IN THE COURT OF APPEAL OF TONGA
Court of Appeal, Nuku'alofa

Cr 20/2000 and Cr 1/01

Tamanika

v

R

Burchett, Tompkins, and Beaumont JJ 
15 July 2002; 23 July 2002 

Criminal law – crime not in existence when offence committed - appeal allowed 
Appeal – Trial judge's findings upheld 

At about 10 in the morning of 28 September 1999 two men broke into the house of a Chinese family, the Wangs, who run a retail business. In the house at that time was the housegirl, Finau Tulikifanga, who went to investigate the noise. She was seized and taken to one of the rooms in the house at gunpoint. The men, armed, masked and wearing dark clothes, told her they did not want to hurt her but were looking for the safe they had heard the Wangs kept in the house. At about that time a van was driven up by Jeremy Wang, the adult son of the owner of the house. The two men lay in wait for him and seized him also. Both he and the housegirl were then bound with sticky tape and left in a small room in the house. The two men then turned their attention to the safe. They managed to move it towards the door when Jeremy Wang's mother, Lan Wang, also arrived. As she came to the house the masked and armed men confronted her. She was grabbed by the hair and pulled to the ground. When she struggled and called for help, she was beaten on the head by one of the men with the butt of his gun. She too was bound with tape. The two men put the safe into Jeremy Wang's van and drove away. Mrs Wang was able to free herself and summon help. She was then taken to the hospital for treatment to the injury to her head. The appellant was charged, together with Sosefi Langi Moala, with housebreaking, armed robbery and trespass, all on 28 September 1999. Moala pleaded guilty. The appellant claimed he was not present at the robbery and had had nothing to do with it. Following a trial before the Chief Justice, the appellant was found guilty of housebreaking and armed robbery and not guilty of trespass. He was sentenced to two years imprisonment on the count of housebreaking and to 10 years imprisonment on the count of armed robbery to be served concurrently. He appealed against the convictions and sentence. 

Held: 

1. In the end it was for the trial judge to determine whether the evidence of the two witnesses identified the appellant as one of the two persons involved in the crime. This required consideration of their credibility and reliability, matters essentially for the trial judge. The trial judge correctly directed himself of the inherent danger of identification evidence. There was no basis on which the court on appeal could interfere with the trial judge's conclusion that these two witnesses provided evidence that identified the appellant as one of the persons involved, and further that corroborated the evidence of the co-accused. 

2. The trial judge's conclusion that the appellant was in the house up to 8.30 am on the morning of the offence and from 2 pm that afternoon was clearly established by the evidence. He was entitled to conclude that the alibi evidence did not establish the appellant's movements between those two times, and that during that period he had ample time to be involved in the offences. 

3. Whether or not to accept the evidence of the co-accused, provided it was corroborated, was an issue of credibility that was entirely within the province of the trial judge. To reverse such a finding would require clear and convincing evidence that the conclusion on credibility must be wrong. There was no such evidence in the present case. 

4. The offence of armed robbery was not in existence at the date of the events. Therefore as the appellant had been charged with an offence which, at the time the alleged offence was committed, was not an offence, the finding of guilty of that charge could not stand. It was quashed. The court substituted for the verdict of guilty of armed robbery, a verdict of guilty of robbery. The maximum sentence for robbery was imprisonment for a period of not more than 10 years. 

5. The court sentenced the appellant to six years imprisonment for robbery. 

Statutes considered: 
Act of Constitution of Tonga (Amendment) Act 1990 
Court of Appeal Act (Cap 9) 
Criminal Offences Act (Cap 18) 
Criminal Offences (Amendment) Act 1999 
Interpretation Act (Cap 1) 

Counsel for appellant: Mr Tu'utafaiva 
Counsel for respondent: Ms Simiki 

Judgment of the Court delivered by Tompkins j

[1] The appellant was charged, together with Sosefi Langi Moala, with housebreaking, armed robbery and trespass, all on 28 September 1999. Following a trial before the Chief Justice, he was found guilty of housebreaking and armed robbery and not guilty of trespass. He was sentenced to 2 years imprisonment on the count of housebreaking and to 10 years imprisonment on the count of armed robbery to be served concurrently. He has appealed against the convictions and sentence. 

[2] Moala pleaded guilty to charges for the same offences. 

The offending

[3] The Chief Justice's summarised the case for the prosecution in this passage: 

"The prosecution case is that at about 10 in the morning of Thursday [should be Tuesday] 28 September 1999 these two men broke into the house of a Chinese family, the Wangs, who run a retail business. In the house at that time was the housegirl, Finau Tulikifanga, who went to investigate the noise. She was seized and taken to one of the rooms in the house at gunpoint. The men, armed masked and wearing dark clothes, told her they did not want to hurt her but were looking for the safe they had heard the Wangs kept in the house. 

At about that time a van was driven up by Jeremy Wang, the adult son of the owner of the house. The two men lay in wait for him and seized him also. Both he and the housegirl were then bound with sticky tape and left in a small room in the house. 

The two men then turned their attention to the safe. They managed to move it towards the door when Jeremy Wang's mother, Lan Wang, also arrived. As she came to the house the masked and armed men confronted her. She was grabbed by the hair and pulled to the ground. When she struggled and called for help, she was beaten on the head by one of the men with the butt of his gun. She too was bound with tape. The two men put the safe into Jeremy Wang's van and drove away. Mrs Wang was able to free herself and summon help. She was then taken to the hospital for treatment to the injury to her head." 

[4] Apart from the involvement of the appellant, counsel for the appellant accepted that this passage fairly described the offending. The issue at the trial was identification. None of the three victims of the attack were able to identify their assailants. It was the appellant's claim that he was not present at the robbery and had had nothing to do with it. 

Identification evidence 

[5] The first ground of the appeal against conviction is that the Chief Justice erred in relying on the evidence of two witnesses called for the prosecution, Penisimani Ketu'u and Kavauhi Tu'ipuloto, who identified the accused with Moala straight after the offence. 

[6] The Chief Justice recorded the evidence of these two witnesses in these passages: 

"At that time, Moala was living in Tofoa and, at about 10 in the morning on the 28th, Penisimani Ketu'u who also lives in Tofoa, was asked by Moala to get a taxi for him. He saw that Moala was with this accused. He knew the accused because he was a friend of Moala and often in Tofoa. He noticed the two men were in shorts and the accused was carrying a bag. He was cross-examined about his identification of the accused. He agreed that at the magistrates' court he had not identified the accused. He told this court that the accused was normally not very neat and had short hair. At the magistrates' court, the person was very neat and tidy and had long hair combed back and flat with hair gel. As a result he was not sure but, in this court, the accused again had short hair and he was able to recognize him. The accused does not agree he had long hair but does admit he used hair gel and combed his hair that day to tidy up although he agrees it is something he does not usually do so. 

The driver of the taxi was also from Tofoa and gave evidence. He recalled Peni summoning him to take two people and, when he picked them up, recognized them as Moala and the accused. He was asked if, in his statement to the police, he had said that the second person was a stranger and confirmed that was what he said because, although he was familiar with the accused by face, he did not at that time know his name. The passage in his statement was read to the court. In it, he did refer to the other man as a stranger but continued that he recalled his face very well. He was able to confirm that the person he knew by sight in this way was the accused. This witness could not say the date but he agreed it was around this time. He described how both men were in shorts and the accused was carrying a bag." 

[7] The Chief Justice considered this evidence when expressing his conclusion on the issue of corroboration. He held: 

"Corroboration is evidence from an independent source that links the accused with the crime. There is such evidence in the attempt by the accused with Moala to obtain a gun, the evidence that the accused was with Moala on the morning of the offence and of the assistance given to Moala to purchase a ticket and to get to the airport. The first and last of these are admitted by the accused and I have considered his explanations carefully. The evidence of their association on the morning of the 28th is challenged. The court must always be conscious of the dangers inherent in identification evidence but, in the case of Ketu'u and the taxi driver, I am satisfied they each already knew the accused by sight as they said and that they were accurate in their identification of him on the morning of 28th September. I am satisfied beyond reasonable doubt that these two witnesses were truthful and accurate and, in the case of the latter, was referring to the same day." 

[8] Counsel for the appellant submitted that these two witnesses had given conflicting statements and evidence, so their credibility and reliability needed to be considered carefully. 

[9] We have considered the detailed submissions advanced by counsel in support of this submission. He pointed to what he submitted were inconsistencies in the evidence of each witness, and to the evidence that Ketu'u is related to Moala. In the end it was for the Chief Justice to determine whether the evidence of these two witnesses identified the appellant as one of the two persons involved in the crime. This requires consideration of their credibility and reliability, matters essentially for the trial judge. The Chief Justice correctly directed himself of the inherent danger of identification evidence. We do not find any basis on which this court on appeal could interfere with the Chief Justice's conclusion that these two witnesses did provide evidence that identifies the appellant as one of the persons involved, and further that corroborates the evidence of the co-accused. 

Alibi evidence 

[10] The Chief Justice's finding on the alibi evidence was: 

"Pekia lives in the house where the party was held and said that the accused was living there from about September to Christmas. The party was because Pekia's brothers returned from Hawaii and the accused had met them and came to the house with them. Pekia was uncertain of the actual date, as was the other defence witness, Samiu Pese, but he thought his brothers arrived on a Monday. Pekia also told how he heard about the robbery when he arrived at work at 8.30 of the morning the party finished. If correct, that would have meant the party finished in the small hours of the Wednesday. I considered this witness was truthful and was confused about the date. I am satisfied on the evidence that the brothers did arrive on a Monday and so the party would have been that evening and continuing into the small hours of Tuesday. The link in the witness's mind with the robbery satisfies me that the day they arrived could well have been the 27 September. The defence does not have to prove the date, it is on the prosecution to prove it was not the date claimed and I am not satisfied that has been done. 

Pekia told how he went to sleep at the party at about 4 am and was woken by a neighbor (sic) to go to work at 8 am. He left at about 8.30 and saw the accused still asleep in the room. He returned at about 2 pm when he woke the accused and shortly after, took him to town. 

Samiu Pese was also living in the house and went to sleep during the party earlier than the accused. He woke at 7am and told the court it was he who woke Pekia. He also woke the accused and asked if he wanted to go with Pekia so he could be dropped at his home. Apparently the accused said he would but just went back to sleep. This witness than (sic) did some tidying up and then worked outside. He was there playing music when Pekia arrived back at 2 pm. 

I have considered the evidence of the alibi given by all three witnesses. I accept there was a party at the house in Kolomotu'a and the accused was present. I also accept that he was present in the morning when Pekia went to work and when he returned in the afternoon. The evidence of Samiu was not clear on the critical period that covered the time when the offence occurred. 

On the evidence as a whole, I am satisfied that the accused was in the house up to 8.30 that morning and from 2pm that afternoon but the accused's account that he was there between those times will need to be considered with his evidence as a whole. I remind myself that in this, as in all aspects of the case, the burden lies on and remains on the prosecution to prove the case beyond reasonable doubt. The accused does not need to prove anything. Where there is a possibility the accused's account may be right, it must be taken in his favour as a fact." 

[11] Counsel for the appellant submitted that the Chief Justice erred when he was satisfied that the appellant was easily able to leave the house in Kolomotu'a to commit the robbery and return in time to appear that he had not left and also that he did leave and went with Moala to Tofoa. 

[12] The offence occurred at about 10 am on the morning of Tuesday 28 September. The Chief Justice's findings in the passage we have set out are that the Pekia brothers arrived in Tonga on Monday 27 September. The party was during the night of Monday 27 September and the early hours of the following day, Tuesday. The appellant was present in the house when the witness Pekia left at about 8.30 am on the morning of the Tuesday and when he returned at 2 pm that afternoon. 

[13] Samiu Pese said that he recalled the occasion when Pekia's brothers had returned from Hawaii, but was unable to give the day or the month. He said that after he had woken the appellant when Pekia went to work and the appellant had gone back to sleep, he tidied up the house and also cleaned up outside. He went into the house (he did not say at what time) and the appellant was there sleeping. He then referred to the appellant waking up when Pekia returned from work at about 2 pm. 

[14] In the above passage, the Chief Justice referred to the evidence of Pekia that he heard about the robbery when he arrived at work at about 8.30 am on the morning the party finished. He considered Pekia to be truthful, but confused about the date, an apparent reference to Pekia saying that he heard about the robbery on the morning the party finished. If the robbery occurred at 10 am and Pekia heard about it when he arrived at work at 8.30 am, that could only be on the morning of the day following the robbery, ie on Wednesday 29 September. It appears to be in that respect that the Chief Justice concluded that Pekia had confused the date. 

[15] The Chief Justice's conclusion that the appellant was in the house up to 8.30 am on the morning of the offence and from 2 pm that afternoon is clearly established by the evidence. He was entitled to conclude that the alibi evidence did not establish the appellant's movements between those two times, and that during that period he had ample time to be involved in the offences. 

Corroboration 

[16] In considering the evidence of the co-accused the Chief Justice correctly applied the law in recognising that the evidence of a co-accused must be corroborated. In the passage we have set out in paragraph [7] he found that the co-accused's evidence was corroborated in three respects, namely his attempt to obtain a gun, the evidence that the appellant was with the co-accused on the morning of the offence, and the assistance given to the co-accused to purchase a ticket. 

[17] It was submitted on behalf of the appellant that these findings, while they may have amounted to circumstantial evidence, do not go to the heart of the case sufficiently to render them corroboration of material particulars. We do not accept this submission. In our view each of the findings, particularly the attempt to obtain a gun and the identification evidence, was a material particular that corroborated the co-accused's evidence. 

The co-accused's evidence 

[18] In his judgment the Chief Justice detailed the evidence of the co-accused. He expressed his finding on this evidence as follows: 

"I do believe Moala. He was undoubtedly anxious to see his co-accused convicted. He may have many reasons to want that but I am satisfied beyond reasonable doubt that, whatever the motive, he was giving an accurate and truthful account of both his and the accused's part in these offences." 

[19] Mr Tu'utafaiva submitted that the Chief Justice erred in concluding that the co-accused was a credible witness despite what he submitted was clear malice on the part of the co-accused towards the appellant. There was some evidence to support the claim of malice. The co-accused said in evidence that when he was told by the Police that the appellant had implicated him in the crime "… he will never be my friend again." Later he said that he "… wanted to kill him with kindness. I wanted to get back at him with a big smile on my face." 

[20] However, the Chief Justice expressly referred to this evidence in his judgment. So he took it into account when he reached the conclusion he did. Whether or not to accept the evidence of the co-accused, provided it is corroborated, is an issue of credibility that is entirely within the province of the trial judge. To reverse such a finding would require clear and convincing evidence that the conclusion on credibility must be wrong. There is no such evidence in the present case. 

The armed robbery charge 

[21] The indictment charged the appellant with armed robbery, contrary to s 154(3) of the Criminal Offences Act. That subsection was enacted by the Criminal Offences (Amendment) Act 1999, which was passed by Parliament on 4 October 1999 and received the Royal assent on 3 November 1999. By s 3(1) of the Interpretation Act (Cap 1), an Act to which His Majesty's assent has been given comes into operation on the day on which the Act receives His Majesty's assent, unless the contrary intention appears. No contrary intention appears in the Amendment Act, so it came into operation on 3 November 1999. 

[22] The events to which the charge relates occurred on 28 September 1999. On that day, s 154(3) had not come into operation and therefore there was no offence of armed robbery as defined in that subsection. It follows that as the appellant had been charged with an offence which, at the time the alleged offence was committed, was not an offence, the finding of guilty of that charge cannot stand. It is quashed. When the court drew counsel's attention to this situation, counsel for the Crown accepted that the guilty plea could not be upheld. 

[23] Subclause 13(d) of the Constitution, as enacted by the Act of Constitution of Tonga (Amendment) Act 1990, provides: 

(d) any Act may provide that a person charged with an offence may be convicted of another offence (not being a more serious offence) arising out of the same circumstance. 

[24] Section 18(2) of the Court of Appeal Act (Cap 9) provides: 

(2) Where an appellant has been convicted of an offence and the judge, or in the case of a trial by jury, the jury could on the indictment have found him guilty of some other offence, and on the findings of the judge or jury, as the case may be, it appears to the Court of Appeal that the judge or jury must have been satisfied of facts which proved him guilty of that other offence, the Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by such judge or jury a verdict of guilty of that other offence and pass such a sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of great severity. 

[25] This section is a section within subclause 13(d) of the Constitution in that it does provide that the person may be convicted of another offence. In accordance with that provision, that alternative offence could not be a more serious offence. 

[26] Acting under s 18(2), we substitute for the verdict of guilty of armed robbery, a verdict of guilty of robbery. Pursuant to s 154(2) of the Criminal Offences Act, the maximum sentence for robbery is imprisonment for a period of not more than 10 years. 

Sentence 

[27] In considering the appropriate sentence to be substituted for the sentence imposed by the judge on the armed robbery conviction, we have regard to the following aggravating and mitigating factors: 

• The maximum sentence of 10 years 

• The use of a gun which, in the course of the robbery, was pointed at the head of one of the victims. 

• The use of violence – one of the victims had three days in hospital recovering from the injuries inflicted. 

• The intention of both offenders to rob the victims of what they thought was a very large amount of money. However, the safe was recovered, so presumably the victims suffered no loss, apart from significant emotional harm. 

• Unlike the co-accused, this accused has shown no remorse for his actions. 

• Unlike the co-accused, no reduction of sentence for a plea of guilty applies. 

• The conviction and sentence for housebreaking, for which the appellant was sentenced to two years imprisonment, stands. As that offence and the robbery arise out of the same circumstances, it is appropriate that that sentence should be concurrent with the sentence imposed for the robbery. 

[28] Counsel for the Crown submitted that an appropriate sentence for the robbery was imprisonment for a term of six years. Counsel for the appellant accepted that this was a proper sentence. We accept those submissions. For the purpose of s 18(2) of the Court of Appeal Act, we do not consider this to be a sentence of great severity. 

The result 

[a] The verdict of guilty of and the conviction for armed robbery are quashed. 

[b] A verdict of guilty of and a conviction for robbery are substituted. 

[c] For robbery, the appellant is sentenced to a term of imprisonment of six years. 

[d] The conviction for house breaking, and the sentence for that offence of a term of imprisonment of two years, are affirmed. 

[e] The sentences for robbery and housebreaking are to be served concurrently. 

[29] We direct the office of the Attorney General to bring this judgment to the attention of the co-accused and to ensure that he has adequate independent legal advice as to the course he should now follow.