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R v Fetu'u [2025] TOSC 78; CR 6 of 2025 (13 October 2025)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY CR 6, 8 to 9, 14 to 17, 24 to 25 of 2025

BETWEEN:

R E X

- Prosecution

AND:

[1] TOHITONGI FETU'U

[2] 'ELISA VALAUELA FETU'U

[3] TA'UFO'OU FALE'OFA

[4] LOSALINE UASIKE

[5] 'ENEASI TANGI TAUMOEFOLAU

[6] TEVITA ‘ELONE TU’I’IEL’ILA SHOJI

[7] CHARITY VICKY MELAIA WEATHERALL

[8] UINIKOVI KIVALU

[9] MAFI FATONGIATAU LUTUI

- Defendants

RULIING

No Case To Answer

BEFORE: LORD CHIEF JUSTICE MALCOLM BISHOP KC

Appearances: Mrs T Vainikolo & Mr G Aleamotu’a for the Crown Prosecution

Ms A Kafoa for Mr T Fetu’u & Mrs E Fetu’u

Ms H Aleamotu’a for Mr T Shoji

Mr A Fusimalohi for Mr U Kivalu

Mr S Tu’utafaiva as Mckenzie Friend for Mr T Fale’ofa, Ms L Uasike,

E T Taumoefolau, Ms C Weatherall and Mr M Lutui.

Hearing: 10 October 2025

Ruling: 13 October 2025

1. BACKGROUND

1. At the close of the Prosecution’s case on 7 October 2025, most and eventually all the Defendants in these proceedings by way of their learned counsel and Mckenzie Friend submitted a No Case to Answer.
2. Accordingly, the Court directed for the Prosecution to file submissions setting out their case against each Defendant in relation to each substantive Count on the indictment. The Court received these submissions and several submissions from Defense Counsels before the matter was heard on 10 October 2025 and in short further heard submissions from all parties on this day.
3. The Court’s approach to a No Case to Answer is governed by the well-known authority of Galbraith [1981] Cr. App. R. 124.^[1]
4. These Defendants are charged with causing the import of illicit drug, engaging with others to import illicit drugs, possession of illicit drugs and unlawful possession of utensils all pursuant to sections 3, 4 and 5A of the Illicit Drugs Control Act.
5. The current indictment has been amended several times during the course of these proceedings, in relation to the quantity of the Illicit Drugs as further evidence has unfolded during the trial. The charges now before the Court, reflect the latest amendments.
   
   2. CONSIDERATIONS
6. To import means is, “to bring or cause to be brought into Tonga,” ^[2] and the drugs concerned is methamphetamine, which is a Class A, Illicit Drug by way of schedule II of the Convention on Psychotropic Substances 1971.
7. Importation connotes a process rather than a single event. A person who, for example packs a consignment of drugs in the United States and places it in a vessel bound for Tonga is as guilty of importing that drug as the person who unloads it on the wharf here.
8. No legal difficulty arises as to the meaning of “import” the simple question is whether the defendant concerned brought or arranged to be brought into the Kingdom the illicit drugs concerned.
9. Engaging in dealings with any other person for the “import, export, possession, manufacture, use, cultivation, supply, transfer, transport, offer or sale of an illicit drug”^[3] is also legally uncomplicated.
10. I hold engaging to mean participating or being concerned, taking a step with someone else to enable illicit drugs to be brought into the Kingdom of Tonga. This could occur in various ways, including for example the payment for the import of the drugs concerned, its transfer within the Kingdom or distribution in Tonga.
11. Possession is legally a more difficult concept and considerable jurisprudence exists in relation to what it means. Possession is an offence of strict liability: provided the defendant knows that they have the thing in question in their possession, it does not matter what the thing is.^[4] This has caused considerable disquiet because a very serious offence in the ordinary way requires mens rea to establish criminal liability.^[5]
12. In this regard, a helpful article has been published in the New Zealand legal information Institute P1 95–205 relating to the Narcotics Act (of NZ) and I proposed to follow its guidance in the following respects:
    • (1) The prosecution must prove that the defendant is knowingly in control of some article or substance that turns out to be prohibited under the narcotics act. The defendant need not be shown to know of the nature of the article i.e. that it is a narcotic or seed of a prohibited plant.
    • (2) Proof of possession is proof of possession of the drug i.e once the prosecution has proved the prohibited article or substance was in the Defendant’s possession, the defendant is presumed to have knowledge of the existence of the drug in their possession.
    • (3) It is then open to the defendant to point to evidence to raise a reasonable doubt as to the knowledge that has been imparted to him. If he can show that he honestly believed, on reasonable grounds, facts which, if they existed, would make his act lawful, he is entitled to an acquittal.
13. I will deal with the Count of possession when I come to address each Defendant. In some cases, possession is an alternative charge to the more serious charges, and if I take the view, there is a case to answer on these more serious charges, it is not necessary to come to any finding about the possession Count.
14. In relation to the informant, I have already indicated the way in which his evidence should be approached, in short, as a participating party, it must be treated with considerable caution. But, in my view, a jury is entitled at this stage to accept that he was broadly speaking the truth.
15. It is to be noted that the informant became involved not because he was caught red handed and entered into a bargain with the Police to implicate the others in return for being granted immunity. He is in truth, a vulnerable witness, in that his future security depends on police protection. I have no doubt, that the Police would consider it their duty to afford such protection irrespective of his performance in the witness box, nevertheless there is at least an appearance of a risk in the mind of the public that if he does come up to proof, that protection would be less forthcoming. He denied that and I accept his denial.
16. He says and the jury would be entitled to accept, his motive was that he was concerned about the proliferation of drugs in the Kingdom, in particular to young girls in Tonga.
17. As it happens upon review of the evidence so far, it transpires, that few of my ultimate decisions solely depend on this witness’s evidence, to that extent, although he is important in setting the scene and illuminating the background of these proceedings, he was fairly peripheral.
18. There has been no suggestion that the informant received monetary compensation for his troubles and indeed when arrested on 13 August 2024, he was kept in custody until December. A bail application was not supported by the prosecution until December.
19. For those reasons despite lapses of memory, difficulty of translation and at times concerning vagueness, I hold that a jury is entitled to conclude that his evidence when it matters is reliable.
20. I now deal each of the Defendants in turn.
    
    100. DISCUSSION

1. CR 15/2025 Tohitongi He Manatu Fetu’u

21. Count 1: Unlawful Import of an Illicit Drug (3172.47g, 3583.69g, 3544.31g of methamphetamine), contrary to section 3(e) of the Illicit Drugs Control Act.
22. In the alternative, Count 2: Engaging in Dealings with Another to Import an Illicit Drug (3172.47g, 3583.69g, 3544.31g of methamphetamine), contrary to section 4(1)(b)(iv) of the Illicit Drugs Control Act.
23. On the evidence, the jury, that is to say myself as the judge of fact is entitled to come to the following conclusions:
24. On 12 to 13 August 2024, there were communications between this Defendant and the informant, through messenger and on video call, about the importation of a consignment containing drugs to Tonga.
25. The location data extracted from the first Defendant’s phone, places the phone near the SF Oceania office in California during the at the relevant time when the consignment was dropped off to be shipped over to Tonga.
26. It has not been suggested that another person had use of the phone at that time and so a jury is entitled to conclude that it was used by this Defendant.
27. There were a number of communications between this Defendant and the informant in which it is indicated that the first Defendant packed drugs into a consignment addressed to one, Toni Sililo Tufui and packed these drugs in rice sacks
28. In a series of messages, between the informant and this Defendant it was said at 7:24pm;

“If will pick the box tomorrow and you’ll go home and take the food while my brother-in-law will go with the box in the truck”^[6]

29. The informant replies he will take it to Sia’atoutai^[7] which is of course what happened as was captured on the drone footage in the red lorry.^[8]
30. In his Record of Interview,^[9] the first Defendant claimed that he was not involved in the importation of drugs and had no knowledge of the ultimate consignee or any other details about it, but a jury is well entitled to disregard his explanation as improbable.
31. Coupled with the telephone communications which indicated prior knowledge of the true content of the consignment, it seems highly unlikely that this Defendant would be ignorant of the true contents of the consignment and that the euphemises indicates that he knew very well what he was doing and indeed discussed it with the informant.
32. It is not suggested that there is any doubt that the consignment did not arrive at Tongatapu. Mr Steward established that on 9 July 2024, this Defendant’s phone was near SF Enterprises in Oakland California and evidence provided by Fonogatapu, an employee of the shipping company, that they received the consignment at their branch on that same date.
33. I therefore conclude, a reasonable jury properly directed could conclude that the first Defendant was heavily involved in the importation of the consignment namely, 3544.31g of methamphetamine as subsequently weighed and analysed. Accordingly, he has a case to answer on Count 1 for Unlawful Import of an Illicit Drug.
34. Count 2 is an alternative and not necessary to consider.
    

2. CR 16/2025 Elisa Valauela Fetu’u

35. Count 3: Engaging in Dealings with Another to Import an Illicit Drug (3172.47g, 3583.69g, 3544.31g of methamphetamine), contrary to section 4(1)(b)(iv) of the Illicit Drugs Control Act.
36. This Defendant is the wife of the first Defendant, and the evidence is that on 13 August 2024, she was waiting at SF Oceania office here in Tonga to pick up the consignment. Also at SF Oceania was a red lorry of her a relative. She played no further part on the transfer of the consignment from SF Oceania Branch onto the red lorry.
37. She arrived at Sia’atoutai with her relative in a car, they both get off, and her relative assists Toni Sililo Tufui to open and unload items from the consignment. Toni Sililo Tufui had been the one that drove the red lorry to Sia’atoutai from SF Oceania.
38. The footage shows her on a tablet for a short time, and in her interview, she accepts that she was on a call to her husband and was showing him the consignment, but there is no evidence that during that call she was aware of the contents of the consignment/sacks of rice or imparted such knowledge to her husband.
39. She assisted to remove some items from the lorry and place it beside the window of the residence at Sia’atoutai, it is to be noted that there was no attempt to conceal those items in the lorry, it was an open truck, and it was plainly visible.^[10]
40. The subsequent search of the property she shared with her husband did not reveal any drugs or utensils.
41. During her interview, she claimed, the box previously contained her husband’s tools that was sent over from America.
42. The phone communications extracted from her phone that was seized by Police shows that she had had access to the same Messenger account used by her husband to communicate with the informant and the third Defendant.
43. The Crown invite the Court to draw a reasonable inference that, since she had access to the same account, she was aware of the communications for the illicit drugs when the arrangements were being made for it be picked up.
44. Even taking the prosecution case at its highest, that seems to be a non sequatur. The first and second Defendants are married to each other, there would be nothing unusual in using the same messenger account but that does not mean, nor can it sensibly mean that one party communicating with a third party on a shared access account would be known to the other.
45. The Crown invite a reasonable inference to be drawn that this Defendant was in communication with her husband before she was contacted by Toni Tufui and the informant to arrange a truck.
46. Again, the Crown pose the question, why would she agree to provide a truck if she did not know about the box. Why indeed? The fact that she was assisting her husband by enlisting the help of a relative to provide a lorry for transport, cannot amount to proof that the consignment in question was in fact drugs, it could have been her husband’s tools or a multitude of other matters.
47. It is true that one possibility could be, that she knew the consignment was illicit drugs, but as was found by the English Court of Appeal:

“where evidence is capable of one reasonable interpretation, a trial judge is not obliged to proceed on the basis that every possible adverse inference must be drawn against a Defendant, especially when he considers the totality of the evidence points in the opposite direction.”^[11]

48. I have therefore concluded that no jury properly directed could convict this Defendant of Count 3 and accordingly, I find there is no case to answer.
    

3. CR 9/2025 Ta’ufo’ou Fale’ofa

49. Count 10: Unlawful Import of an illicit drug (897.71g of methamphetamine) contrary to section to section 3(e) of the Illicit Drugs Control Act.
50. In the alternative, Count 11: Engaging in Dealings with Another to Import an Illicit Drug (897.71g of methamphetamine), contrary to section 4(1)(b)(iv) of the Illicit Drugs Control Act.
51. In the alternative to Count 11, Joint Count 12: Possession of an Illicit Drug (897.71g of methamphetamine), contrary to section 4(1)(a)(iv) of the Illicit Drugs Control Act.
52. Joint Count 13: Unlawful Possession of a Utensil (weighing scale), contrary to section 5A of the Illicit Drugs Control Act.
53. The evidence against him must be stated shortly; the amount this Defendant is charged with is 897.71g of meth, being part of the larger consignment in Count 1 (2 packs of methamphetamine were given to him by the informant).
54. He was driving towards Kolonga, with his partner, Losaline Uasike, the fourth Defendant was sitting in the front passenger seat. Prior to that, they met with the informant when two packages were passed to her through the passenger window by the informant. She took them and placed them at her side.
55. Later when it was obvious that Police were attempting to intercept this vehicle after the initial stop, Police observed 2 packages being thrown out of the front passenger’s window.
56. This defendant was in regular contact with the first Defendant who was arranging for the goods to be sent from California, on 12 August at 2:04pm the first Defendant messaged this Defendant as follows at 2:04pm: “Sender: viliami lavak, Receiver: Toni sililo Tufui”^[12]
57. At 2:10pm, Tohitongi Fetu’u messaged Ta’ufo’ou Fale’ofa saying “Tell him that viliami lavaka is his uncle whom the box was from.”^[13]
58. At 2:10 pm, Tohitongi Fetu’u messaged Ta’ufo’ou Fale’ofa saying “And if there is anything then write me as I am going with this man before he hears the things we are talking about please.” ^[14]
59. Although, the subject matter of their conversation is not spelt out, given that the sender, the first Defendant, has been shown to be fully cognizant with what was happening and indeed organising its importation, a reasonable jury properly directed could conclude that the actions of this Defendant, in his attempt to evade police by attempting a getaway is evidence of guilty knowledge, and that the knowledge in question was that the package was in fact illicit drugs.
60. I have no doubt, a jury properly directed could conclude that the drugs in question were imported and that this Defendant played a significant role in the arrangement of its importation.
61. Further there is communications between this Defendant to the informant about the consignment, in my view this is a borderline case on importation. But I bear in mind that the Defendant’s voluntary statement is a full admission of being engaged with importation on behalf of another. It seems to me the justice of the case, not without some hesitation, drives me to find that the case on Count 10 has no case to answer, but I find that there is a case to answer in Count 11, being engaged in dealing with others to cause the importation of said illicit drugs.
62. Count 13 is relatively straight forward, a weighing scale found in the driver’s door, side panel of the motorcar in question and plainly the Defendant has a case to answer and I so hold.
63. Taking a holistic view of the evidence against this Defendant, I find that the evidence of importation against him is insufficient to ground a conviction but there is sufficient evidence to find that he was without lawful excuse, engaged with another in importing 897.71g, the 2 packages thrown out of the car window.
    

4. CR 8/2025 Losaline Uasike

64. Joint Count 12: Possession of an Illicit Drug (897.71g of methamphetamine), contrary to section 4(1)(a)(iv) of the Illicit Drugs Control Act.
65. Joint Count 13: Unlawful Possession of a Utensil (weighing scale), contrary to section 5A of the Illicit Drugs Control Act.
66. Now in relation to fourth Defendant, here the issue is not whether the Defendant in question did knowingly possess the item but whether she did in fact possess it.
67. The facts appear relatively simple. She was a passenger in her husband’s car. Two packages were passed through the near side front window which she took and placed to her right side. When it was clear that the motor car was being pursued, the two packages were thrown out the front passenger window where they were later retrieved by police recruits and found to be methamphetamine.
68. The question here is, was the defendant in possession of these illicit drugs? Her actions were when the packages were passed through the window to take them in in hand and place them at her side and later presumably to pick them up and throw them out the window.
69. Does this amount to possession? The courts have in the main concentrated on whether a defendant was knowingly in possession of the item in question and a great deal of jurisprudence has been exercised on this aspect resulting in the somewhat surprising conclusion that knowledge of what it is contained in the package is irrelevant provided the defendant concerned possessed the article in question. Whether it was chocolates or heroin is nihil ad rem.
70. Fortunately, this is not a matter with which this court needs to be concerned because a prior question arises namely did the actions of the Defendant amount to possession or were, they momentarily reactive, and it may be argued, disassociated.
71. Bearing in mind the de minimus principle which infuse the criminal law, I am unpersuaded that merely to accept a package through a window and place it at one side amount to sufficient possession nor does it persuade me that by retrieving the package concerned and throwing them through the window, can be said to be an act of possession rather than dispossession or putting it in everyday language getting rid of it, throwing it away or having nothing to do with it.
72. Take the following examples, supposing a passenger gets onto a bus and sees that all the seats are taken except one and that seat has a package on it. He or she removes the package puts it to one side and sits down in the only available seat. Is that person in possession of the package? Supposing instead of placing the package next to him or her, they simply put it on their lap, intending to re-place it on the seat when they leave the bus at the next stop, is that possession?
73. Here what the Defendant is alleged to have done amounts to momentarily taking the package and placing it away from her body and later picking it up and throwing it out of the car and then also away from her.
74. Looking at the matter in the holistic way as Galbraith suggests, it seems to me that a reasonable jury property directed could not convict on those facts.
75. I have reviewed the phone evidence which in the main amounts to a list of callers from which it is clear that this Defendant has access to the third Defendant’s phone.
76. The Crown invite me to conclude that, this entitles a reasonable inference that she was privy to the contents of what that party communicated with a third party and for the reasons already indicated, I am unpersuaded as a matter of logic and common sense. I therefore find there is no case to answer against this Defendant on that Count.
77. As to joint charge in Count 13 of the weighing scale, the evidence is that the weighing scale in the side pocket of the driver’s door, likely to be concealed from the passenger. Its presence is as consistent with this Defendant being unaware of what was in the pocket in the car as to knowledge that it was in the car.
78. This calls into question, the way in which ambiguous evidence ought to approached at this stage of the proceedings. I adopt the approach in Bush and for the reasons there set out conclude, in the exercise of my discretion that this Defendant has no case to answer both as respect to the weighing scale in Count 13, and in respect of Count 12, possession of the two packages thrown out of the window.
    

5. CR 14/2025: ‘Eneasi Tangi Taumoefolau

79. Count 18: Unlawful Import of an Illicit Drug (2274.76g, 2236.08g of methamphetamine), contrary to section 3(e) of the Illicit Drugs Control Act.
80. In the alternative, Count 19: Engaging in Dealings with Another to import an Illicit Drug (2274.76g, 2236.08g of methamphetamine), contrary to section 4(1)(b)(iv) of the Illicit Drugs Control Act.
81. In the alternative to Count 19 is Count 20: Possession of an Illicit Drug (2274.76g, 2236.08g of methamphetamine), contrary to section 4(i)(a)(iv) of the Illicit Drugs Control Act.
82. There is abundant evidence that this Defendant acted as the financier to the whole operation or at least was a conduit in transferring money to the controlling mind in the United States, Rodney Hala.
83. On 13 August 2024, there is a screenshot of a telegraphic transfer of $74,739.09TOP ($30,937 USD) from Luxury Car Rental (the company controlled by this Defendant) to Rodney Hala.^[15]
84. During this period, various payments were made to Rodney Hala through various members of his family.
85. Hala was concerned that the whole of the money had not been received, there is an illuminating conversation between this Defendant and the informant where he assured the informant that the money would be paid and that the arrangements for the consignment should continue. The informant’s evidence is that this Defendant further stated that these transfers were disguised for the purchases of bikes/motorcycles.
86. Once the consignment has been transported to this Defendant’s residence, there is drone footage of him exiting his residence with a red bag and placing that red bag into Tevita Shoji’s vehicle.^[16]
87. This bag was apprehended by Police when Shoji was arrested and the contents of the red bag analysed, and later confirmed to be 2236.08g of methamphetamine.
88. This Defendant plainly has a case to answer to Count 18. The others are alternatives and not necessary to consider.
    

6. CR 6/2025 Tevita ‘Elone Tu’i’ile’ila Shoji

89. Count 24: Engaging in Dealings with Another to Import an Illicit Drug (2274.76g, 2236.08g of methamphetamine), contrary to section 4(1)(b)(iv) of the Illicit Drugs Control Act.
90. In the alternative, Count 25: Possession of an Illicit Drug Drug (2274.76g, 2236.08g of methamphetamine), contrary to section 4(i)(a)(iv) of the Illicit Drugs Control Act.
91. He was caught, more or less red-handed, the drone depicts him putting up posters at Taumoefolau’s residence in Tofoa.^[17]
92. A red bag containing, drone evidence of a red bag being placed by Taumoefolau in the black car driven by Shoji, placed in front driver seat. This Defendant moved it to the rear of the vehicle.
93. He was intercepted on his journey away from the property and made an unsuccessful attempt to escape in reversing the vehicle. Again, this raises the obvious question, if he was unaware of what the red bag contained, why did he attempt to reverse his car and escape, it may be said that he was frightened because the unmarked police car was part of a kidnapping attempt or something similar.
94. Again, he is free to give that explanation but absence to such explanation which is believable, he certainty has a case to answer to Count 24. Count 25 is not necessary to consider.
    

7. CR 17/2025 Charity Vicky Melaia Weatherall

95. Count 26: Engaging in Dealings with Another to import an Illicit Drug (2274.76g, 2236.08g of methamphetamine), contrary to section 4(1)(b)(iv) of the Illicit Drugs Control Act. This is the amount of illicit drugs that was in the red bag that was found in Mr Shoji’s vehicle.
96. This Defendant worked as the Mr Taumoefolau’s secretary and handled many if not all his money transactions in that capacity. Some of these transactions were sent to Hala, who in the Crown’s case is the origin of the drugs from United States.
97. There is nothing to suggest, this witness as a secretary was complicit to the significance of these arrangements, so far as she was concerned, she was sending various payments at her employers’ instructions.
98. There is some evidence from the informant, that on one occasion which is not specified, he saw this Defendant weighing drugs. But he does not connect this with any of the matters in the indictment, no mention is made of the size or weight or when indeed this alleged sighting took place. I consider it too far vague to form a conclusion that is in anyway connected with the matters concerned in this indictment and accordingly is to be disregarded.
99. The Crown helpfully submit that the informant did give evidence that the weighing by this Defendant was in relation to the July consignment. I put that out of mind, as that consignment is not embraced in the current indictment. It deals with a wholly separate alleged transaction, I must try this case on the indictment before me.
100. Further, it has not been suggested that Mr Taumoefolau did not have a legitimate business or that her employment was a sham.
101. Reliance is placed in the answers or non-answers in the interview conducted under caution. It is submitted by the Prosecution that, “She strategically chooses not to answer the question about income that the business ‘Eneasi Taumoefolau runs.”
102. In fact, it is as follows:

“Question 28: What is your estimation to the income that the business gets per day, week and month?

Answer 28: No comments on that one.”^[18]

103. She had already been told, she need not say anything, and I cannot see how a no comment answer can be an implication of any wrongdoing.
104. In short, in my view no jury properly directed could convict this Defendant of this count and there is not case to answer in this regard for this Defendant.
105. This Defendant has no case to answer on Count 26.
     

8. CR 24/2025 Unikoni Kivalu

106. Count 21: Engaging in Dealings with Another to Import an Illicit Drug (3172.47g, 3583.69g, 3544.31g of methamphetamine), contrary to section 4(1)(b)(iv) of the Illicit Drugs Control Act. This represents the whole of the consignment delivered on 13 August.
107. The case against this Defendant is that he was a corrupt customs officer paid to facilitate the clearance of the consignment through customs. He was given $3K in advance because he had a urgent family matter and requested it through Mafi Lutui.
108. The informant gave evidence that Mafi Lutui confirmed having given the $3k to Kivalu. He further provided, that in a conversation he had with this Defendant, he wanted his fee increased to $30K and states that is what was already previously agreed to.
109. I bear in mind that this Defendant was arrested on 9 August 2024, and the consignment was not released until 13 August 2024, that of course in no way affects his culpability because his participation in the arrangements had predated his arrest.
110. Of course, at the very least, his receipt of this money which is not disputed needs an explanation and accordingly without prejudging this matter, he has a case to answer to Count 21.
     

9. CR 25/2025 Mafi Fatongiatau Lutui

111. Count 22: Unlawful Import of an Illicit Drug (2274.76g, 2236.08g, 3544.31g of methamphetamine), contrary to section 3(e) of the Illicit Drugs Control Act.
112. In the alternative, Count 23: Engaging in Dealings with Another to Import an Illicit Drug (3172.47g, 2274.76g, 2236.08g, 3544.31g methamphetamine) contrary to section 4(1)(b)(iv) of the Illicit Drugs Control Act.
113. This charges against this Defendant initially only related to the drugs found at Tofoa. However, after hearing submissions from the Prosecution on this matter, an application was made to amend the indictment to reflect the entirety of the consignment of illicit drugs from 13 August 2024 and was accepted by the Court, namely from 2236.08g to 3544.31g of methamphetamine.
114. There was a great deal of evidence about this Defendant’s involvement with previous consignments, they do not form part of the indictment and I out them out of mind entirely.
115. He was the conduit in terms of facilitating the movement of money and there is strong evidence that he gave $3k to Unikoni Kivalu and he would need to explain why.
116. It is clear that this Defendant and Rodney Hala were in communication and one is entitled to ask, why he should be dealing with someone in America who has a close involvement for importing drugs to Tonga, if he himself was not involved.
117. Most of the communications are unspecific and do not mention drugs, but, one of these communications is significant from Rodney Hala to this Defendant in response to this Defendant asking for a receipt on 12 August 2024:

“Yes bro it says SF but it should be okay I'll let you know soon as it clears.”^[19]

118. This raises the question, what was the receipt for, in other words, it calls for an answer, viewing the matter in the round, I consider that the prosecution case at his highest could enable a reasonable jury properly directed could convict on this Count and it therefore follows the current application fails.
119. This Defendant has a case to answer on Count 22. The alternative is not necessary to consider.
     
     4. FINAL RESULT
120. For the reasons already set out above, my findings are as follows:
     1. Tohitongi He Manatu Fetu’u – Case to Answer on Count 1.
     2. ‘Elisa Valauela Fetu’u – No Case to Answer on Count 3.
     100. Ta’ufo’o Fale’ofa – Case to Answer in the alternative charge, Count 11 & Count 13.
     4. Losaline Uasike – No Case to Answer on the Joint Charges in Count 12 & 13
     5. ‘Eneasi Tangi Taumoefolau – Case to Answer on Count 18
     6. Tevita ‘Elone Tu’I’ile’ila Shoji – Case to Answer on Count 24
     7. Charity Vicky Melaia Weatherall – No Case to Answer on Count 26
     8. ‘Unikoni Kivalu – Case to Answer on Count 21
     9. Mafi Fatongiatau Lutui – Case to Answer on Count 22
121. That is the order of the Court.
     

^[1] See Archbold 2022, 4-364.
^[2] Illicit Drugs Control Act, section 2.
^[3] Above n 2, section 4(1)(b).
^[4] Warner v Metropolitan Police Comm [1969] 2 AC 256. 5, 292.
^[5] Sweet and Parsley 1969 2 WLR 470.
^[6] Courtbook 2, page 1152.
^[7] Above n 6, page 1153.
^[8] Exhibit 2 – Drone Footage at Sia’atoutai
^[9] Court Book 1, page 1028 – 1036.
^[10] Above n 8.
^[11] Bush [2019] EWCA Crim 29
^[12] Above n 7, page 1293.
^[13] Above n 12.
^[14] Above n 13.
^[15] Above n 9, Page 916.
^[16] Exhibit 3 – Drone Footage of Tofoa
^[17] Above n 16.
^[18] Above n 15, page 861.
^[19] Above n 14, page 2237.