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R v Toutaiolepo [2025] TOSC 69; CR 239 of 2024 (8 September 2025)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKUÁLOFA REGISTRY

CR 239 of 2024

REX
-v-
ÁNITA TOUTAIOLEPO

VERDICT AND SENTENCE

BEFORE: HON. JUSTICE TUPOU KC
To: DPP, Mr J. Lutui for the Prosecution

Mr D. Corbett for the Accused
Trial: 26-27 August, 2025
Date of Verdict: 8 September, 2025

The proceedings

1. On 6 February 2025, the Accused pleaded not guilty to:

Count 1 – importation of illicit drugs contrary to section 3(e) of the Illicit Drugs Control Act.
In the alternative:

Count 2 – engaging with another to import illicit drugs contrary to section 4(1)(b)(iv) of the Illicit Drugs Control Act.

Count 3 – importation of utensils contrary to section 5A of the Illicit Drugs Control Act.

She elected to be tried by Judge alone.

Particulars

2. The particulars of the offending for count 1 are that:
   

Anita Toutai’olepo of Kolofo’ou, on or about 4 April 2024, at Ma’ufanga, you did knowingly without lawful excuse import a Class A illicit drug, when you caused to be imported 137.36 grams of methamphetamine into Tonga.

3. Section 3 (e) of the Illicit Drugs Control (Amendment) Act, provide:
   

“Any person who knowingly without lawful excuse, the proof of which shall lie on him, imports or exports any illicit drug commits an offence and shall be liable upon conviction —......

(e) in respect of a Class A drug in the quantity of 28 grams or more, to life imprisonment.”

4. In light of the particulars and section 3(e) the main elements to be proved for Count 1 are that:
   1. Anita, on or about 4 April at Ma’ufanga;
   2. knowingly;
   100. without lawful excuse;
   4. caused to be imported into Tonga; and
   5. 137.36 grams of methamphetamine, an illicit drug.
      
5. The particulars of the offending for the alternative count 2 are that:
   

Anita Toutai’olepo of Kolofo’ou, on or about 4 April 2024, at Ma’ufanga, you did knowingly without lawful excuse engage in dealings with another person to import a Class A illicit drug into Tonga when you engaged with Anthony Vea to import 137.36 grams of methamphetamine into Tonga.

6. Section 4(1)(b)(iv) of the Illicit Drugs Control Act, provide:
   

Any person who knowingly without lawful excuse, the proof of which shall lie on him

........

(b) engages in any dealings with any other person for the import, export, possession, manufacture, use, cultivation, supply, transfer, transport, offer or sale of an illicit drug, commits an offence and shall be liable upon conviction -

............

(iv) in respect of a Class A drug in the quantity of 1 gram or more, to a fine not exceeding $1,000,000 or to imprisonment for any period not exceeding life or both.”;

7. In light of the particulars and section 4(1)(b)(iv) the main elements to be proved for Count 2 are that:
   1. Anita, on or about 4 April at Ma’ufanga;
   2. knowingly;
   100. without lawful excuse;
   4. engaged in dealings with another (Anthony Vea);
   5. to import; and
   6. 137.36 grams of methamphetamine, an illicit drug.
      

The element of “engaged in dealing with another” is the additional element that the Prosecution must prove in regards to Count 2. The Prosecution must prove beyond a reasonable doubt that Anita was involved with Anthony Vea in any open or covered interaction in order to import an illicit drug into Tonga.

8. The particulars of the offending for count 3 are that:
   

Anita Toutai’olepo of Kolofo’ou, on or about 4 April 2024, at Ma’ufanga, you did knowingly without lawful excuse import utensils, when you caused to be imported 6 smoking pipes, used to smoke illicit drugs, into Tonga.

9. Section 5A of the Illicit Drugs Control Act, provide:
   

Any person who knowingly without lawful excuse, the proof of which shall lie on him, imports, exports, possesses, manufactures, uses or supplies utensils or any equipment or article that is capable of being used in the commission of an offence under this Act commits an offence and shall be liable upon conviction to a fine not exceeding $10,000 or imprisonment for a term not exceeding 3 years or both.

10. In light of the particulars and section 5A of the Illicit Drugs Control Act, the main elements to be proved for Count 3 are that:
    1. Anita, on or about 4 April at Ma’ufanga;
    2. knowingly;
    100. without lawful excuse;
    4. caused to be imported to Tonga; and
    5. utensils (6 smoking pipes).
       
11. In his closing submissions, the learned Director for Public Prosecutions, Mr. Lutui sought to amend the indictment for counts 1 and 2 in respect of the weight of methamphetamine claimed to have been imported from a total of 137.36 grams to 81.64 grams.
    
12. Mr. Corbett did not oppose the amendment and in view of the principles in Police v Faletau^[1], relied on by the Crown, I allow the amendment.
    
13. On 6 March, 2025, a statement of agreed facts and list of issues for determination was signed by both counsel and filed. The statement of agreed facts were as follows:
    

“The Accused is ‘Anita Toutai’olepo, a 45 year old female from Kolofo’ou. On or about 3 April, 2024, the vessel “Papuan Poly”, on its voyage number 989, arrived in Tonga, with container TCLU914430-5(“container”). The container contained a drug shipped from Anthony Vea in San Francisco, California, USA, intended for the Accused. On or about 4 April 2024, the accused, and her daughter Matahi’atu Teuila, who is also a broker, arrived at SF Oceania Limited at Ma’ufanga to clear the drum. Upon searching, a bag containing a mate coffee bottle with a plastic-wrapped package containing a white crystal substance (Exhibit 1) and a pair of pants concealing 6 smoking pipes was discovered. A package labelled with the name “Ana Keener” contained another mate coffee bottle with the name “Ray” written on it, which contained two plastic-wrapped packages containing a white crystal substance (Exhibits 2.1 and 2.2). Police were informed of the illicit items found in the imported drum. Police then made their way to Ma’ufanga, and upon arrival, the Accused was informed of her rights and asked about the drum. She admitted the drum was hers but claimed she did not know who owned the illicit items, stating they belonged to someone else and were sent through her consignment. The Police arrested the Accused for importing illicit drugs. Police then returned to the Police Station with the items seized during the operation and the Accused. Upon returning, Police began weighing and testing the exhibits, with the results as follows:

Exhibit Number Net Weight (grams) Substance

1 81.64 Methamphetamine

2.1 27.96 Methamphetamine

2.2 27.76 Methamphetamine

TOTAL 137.36 Methamphetamine

On 5 April 2024, when the Accused was invited by the Police for a recorded interview, she indicated that she would only speak in Court. The Accused has no previous convictions.”

14. Also on 6 March, 2025, counsels filed an agreed list of issues for determination which were:

Whether there was procedural fairness in the search and seizure process;

Whether the Accused was properly informed of her rights;

Whether the Accused knowingly imported the illicit drugs; and

Whether the Accused knowingly possessed the illicit drugs.

The Prosecution’s Evidence

15. The Crown called 5 witnesses and produced 6 exhibits. The first 3 were admitted by consent and the last 3 were tendered through witnesses. Those exhibits were as follows:

Exhibit 1 Bill of lading

Exhibit 2 Investigation Diary recorded by Officer Tu’ipulotu

Exhibit 3 Certificate of Analysis prepared by Officer Carsten Leveni

Exhibit 4 Import Authorisation and Declaration Form

Exhibit 5 Photographs

Exhibit 6 Handwritten Record of Action

16. The first witness was customs officer, Sione Uikelotu ‘Aho (whom I shall refer to hereafter as “Sione”). Sione is 32 and has been employed as a customs officer with the border division at the airport for 6 years. From January to June 2024 he was operating from “approved places” for inspection of cargo which included SF Oceania Ltd warehouse (referred to hereafter as the “Warehouse”) situated at Ma’ufanga, Tongatapu.
    
17. On the day in question, Sione was posted at the Warehouse. He spoke about the process involved in clearing a consignment. First, the consignee is required to present a valid form of identification to the shipping company. Upon verification of the consignee’s identification, the shipping company will issue the consignee the relevant bill of lading.
    
18. Next, the consignee is required to engage a broker who will complete the import authorisation and declaration form. Once completed, the consignee will review and sign the form which is then presented to the customs officer on site for clearance.
    
19. The customs upon receiving the bill of lading and import authorisation and declaration form will have the consignment taken to the scanning room where it will be scanned. In the event the scan detects the presence of restricted or prohibited goods, the customs officer will require an inspection of the cargo.
20. If nothing suspicious is detected during the inspection the cargo is released and obviously where suspicions are raised that restricted or prohibited goods are present, relevant actions will be taken such as a search and possibly seizure where appropriate.
    
21. In this instant, Sione said it was around 3:35pm when he dealt with the Accused consignment. He said the Accused observed the necessary steps by presenting an ID to the relevant officers, obtained her bill of lading and engaged her own daughter, ‘Atu who works for Heting Gan Brokers as her broker. Sione received the bill of lading and a completed import authorisation and declaration form from ‘Atu.
    
22. On the bill of lading the consignor is one Anthony Vea of 140 Jones St, San Francisco, USA, the Accused’s father. The consignee is the Accused of Hofoa, Tonga. The description of the consignment was “1 SF Drum of clothes” (referred to hereafter as the “Drum”), weighing 200 kgs.
    
23. On the importer authorisation and declaration form the Accused declared that:
    1. she knew the contents of her consignment;
    2. the goods were not for commercial purposes;
    100. it did not contain any prohibited or restricted goods;
    4. there was no alcohol or tobacco products in the consignment; and
    5. there was no cash to the value of $10,000 or more in the consignment.
       
24. At the bottom of that form is a note containing the following words:
    

“It is unlawful to import Prohibited and Restricted Goods into Tonga. Any person

who imports prohibited or restricted goods commits an offence.

Prohibited and Restricted Goods include:

.................

• illicit drugs and drug paraphernalia

....................”

25. The form was signed by the Accused and witnessed by ‘Atu. Upon receiving the said forms, Sione informed the Accused to have a forklift bring the Drum into the scanning room. Inside the scanning room were Sione, another customs officer by the name of Uinikoni, the Accused and ‘Atu.
    
26. As the Drum was scanned, the customs officers noticed a dark area around the middle of the drum. Sione explained that a dark area represents something so thick that the scan is unable to penetrate in order to produce an image. It was agreed between the officers for the Drum to be inspected.
    
27. The Drum was then moved to the inspection area where the broker began to unload its content. Sione and the Accused observed by the side. The court was told that the broker is the only person authorised to touch the content of the Drum to unpack and/or re-pack.
    
28. When the broker had unloaded the Drum up to the middle area, a black bag was taken out which Sione inspected. Inside the bag was a coffee mate bottle which he put to the side because he noticed a rolled up item at the bottom of the bag. It was a pair of white trousers. When Sione unrolled the pants, it revealed 6 tubes inside, the kind used for smoking illicit drugs.
    
29. Sione approached their supervisor, Fa’one about the concealed tubes. Fa’one directed for the content of the Drum to be returned to the scanning room and for each item to be scanned individually. The Drum was returned to the scanning room. When the coffee mate bottle inside the black bag was scanned, Sione noticed an unusual mark inside. The bottle was opened. When it’s content was poured, a package concealed inside fell out.
    
30. Further contained in the Drum was a wrapped package containing a second coffee mate bottle. When that bottle was opened and its content poured out, 2 more packages were found. The rest of the items in the Drum were clothes, adult diapers, perfumes and lotion. Sione’s supervisor Faóne took over from Sione at this point.
31. Sione was cross examined and it was established that no fingerprints were taken from the consignment or its content, that the broker was the only person who unloaded the cargo and Uinikoni was standing behind Sione when the Drum was being scanned.
    
32. The second witness was customs officer Unikoni Kivalu (referred to hereafter as “Uinikoni”), 44 of Puke. He is employed at the Intel division of the Ministry of Revenue and Customs.
    
33. Uinikoni told the Court that he and their supervisor, Fa’one were at the Warehouse around 3:30pm on the relevant day. They were inspecting some bikes when he saw the Accused alight from a taxi. He told the customs officer at the Warehouse to see her consignment is scanned.
    
34. Uinikoni told the court that when Sione approached the consignment it was already at the inspection area, opened and the broker had begun unpacking it before it was brought back to the scanning room to be scanned. This differs from Sione’s evidence that the Accused observed the proper process up to the Drum being scanned. I prefer Sione’s evidence on this point, as he was the person directly responsible for clearing the Accused’s Drum.
    
35. Other than that, Uinikoni confirmed Sione’s evidence. He was in the scanning room when the Drum was scanned and when they noticed something unusual in the scan, they marked it and decided to inspect the Drum. When the Drum was taken back to the inspection area, Uinikoni was with Fa’one where the cleared goods are taken after inspection. He said that while there, Sione brought to them a small bag with test tubes for smoking “ice” inside.
    
36. When the content of the bag was removed, Uinikoni saw the coffee mate bottle. He noticed the lid was taped and when the tape and lid was removed the paper covering at the top of the bottle appeared to have been superglued on.
    
37. At that stage, Fa’one ordered the Drum be re-scanned. Uinikoni was present in the scanning room with Sione, Fáóne, Átu, the Accused and the police squad came in later. When the coffee mate bottle was scanned, an unusual item was detected.
    
38. Uinikoni also confirmed there was a parcel (fakamoimoi) with a name written on it although he could not recall the name. He confirmed that the second coffee mate bottle was concealed in that parcel. Fa’one contacted the police drugs squad.
    
39. Uinikoni produced photographs he took of the scanning results of the Drum, the coffee bottles, it’s content and the 3 concealed packages, the wrapped parcel (fakamoimoi), the police squad at work testing the packages contained inside the coffee mate bottles, as exhibit 5.
    
40. Under cross examination Uinikoni denied he personally had access to the Drum before the scan was conducted or that he planted the drugs inside the Drum. He stated he was not present when the Drum was unpacked and the first coffee mate bottle was discovered. He admitted he was charged with a drug related offence 4 months after this incident.
    
41. The third witness was Constable First Class Úluaki Funga He Kelesi Havea (referred to hereafter as “Havea”), 29. He has been in the police force for 9 years, 5 of which has been with the Detector Dog Unit.
    
42. Havea said that on the relevant date he was returning with Seargent Pekipaki from operating at the airport when they received a call from Fa’one about narcotics concealed in a Drum at the Warehouse. They responded immediately.
    
43. When they arrived at the Warehouse, customs officers Faóne, Sione and Uinikoni were there with the broker and the Accused. The Drum was already opened and the officers were inspecting a package covered with black plastic.
    
44. Pekipaki and Havea took over from the customs officers and Havea recorded their activities on a piece of paper which he produced as exhibit 6. He recorded the time they arrived at the Warehouse as 3:56pm.
    
45. Havea recorded that Pekipaki read the Accused her rights which she understood and indicated so by signing the record. The Accused confirmed that the Drum was hers but that she did not know who owned the test tubes and packages suspected to contain meth because they were parcels (fakamoimoi).
    
46. Pekipaki, Uinikoni and Sione continued to inspect the content of the Drum and 2 more packages suspected to be meth inside a second coffee mate bottle inside a parcel labelled “Ana Keener” was uncovered. Havea confirmed that the content of the Drum were mostly clothes and adult diapers.
    
47. Pekipaki ran police detector dog Hague (“PD Hague”) over the contents of the Drum. PD Hague positively signalled the 3 concealed packs.
    
48. Sergeant Leveni, PC Mafi, PC Tomu and WPC Tu’ipulotu from the Drug Squad arrived and took over the operation.
    
49. The next witness was Sergeant Samiuela Pekipaki, 34. He has been in the police for 12 years with 5 years in the Dog Detector Unit. He confirmed Havea’s evidence. He said when they arrived, he saw a yellow folder with white substance on top and an empty coffee mate bottle on the side.
    
50. Sergeant Pekipaki confirmed that Havea’s record was an accurate record of what happened. He confirmed he contacted Sergeant Carsten Leveni and when he arrived, the matter was handed over to him.
    
51. The last witness was Sergeant Carsten Leveni (referred to here as “Leveni”) who had served in the police force for 19 years, 10 of which he has been with the drugs squad.
    
52. Leveni told the court that at around 4:20pm on 4 April, 2024, he received a call that drugs were seized by customs and the police dog detector unit at the Warehouse. He responded to the call with PC Mafi, PC Tomu and WPC Tu’ipulotu.
    
53. When they arrived, Sergeant Punaivaha led them to the area where the concealed drugs were held. They saw the 2 coffee mate bottles and the wrapped packages suspected to contain illicit drugs.
    
54. WPC Tu’ipulotu recorded the teams work on the diary of action produced as exhibit 2 and the rest of his team were there to assist if needed. Leveni confirmed that Punaivaha, Pekipaki and Havea were present with customs officers Fa’one and Uinikoni.
    
55. Leveni identified at page 9 of exhibit 5 a photograph of the 2 empty coffee mate bottles, the 6 test tubes and the 3 packages which were labelled exhibit 1, exhibit 2.1 and exhibit 2.2.
    
56. Leveni commenced the testing using the TRUNARC analyser equipment by explaining the process to the Accused and then by self-checking the equipment if it worked and it did. Then he tested exhibit 1 producing a positive result for methamphetamine. He showed the Accused the result and read her, her rights.
    
57. When asked if she knew anything about the drugs, the Accused said the Drum was sent to her by her father, Anthony Vea. She confirmed that her father told her about a parcel (fakamoimoi) inside the Drum but she did not know who it was for.
    
58. Leveni went on to test exhibits 2.1 and 2.2. They both produced a positive result for methamphetamine. The Accused was put on notice that she will be charged with possession of illicit drugs and equipment.
    
59. Next, Leveni took some of the powder from both coffee mate bottles for testing. The result for both samples came back as “inconclusive”. The exhibits were then packed along with the 6 test tubes in a clear plastic bag while Police Officer Mafi returned the powder content to the coffee mate bottles.
    
60. The empty black bag, empty plastic bag, 2 coffee mate bottles and the illicit drugs were handed over by Fa’one to Leveni. Leveni took custody of the exhibits to ascertain the weight.
    
61. At around 8:40pm of the same day, Leveni weighed the exhibits in the presence of Police Officer ‘Otuhouma. The Certificate of Analysis prepared by Officer Carsten Leveni to report his work was produced as exhibit 3.
    
62. The Prosecution closed its case.
    
63. Mr. Corbett informed the court that the Accused did not intend to call any evidence. The matter was adjourned to the next day to hear closing submissions.
    

Considerations

64. Both learned counsel filed and spoke to their closing submissions for which I am grateful and have taken into consideration.
    
65. After having heard the evidence and submissions of counsels, the Prosecution submitted that the issue to be considered by the court to determine the Accused’s guilt has narrowed down to the element of knowledge. The Prosecution’s case on this point was based on circumstantial evidence.
    
66. It was argued that the Prosecution had established a prima facie case and therefore sections 37B of the Illicit Drugs Control Act and 117 of the Customs and Excise Management Act have been engaged. The proper interpretation of those sections are set out in Attorney General v Ikamanu^[2] to mean:
    

“Once the Prosecution has established a prima facie case, the defendant is entitled to raise a positive defence on the balance of probabilities. The onus then reverts to the Prosecution to disprove that defence beyond reasonable doubt.”

67. Starting with the first count, section 3 of the Illicit Drugs Control Act stipulates the Prosecution bears the onus to prove beyond reasonable doubt that Anita on or about 4 April, 2024 at Ma’ufanga knowingly imported into Tonga, 81.64 grams of methamphetamine, an illicit drug.
    
68. The definition for “import”^[3] is to bring goods or cause goods to be brought into the Kingdom.
    
69. An “importer,”^[4] in relation to imported goods, means the consignee, owner, agent, buyer or any person holding a beneficial interest in those goods when they arrive in the Kingdom and includes any person making a declaration under any Customs laws concerning those goods.
    
70. “Illicit drug”^[5] means any drug of Class A or Class B listed in Schedule I or anything prescribed by regulation to be an illicit drug. According to Schedule 1 of the Act, methamphetamine is listed as a Class A illicit drug.
    
71. “Smuggling”^[6] means the importation or exportation of goods with the intention to defraud the revenue and includes the importation or exportation of prohibited or restricted goods.
    
72. In view of the agreed facts and the evidence called on behalf of the Prosecution, I find that the Prosecution has proven the physical element of the offending, that is, that the Accused is the consignee of the Drum and all of the cargo contained therein, that corresponded to bill of lading number 151442-151491 inside container TCLU914430-5 that properly arrived in Tonga on board the vessel “Papuan Poly”, on its voyage number 989 on or about 3 April, 2024, beyond a reasonable doubt. That much is accepted by the Accused by virtue of the agreed facts.
    
73. It is still an essential element for the Prosecution to prove that the Accused had the knowledge or belief that the Drum imported in her name contained the said illicit drugs.
    
74. On this point, the Prosecution sought to prove the Accused’s knowledge based on the following threads of circumstantial evidence: that the Drum was sent to the Accused by her own father and not just some acquaintance; the broker used by the Accused to clear the Drum was the Accused’s own daughter; that it was unusual that her father did not inform the Accused who the parcel (fakamoimoi) was for or who was to retrieve it; the content of the black bag in which the first coffee mate bottle and test tubes found were consistent with the rest of the content of the Drum; the defence that Uinikoni had placed the drugs in the Drum was unreasonable given the evidence as to how the illicit drugs were concealed. Based on this evidence the court was invited to draw a reasonable inference that the Accused knew the Drum contained the illicit drugs and that a verdict of guilty be entered.
    
75. I bear in mind that circumstantial evidence can be powerful evidence but it must be examined with care. In R v Puloka^[7], Langi AJ, stated:
    

“[83] As has been noted in various cases in the Kingdom, circumstantial evidence can be powerful evidence, but it is important that it is examined with care, and to consider whether the evidence which the prosecution relies upon in proof of its case is reliable and whether it does in fact prove guilt ......

[84] Additionally, before convicting on circumstantial evidence it is important to consider whether the evidence discloses any other circumstances which are or may be of sufficient reliability or strength, to weaken or to destroy the prosecution’s case. The court must also be careful to differentiate between arriving at conclusions based on reliable circumstantial evidence, and mere speculation. Speculating in a case amounts to no more than guessing or making up theories without good evidence to support them, neither the prosecution, the defence or I, should do that.”

76. Although not binding, I have also considered a description in the case of State v Khan^[8] in Fiji that explains, circumstantial evidence depends on its cogency on the unlikelihood of coincidence. Where the Prosecution will seek to prove separate facts and incidences and circumstances that cannot be explained as coincidence and the only rational explanation is the guilt of the Accused. That is, when considered as a whole, leads to an indisputable and inescapable conclusion that the Accused is guilty.
    
77. In this instant although the Accused elected not to give or call evidence as is her right. Mr Corbett said the Accused’s case was that Uinikoni had planted the drugs and utensils in the Drum. The case was put to Uinikoni which he vehemently denied.
    
78. In his closing submissions, Mr. Corbett made a number of assertions. He submitted: there was no evidence as to who opened the Drum; that the opening of the Drum before the arrival of the drugs squad contaminated the evidence; that Uinikoni had access to the Drum before Police arrive; Uinikoni’s subsequent charge for importation of illicit drugs is damaging to the Prosecution’s case; Uinikoni had the means and access to plant the drugs and utensils in the Drum; the Accused accepted the Drum was hers but denied she knew about the drugs and utensils; the word “RAY” written on the 2^nd coffee mate bottle is not the Accused’s name.
    
79. Based on those assertions, Mr Corbett contended his client’s positive defence was that the illicit drugs were introduced into the Drum by Uinikoni. The absence of forensic linkage to the accused, the timing of the Drum’s opening and the lack of procedural transparency he said, ought to give rise to a reasonable doubt and the Accused be acquitted.
    
80. Uinikovi gave evidence that it was the broker who opened the Drum. That was also Sione’s evidence and I find that to be the case. I also accept Uinikoni’s evidence that when Sione brought the black bag to Faóne from the inspection area of the Warehouse, to report the discovery of the test tubes, he was with Faóne where the cleared goods are taken after inspection. Uinikoni saw and examined the first coffee mate bottle that was in the black bag before everything was returned to be re-scanned.
    
81. Sione’s evidence was that, Uinikoni stood behind him in the scanning room while the Drum was scanned. Plainly, for Uinikoni to plant the drugs in the Drum, he would have had to have had possession of the illicit drugs and test tubes, place the drugs in the coffee mate bottles, wrap up the tubes in a pair of white pants and have them on his person at the Warehouse. Next he needed to have access to the Drum before it was taken into the scanning room. It would have further required him to open the Drum, remove half of the Drum’s content, plant the coffee mate bottle and utensils inside the black bag, plant the 2^nd coffee mate bottle inside the package (fakamoimoi) tape it up and throw inside the Drum, repack the Drum and close it and to have done all that before Sione directed for it to be brought into the scanning room.
    
82. The impossibility of Uinikoni carrying out all of that without being seen by any of the staff at the Warehouse, the customs officers or anyone else for that matter, the absence of any evidence to support the bold assertion and by the Accused’s own acceptance that her father told her about the parcel (fakamoimoi) inside the Drum and the lack of a shred of evidence to support this defence, in my view dispels those allegations and I accordingly reject them.
    
83. No reasonable explanation was provided as to what Uinikoni was to gain by planting the drugs and utensils in the Accused’s Drum. Uinikoni did not know her. Plainly, it makes no sense that Uinikoni would plant the illicit drugs and utensils and then take an active part in its search and seizure.
    
84. On the other hand, it is revealing, in my view, that in the agreed facts the Accused “accepted the Drum was hers but claimed she did not know who owned the illicit items, stating they belonged to someone else and were sent through her consignment”.
    
85. That statement in my opinion, as plainly read, really amount to a denial as to ownership and/or knowledge of ownership of the offending items. It does not necessarily deny knowledge of the presence of illicit items in the Drum. Instead, she claims the illicit items belong to someone else but was sent through her consignment as though she knew about it but so long as it was for someone else, it was not her concern.
    
86. This is consistent with her declaration on the Import Authorisation & Declaration Form, that she knew the content of her consignment. At the bottom of the form it notes that importing prohibited and restricted goods is an offence with those goods listed.
    
87. In relation to the parcel (fakamoimoi) the Accused admitted her father told her about it and in view of those admissions, I do not believe Uinikoni planted that parcel (fakamoimoi) or the coffee mate bottle inside it or anything else inside the Drum. In fact, I believe that opinion is safe by the fact that the broker was the Accused’s own daughter. If she had seen anything suspicious, for example, Uinikoni being around the Drum or signs of the Drum having been tampered with, she would have reported it. As far as the evidence goes, there was nothing before me to show the Drum was subject to interference while in passage or upon arrival in Tonga.
    
88. As for the 1^st coffee mate bottle and utensils in the black bag, no explanation or reason was provided for their presence in the Drum. There was no evidence that it was intended for anyone else. The use of coffee mate bottles as the means of concealing the drugs, the manner in which the bottles were taped, the paper covering being glue and the illicit drugs being wrapped, taped and dropped inside is consistent with the task possibly being conducted by the same person or people.
    
89. In view of the similarity in the presentation and concealment of the illicit drugs in the coffee bottle coupled with the anonymity of the receiver, I do not accept the assertion that the fakamoimoi was for someone else.
    
90. On the evidence before me, there is nothing to prove that there was a lack of procedural transparency in the clearance, search of the Drum and/or seizure process of the drugs and utensils.
    
91. I also do not find Uinikoni’s subsequent charges for an alleged similar offence 4 months after this offence has any impact on the credibility of his evidence. I did find parts of his evidence inconsistent in terms of the time events occurred, whereas mentioned, I have preferred Sione’s evidence. I attribute this to possible nervousness and embarrassment in knowing that the alleged charges against him may be a point of examination.
    
92. There was also some inconsistency in Sergeant Pekipaki’s evidence which he corrected by agreeing with Havea’s written records of their activities. He explained an accident last year has impacted his memory somewhat.
    
93. No evidence was called by the Accused to prove she had lawful authority to import the subject illicit drugs and I find she did not have lawful authority to import illicit drugs into Tonga.
    
94. The evidence on the positive defence raised by the Accused is limited to the scope of the agreed facts. The cross examination by her learned counsel failed to add anything in support of that defence. Finally, submissions made by counsel do not amount to evidence and submissions must be supported by admissible evidence given at trial.
    
95. I turn to the question then, whether the Prosecution has presented evidence that cannot be explained as coincidence or when taken as a whole, leads to an indisputable or inescapable conclusion that the Accused is guilty of the first count. Or whether it leads to other probable conclusions and inferences showing the innocence of the Accused?
96. I have concluded that the Prosecution has proven the charges against the Accused beyond a reasonable doubt and to a point where I am satisfied that the evidence taken as a whole does not lead to any probable conclusion showing the innocence of the Accused but to an indisputable conclusion that this importation could not have been a coincidence. The evidence combined show the only possible conclusion is that the Accused had knowledge that the Drum contained illicit drugs as charged under count 1.
    
97. I accordingly find that the Accused is guilty of the offence of unlawful importation of illicit drugs contrary to section 3(e) of the Illicit Drugs Control Act and convict her accordingly.
    
98. As I have found the Accused guilty of Count 1, I do not need to consider Count 2 as the alternative count.
    
99. As for count 3, all of the elements are founded on the same definitions and principles explained with regard to Count 1. The same evidence and submissions equally apply given the illicit drugs concerned and the utensils were contained in the same black bag and I do not intend to repeat them herein.
    
100. Accordingly, I come to the same conclusion and find that the Prosecution has also proven the charge in Count 3 beyond a reasonable doubt and I find the Accused guilty of the offence of unlawful importation of utensils contrary to section 5A of the Illicit Drugs Control Act and convict her accordingly.
     
101. Mr Corbett seemed to argue that expert evidence was required to establish that the test tubes qualified as utensils and a forensic analysis to show the tubes bore traces of illicit substances or designed for drug-related use. I do not agree. I am satisfied that the test tubes are utensils used to smoke methamphetamine. There was evidence as to how that was done and I find that point proven.
     
102. Lastly, I note that the issue of whether the Accused was properly informed of her rights was not pursued by her counsel.

Result

103. I find ‘Anita Toutaiólepo guilty of Counts 1 and 3, she is convicted accordingly.
     

Sentence

104. As the sentence for count 1 is by law, it is appropriate that the sentence is imposed without delay.
     
105. Pursuant to s.3(e) of the Illicit Drugs Control Act, I sentence ‘Anita Toutaiólepo to life imprisonment.
     
106. Separate directions will be issued today for sentencing in respect of Count 3.
     
107. I further order the destruction of all illicit drugs and utensils seized in this proceeding pursuant to section 32(2)(b) of the Illicit Drugs Control Act.
     

NUKUÁLOFA: 8 September, 2025

P. Tupou KC
J U D G E

^[1] [2020] TOSC 23, AM 4 of 2020 (12 May 2020)
^[2] [2021] TOCA 3;AC 7 of 2020 (30 March 2021) referred to by Prosecution
^[3] s.2 of Customs Act
^[4] ibid.
^[5] s.2 of Illicit Drugs Control Act
^[6] s.2 Customs Excise Management Act
^[7] [2021] TOSC 11, CR 126 of 2020 (8 February 2021)
^[8] [2015] FJHC 650, HAC01 2015 (23 June 2015)