this witness for many hours and having paid close attention to his demeanour, (reminding myself that this can be an uncertain guide and that a convincing witness can also be an untruthful one), I have concluded that I cannot be satisfied to the criminal standard that this witness has given truthful and accurate evidence. This does not mean that I must totally disregard his evidence, I accept that in certain respects he may probably be correct but I cannot be sure about it and therefore, applying the criminal standard, I must disregard it.
29. His evidence at certain key events is corroborated by CCTV recordings he has seen at the hotel on the 5^th of April driving vehicle L28887. He appears to be in close association with the Second Defendant and his movements are documented by CCTV throughout that day.
30. His presence in the blue rental car with Mafi Lutui has not been disputed. His account of the drugs quantities is partially corroborated by photographs of 13 packages (P11) supports his evidence that multiple packages were involved. The fact that he took the photograph and sent it to Sergeant Fifita demonstrates his role as an informant gathering evidence. This is consistent with what he has said on that issue.
31. He readily admitted confusion and error and, in my view, the 12 vs 13 packages and various timings was consistent with someone who was trying his best to be truthful accepting that at times he was confused and had lapses of memory.
32. In a criminal trial, a witness who is confused, although trying to be truthful, poses a great challenge to a judge of fact who must be satisfied beyond reasonable doubt that the witness is both truthful and reliable
    

D. THE FORENSIC EVIDENCE

33. I now deal with the forensic evidence. The drugs were analysed in Tonga using the Trunarc device. This was criticised by a distinguished expert from a government laboratory in New Zealand called on behalf of the Defence. Dr Somerville explained that the new Trunarc test is a screening device only and that furthermore, more sophisticated measures should be taken.
34. That may have or may not be the case, but she went on to say that she did undertake further sophisticated tests and was satisfied to a high degree of certainty that the samples received from Tonga and selected by the Defence contained 42% methamphetamine.
35. She further stated that that was lower than what is currently on the streets in New Zealand where the methamphetamine content is about 80%.
36. With that in mind, I must consider the Illicit Drugs Control Act section 34(1) which provides as follows:

“(1) If in any prosecution for an offence against this act, it is proved that a sample which was taken from any seized substance or article possesses a particular property, it shall be deemed that any substance or article from which it was taken possesses the same properties, unless the country is proved.

(2) If in any prosecution for an offence under this act it is proved that an illicit drug or controlled chemical is mixed with another substance or article, the entire mixture should be deemed to be illicit drugs or controlled chemicals, as the case may be, for the purposes of this Act.”

37. It seems to me and I hold, that the statue is plain and beyond argument. So far as the Act is concerned, if there is methamphetamine in the sample then the whole of the sample is deemed to be the drug in question. “Deemed” in my view means; must be treated as, considered as, equivalent to, or some such synonym. Thus, since it is accepted that the samples analysed in New Zealand contained methamphetamine then the Court must proceed on the basis that the whole of the samples contained that drug.
38. DR Somerville states there was a high degree of certainty that the remaining packages also contained methamphetamine and by the same reasoning, the 12 submarine-like packages screened in Tonga are also to be taken to be the drug in question.
39. In other words, the total weight of those packages namely 5328.98 grams must be taken to be methamphetamine. It may be thought that that is a harsh provision, but it is plain that it is the law which I must follow.
    
    6. DISCUSSION

Crown Witnesses

40. The following witnesses were called by the Crown:

a. ‘Ofisi Ake (“Ofisi”)

41. ‘Ofisi Ake is a baggage handler supervisor with Airport Terminal Services at Fua’amotu Airport. He said that he became acquainted with Teau Faletau when Teau approached him shortly before the COVID lockdown in Tonga when he was walking to a Chinese store to buy food.
42. ‘Ofisi gave evidence that he got into the vehicle with Teau by invitation and they went and got some food for him. During that period, they had a conversation where Teau stated he had been watching him (it was either 3 times or over 3 weeks - the witness could not confirm) from the top level at the airport.
43. Teau told him that he had observed that he had access to all the aeroplanes due to the nature of his job and that they would potentially work together because of it, to which he said “okay.”
44. Once dropped off by Teau after this encounter, he did not interact with Teau until 2024, leading up to the offending in these proceedings. This was part of his evidence in chief. I say at once, that I do not accept this evidence and prefer what was advanced during cross-examination and confirmed when the First Defendant gave evidence that ‘Ofisi agreed with the First Defendant to smuggle various packages onto aeroplanes usually to or from the Outer Islands for a fee of TOP$100.
45. I am satisfied that the First Defendant cultivated a friendship with ‘Ofisi, at least in part, because of his crucial position as a supervisor baggage handler and so was able to place goods on aeroplanes, thus avoiding inspection. The relationship between them was a reasonably friendly one.
46. ‘Ofisi stated that on or about 2 weeks before 5 April 2024, Teau appeared to his residence where he asked whether ‘Ofisi was willing to do a “hit”? ‘Ofisi understood this to mean, facilitating the transport of a bag of ICE to New Zealand. ‘Ofisi agreed and was told by Teau to do his homework then get back to him. ICE was understood to mean methamphetamine.
47. From there, according to ‘Ofisi, there were several communications between him and Teau including on 5 April 2024, ‘Ofisi encountered Teau in a blue rental vehicle as he was walking home having clocked off from work. Teau informed him, he was showing his cousin, who was also present in the vehicle but could not be described or identified by ‘Ofisi, where the “thing” would be delivered to.
48. On or about half an hour after that encounter with the blue rental vehicle, a grey Mitsubishi vehicle arrived at his home and dropped off a bag. The bag contained 13 packages altogether, 12 sub-marine shaped packages and an additional package with smaller sized packages inside (see Exhibit P1 page 331).
49. Moments after ‘Ofisi had transferred the packages from its original bag into a school bag belonging to one of his children and stored it inside a drum in his living room. Police arrived at his residence, to perform a search about 5 to 10 minutes afterwards. ‘Ofisi cooperated with police and showed them where he had stored the packages. When questioned by police as to who the “thing” belonged to, the witness stated that it belongs to Teau, the First Defendant.
50. This witness is an indemnified witness whereby in exchange for his cooperation he has not been prosecuted in relation to any offending in these proceedings. This cooperation resulted in continuous communications by phone with Teau from 5 April to 8 April 2024, which is when the First Defendant was arrested.
51. During cross-examination, ‘Ofisi’s evidence has been criticised for its inconsistencies with regard to the timeline of when he became acquainted with Teau and also about the nature of his relationship with Teau. An alternative narrative describing the nature of the relationship between Teau and ‘Ofisi was put to the witness by Counsel for the First Defendant.
52. This relationship arose out of Teau’s current fish export business (Eco Reef) and ‘Ofisi’s position at the airport, capable of transporting freight to and from the outer islands, namely diving equipment and supplies.
53. It was put to ‘Ofisi that he had a “side business” utilising his position as a supervisor with Airport Terminal Services where he would assist individuals who could not get their bags onto the airline, to do so by paying him directly.
54. Counsel for the First Defendant illustrated how the description given by ‘Ofisi of the individuals that arrived in the grey/maroon Mitsubishi to deliver the drugs, particularly of the individual in the back seat was inaccurate whereby it was not an old fat man but a young adult. This was accepted by ‘Ofisi as an error.
55. It was further put to ‘Ofisi in cross examination that the communications between him and Teau from 6 to 8 April 2024 were merely Teau trying to assist ‘Ofisi to return the packages to whoever it was responsible for sending it. Counsel for the First Defendant then continued that the reason why he has identified Teau as the person behind the packages is because he was afraid to name the true perpetrators who are members of a criminal gang called the “Comancheros.”
56. The witness denies this, having no knowledge of this gang and repeating that in relation to this package, he was approached by Teau and who he communicated with for the arrangements for the package. My findings on this issue are at paras 16-22 supra.
    

b. Sergeant Tu’amelie Fifita (“Fifita”)

57. Fifita has been a police officer for 9 years now with the Drugs Enforcement Unit here in Tonga and in these proceedings is the lead officer in investigating the charges that have been brought against the Defendants together with the informant.
58. Fifita was Joseph Taufa’s handler during his time as an informant which began on or about March 2024. The objective of their work together was for Joseph to gain Mafi Lutui, the second Defendant’s trust so that the identity of the drug dealers could be revealed. Fifita stated that the agreement with Joseph Taufa is that he would do work with Mafi, comply with his requests and thus be regarded as trustworthy. This was deemed necessary in order for Joseph to be in a position to continue undercover and so implicate the individuals involved in this operation of illicit drugs.
59. Throughout the period of time in which they worked together, there were supplies of methamphetamine which police were able to retrieve and others which were not. Fifita explained that this would depend on whether there were others present, apart from Mafi and Joseph, in which case they would get suspicious of Joseph.
60. If the work was successful with no police intervention, this would enhance the informant’s trustworthiness among his fellow participants.
61. In those instances, police would not retrieve those illicit drugs until there would be sufficient time and distance between when the informant would deliver illicit drugs to an individual, so that they could not be traced to him once police conducted their work
62. In other instances, illicit drugs could not be retrieved because that would be work that Mafi conducted alone, without the informant therefore no information could be obtained as to its destination.
63. On 4 April 2024, Joseph had contacted Fifita having received “kilos of ice” from Koli Moa at the One-Way residence. These were handed over to him on the same day where he had tested a sample from one of the packages and it was confirmed to be methamphetamine.
64. The test was done by Sergeant Carsten Leveni who also had a key to the safe at Central Police Station, where the packages were kept secured.
65. Later, on the production of a photograph by Fifita from his phone, the date of the test being done on the packages was confirmed to be 3 April 2024 as opposed to 4 April 2024. This means the packages were kept in the police safe for at least a day as opposed to a few hours. This was a result of cross-examination on the timestamp that was shown on the Trunarc device where the date was 3 April 2024.
66. Fifita confirmed returning the packages to Joseph in the early hours of 5 April 2024 together with an additional 13^th package. This additional package was said to be at the direction of Mafi to Joseph. Joseph had told Fifita that Mafi wanted “everything” to be returned which is why Fifita included the 13^th package.
67. Fifita stated that the 13^th package was what was left over from the illicit drugs he was given from Joseph in March 2024 being the 2 or 4 pounds. This was an estimate of what Joseph had received from Mafi Lutui.
68. Fifita was cross-examined at length on numerous aspects of his evidence, in particular, his lack of contemporaneous notes or any written record of any of his interactions with the informant to corroborate his evidence, contrary to current police policy to do so.
69. In response, Fifita accepted that he did not follow procedure requiring the keeping notes or records of the work that he was doing. However, this was due to the sensitive nature of the work he was conducting, the importance of maintaining the trust of the informant and operational security.
70. Upon further scrutiny of Fifita’s lack of contemporaneous notes, Fifita stated that there was a document in which all these interactions were recorded shortly after they occurred and that this document was compiled and composed by the Director of Public Prosecutions, Mr James Lutui.
71. This was contrary to numerous discovery requests from both Defence counsel. Additionally, the existence of this document was not disclosed when Fifita gave evidence in the previous trial (CR 6,9,14-15 &25/2025) in relation to his interactions with the informant, Joseph.
72. Fifita in response stated that the lines of questioning put to him in the previous trial and in these proceedings were different, he was not directly asked about the existence of this document in the previous trial. It has only now come to light, due to the numerous questions put to him in relation to any record of these interactions or information that he received from Joseph.
73. Not only that, Fifita states that this document could not be disclosed because the information gathered in it still involves currently on-going police investigation. Fifita was criticised for not mentioning this document before, with Crown Counsel further adding that he was only made aware of the existence of the document when preparing for the trial, but had not seen it himself or known its contents. Only the Director of Public Prosecutions knew its contents.
74. After discussing this matter in chambers, the Court ordered that Fifita together with the Crown retrieve the document immediately and disclose it to the defence after redacting the information in relation to current on-going investigations.
75. Furthermore, the diary of action on the search conducted at Ofisi’s residence on 5 April 2024 was found to be inaccurate. This was revealed after numerous questions on the timing of their arrival at the residence including how they got the reliable information from the informant showing them where Ofisi’s residence was located, since they lost track of the grey Mitsubishi vehicle.
76. Fifita later revealed that the timeline on the diary of action was altered and it had to be done to protect the identity of the informant, as it had not become clear at that point in time that the informant would give evidence as a witness for the Prosecution.
77. It was put to Fifita that there was misconduct on his part in informing ‘Ofisi of the penalty of life imprisonment for certain offences in relation to illicit drugs and that it would be possible for him to help ‘Ofisi if he assisted police to implicate Teau, the First Defendant.
78. Fifita remained firm in his evidence, that it was never suggested or implied to ‘Ofisi that Teau, the First Defendant had to be the one implicated, but rather it was ‘Ofisi who, immediately when surprised in the police raid at his house stated that the “thing” belonged Teau, the First Defendant.
79. From Fifita’s cross-examination, the Court is invited to draw an inference of malicious intent by police to directly implicate the Defendants in illicit drug dealing and that in the course of the investigation that was led by Fifita, proper police protocol was not followed with no accountability as to the of chain of evidence, proper evidence storage or contemporaneous notes.
80. Counsel further relied on the fact that this witness had been found to be untruthful in a Supreme Court case heard in 2020 and so is unreliable.
81. I entirely accept that lying to the Court is a serious matter and can substantially affect a witness’s credit worthiness; however, the fact that someone was found to be untruthful in one trial does not mean that he must be so regarded in every subsequent trial.
82. The Judge of fact should take that into account and scrutinise the evidence under consideration with the utmost care in deciding whether or not the evidence given in the instant trial is reliable.
83. Having given close attention to this witness’s evidence, I have concluded that there was no malicious intent to manufacture false evidence. The steps which this witness took was because of his abiding concern that the integrity of the investigation would be compromised. I am satisfied that his evidence was on crucial issues, both truthful and reliable.
    

c. Joseph Taufa aka Joseph Mafi (“Joseph”)

84. On or about the first week of March, on receipt of an estimated 2 to 4 pounds of methamphetamine from Mafi, the Second Defendant, Joseph made contact with police for assistance on next steps.
85. From here, he began working as an informant under the supervision of Fifita, and eventually parts of these pounds of methamphetamine were returned to Fifita to secure storage until it would be further needed by Joseph for Mafi.
86. Joseph agreed to become an informant, when first approached by ‘Inoke Finau, a legal officer of Tonga Police. He said this was because of his concern of the on-going effects of illicit drugs on today’s youth and also because of a comment or assertion made by Teau in relation to Joseph’s sister.
87. The evidence relevant to the charges on the indictment is that he first received the packages on 3 April 2024 from one Koli Moa and the illicit drugs that comprised the 13^th package from Fifita on 5 April 2024.
88. Joseph received a sack of taro leaves from one Koli Moa on the day in question. At the time, Mafi Lutui, the Second Defendant was also present. In the sack under the taro leaves was secreted the 12 packages of methamphetamine. This was at the residence at the One-Way Road. The drugs were transferred into a red bag. Mafi left the residence. Joseph then contacted Fifita and met him on the same night to hand over the packages as he felt the One-Way residence was not secure for such a large quantity.
89. In the early morning of 5 April 2024, Joseph retrieved the 12 packages from Fifita plus the 13^th package. These were all the remaining illicit drugs passed from Joseph to Fifita which Fifita had stored on his behalf.
90. Joseph Taufa then with Mafi proceeded to Tanoa Hotel to get confirmation on where the packages would be taken to. Prior to this, he had agreed with Fifita on a signal between them if the illicit drugs had been dropped off at Tanoa, his car window would be down and his hand would be out as he left the hotel, if not, that would mean the illicit drugs were still with him.
91. Once they arrived at Tanoa through the rear parking lot, Mafi went off to see Teau to confirm where the drugs would be taken. Joseph remained in the vehicle with the illicit drugs until Mafi returned, instructing him to go back to the residence at the One-Way Road, while he would go with others to find out the location of the house.
92. Joseph at first said that Mafi went off to go see Teau, this was later corrected in cross-examination where it is clarified that Teau was not identified but rather the reference was to see an unidentified individual. Joseph states this was simply an error in his memory after viewing the CCTV footage of that day and the relevant times.
93. On returning to the One-Way residence, he waited there with the packages of illicit drugs until Mafi together with Nimilote Ma’afu had arrived. On their arrival they all left to drop off the packages. He confirmed that he was the driver, Mafi was the front passenger and that Nimilote was in the back passenger seat as they went to Ofisi’s residence in Fasi to drop off the package.
94. After doing so, they returned to the residence at the One-Way Road and Mafi and Nimilote then departed in the blue rental car back to Tanoa Hotel.
95. After that occurrence, Joseph contacted Fifita to show and confirm ‘Ofisi’s residence to Fifita to enable the police to continue their work. Later that same day, Joseph went to Tanoa Hotel where there was a gathering, he says to celebrate the successful passing of the bag.
96. In cross examination, Joseph was questioned at length. In short this can be briefly summarised as follows:

With regard to his employment record with Eco Reef (the company belonging to the First Defendant), numerous exhibits were tendered. These were all payroll records of the company from certain periods illustrating who was getting paid. There were months where Joseph’s name appeared and months where it did not. Joseph was adamant that he did do some diving work for Eco Reef on certain months despite the payroll records not showing his name.

97. When questioned about the various timelines when he would meet with Fifita, the “work” he did with Mafi, the delivery of drugs to certain locations and collection of money from certain locations, Joseph would not be able to provide a coherent timeline or dates for the majority of these events
98. In short, this informant was in a pivotal position because he was privy to information that police relied on in relation to this offending, yet his account of these events has shown numerous inconsistencies under cross-examination.
    

d. Officer Tu’ipulotu

99. Officer Tu’ipulotu gave evidence that her role in the operation of 5 April 2024 was recording the Diary of Action and acting as the exhibit officer at the scene.
100. She identified the Diary of Action (Exhibit P6) as a document recorded in her handwriting, confirming that she was responsible for entries 1 to 24, while later entries (including entry 45) were completed by another officer, identified as Officer ‘Otuhouma.
101. She confirmed that the entries she recorded reflected events conveyed to her during the operation, including information provided by Sergeant Fifita. While she accepted that many entries (including entries 4, 5, 9, 10, and 17) accurately reflected what occurred, she acknowledged under cross-examination that certain entries, particularly entries 1 and 2, did not reflect the actual time when information was received.
102. She explained that the time recorded in entry 1 (13:30 hrs) was not the time the information was received, but rather the time the squad departed to follow a vehicle and the content of entry 1 (referring to reliable information about drugs at the residence of ‘Ofisi Ake) was recorded after arrival at the residence, based on what was conveyed to her by Sergeant Fifita. It is her evidence that the purpose of recording the entry in that manner was to protect the identity of the informant.
103. She also gave evidence that she did not witness certain initial events recorded in the diary including the initial detention of ‘Ofisi Ake and early interactions, as she arrived afterwards and relied on Sergeant Fifita’s account for those entries.
104. She confirmed that upon arrival, ‘Ofisi Ake was already present at the residence and Sergeant Fifita informed him of the purpose of the search and reliance on statutory powers to enter without a warrant. ‘Ofisi Ake was not immediately arrested but remained seated while the search was conducted.
105. In relation to the discovery of the exhibits, she confirmed that a school bag was located inside a drum, containing packages suspected to be illicit drugs, the items were removed, laid out, photographed (Exhibit P1 page 331), and labelled by Sergeant Fifita and she recorded that ‘Ofisi Ake acknowledged the presence of illicit items and later made statements offering to assist police.
106. In relation to entry 17, this witness confirmed Ofisi Ake expressed a willingness to assist police, motivated in part by concern for his young daughter. This offer was conveyed to her by Sergeant Fifita which she recorded accordingly.
107. She further gave evidence that she was assigned to be exhibit officer at the scene, despite not holding a permanent role or specialised training beyond general police training. She stated that due to urgency and a subsequent operation, she did not immediately complete formal documentation of the exhibits; instead, she secured the exhibits in Inspector Vi’s office safe. The exhibits were formally handed over to the exhibit room the following morning (recorded at entry 23).
108. Officer Tu’ipulotu gave evidence that she was present during the weighing and testing of exhibits on 9 April 2024 at approximately 2:00 am at the Central Police Station forensic laboratory.
109. She identified photographs (Exhibit P12) and described the process as follows:
     1. exhibits were progressively unpacked, photographed, and weighed;
     2. in some instances, substances were transferred from original packaging into police ziplock bags before weighing; and
     100. both gross weight (including packaging) and net weight (excluding packaging) were recorded.
110. She also clarified that references to “aluminium foil” in her earlier evidence in fact referred to plastic wrapping, and that no actual aluminium foil was present.

e. James Lutui

111. Mr James Lutui was the Director of Public Prosecutions in April 2024. He gave evidence that he prepared Exhibits D7 and D9. He confirmed that these documents were compiled by him at the Attorney General’s Office using information predominantly provided by Sergeant Fifita. The documents were prepared progressively over time, commencing around March/April 2024, and were later updated, with the final version dated 4 February 2025.
112. Mr Lutui explained that the information contained in the exhibits was derived largely from verbal briefings by Sergeant Fifita, supplemented by photographs which were later included in the documents.
113. He reduced the information provided to him into writing and incorporated the photographs into the exhibits. He confirmed that Sergeant Fifita did not provide him with written notes of his interactions with the informant; rather, all information was conveyed verbally, and no independent notes were kept apart from what was recorded in the exhibits.
114. In relation to informants, Mr Lutui acknowledged his obligations as a prosecutor to protect the identity of informants, consistent with section 30 of the Illicit Drugs Control Act. He stated that identifying details of informants are not recorded in documents intended for Court, and that such information is handled with care. He further noted that while he would be informed of an informant’s identity for the purpose of considering immunity, he did not personally interact with informants and relied on the handling police officer.
115. He further described having multiple meetings with Sergeant Fifita during the course of the investigation, possibly once or twice a week, although he was unable to distinguish clearly between meetings relating to this operation and other concurrent police operations. He also confirmed that photographs and information were sometimes transmitted to him by email or Facebook Messenger, and that such communications would have created a record, although these were not included in the exhibits.
116. He was unable to recall specific dates and times when particular information or photographs were put to him, but accepted that the dates recorded in the exhibits reflected what had been conveyed to him by Sergeant Fifita at the time. I find that this witness took the case no further.
     

f. Officer Pousima

117. Sergeant Pousima is the officer in charge of the exhibits room at the Central Police Station. She gave evidence that on 6 April 2024 at approximately 5:00am – 5:30am, she received drug exhibits from Officer Tu’ipulotu in the exhibits room where a Detective Mafi was present. She recorded the handover in the Station Diary.
     

g. Inspector Malolo Vi

118. Inspector Vi, the officer in charge of the Drugs Squad for approximately 19 years, gave evidence that his role in this investigation was primarily supervisory and coordinative. He acted as the liaison between the operational team (including Sergeant Fifita and Sergeant Leveni) and the drone operator, ‘Isi Tapueluelu.
119. In relation to the events of 5 April 2024, Inspector Vi stated that he was positioned at Kolofo’ou (near the Anglican Church) communicating with the drone operator. Through the drone, images were obtained of individuals allegedly involved in the offending and of a residence in Fasi. He identified photographs at pages 338–339 of P1 as images captured by the drone prior to police arrival at the Fasi residence.
120. Inspector Vi also gave evidence regarding earlier events on 1 March 2024, when Sergeant Fifita reported receiving suspected illicit drugs from an informant. Inspector Vi personally conducted testing using a TruNarc device at the Central Police Station, confirming the substance to be methamphetamine. He identified photographs (D9 pg27) depicting that testing and stated that the items were thereafter stored in a safe in his office.
     

h. Sergeant Carsten Leveni

121. Sergeant Leveni, a police officer of over 20 years service with more than 10 years in the Drugs Squad, gave evidence that his role in this investigation involved surveillance and the testing and weighing of suspected illicit drugs.
122. He conducted forensic testing on 9 April 2024 at the Central Police Station using a TruNarc device. He identified his certificate of analysis (P1 p 10–23), confirming that:
     1. he received multiple exhibits (totalling 56 packages);
     2. he tested each exhibit;
     100. the substances were confirmed to be methamphetamine;
     4. and the total net weight was recorded as 5,846.98 grams.
123. Sergeant Leveni acknowledged that his initial report dated in April 2024 erroneously stated the result as “negative” for illicit drugs. This was a typographical error and the report was later corrected in July 2024 from “negative to “positive” without re-testing the substances.
124. In relation to the weighing procedures, he acknowledged that not all empty packs were weighed as assumptions were made by applying the weight of one empty pack to others and in some cases, the substances were transferred to police packaging before they were weighed.
125. He maintained that his approach was based on experience but accepted he could not be certain of the precise accuracy of the weights. Despite that, he maintained that the overall results indicated the presence of methamphetamine in the exhibits tested.
     

Caution needed when considering the informant evidence

126. In these proceedings, there are two indemnified witnesses, ‘Ofisi and Joseph. I remind myself that both their evidence must be treated with considerable caution, in light of the events that have unfolded in their evidence and the nature of the involvement in the offending.
127. In ‘Ofisi’s case, he had been caught red handed. The Defence alleged that he had been coerced by police with the threat of life imprisonment if he had not implicated Teau, as being the person behind the packages in these proceedings.
128. This of course is strongly disputed and denied by the witness. I must, in considering the evidence before me, weigh to the criminal standard, taking into account that even a convincing witness in terms of demeanour and body language may be a deceiving witness, also bearing in mind the interest of this witness to give evidence in exchange for immunity. I bear this in mind when considering the evidence and the corroborating exhibits to ‘Ofisi’s account of events.
129. In respect of Joseph, his situation differs from that of ‘Ofisi as he was a recruited informant from the beginning in his interactions with both Defendants. It is a known fact that this informant was the same participating informant from a previous trial involving a total of ultimately 6 Defendants that was before me in September 2025 (CR 6,9,14-15 &25/2025). This also included the Second Defendant in these proceedings.
130. I repeat what I had already informed all parties at the beginning of these proceedings that as the judge of fact and jury, nothing in the previous trial or his credibility has any bearing on my finding in relation to his evidence and credibility in this current trial.
131. Joseph’s point of involvement stemmed from his relationship with Mafi Lutui, the Second Defendant and I again, remind myself to be cautious of his evidence, bearing in mind the inconsistencies in relation to the dates and timeline of events and his own interests; noting he has been granted immunity from prosecution in these proceedings.
132. As to Sergeant Fifita, I also consider the numerous allegations of police misconduct that has been illuminated by Defence Counsel in relation to his alleged conduct in not only handling the informant, but also the storage of illicit drugs in a secure location.
133. I bear in mind that in the previous litigation in the Supreme Court, this witness’s evidence was disbelieved on his oath. This is a matter of considerable concern but because a witness has been found to be truthful in one occasion does not mean that on subsequent occasions, his evidence must be disregarded in its totality. It simply means that caution must be used in assessing the evidence given in this previous finding.
134. These are all matters I take into consideration when weighing the evidence against the Defendants to the criminal standard, beyond a reasonable doubt.
135. In my ruling on the no case to answer submissions, I adverted to the fact that Sergeant Fifita added drugs to the original consignment of 12 submarine like packages. His case was that he obtained these from Taufa as part of the original consignment obtained from the First Defendant.
136. The Defence suggested that this was done not to only secure a conviction but the mandatory penalty of life imprisonment, but that makes no sense because the original 12 packages amount to more than 5 kg and so attract the mandatory life sentence. I decided that that explanation by Sergeant Fifita is probably correct, but I could not be sure about it to the criminal standard and therefore that evidence should be excluded. In the result, the indictment was amended to allege the methamphetamine was in the sum of 5328.98 grams.
     

Defence Witnesses

a. The First Defendant

137. The First Defendant gave evidence. He was 43 at the time of the alleged incident and married his wife Fane in 2012. Their relationship was a close one and she proved helpful in the development of his business which was the export of fish and coral through his company, Eco Reef. A company which began operations in about 2011.
138. His business thrived and on one occasion he was awarded the “exporter of the year” award by the Department of Labour and Commerce. At its height, the company owned 5/6 vehicles and around three boats together with a warehouse rented at Vaini and a wharf near the same location.
139. He stated that he met Ake around 2019 when he discovered that he was a baggage handler and was approached by Ake who suggested that he pass his bag over “the fence and give him some lunch” by which I understand him to mean, “give me a bribe to evade the regulations.” Taking it shortly, on a number of occasions Ake was able to smuggle the First Defendant’s items onto aeroplanes in return for the payment of TOP$100.
140. This led to an introduction to a Mr. Mo, who was interested in the same services and it seems Ake smuggled parcels onto aircraft for this person as well. The picture that emerges is that over the years, Ake and this Defendant, Teau Faletau became quite friendly, so much so in fact that Ake shot a pig and presented it to Faletau for a funeral in Vava’u.
141. It seems to me that the reality of the situation was that this Defendant knew that Ake was in a key position to assist in smuggling items onto aircraft. Whether with that in mind or for other reasons, a friendship developed between the two over some years.
142. He told me that he met the informant Joseph Taufa through relatives and employed him from time to time although he was not very punctual or otherwise satisfactory leading to his dismissal in about 2023 or January of 2024.
143. While working for him, Joseph stayed at Mr Mo’s house in Ha’apai with other divers. Mafi Lutui, the Second Defendant was employed by Eco Reef as well but his employment was eventually terminated because he held parties at the warehouse, although they remained on good terms and occasionally this Defendant called on his services when needed.
144. This Defendant also knew Nimilote Ma’afu through relatives who asked the Defendant to find him a room at the apartment section of the Tanoa hotel on his visit to Tonga, which he did.
145. Finally Mr Mo. He first met him in 2009 or 2010 when he was collecting sea cucumbers. Mr Mo was one of the Chinese waiting at the wharf to buy them and they began a relationship selling him sea cucumbers. This Defendant also worked in construction through a cousin’s introduction and was, during March and April 2024, working part of the time at the NZ High Commission.
146. The witness was invited to consider a number of telephone records. Some of which were silent in the sense that they were unanswered and of course the contents of the records do not appear in the exhibit. Mr Faletau gave evidence about the contents of some of these telephone calls and I base my conclusions on what he told me about them.
147. On the 2^nd of April at about 2:39pm, there was a conversation between them for about 27 to 29 seconds in which according to the Defendant, Ake told him that he had been contacted by some people to send a package to New Zealand but no further details about the package was given.
148. Mr. Ake wanted to know how much he should charge and asked this Defendant’s advice. Faletau says that he told him “that’s up to him” whereupon Ake said he was thinking of charging TOP$1000. Faletau said he thought that was a bit too high but later at about 6 pm Ake called back to say that the sum of TOP$1000 was agreed.
149. It seems to me that an honest person would have been suspicious first of all about the fact that unknown person got in touch about sending a package to New Zealand and that they had agreed to pay 10 times the usual rate between Ake and this Defendant, namely TOP$1000.
150. The next phone call of the relevance was on the 4^th of April when the call lasted between 40 to 41 seconds in which Ake told him that he may have found out who the package belonged to. It was in fact Mr MO. He also told him that it may also be on behalf of ‘Eneasi Taumoefolau who he knew to be the president of the Comanchero gang in Tonga.
151. Now, if this is correct, the reality of the situation is that Ake was being asked to facilitate the export of a package to New Zealand on behalf of a prominent figure in a notorious criminal gang for which 10 times the usual rate would be paid. This Defendant told me on oath that the advice he gave to Ake, his friend, was to be careful especially dealing with the international flights.
152. It seems to me that if the Defendant had no involvement in this consignment and if it came to him as a complete surprise that it involved the leader of a notorious criminal gang who was paying way over the usual rate for its smuggling onto aircraft, an innocent Defendant would certainly not advise his friend to be careful especially dealing with international flights, but would have told him to have absolutely nothing to do with the situation and extricate himself from it straight away.
153. But this Defendant says that on the 5^th of April at 10:20 am he did in fact receive a call from Ake which he answered at 10:23 for 28 to 29 seconds. The purpose of the call was not about the package I have already mentioned but an inquiry by Ake whether he had any packages to be sent to the outer Islands. This does seem very odd to say the least.
154. There was evidence of CCTV footage that, which taking it shortly, shows this Defendant at the Tanoa hotel with his wife and Mafi Lutui leaving and returning at about 1:20 pm and leaving a little later.
155. The next telephone call of interest occurred between Ake and this Defendant on the 6^th of April. I remind myself that this was of course after the raid on Ake’s premises when he agreed to act as a police undercover agent. The call took place between 11:57 pm and 12 am when this Defendant says that Ake called him to tell him that the package he received was ICE which he understood to mean methamphetamine.
156. According to this Defendant, Ake told him it was given to him to send to New Zealand, but it was too big a job for him and he was worried about being caught by the police. Faletau told me that his advice to Ake was to return the package to whoever had given it to him. Ake said he was scared and worried. Importantly Felatau went on to say that he advised Ake that he should return it to Mr Mo.
157. Another telephone conversation of relevance occurred on the 7^th of April at 11:35 am when Faletau called Ake and asked him if he had taken care of the issue and whether he still had the package containing the drugs.
158. Mr Ake said he told him that he had not taken care of it and that no one has picked it up. This Defendant went on to say that he had met Mr. Mo and spoken to him about the package and that Mr Mo said he will get in touch with the people that it belonged to and get them to pick it up and take it back from Ake.
159. He elaborated and said that he had been in contact with ‘Eneasi Taumoefolau (the alleged president of the Comanchero) to retrieve the package. In other words, this Defendant was encouraging Ake to rid himself of the package by returning it to his suppliers when he must have realised this would mean that the drugs would continue to be distributed in the illicit drugs market.
160. This is not the act of an innocent man in my view. It is indicative of complicity in the criminal enterprise. The telephone conversations continued on the seventh and eighth of April but it would not be fair to impute any adverse inference from the contents which are at best ambiguous.
161. I am not assisted by the CCTV evidence which deals with the comings and goings to the Tanoa hotel. As I shall explain later, the timings still leave sufficient time for a journey from Tanoa to Ake’s home either directly or via the One-Way residence or by some other route and so in no way supports the submission that the drugs could not have been delivered in the grey/maroon Mitsubishi car in which it is alleged Taufa was driving with Mafi Lutui in the front passenger seat because they were elsewhere at the time.
162. But on the other hand, the timings of the telephone calls contain gaps which would be sufficient for delivery to Ake’s to be completed, this means that the evidence takes the matter no further one way or the other.
163. I bear in mind the strain of a defendant in giving evidence in his own defence in any serious criminal case this is especially so when the penalty here is so serious. I made every allowance for that. The sessions were deliberately quite short and any comfort break requested was readily agreed.
164. In addition, I was able to closely observe this Defendant. Of course, I entirely accept, as I have already indicated, that appearances can be deceptive, that a lying witness can present as a convincing one. But over time immemorial the trial process has been found to be well able to discern when a witness is telling the truth and when he is dissembling.
165. Sometimes the revelatory aspect of his evidence emerges inadvertently when the significance of what the witnesses were saying escapes him. I found there was such a situation here. The First Defendant began his evidence rather performatively and, I regret to say, unpersuasively.
166. But what I thought was revealing was the answer he gave when asked what he advised Ake to do when Ake told him that the package was in fact ICE, which is understood to be methamphetamine and that they had been obtained from a Mr MO. His advice was to return them to Mr MO.
167. I am satisfied that that is not the action of an innocent man, taken by surprise. A friend or at least that someone with whom he was acquainted had been given a large amount of illicit drugs, what would an innocent man do? Surely an innocent man would have advised Ake to get in touch with the police and not to return it to Mr Mo thus keeping it in circulation in the Kingdom and available for onward export.
168. Making every allowance I can and should for the way he gave his evidence, I am afraid he came across as a not very accomplished liar.
169. Other evidence was called to show that on the 5^th of April he attended with others the Billfish and then the 12 Seafood Restaurant and that he was working on construction at the New Zealand High Commission residence. This takes the matter no further since there was ample time for him to travel to Ake’s house and meet him on his return from work as he said he did that day.
170. Viewing the evidence as a whole, I am satisfied to the criminal standard with this Defendant was deeply involved in the enterprise, that he approached Ake having cultivated a friendship over some years and asked him to assist by receiving a package of methamphetamine for export to New Zealand using his position as a supervisor baggage handler to secure the placing of the package on an aeroplane bound for New Zealand and so to evade detection at the airport.
171. Accordingly, I am satisfied beyond reasonable doubt that this defendant knowingly and without lawful excuse engaged in the transport of a class A illicit drug namely methamphetamine when he arranged for Mafi Lutui and Joseph Taufa to transport a package containing 5,328.98 grams of methamphetamine to ‘Ofisi Ake and so is guilty of Count 1 of the indictment.
     

b. The Second Defendant

172. Mafi Lutui has lived in Tonga since September or October 2022, before that he was resident in California and told me that he was deported following his involvement with the criminal justice system in the United States.
173. He was also a Defendant in CR 6,9,14-15&25/2025 heard by me last year and, as I have already indicated, I put out of mind what happened in that trial and deal with this case exclusively on the evidence before me. I also wish to make it plain that I put out of mind the fact of the Defendant’s criminal record in the United States (the details of which have not been disclosed) and draw no adverse inference on that account.
174. His evidence was in the main concerned to set out his movements during the relevant period and his assertion that he had nothing to do with taking the drugs to Mr Ake. He was not instructed by Mr Faletau to do so, he did not receive the drugs from Mr Mo and Koli Moa and he did not even know Ake until he gave evidence in this trial.
175. In other words, he was entirely innocent of any involvement in this criminal enterprise. He told me about his movements on the days in question. On the 3^rd of April he said he was living at the One-Way Road residence with Mr Taufa.
176. He knows Mr Moa, as a drinking companion but had no knowledge of a sack containing taro leaves in which was secreted the packet of drugs with which this trial is concerned.
177. He was referred to photographs of him at the One-Way residence with others wearing a black T-shirt with white stripes but denies that this was a celebration for the successful receipt of drugs and in my judgement, this evidence does not assist.
178. It could have been a celebration, it could have been a birthday party, it could have been any social gathering and, as I say, this evidence does not take the case any further. He was asked about the 5^th of April and said that he was at the One-Way residence where he was residing when Faletau called him and asked whether he knew that Ma’afu was in town and staying at the Tanoa Hotel.
179. As a result, he agreed to go to the hotel to say hello to him in the expectation that he would give him some money as was customary with visitors from overseas.
180. He went to the hotel in Taufa’s girlfriend’s grey car and arriving at about 11 am. Joseph Taufa was with him as the driver and was told to wait in the car so that he could go up to see Ma’afu in his room. This is what happened and he returned with TOP$300, half of which he gave to Taufa.
181. Faletau and Ma’afu then went to a sports event at Teufaiva Stadium before returning to the hotel. They were on their way to lunch at the Billfish restaurant when they were advised by Faletau that Billfish was closed and they were to meet at another venue, 12 Seafood.
182. The Defendant was taken through the CCTV recordings of the first floor of the Tanoa hotel and its car park. He said he agreed that at 11:21:08 he walked to a brown vehicle at the car park where he gave Mr Taufa his share of the TOP$300. He was still at the car park at 11:21 when the blue rental car drove out of the car park at 11:22.
183. The car returned to Tanoa at 11:57:29 with Lutui and Ma’afu. At 12:01 the car reversed going off for lunch. First to Billfish but when that was closed, they went to the 12 Seafood Restaurant. After lunch, they went to the market to buy a coconut drink and at 1:43 the blue rental car returned to the hotel. On this occasion, Faletau was driving and Mafi Lutui was in the rear left passenger seat and Ma’afu was also in the vehicle.
184. At 1:45, Lutui with Ma’afu drove in the blue car to One-Way residence. This Defendant says, he went to obtain some clothing and then thereafter to Sunshine Rental to extend the rental of the car. The agreement in support of that extension was produced.
185. They returned to the hotel at 2:18pm when he was seen in the car park. He stated he did not go to Ake’s house as he had no knowledge where that residence was. He had returned to the hotel by 2:18pm and remained until 4:34pm where he slept and woke up to realise that Ma’afu was not there and so he called Joseph to pick him up, and they returned to the One-Way residence to get ready for a drink then went back to the hotel.
186. It is unclear when the delivery to Ake’s residence took place but the record produced at Ex 1 Pages 128-136 contained a number of gaps when Mafi Lutui was not captured on CCTV between, for example between 1: 45: 54 and 2:18:57, and between 4:43:51 and 6.35.00 (Exhibit 1 pages 136 entry 41 and 42).
187. This interval would be sufficient for the delivery to take place. However, I reminded myself that an opportunity to commit an offence does not establish that an offence has been committed. Opportunity without more cannot establish guilt in a criminal trial.
188. I have given close attention to the case against this Defendant. Determinately, it depends on the evidence of Joseph Taufa who gave evidence of dealing with Mafi Lutui in the initial receipt of the drugs and in the developing enterprise to deliver them to Ake.
189. In particular and importantly, Joseph said that he drove the grey/maroon Mitsubishi vehicle to Ake’s house to deliver the drugs and that Lutui was in the front passenger seat. This is direct evidence of participation in the transfer and is dependent on my accepting to the criminal standard that notwithstanding the cautions I have already indicated I must apply.
190. I remind myself that Joseph has been consistent in placing Lutui in the delivery car. I remind myself that he was on the terms of friendship with Joseph and indeed were staying as a guest in his house at the time. It is not suggested that Joseph was prevailed upon to implicate an innocent man because of fear of the true perpetrators namely, the violent criminal gang I have earlier mentioned.
191. Of course, Taufa has his own interest to serve giving the police valuable information but why should he implicate a friend and be consistent in his implication throughout? The other evidence which I accept does no more than provide the opportunity for the Defendant to be part of the drugs delivery. For instance, of the CCTV evidence which I have just summarised contains gaps which would enable that to be done. But I repeat that the determinative evidence is that of Taufa.
192. I bear that fully in mind, and have given the matter prolonged and anxious consideration. In the upshot, I have decided that I cannot be sure to the criminal standard but the evidence of Joseph Taufa implicating this Defendant is reliable.
193. I say nothing as to its truthfulness but the criminal law requires proof beyond reasonable doubt before a Defendant can be convicted. I repeat, I do not in any way casting aspersions on the reasons animating Taufa’s evidence. He may be telling the truth, but I cannot be sure to the criminal standard and therefore, I cannot be sure beyond reasonable doubt as to its reliability and therefore I must and I do acquit this Defendant of Count 2 of this Indictment.
     
     7. FINAL RESULT
194. As such, I am satisfied to the criminal standard, beyond a reasonable doubt in relation to Count 1, engaging in dealings with another to transport illicit drugs, I find the First Defendant, Teau ‘I Mo’unga Faletau, guilty.
195. I am not satisfied to the criminal standard, beyond a reasonable doubt in relation to Count 2, engaging in dealings with another to transport illicit drugs, I find the Second Defendant, Mafi Fatongiatau Lutui, not guilty.
196. I desire to make plain that there is no inconsistency between my verdicts on Count 1 when I found Teau Faletau guilty of arranging for Mafi Lutui and Joesph Taufa to transport 5,328.98 grams of methamphetamine to ‘Ofisi Ake and Count 2 where I found Mafi Lutui not guilty of arranging with Teau Faletau to transport the 5,328.98 grams of methamphetamine to ‘Ofisi Ake.
197. This is because each count must be considered separately as must the case against each Defendant. Evidence against one Defendant is not necessarily evidence against another, thus by finding that the evidence against Teau Faletau drives me to the conclusion that he is guilty does not mean nor can it mean that for that reason, I must find Mafi Lutui guilty.
198. That is the verdict of the court.
     

HON. MALCOLM BISHOP KC
LORD CHIEF JUSTICE
NUKU’ALOFA: 24 MARCH 2026