Talikivaha Palei Posoni was acquitted of possessing cocaine at Te'ekiu, after a Supreme Court judge found that the evidence was insufficient to prove beyond reasonable doubt the offence.

Hon Mr Justice Niu in a verdict on September 11 found the accused not guilty of the offence, which was alleged to have been committed on March 22, 2019.

The Court heard that on this day between 4:00-5:00pm, an informer told police officer, 'Apisai Fihaki, at the car park at the police premises in Longolongo, that the accused was presently selling drugs at his home in Te'ekiu at that time, and that there were unlawful weapons there too.

The Officer in charge, Officer Taufa, was informed of this. He then organised a 12-member search team of CID officers and Tactical Response Group and they went to Te'ekiu.

Police arrived at the accused's home at about 6:00pm, and he was not there but his wife was. She told them that the accused was at a rugby training. A police vehicle went and brought him home.

In the presence of the wife, Officer Taufa informed the accused that they were to search his home for illicit drugs and weapons under the authority of the police under S.122 of the Police Act. The accused agreed to it. 

Two officers who were to do the search namely, Officer Hakala and Officer Televave, were both searched by Officer Fihaki outside of the house in the presence of both the accused and his wife before they did the search. The search was carried out without a search warrant.

While, the wife and other officers including Officer Taufa remained outside, the accused was with the two search officers as they were searching inside the house. 

Also present in the house was Officer Fihaki and female Officer 'Otuhouma who kept record of the search.

The judge said, when the search of the rooms were finished the search then continued to the kitchen and there, Officer Hakalo found the drug in a hole in the interior lining of the outside wall of the kitchen by the back door. 

It was in a self sealing plastic bag with white crumbled substance inside. Also found with it was a glass pipe. The accused was asked whose they were and he said he did not know. 

The wife also denied knowing its existence and both were arrested.

Substance analysed

The Court heard from the defense counsel, that there was reasonable doubt that the substance which was analysed by the expert analyst in New Zealand, was the same substance found in the hole on the wall of the kitchen at the accused house.  

She said, that Officer Taufa had stated in his statement, which he admitted in cross­-examination that what was found in the house of the accused was "a plastic pack with ice inside and there was also a pipe for smoking ice”. 

Officer 'Otuhouma wrote in entry no. 12 of the diary of action that 01 pack of methamphetamine was found and she also said in cross-examination that another name for methamphetamine was ice, and that she wrote it because of what she saw and not because someone told her.

Officer Manumu'a also wrote on the Register of Exhibits (Exhibit 5) that received was 01 pack of methamphetamine weighing 21.54 grams. Only the report from New Zealand stated that the substance was cocaine, said defence.

The judge said, at first the weight of the substance was said to be 21.54 grams, then it was said to be 21.66 grams and finally the New  Zealand person said it was only 20.4 grams.

Whereas Officer Pale said that the substance as shown in photograph 4 was white, the New Zealand person said it was off-white.

In reply to that, the Crown said there was a continuous chain of custody of the substance from the moment it was found, to the moment it was handed over to the New Zealand analyst, who confirmed that the substance was cocaine.

The Crown said the evidence of Officer Pale who said, that in his experience the weighing of substances in Tonga included the weight of the plastic pack in which the substance was contained, whereas the weighing of the substance by the ESR in New Zealand did not include the weight of the plastic pack.

In addition, he believed that the difference of weight in the present case was due to the weight of the plastic bag in which the substance was contained. 

Officer Pale stated that the average weight of the normal empty pack was 0.23  gram, but that the plastic pack in the present case was about five times larger.

If that weight (0.23 gram) was multiplied by 5 there would be 1.15 grams for the large empty plastic pack, and if that 1.15 gram was deducted from 21.66 gram they would roughly arrive at 20.51, which is close enough to the weight found in New Zealand for the weight of the  substance alone, he said.

Not clear cut

The judge said this case was not as clear cut as the Crown made it out to be.

“In this case, there are two other relevant matters, one is that the substance found at the accused's house was seen in the photograph (no. 4) taken at the accused's house to be "lumpy" (or fetefete) as I saw it and Officer Pale agreed with it.

“They looked like granules. Officer Manumu'a stated in her evidence that she had written in the Register of Exhibits 'momo'i methamphetamine' (granules of methamphetamine), because that was what she saw the substance to be and she said that Officers 'Uluheua and Hakala had also told her that it was 'momo'i meth', he said.

The judge, said however, the analyst who tested the substance, Robyn Somerville, stated that the substance that she received was a "powder" and that the "powder" weighed 20.4 grams, which contained cocaine.

"We all know what a powder looks like, and I can say that what is shown in photographs 3 and 4 as contained inside the plastic bag is not a powder, but granules "momo'i" or "fetefete" substance instead."

“Two: whereas the colour of the substance in the plastic bag is clearly white, the analyst stated in her report that the powder was 'off-white powder', and I agree with Officer Pale, when I asked him, he said that the colour 'off-white' is like or a little like 'cream' colour".

“Therefore two distinct and crucial features in the analyst's report about the substance she received as the exhibit no. 81/19, which do not match the substance found at the accused's house. And it is unfortunate that the analyst was not present to give evidence and in particular to bring with her the substance (and plastic bag) she received and tested," said the judge.

"I have to decide this case on the evidence, which is before me and I find that the evidence does not satisfy me beyond reasonable doubt that the substance, which was tested and found to be cocaine in New Zealand was the same substance that was found at the accused's residence at Te'ekiu."