Two acquitted of meth charge, third accused dies [1]
Wednesday, June 22, 2022 - 19:25
By Linny Folau
Two men who were acquitted of possessing 2.19 grams of methamphetamine were found guilty on lesser counts at the Supreme Court.
A co-accused, Latu Selu (41) died at Vaiola Hospital, after a high speed vehicle chase followed by an on foot pursuit with Tonga Police on another matter, during the time of the trial.
Lord Chief Justice Whitten QC in his Reasons for Verdict on 21 June found Kae Tau'aika (46) and Joe Tupoumalohi (35) not guilty on possession of the methamphatamine.
However, he convicted Kae on possession of utensils for the commission of an offence, namely 181 empty dealer packs, 6 test tubes, one weighing scale; and destroying a test tube.
Joe was found guilty on one count of possession in regards to the utensils.
Meanwhile, the trial against Latu Selu was abated and the charges against him were discharged by reason of his death, during the trial and prior to verdict.
All three accused had pleaded not guilty to the offences at their arraignment.
Passing of Latu Selu
The Lord Chief Justice said the trial started on 4 May this year.
On 6 May, at the end of day three and the allocated trial period, the trial was adjourned part heard during the evidence of the then last Prosecution witness.
Then on 30 May, Police attempted to apprehend Selu pursuant to a bench warrant issued in respect of another matter.
He fled and after a high-speed vehicular chase followed by an on-foot pursuit, he was eventually arrested. Selu was observed to be experiencing breathing difficulties and was transported to hospital where he was pronounced dead on arrival, he said.
On 16 June, the trial resumed on the charges against Tau'aika and Tupoumalohi.
Police evidence
The collective evidence given by the police officers in this operation provided, that at about 2:00pm on Sunday, 30 May 2021, police received information from one of his informants that Selu, who was known to them, was selling drugs with others from a residence on ‘Unga Road in Kolofo'ou.
This residence was being rented by Joe.
One of the police witness testified that saw a number of vehicles going in and out of the property. Another recognised the vehicles as belonging to DET suspects. Police then quickly organised a team of officers from the Tactical Response Group, DET and Detector Dog Unit and briefed them.
The team arrived at the residence at approximately 6:40pm. The three accused were present at the premises and the offences were alleged to have been committed.
The dwelling consisted of two conjoined houses or apartments. The target residence was at the rear and officers surrounded the property to prevent escape.
A police witness said, when he entered, he saw two of the officers trying to hold Selu down in the hallway. Tupoumalohi was seated on the bed. Tau'aika was seated on a couch near the front door.
Police told the accused they were exercising their powers under s.24 of the Act to enter and search the premises without warrant, where there was suspected possession of illicit drugs. The accused all said they understood.
The Lord Chief Justice ruled that the warrantless search was lawful.
"For completeness, I record that there was no evidence, and none of the parties made any submissions, in relation to, whether, had the search been declared unlawful, the evidence found, or any of it, should have been excluded or whether the Court's discretion should have been exercised to admit it."
Possession
The Lord Chief Justice said on possession of the methamphetamine, the case against Latu Selu on this count was strong:
- he was seen by a police witness Pohiva earlier that afternoon conducting a suspected drug deal
- he locked himself in the toilet and refused to come out when ordered by police
- he had a bag of belongings with him in the toilet, which were scattered on the floor
- some of those belongings, such as the cash, the multiple mobile phones, pink cut straw, and high-pressure lighter were, when considered together, consistent with items often found with drug use or supply; he admitted to owning those items
- he admitted to owning these items, among others.
When viewed as a whole, that evidence amply supports an inference that the methamphetamines belonged to Latu Selu, that he had knowledge, custody and control of them, and that he therefore had legal possession of them. It may further be inferred that it was Latu who attempted to conceal the packs by secreting them behind the cistern while Punaivaha was trying to get him out of the toilet, said the Lord Chief Justice.
However, the same cannot be said of the case against Kae Tau'aika and Joe Tupoumalohi.
"Apart from the three of them occupying the residence at the time of the police search, there was no direct evidence to link Kae or Joe, by way of knowledge or control, with the methamphetamines found in the toilet."
He said on a consideration of all the evidence, he was inclined to the view that it was Latu Selu who owned the methamphetamine and that he was at Joe Tupoumalohi's residence that day for the purpose of supplying drugs to Kae, Joe and others.
Aquittal
In addition, there was no evidence that either Kae or Joe were themselves in possession of or had used methamphetamines that day while Latu was there.
"For instance, there was no evidence that either of the test tubes that were broken were found to contain any particles of methamphetamine and no drugs were found on their persons. I am also not satisfied that the evidence is sufficient to safely support an inference that Kae or Joe were assisting Latu in supplying drugs to others that day."
The Lord Chief Justice said the prosecution failed to prove this count against Kae Tau'aika and Joe Tupoumalohi beyond reasonable doubt.
Guilty
On the other counts, the Lord Chief Justice said that in such a small space, as the photographs clearly depicted, it is inconceivable that Joe would not have known what Latu had stored in the residence, and vice versa.
He viewed that in all material times, Joe knew what items were in his residence and where they were. He said the plastic bag containing 181 empty dealer packs was found in plain sight on the coffee table in the living room.
Kae and Joe were both nearby. That neither Joe nor Kae attempted to flee or conceal anything (apart from the smashed test ube discussed below) when police arrived is hardly surprising given the number of officers who surrounded and entered the premises, some of whom had to physically restrain Latu Selu, he said.
"I am therefore satisfied that both Kae and Joe had knowledge of and some control over, the empty packs. Again, both Joe and Kae were close by, that is, within approximately two metres according to the photographs, of those items, when they were apprehended."
In addition, by reason of Joe being the tenant of the residence and therefore the person in lawful occupation and control of it; him living with Latu Selu; the small area of the residence; and his proximity to the utensils, he considered it appropriate to impute to Joe knowledge of the test tubes and scales and an intention to possess them.
"I am also satisfied that given they were concealed in his rental property behind furniture which formed part of the property, Joe had control over them, even if he did not avail himself of the opportunity to ascertain."
The Lord Chief Justice was then satisfied on the evidence that Kae had a test tube in his possession immediately prior to police entering the residence.
The observable characteristics of the fragments of glass found on the floor near him were consistent with the other test tubes found on the property, both the one thrown out the toilet window by Latu Selu and the six found behind the mirror, he said.
"That connection is sufficient, in my view, to also impute knowledge of, and an intention to possess, the test tubes and scale to Kae. He was also sitting very close to the round table on which they were found. The combination of that evidence leads me to conclude that he also had some control over those utensils.
For those reasons, I am satisfied beyond reasonable doubt that the prosecution has proven the possession of utensils also against Kae Tau'aika and Joe Tupoumalohi, he said.
The two will be sentenced on 3 August.