Crown drops meth importation case [1]
Tuesday, April 28, 2020 - 18:19. Updated on Wednesday, April 29, 2020 - 09:27.
The Crown has dropped charges against Muli Vehikite regarding the importation of 275.6 grams of methamphetamine after a key witness, a former senior Tongan police officer, who was under suspicion for possible criminal offences, was unavailable to give evidence.
The whereabouts of this former senior police officer Sateki Tu'utafaiva is unknown. The Crown relied on the admissibility of this former officer's unsworn evidence, which was crucial to its case.
Therefore, the accused from Fou'i was acquitted on three counts of unlawful import of illicit drugs, engaging with others to import illicit drugs and possession of illicit drugs.
This was said to have been committed at Ma'ufanga on April 17, 2018, when he and another man were involved in the importation of a packet of methamphetamine weighing 275.6 grams, which was concealed in a shipment.
Unsworn evidence
The trial started before Hon Mr Justice Cato at the Supreme Court last week, with the accused representing himself.
However, before any evidence was called, the judge adjourned the trial, after it became clear to him that the Crown's case depended on evidence gained from an informant by this former senior police officer Tu'utafaiva, who was unavailable to give evidence.
The judge then made a ruling on the admissability of evidence on April 22.
The Court heard, Tu'utafaiva was the officer in charge of this case, and the Crown submitted that the admissibility of his unsworn evidence was crucial to its case.
The judge said he would allow other officers to give evidence that they were directed by Tu'utafaiva to take certain action, but he would not allow evidence to be given of his conversations with an informant, unless the prosecution could persuade him that there was some evidential basis for doing so contained within an exception to the hearsay rule.
Under suspicion
The Crown Prosecutor candidly admitted that without this evidence the Crown's case could not proceed.
Tu'utafaiva apparently could not be called as witness because his location was unknown. He was overseas and had not returned to Tonga for some time.
The accused, who was aware of Tu'utafaiva's unavailability indicated that he opposed any evidence being given of a hearsay nature.
In addition, Tu'utafaiva had been under suspicion for possible serious criminal offending arising from his police work, and had not returned to Tonga. He was no longer a member of Tonga Police.
The judge said, he knew something of this because a previous prosecution over which he had presided also faced difficulties because he had been unavailable to give evidence.
Hearsay evidence
Meanwhile, the Crown Prosecutor in his arguments relied on sections 89 (e) and 89 (f) of the Evidence Act to justify the evidence of Tu'utafaiva as it related to what he had been told by the informant, section 88 of the Act defines hearsay evidence as: "where it is sought to prove any fact by evidence of an oral or written statement made by a person not called as a witness, such evidence is called hearsay evidence."
The Crown Prosecutor contended that the evidence came within section (e) because the informant had given Tu'utafaiva information, which had referred to the role of the accused and another man in the importation on a ship of a packet of methamphetamine weighing 275.6 grams, contained in the drum.
His evidence was relevant to establish the accused's knowledge of the drug and participation in the importation. The packet was in the name of the other man but contained in a drum, which was offloaded and taken by the accused from the wharf area, elsewhere.
Further, the Crown Prosecutor referred to section 89 (f) and argued becauseTu'utafaiva made an entry on a police diary of events recording the nature of what he had been told by the informant, his diary entry was admissible.
The judge told the Court of his very real concern about admitting the evidence of Tu'utafaiva concerning the information he had from an informer because essentially the relevant information the Crown was seeking to introduce from him was second hand hearsay.
He doubted that section 89 (e) or (f) was intended to apply, in these circumstances.
The judge also had reservations, in any event, about the Crown relying on evidence from Tu'utafaiva in circumstances, where he had failed to return to Tonga and to the Tonga Police and had it seemed left, under a serious cloud of possible criminal offending that obviously tainted his reputation.
"The allegation of misconduct was one that, had Tu'utafaiva given evidence, would have been raised by the accused and thus the reliability of any second hand account given by him would have been placed in issue."
Dismissal
When the trial resumed, the Crown Prosecutor said he had considered the matter and they would not proceed.
Justice Cato considered that he took the correct course of action, and acquitted the accused discharging him from the indictment.
While, there was to be evidence of surveillance of the accused by other officers and evidence that he uplifted the drum containing the packet, his involvement with and knowledge of the contents of the packet addressed to the co- accused was, although very suspicious, no more than that.
If Tu'utafaiva had given evidence he would not have been able to give hearsay evidence concerning what he was told about the accused's participation in drug offending by the informant, because this is plainly hearsay, said the judge.
In addition, his view on sections 89 (e) and (f) is that it intended to allow hearsay evidence to be given in evidence where first hand hearsay is involved that goes to the issues mentioned in those subsections.
“That generally means that the maker of the statement, although unavailable to give evidence, had first hand knowledge of the relevant matters and not second hand information as Tu'utafaiva had.
“Nor does the fact that Tu'utafaiva recorded the informant's observations implicating the accused in a diary entry assure its reliability. Tu'utafaiva was a witness whose credibility, subsequent events suggest was plainly very questionable,” said the judge.
"In any event, the record is also an account of second hand hearsay, and in my view does not qualify for admission under section 89 (f) for this reason."
The Court also heard the Crown Prosecution, in earlier proceedings, had offered no evidence against co-accused, who had been tried separately.
Meanwhile, the methamphetamine was ordered to be destroyed.