By Linny Folau

‘Alipeti Tu’i’ile’ila was found not guilty on possession of 3.29 grams of methamphetamine at Popua last year, after a Supreme Court judge found that a Police Diary of the events was not a reliable record.

Justice Cooper acquitted the accused in a verdict delivered on 25 October at the Supreme Court in Nuku’alofa, after a trial.

“The failures in maintaining an accurate record undermine the police officer's claims that it is a contemporaneous record,” said Justice Cooper.

“The defendant faced a single count indictment that was allegedly committed on 28 September 2023. Unrepresented at trial, he claimed that the illicit drug belonged to a known drug dealer that was at the park, and unbeknown to him left a bottle at the scene.”

The judge stated that the undisputed facts were that he was found by police in a park in Popua, shortly after midnight on the morning in question; he was near a wall on the borders the park, and on the wall was a WIFI speaker which belonged to him.

“The park has a number of small fales. They are of a type for recreational purposes. His wife Mrs Tu'i'ile'ila was in one of the fales. He was some meters away where he was found. A court book was produced by the Crown and had photographs. They did not think to include an image of the park that would have provided an overview of the area and so enable distances to be easily assessed.

“All I can say is that she would have been at least 30 meters away from where he was found by the police when they arrived. The police recovered, from close to where Mr. Tu'i'ile'ila was apprehended a bottle. Inside were seven packs of what turned out to be methamphetamine,” the judge stated.

In addition, Mr. Tu'i'ile'ila was found to have a black bag with a strap around his neck. He also had a wallet containing $ 977.50 pa'anga.

“The contested evidence the Crown led was that Officer Vi had acted on information he received from a known source. He stated that he was present throughout the operation. Mr. Tu'i'ile'ila had admitted the drugs were his and had signed the Diary of Action against the relevant entries, at the scene to that effect.

“Officer Fifita stated there was a flashlight shining from the park where Mr. Tu'i'ile'ila was. When the bottle was found, Mr. Tu'i'ile'ila stated that it belonged to Tasi and this was recorded in the diary and Mr. Tu'i'ile'ila signed that contemporaneous note after it was recorded and there was no need to fingerprint the bottle as Mr. Tu'i'ile'ila had admitted at the scene it was his.

“Officer Mafi on the other hand was responsible for recording the dairy, he did so and recorded everything that Officer Fifta had done. The entries were contemporaneously made and signed by Mr. Tu'i'ile'ila as each was recorded,” the court heard. 

Defence case

On the other hand, the judge stated that the defendant claimed that the police arrived and heavy handed him, and that they had attacked him and tried to strangle him. This had been put to Officer Fifita who had adamantly denied this. Mr. Tu'i'ile'ila had been told to gather everything before he was taken to the police station.

“It was when he was at the police station he was told to told to sign the diary and that is what he did. When Officer Fifita asked him who the bottle belonged to, he told him he did not know. He had been in the park that night as his wife's family do not like him and he was there simply to meet her. The money he had with him was to pay his builders as he was working on a project. While he was in the park he was met by the man named Tasi, a known drug dealer and Mr. Tu'i'ile'ila suspected that was from whom the bottle that contained the drugs in fact came. The entries in the diary were not made contemporaneously and they were not signed by him at the scene.

“Mrs Tu'i'ile'ila corroborated her husband's account that Tasi had come to the park that night and her husband had gone off to chat with him away from the fale where she was. She had never seen the bottle in question in her husband's possession. She could not sign the entries relating to her to the diary at the scene as Officer Mafi claimed as her hands were cuffed.

“At a later date Officer Fifita was recalled to deal with matters that Mr. Tu'i'ile'ila relied upon, but had not initially put. He stated that Mr. Tu'i'ile'ila had signed at the scene the diary because, although his hands had at first been cuffed, he was released from the handcuffs while they awaited a further vehicle to attend the scene,” he stated.

Failure

Meanwhile, the Crown's case relied on the uncontested facts, the further evidence as well as the alleged admissions said to have been made at the scene, contemporaneous to the police officers' search and then signed at the time.

“The Crown also relied upon the following from the Court Book, which was an agreed document. Their submissions were based on: the fact of the discovery of the drugs, the admissions at the scene, the proximity of Mr. Tu'i'ile'ila to the bottle when the police found him, the fact of the money, he was using his phone as a light to beckon people, being apart from his wife and sat in the dark in the middle of the night in a park,” he stated.

“For the defence, Mr. Tu'i'ile'ila's case was that unbeknownst to him, Tasi had left the bottle at the scene.”

He added that Tasi was a known drug dealer, there was no evidence of fingerprints to link him to the bottle or illicit drugs, he had been in the park with his wife, had stepped aside to talk to Tasi, the money was to do with the construction work he was involved in, the drugs were not his, he had made no admissions at the scene and it was only later had he signed the diary because he was told to and where he was told to. He also claimed that he could not possibly have signed the diary at Popua park as his hands were cuffed behind his back.

“The Crown have put their case on the basis that the confessions at the scene, when combined with the other evidence prove their case against Mr. Tu'i'ile'ila. I have gone on to consider that may not necessarily be the only way guilt can be established; for example, assessing the Crown's case but in the absence of the alleged confession evidence.”

The judge then referred to entries in the diary that included the evidence of Officer Fifita was that after the photographs had been taken, another police vehicle arrived.

“There was mention of Officer Mafi, Tomu and Folau exiting their vehicle, entry 3 diary. They were amongst the officer's brief by Officer Vi and no other officers are mentioned throughout the rest of the dairy, let alone another vehicle arriving. The evidence of Officer Mafi and Fifita was that the diary recorded everything that happened.

He stated that the diary did not record that the handcuffs were taken off Mr. Tu'i'ile'ila at any time, that a second police vehicle arrived at the scene.

“The diary also did not record that "in Alipeti's right pocket of his trousers was a navy-blue wallet that had cash and was counted to $977.50."

Moreover, the photographs showed Mr. Tu'i'ile'ila sat on the had wall hands handcuffed behind his back. Photographs 9, 10 and 11, the hip of Mr. Tu'i'ile'ila where he sat on the wall and his bag being opened and the wallet taken from within, he stated.

“The wallet did not come from Mr. Tu'i'ile'ila's pocket at all. It followed that the diary was a not a reliable record. The failures in maintaining an accurate record undermine the police officer's claims: that it is a contemporaneous record, the record is accurate and that Mr. Tu'i'ile'ila recorded his signature on the relevant entries as they were made whilst at the scene and not later at the police station under instruction as he had claimed.

“It therefore follows that if I cannot rely on the claims the diary was a contemporaneous and complete and accurate record, I cannot accept, so that I am sure, that it is an accurate record for the purposes of Mr. Tu'i'ile'ila signing his alleged confessions; so having made those confessions.”

At the same time, the money found upon Mr. Tu'i'ile'ila, which he explained and gave evidence to was that he was working on the construction of his sister's house and that wages had been paid for material and worker's wages.

“The money in his wallet was what was left and was for a kava party. There was nothing to gainsay any of that. Nor was his account undermined by cross-examination. I have gone on to consider whether guilt could have been proved in the absence of the confession evidence. I conclude it has not.

“Mr. Tu'i'ile'ila also highlighted that; there was no fingerprint evidence in this case, the money found  may have been other than associated with the sale of drugs, he contended it had an innocent use. There was also no eye witness evidence of drug dealing and there was no evidence of association with drug dealing, for example text messages, dealer lists, drug utensils for dealing drugs,” he stated.

“In assessing both the Crown's case and the overall evidence before me at trial I am quite sure that guilt has not been proved.”

The defendant was therefore found not guilty on the single count.