By Linny Folau

Lautaimi Tu’itavake (40) was found guilty of charges including supplying 0.14 grams of methamphetamine, during a police undercover operation at Malapo in August 2023.

At the Supreme Court in Nuku’alofa last month, Lord Chief Justice Bishop found the accused guilty of supplying to Uatahausi Tomu the 0.14 grams of methamphetamine, possession of 1.34 grams of cannabis, and assaulting officer Tomu (bit his right shoulder), while he was performing his duty (attempting to arrest the accused)

He was acquitted on two other charges on possession of illicit drugs and unlawful possession of utensils (one smoking pipe, one piece of straw, 16 empty packs).

The court heard that on 29 August 2023, Police received reliable information that illicit drugs were being sold by the defendant from his residence in Malapo. Undercover police contacted the defendant to arrange for a sale, and he gave them instructions to let a person off at a Chinese shop near a bended road in Malapo. Officer Tomu was dropped off at the Chinese shop and then walked towards the defendant, who handed a pack of methamphetamine to Officer Tomu when the officer asked to see the pack.

The LCJ stated that as soon as the defendant put his hand down, the officer held the defendant to apprehend him and said he was police. They struggled, and the officer called to his team to move in, through an active call on his phone to assist in apprehending the defendant. The other officers arrived and the defendant was apprehended and cuffed behind his back.

During this, Officer Tomu handed Sgt. Fifita the pack of white substance that was given to him by the defendant. Sgt Fifita informed the defendant that they were police officers and of his rights. He further told them of their intention to conduct a search without a warrant for illicit drugs.

He then searched the defendant and removed from his trousers $250 and one pack of a substance suspected to be cannabis. While the defendant was detained, Officer Feinga spotted a green can and a smoking pope under a soursop tree close to the area the defendant was in. The defendant was taken to this area where Officer Tomu then removed the contents of the can.

The can contained several empty packs, four small packs all containing white substance suspected to be methamphetamine and a large pack containing nine empty packs. The defendant was then arrested in relation to items that were found and the items seized were all take to the Nuku'alofa Central Police Station for photographing, testing and weighing.

Evidence

Morevoer, the LCJ stated that the prosecution put forward evidence and produced four witnesses in total for their case.

The witnesses gave evidence as to how they received reliable information about the defendant, contacted him, confirmed he had illicit drugs on him as he gave it to Officer Tomu, then apprehending him were Sgt Fifita, Officer Tomu, Officer Feinga, and Officer Mafi.

In doing so the witnesses gave their individual accounts of what they recalled, they were individually involved with in apprehending, searching the defendant, and securing the evidence found on the scene.

On cross examination, the defendant put to the witnesses that the last thing he remembered was Officer Tomu holding him, then when he gained back his consciousness Officer Fifita was showing him a pack of cannabis and bundle of $50. The defendant put to the witnesses that they planted and set him up with the evidence they alleged to have found on him. This was refuted by the witnesses as false, the LCJ stated.

“I accept the evidence of these witnesses and accept them as witnesses of truth insofar as they knew of the evidence pertinent to my findings. They were more robust in arresting the defendant than they had indicated in evidence, and it may explain the injury to the defendant.”

He stated that the incident which arose out of the operation as a result of information obtained.

“Police officers went to the location of the defendant's home. It is common ground between the parties that the defendant lived near what has been described as a Chinese shop and which is depicted in photograph one of the photography bundle in Exhibit 1.

“Feinga told me, and I accept that those in the vehicle received instructions from the defendant for one person to get off near the Chinese shop and for the vehicle to conduct what, I suppose, may be termed anti-surveillance techniques by driving away from the scene and proceeding around the bend of the road, the inference I'm invited to draw, which I do is that this was done so that no witnesses could see the handover of what happened later.

“Officer Tomu got out of the vehicle went to the defendant and said I am here for $50 paper i.e a small amount of ice (methamphetamine) worth $50. According to Tomu who gave evidence, the defendant's reply was I don't sell the 50 paper I only sell by the gram he then handed what later transpired on analysis to be 0.14 grams of methamphetamine to Officer Tomu who immediately revealed himself as Police, then a struggle ensued, the defendant was taken to the ground. He claimed he then lost consciousness and woke up to find his wound to his right ear being attended by the Police,” stated the LCJ.

“I am satisfied that no such loss of consciousness occurred, what happened, I find, was that during a struggle the defendant was either accidentally injured while he fell onto the undergrowth or more likely was restrained and injured himself in that way.

“The evidence continued that as the defendant was being restrained, two men appeared and then disappeared one of them was the defendant’s son. The defendant according to Sgt Fifita was anxious to leave the scene saying, “you've done your work let's go” or words to that effect.

“I was invited to draw the inference that the reason for the defendant’s hastiness was that nearby was a green can containing various packets of methamphetamine together with a smoking pipe some straw and 16 empty packets. This was the aspect of the evidence which caused me most concern. I have been helpfully provided with a sketch map marked exhibit 2, which shows that the green can in question was about 8 metres from the location of the defendant, 6 metres from him and the roadside and 12 metres from the roadside to the can making a right-angle triangle."

“In addition, there was no evidence of any physical contact between the defendant and the can in question. There was no forensic evidence linking him in any way to that can. The only evidence to connect the defendant with a can was the inference I'm invited to draw that he was anxious to deflect attention from it and to persuade the officers to leave the scene,” he stated.

"I find this evidence highly suspicious; it seems unlikely that a green can containing methamphetamine would be left in the undergrowth near the defendant home where I find he had at least a small amount of methamphetamine which he was offering to the police officer without there being any connection between the defendant and the can. But suspicion is not enough in a criminal trial and with some misgivings I have concluded that the criminal standard of proof is not satisfied.

“I am not sure on the evidence that the defendant was in fact in possession of the contents of the can and it follows that he must be acquitted on that account. However, I have no doubt at all that he had in his possession a small amount of cannabis and some methamphetamine, putting it bluntly the defendant was caught red-handed.”

The LCJ then found the defendant guilty on the three counts but acquitted him on the other two on possession of 1.8 grams of methamphetamine and utensils.

“With regards to the assault on the police officer, it was established to the criminal standard, however I observe that any injury was not serious and did not require any medical treatment,” he stated.