Kuliti Tongamoa, aka “Creed”, who supplied cocaine to a former international rugby player 'Epeli Taione (41) at 'Umusi in January, was found guilty on two counts of supplying illicit drugs; while Taione was found guilty of possession of illicit drugs, in a verdict delivered in the Nuku'alofa Supreme Court on December 11.

Traces of cocaine were seized by a Tonga Police Drugs Task Force at Tongamoa's 'Umusi workplace in the early hours of 25 January this year, where both men were present, and evidence of cocaine sniffing was photographed. Taione was found passed out on a sofa.

Both accused men pleaded not guilty to the offences and stood trial.

In a verdict delivered on December 11, Justice Langi said, "I am satisfied beyond a reasonable doubt that the first accused [Tongamoa] supplied cocaine to Mr Taione."

She found Tongamoa guilty on one count of supplying 0.01 grams of cocaine. He was found not guilty on another supply charge.

Taione was found guilty on one count of possession of 0.01 grams of cocaine.

Meanwhile, a third accused, Master Tome Suasau, who was also charged with possession of the illicit drug, had pleaded guilty, and his matter had been previously dealt with by the Court.

Evidence-based

The judge said, based on the evidence heard in this case, she agreed with the Crown Prosecutor, that the circumstantial evidence in relation to Tongamoa was sufficient to make out one of the charges of supplying of illicit drugs. Tonga’s Illicit Drugs Control Act 2003 defines ‘supply’ to include “distribute, give and sell”.

The judge said this was for the following reasons:

1. Cocaine was found at Tongamoa's workplace. Taione was present, sleeping in a room inside the workplace. A text message was sent by Taione, which stated "Koau eni mihi is Creed" ('I am sniffing is Creed'). And on a table beside where Taione was found sleeping was a Samsung tablet with spots of cocaine and a straw. It was never disputed that the name 'Creed' referred to Tongamoa.

2. A bag containing $2,734 was found at Tongamoa's workplace. He admitted to the officers that the bag belonged to him. Inside the bag were his driver's licence and identification card. The cash included a number of $100 (x14) and $50 (x25) bills, which Officer Leveni stated was consistent with the market price for cocaine and methamphetamine. Also inside the bag were empty packets commonly used for packing of illicit drugs. Officers Leveni and Fifita both gave evidence that they had frequently seen these same packs in nearly all the places they had raided for illicit drugs.

3. $970 cash was found in Tongamoa's pockets.

4. The workshop had security cameras fitted around the workplace, with three cameras focused on the driveway and entrance to the workplace. The cameras were hooked into a line that fed into the room, where Taione was found sleeping.

5. The photos of the table inside the workplace showed a scale, with a packet containing cocaine on top.

"A combination of all these circumstances create a strong inference that Tongamoa was supplying or selling drugs. He would not have so many plastic packs and other utensils shown in the photographs, if he was only using."

The judge said there was also no evidence which would support an alternative inference, such that to choose between them would be to guess.

Tongamoa

The Crown’s evidence told how Police Officers from the Tactical Response Team first entered the workplace to secure the area. They detained a person named Master Tome Suasau who had opened the door.

The accused, Tongamoa, was also detained inside the living area of the workplace. Both men were made to lie down on the floor and were informed of the reason the police were there.

Taione

A Police Officer Carsten Leveni found Taione sleeping on a makeshift bed in another room. About one meter away from the makeshift bed was a table, and on top of the table was a white Samsung tablet, with white powder.

Another Police Officer Tu'amelie Fifita took an empty plastic pack and collected the white spots of powder into it and sealed it.

Taione was searched and $1470 was found on him. Also, inside the room where he had been sleeping was a TV screen, which was connected to security cameras covering the premises and the driveway.

Officer Fifita took Taione's telephone and took screenshots of text messages, between the accused and another person at 2:12am the same day. and were produced into evidence. The messages translated to “I am sniffing is Creed” and “F**k I'm nearly dead”.

The suspected illicit drugs were taken from this workplace and were analysed and tested by Officer Leniti Pale using the TruNarc Analyser. He prepared a Scientific Analyst Certificate in this case.

The Crown tendered documentary evidence in the form of a booklet.

Defence

The judge said the gist of Tongamoa's defence was that Officer Pale was not a scientific analyst for the purposes of section 36 (1) of the Illicit Drugs Control Act.

The Counsel for Taione also challenged the Scientific Analysis Certificate and submitted that the same officer was not an expert for the same reasons given by his co-accused counsel.

Verdict

Regarding Taione's charge of possession, the judge said to have possession of something requires the person to have physical custody or control over it plus the required knowledge of its presence.

In relation to the text messages, Officer Tu'amelie gave evidence that he had searched the second accused and had found his phone on him. He then took snapshots of the text messages sent out by him that morning. This was produced into evidence. No objection was made by defence. It was never in dispute that the phone where the text messages were found belonged to Taione.

The judge said, in this case, she did not accept the defence counsel's interpretation of the text messages.

“Firstly, I am certain that the text messages meant to read 'I am sniffing at Creed's" and not 'I am sniffing is Creed"

Justice Langi said features such as auto-correct are common in mobile phones. In addition, the only logical explanation was that the auto-correct features of the telephone had corrected the word 'ia' into 'is' because it did not recognize the Tongan word, 'ia.

"It is important to note that the message was in Tongan, which read "Koau eni mihi is Creed". ...It begs the question why he would insert an English word into a Tongan sentence. In Tongan, the sentence 'Koau eni mihi ia Creed' is translated to mean 'I am sniffing at Creed's."

The messages "I am sniffing is Creed” and “F**k I am nearly dead” were sent from Taione's phone on January 25 at 2.12am. In less than two hours, at approximately 3:50am the Police arrived and found Taione passed out on a sofa. On a table about one meter away from him was the Samsung tablet with cocaine on top and a green straw beside it.

"All of these circumstantial evidence leads me to the sure conclusion that the accused was using cocaine. He is not charged with sniffing cocaine as submitted by his counsel, but I have no doubt that the circumstances are such that he did have custody and control of an illicit drug, and the knowledge that it was in fact an illicit drug. It goes without saying that if you are sniffing cocaine then you are obviously in possession of cocaine."

Meanwhile, though the scale and the straw were not listed in the search list, they formed part of the evidence through the photos that were produced in court, she said. The defence did not deny that these items were also found at the workplace.

"After considering the law with regard to possession and applying it to the evidence I have heard, I am satisfied that the Crown has proven that the accused had physical custody and control of cocaine and he had the required knowledge of the presence of the illicit drugs."

The Prosecution has therefore proven this charge beyond a reasonable doubt and Taione was accordingly convicted of possession of cocaine, said the judge.

Reliable testing device

On the defence submissions challenging the admissibility of the TruNarc Analyser as a reliable testing device, the judge said in this case, Officer Pale has outlined in his report that the TruNarc Analyser has been scientifically developed by Thermo Fisher Scientific in the United States. The device has been approved for usage by the Scientific Working Group for the Analysis of Seized Drugs, National Forensic Science Technology Center in the U.S and also the United Nations Office in Drugs and Crime. Additionally, a simple internet search tells us that TruNarc is used in more than 35 USA states and in 35 other countries in the world.

It is widely used to test the presence of drugs and provides valuable, accurate, real-time information that improves investigation and strengthens the chain of evidence, said the judge.

Meanwhile, both accused remain on bail and will be sentenced on February 19, 2021.

The Crown Prosecution was represented by Tevita 'Aho

Sifa Tu'utafaiva was counsel for Tongamoa and Sione Taione was counsel for Taione.