Home | Databases | WorldLII | Search | Feedback Supreme Court of Tonga

R v Makasini [2025] TOSC 74; CR 80 of 2025 (11 September 2025)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY
CR 80 of 2025

BETWEEN:
REX

-Prosecution

AND:
LESIELI MAKASINI

-Accused

JUDGEMENT

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Appearances: Mr J Lutui, Director of Public Prosecutions and M Lenati for the Crown

Prosecution

Mrs S Fa’otusia for the Defendant

Trial: 21 – 22 July 2025

Extemporaneous Judgement: 22 July 2025

Written Judgement 11 September 2025

A. THE CHARGES

1. On 24 June 2025, the Accused was jointly arraigned with another on the following counts;
   1. Counts 1: Possession of Illicit Drugs (possession of 484.43 grams of cannabis) contrary to section 4(1)(a)(ii) of the Illicit Drugs Control Act.
   2. Count 2: Unlawful Possession of utensils (possession of 70 empty packs, used for packing illicit drugs) contrary to section 5A of the Illicit Drugs Control Act.
2. The co-Defendant, namely Kilisitna Finau pleaded guilty to both counts on this same day following arraignment and the Defendant in this matter pleaded not guilty to both counts.
   

B. BACKGROUND

3. On the 28 February 2025, Police received reliable information that the co-Defendant was supplying drugs at her residence in Fua’amotu.
4. An operation took place on this information where Police arrived at a residence in Fua’amotu targeting the co-defendant who has pleaded guilty for being in possession of the quantity of cannabis. The Police arrived at the residence she shared with the Defendant Kilisitina Finau at about 10 o’clock that evening where both were arrested and various items were illicit drugs and utensils were seized.
5. I now proceed to judgement on these counts.
   

C. THE EVIDENCE

6. The co-Defendant, as I shall refer to call her was sitting outside in a chair near a parked car. Upon her arrest and search, cannabis was found in her trouser and hoodie pockets.
7. The search progressed to an unused motorcar, unused in the sense that it had apparently a flat tire and I was told by this Defendant and I accept, had been broken down for about 18months and left where it was. It was left in an unlocked state. The vehicle was seen by the Police Officers, one of whom shone a torch through the rear of the vehicle and saw a figure inside. It is said that the figure was seen to move in attempts to hide; the figure in question was this Defendant.
8. The door in the vehicle was opened, without resistance she was arrested and searched but no drugs or other incriminating materials were found on her person.
9. However, on the front passenger seat of this vehicle was a package which is plainly visible.^[1] These photos show what appears to be a polythene or plastic package and located on the edge of the front passenger seat nearest the driver.
10. When the vehicle was further examined, between the rear and front passenger seat was a sack with the words “Bakers Flour” written on its cover.^[2]
11. That pack contained a large amount of cannabis and 70 empty packs in which Crown say are habitually used to package up cannabis for onward sale.
12. The Defendant exercised her right to remain silent, made no admissions or said anything in her interview with Police.
    

D. DISCUSSION

13. The key issues in this case is firstly, did the Defendant have possession of the goods in question and second was she of the requisite mens rea or guilty knowledge .
14. I derive the following proposition from the jurisprudence. First, a man does not have possession of something which is being put into his pocket or house without his knowledge. So this witness would not be guilty of being in possession of the goods found, for example, on the person of the co-defendant, unless she had knowledge of them, and there is no evidence that she had.
15. Second, a mere mistake as to the quality of a thing under the Defendant’s control is not enough to prevent him being in possession. For example, if the defendant in question was found to be in possession of heroin, believing that it was cannabis, he would still in law be in possession of what he exercised control over.
16. Now, it must be firmly understood that possession does not mean ownership. If a Defendant has control over the substance in question, who the owner is, is neither here nor there?
17. However, if the Defendant believed that the thing was of a wholly different nature to what it was then that would be a different matter.
18. But in the case of a package or a box, the Defendant’s possession leads to a strong inference that he is in possession of its contents.
19. Here the situation is a little different because the Defendant says apart from not knowing the contents of these packages, she did not even know they were there.
20. I must now determine, to the criminal standard whether this Defendant was in control of the packages in question and whether she did so with knowledge that they were or maybe suspect that they were likely to be illicit drugs or that she had not the faintest idea what they were because she did not even know that they were there.
21. Listening to the Defendant in her evidence, I find it difficult to accept that anyone sitting in the driver’s seat of that van for 30 minutes on the phone as the Defendant claims to have been, would not have seen the package which was putting it bluntly, staring her in the face.
22. A sack that was found behind the front passenger seat. It contained a large amount of cannabis. I find that the Defendant accepted she regularly used the vehicle and in consideration of where she was found, being the driver’s seat. Alongside the bag of cannabis, plainly visible. This gave her the necessary possession and control in other words that she must have known about it and its contents.
23. Now that must mean, in my view that the Defendant was not being truthful about her evidence and I need to consider why the Defendant was lying.
24. Now I remind myself that a Defendant can lie as a result of panic or misunderstanding, embarrassment or shame but another reason a Defendant may lie, is a realisation of guilty knowledge.
25. I am satisfied to that I am sure that this Defendant is lying for that very reason.
    
26. She had seen the package, certainly the package on the front seat and she could not have avoided it. Her denial of seeing the package indicates her realisation of guilty knowledge and not of innocence.
27. She was telling a lie and the reason she was lying was that she had a guilty mind because she knew that the package did contain illicit material and the material was illicit drugs but she denied all knowledge of it.
28. This in my view compels the conclusion that she was of the requisite state of mind.
29. Accordingly, I find both the actus reus and the mens rea has been established here. Let me explain what I mean by that in laymen’s terms.
30. I find, first of all that she was in law in possession of the packages because she had control over it. It was in the motor car in which she was sitting and she could have got rid of the packages or asked the co-Defendant to remove it because she did not want anything to do

with it.

31. So, I am satisfied that the element of possession is established because possession is a neutral physical matter.
32. The second aspect which I must be satisfied about is the mental element. In other words, did you know that there was packages there and did you have a sense of awareness that the substance in the packet was illicit substance and I am satisfied that she was.
33. I am satisfied to the criminal standard that both Counts 1 and 2 are proven beyond reasonable doubt and accordingly I find the Defendant guilty of both counts.
34. In light of the conclusion I came to in paragraphs 20 and 21 of my extemporaneous judgement, I remain satisfied that that analysis was correct and indeed the evidence was compelling.
35. Upon reflection of paragraph 22 in my extemporary judgement, I have come to the view that that is not warranted to the criminal standard and this is why.
36. I found and still find that she regularly used the vehicle but the question in when the package was placed in the vehicle has not been determined. The Crown had not satisfied me to the criminal standard that the package found in the back seat is sufficient or over in sufficient time to make it beyond reasonable doubt that the Defendant may have seen it. It could have been placed there very shortly before her arrest or at the end of the journey and there is no evidence that she was constantly looking at the rear of the vehicle to see the package, it could well be the case that she was not aware that the package had been placed in the backseat.
37. On the balance of probabilities, she probably did but this is a criminal trial that I must be satisfied so that I am sure that the Crown has satisfied beyond reasonable doubt that she was fixed with that knowledge at that time and I am unable to do so.
38. The conclusion of my findings are as follows;
39. The Defendant remains guilty of Count 1, but the amount of cannabis of which she has been convicted is 56.6 grams that is to say the cannabis found in the front passenger seat.
40. For that same reason, I find the Defendant is not guilty of Count 2 as the utensils were found in the backseat and not in the front passenger seat.
41. Whether or not that makes any substantial difference to the sentence is not for me at this stage to determine. I direct a substantial probation report and an indicative submissions from Crown to be filed in two weeks and I will sentence them once those are filed.
42. It is a matter of regret that the indictment was framed in a way that did not make claim the maker of the various packages but justice must be done but I proceed on the basis that she is guilty of 56.6 grams of cannabis.
    

E. FINAL RESULT

42. For Count 1 of Possession of Illicit Drugs contrary to section 4(1)(a)(ii) of the Illicit Drugs Control Act, I find the Defendant guilty.
43. For Count 2 of Unlawful Possession of Utensils, contrary to section 5A of the Illicit Drugs Control Act, I find the Defendant not guilty.
44. That is the verdict of the Court.
    

^[1] Exhibit 3, Photo 4 & 7.
^[2] Above n 1, Photo 14 & 16,