IN THE SUPREME COURT OF TONGA

R

v

Taufa

Supreme Court, Nuku'alofa
Ford J
CR 309/2003

6 February 2004; 10 February 2004

Customs and excise – allegation of illegal sale of duty free goods – not proven

On 4 March 2003 the police had staked out the Leiola Downtown Duty Free shop in Nuku'alofa. At around 11 am they observed Senituli Finau and another man, Vaka Le'ota, go into the store. Le'ota was carrying a black bag. About five minutes later the two men came out of the shop. The police followed them and Officer Paseka apprehended them just after they had placed the black bag on the back seat of their vehicle which had been parked a short distance away. The bag was found to contain four 2 litre bottles of gin. Senituli and Le'ota were arrested and taken back to the police station. The accused was a Customs Officer and was charged with one count of evading Customs laws regarding imported goods. He was alleged to have knowingly dealt with goods with intent to defraud the revenue of duties thereon, "in that he knowingly allowed Belinda Tu'ima to sell 4 bottles of dry gin to Senituli Finau duty-free which he was not entitled to."

Held:

1. The onus was on the Crown to prove all the elements of the offence beyond reasonable doubt. The evidence fell well short of meeting that standard. For example there was simply no evidence to show that Senituli Finau was not entitled to purchase duty-free liquor.

2. With respect to Crown counsel's submission that the circumstantial evidence established the accused's guilt, the Court held that there needed to be a solid factual basis for such a submission and none was established. The court could only act on proven evidence not on unwarranted assumptions and speculation.

3. The accused was discharged. 

Statute considered:
Customs and Excise Act (Cap 67)

Counsel for the Crown: Ms Guttenbeil
Counsel for the accused: Mr Tu'utafaiva

Judgment

The accused is charged with one count of "evading Customs laws regarding imported goods, contrary to section 210(1)(d) of the Customs and Excise Act (Cap 67)." The particulars in the indictment allege that on 4 March 2003 the accused, being a Customs Officer, knowingly dealt with goods with intent to defraud the revenue of duties thereon, "in that he knowingly allowed Belinda Tu'ima to sell 4 bottles of dry gin to Senituli Finau duty-free which he was not entitled to."

On the day in question, the police, obviously acting upon a tipoff, had staked out the Leiola Downtown Duty Free shop in Nuku'alofa. At around 11 a.m. they observed Senituli Finau and another man, Vaka Le'ota, go into the store. Le'ota was carrying a black bag. Time estimates varied but one of the officers, Constable Paseka, said that approximately five minutes later the two men came out of the shop. The police followed them and Officer Paseka apprehended them just after they had placed the black bag on the back seat of their vehicle which had been parked a short distance away in Wellington Road. The bag was found to contain four 2 litre bottles of gin. Senituli and Le'ota were arrested and taken back to the police station.

The two police officers who gave evidence in the case said nothing at all about the involvement of the accused in the affair apart from Constable Paseka who, towards the end of his evidence, told the court that the accused was taken to the police station on 5 March and on the following day, 6 March, he made a statement denying all knowledge of any sale of the gin to Senituli Finau.

The only other witness for the Crown was Fe'ofa'aki To'ia. Ms To'ia had been working for Leiola Duty Free for some 8 years but she had been based at the Salote wharf store. The day of the incident was apparently only the second day that she had worked at the downtown store. She said that the person in charge of the store at the time was Belinda Tu'ima.

Ms To'ia explained how Leiola Duty Free has a special licence to sell goods, mainly alcoholic liquor, wine and cigarettes, duty-free, to members of the diplomatic Corps, the Royal household, prospective travellers holding departure tickets and all travellers who have returned to the Kingdom from overseas within the previous 24 hours. At all times when the store is open to the public a Customs Officer is required to be on duty and he must verify each sale transaction.

The witness said that on any occasion when the Customs Officer is not in the store for some reason then, upon his return, the cashier is required to show him the receipt for the transaction. If the Customs Officer is in the store but not in the immediate vicinity when the sale is transacted then the cashier is expected to attract his attention and call him over.

Ms To'ia said that on the morning in question there was another person in the store apart from herself and Belinda. That other person was, 'Amone Fungavaka, a security man employed by Leiola. Mr Fungavaka was not called as a witness. 

In cross-examination it was put to Ms To'ia that the accused had only been working at the Leiola downtown store for one week. She replied that she did not know whether that was correct or not because she herself had only been working there for two days.

Ms To'ia said that Senituli Finau and the other person (who she did not name) had, in fact, entered the store twice on the morning in question. She confirmed that she had noticed them enter on both occasions carrying an empty black bag but she had not seen them leave the store because she had been attending to other customers. She was not asked to identify the particular bag that was later produced in evidence by one of the police officers.

Ms To'ia was unable to be precise with her time estimates but she said that the first occasion Senituli called at the store was around 9 a.m. and the second occasion was sometime between 11 and 12 noon. I prefer the police evidence that the second visit was shortly before 11 a.m. In all events, Ms To'ia said that she saw the two men go straight to the back of the store. She was asked who was in that area and she replied Belinda Tu'ima, 'Amone Fungavaka and the Customs Officer. The witness said that she was unable to say whether Senituli or the other man spoke to any of these three people at the back of the store because there was shelving between them. The witness gave no description of what was situated at the back part of the store nor did she give any indication as to how far apart from each other the various people were positioned.

That is all the evidence of any association between the accused and the two men who entered the store. Ms To'ia said nothing at all about the four bottles of gin.

The other interesting piece of evidence given by Ms To'ia was that when she and Belinda closed the store for lunch at 12.30 p.m. that particular day the police were waiting outside and they immediately took Belinda to the police station because they had apparently found duty-free cigarettes in her car outside the store. They also took Ms To'ia to the police station after Belinda alleged that the cigarettes had belonged to her. Apparently Belinda was dismissed from her employment with Leiola. It is not clear if she was also prosecuted.

Senituli Finau worked as a quarantine Officer. He did not give evidence in the case but the accused, in his statement to the police, gave the following description of what took place when Senituli Finau entered the store:

"Q.14: Who were the employees of Leiola that were at work on that day?
A: Belinda and Fe'ofa'aki and the security, namely 'Amone.

Q.15: Did you notice a quarantine Officer namely Senituli Finau come into the shop on this day?
A: Yes.

Q.16: When did Senituli actually enter the shop? 
A: In the morning hours, may be about 10 a.m.

Q.17: Why did Senituli Finau come inside the Leiola shop?
A: I do not know that he went directly to Fe'ofa'aki and Belinda and they talked and after a short while he left without my having any knowledge of why he came inside.

Q.18: Were you inside Leiola duty free shop when Senituli Finau came in?
A: Yes, but I was sitting at the back but I saw him coming inside.

Q.19: Was there anyone else who entered together with Senituli into the shop?
A: No, it was only Senituli because I greeted him saying, 'hello'.

Q.20: Didn't you ask Senituli Finau whether you could come and check why he came into the Leiola duty free shop?
A: No.

Q.21: Why didn't you check to know why he came into the shop?
A: Because he was only in the shop for just a short time before he went outside and during that time I was counting the bottles of wine that were at the back."

Although it is not entirely clear, it would seem that the accused in this passage of his police record of interview may have been talking about the first occasion when Senituli had entered the shop on the morning in question. If so, it means that he was not asked any questions by the police about Senituli's second visit.

The accused elected not to give evidence. He did not have to, of course, and a factor in his decision may well have been the point Mr Tu'utafaiva gave some prominence to in his closing submissions, namely, that none of the Crown witnesses had formally identified the accused in court. Crown counsel conceded that there had been no formal identification.

Mr Tu'utafavia also submitted that the accused was charged with knowingly allowing Belinda Tu'ima to sell the four bottles of gin to Senituli Finau but there was simply no evidence whatsoever to show that a sale had taken place. As counsel put it, there were no receipts or other documentation produced evidencing any sale in terms of the allegation in the indictment. When Ms To'ia was asked in evidence in chief whether she knew or would have known had Senituli purchased anything at the shop her answer to both questions was in the negative.

It seems that the person in charge, Belinda Tu'ima, was involved in some type of criminal activity in relation to the cigarettes. The extent of her involvement in the gin transaction was not explored in evidence before me but, given her position of responsibility, it does not automatically follow that the accused must have been a party to the alleged fraudulent act.

The onus is on the Crown to prove all the elements of the offence beyond reasonable doubt. The evidence in this case falls well short of meeting that standard. For one thing, although there was no submission on the point, there is simply no evidence before me to show that Senituli Finau was not entitled to purchase duty-free liquor. 

Crown counsel submitted that the circumstantial evidence establishes the accused's guilt. There needs to be a solid factual basis for such a submission, however, and none was established in this case. There are obviously witnesses who could have given direct evidence on some of the important elements the Crown needed to establish. The court has no idea why they were not called. The court can only act on proven evidence not on unwarranted assumptions and speculation.

The accused is discharged.