Foketi Tonga Fate was acquitted of possessing 41.51 grams of cannabis by the Lord Chief Justice who said the Crown failed to prove beyond reasonable doubt in the evidence of the charge against the accused.

Lord Chief Justice Whitten QC in his verdict on January 26, at the Nuku’alofa Supreme Court acquitted the accused. He said the only dispute was whether the accused was knowingly in possession of the cannabis.

Crown case

The Crown called five witnesses. 

The Court heard from Officer Fifita, who is currently a member of the Serious Crime Unit having previously served in the Drugs Task Force for three-years. He gave evidence that on March 13, 2020 he received information from an informer in relation to a bush allotment owned by Siaosi Makafi at Fua'amotu containing cannabis. 

The informer told Fifita that there were others there at the allotment. He decided to mobilize a team of two groups of officers to conduct a search without warrant. 

The two groups went out to the area near the back of Tupou College in Fua'amotu. Officer Fifita and his team parked their vehicles and walked to Fua'amotu near the airport.

He said that as they were walking near the allotment in question, he received further information from the same informer about a vehicle that was about to leave the allotment and that the vehicle had cannabis in it.

He shared that information with the other officers. They then saw a vehicle coming from the allotment. They decided to hide on the side of the road or track so that they could stop the vehicle when it came near. As the black vehicle approached, Officer Fifita said he could see the driver and a person in the passenger seat. 

The police then stopped the vehicle. Officer Fifita went to the front passenger side. He saw officers on the other side of the vehicle pulling the driver and another person from the rear passenger side out of the vehicle and laying them on the ground.

Officer Fifita opened the front passenger door and pulled the accused out of the vehicle and laid him face down on the ground.

He said that he maintained sight of the left side of the vehicle from the bushes right up to when it was stopped, that is, a period of about 30 seconds.  He said that, during that period, he did not see any of the car doors open or windows wound down, nor did he see anything thrown from the vehicle. He said he also maintained sight of the accused in the front passenger seat the whole time. The accused did not do anything unusual other than sit in the vehicle.

He said that after he pulled the accused from the vehicle and laid him on the road, he called another officer to come and hold the accused down.

“Perhaps, more importantly, Officer Fifita said that when he laid the accused on the ground, and before he was restrained, Fifita did not see anything on the ground beside the car,” said the Chief Justice.

“In cross-examination, the accused asked Officer Fifita whether any drugs were found on the accused and, naturally, by reference to the terms of the charge, Officer Fifita, said that no drugs were found on the accused himself.”

Officer Te!evave said that Officer Fifita told him to go and look after the accused.

As Fifita went off towards the allotment, Televave said that he went around the back of the vehicle towards where the accused was lying and that he then saw a plastic bag containing cannabis beside the left rear wheel of the vehicle. 

“It was very difficult to see how the bag could have been secreted on the accused's person before he was taken out of the car and placed on the ground.

“The position of the accused relative to the bag was also inconsistent in that a number of the police officers said that he was laid down alongside, that is parallel with, the vehicle with his head towards or away from the bag, whereas one of the officers said that he was positioned perpendicular to the vehicle with his head towards the bushes. He said it took about 30 seconds from when Fifita told him to go to the accused to when he got to the accused.

“That period of time, it will be seen, is critical to the Crown's case. Televave mentioned that when he was coming around the back of the vehicle, an officer by the name of Langi was behind him.”

Reasons

The Chief Justice said, for the reasons even if he was satisfied that the accused intended to possess the cannabis, “I am not satisfied that the Crown has demonstrated beyond reasonable doubt the requisite element of control.”

The informer did not specify the accused as being the person who had the cannabis.

There were three occupants in the vehicle. Of those, the only person on whom any cannabis was found was Kilikoni.

“That, in my view, militates against any inference that the accused had possession of the bag of cannabis. None of the officers, who gave evidence about the subject, saw anything being thrown out of the vehicle as it approached them. As the vehicle was said to only be travelling slowly, if anything had been thrown out the vehicle, it would have been behind the vehicle by the time it came to a halt. That the bag was found beside the rear left wheel therefore suggests that if the bag came from the vehicle, it came at a time when the vehicle was stationary.

“It is unclear in those circumstances how the bag, described as still being clean or white, was in that state given the road was described as muddy at the time.

“The location of the bag also raises further questions. It was found near the passenger side rear wheel, which is, of course, close to the rear passenger door. The only person in the rear of the vehicle, before being removed, was Kilikoni.

“When Officer Fifita went to the front passenger side door to remove the accused, he did not give any evidence to the effect that the accused had on him or even appeared to have on him the bag of cannabis. Given the sizeable dimensions of the bag described by two of the police officers.”