IN THE SUPREME COURT OF TONGA

R

v

Taufalele anor

Supreme Court, Nuku'alofa
Ford J
CR 395-6/2003

29 and 30 November 2004; 6 December 2004 

Criminal law – housebreaking and assault – trespass not proved – acquitted on housebreaking charge 

The two accused were brothers (Silifou aged 42 and Kolofoua aged 54) and lived in their own homes opposite the Fuaimamao Angilau's (the complainant's) house at Tatakamotonga. Up until the date of the incident the three families enjoyed a close relationship and both accused had an unwritten licence at all reasonable hours to come and go from the complainant's property at will. On 21 June 2003 at Tatakamotonga the complainant's 19-year-old nephew, Keni was in a drunken state and walked outside and was swearing in a particularly offensive manner at Silifou. Silifou ran inside and started punching Keni on the back of the head. Keni then ran out the back door with Silifou chasing after him. They ran around the house and just as Keni was about to re-enter the house through the front door the other accused, Kolofoua, arrived on the scene. They all entered the house and again Silifou threw more punches at the back of Keni's head. Both Silifou and Kolofoua were charged with assault and housebreaking. It was alleged they entered the house of the complainant as trespassers with the intention to commit a crime therein. The "crime" referred to was the assault charge. Silifou pleaded guilty to the assault charge but denied the count of housebreaking. Kolofoua denied both charges and was discharged on the assault charge. 

Held: 

1. The Court was satisfied that Kolofoua did not enter the house as a trespasser or with the intention of committing a crime. Although he was sympathetic to Silifou's situation, his main objective was to break up the fight. Kolofoua was, accordingly, discharged on the count of housebreaking. 

2. The Court was satisfied that the complainant never at any stage regarded Silifou as a trespasser and, for his part, Silifou did not have the necessary mens rea to be a trespasser. This was consistent with the observations made earlier to the effect that prior to the incident, the accused and the complainant's families were good friends and good neighbours and the accused had an unwritten licence at all reasonable hours to come and go from the complainant's property at will. 

3. The Crown failed to establish to the required standard of proof in criminal cases that Silifou entered the complainant's house as a trespasser and he was acquitted and discharged, accordingly, on that count. 

Cases considered:
R v Collins [1972] 2 All ER 1105
R v Jones [1976] 3All ER 54

Statutes considered:
Criminal Offences Act (Cap 18)
Theft Act 1968 (UK)

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

Judgment

The two accused are brothers. Silifou is 42 years of age and Kolofoua is 54. They are both married with families. Each has been charged with one count of housebreaking and one count of assault. It is alleged that on 21 June 2003 at Tatakamotonga they entered the house of the complainant, Fuaimamao Angilau, as trespassers with the intention to commit a crime therein. The "crime" referred to is the subject of count two in the indictment, namely the assault charge. It is alleged that they assaulted the victim, Keni Tu'akalau, "by punching his body". Keni is the complainant's 19-year-old nephew. 

Silifou pleaded guilty to the charge of assault but not guilty to the housebreaking count. Kolofoua pleaded not guilty to both charges. At the end of the Crown case I upheld a no case submission made on behalf of Kolofoua in respect of the assault count and he was acquitted accordingly. 

The defence did not call evidence but Mr Tu'utafaiva challenged the Crown's assertion that the two accused were housebreakers. His submissions were primarily directed at the wording of section 173 of the Criminal Offences Act (Cap 18) which creates the offence of housebreaking and, in particular, the phrase "enters any building ... as a trespasser". The section reads: 

"173. (1) A person is guilty of housebreaking if 

(a) he enters any building or part of a building as a trespasser and with intent to commit any crime." 

The two accused live in their own homes opposite the complainant's house at Tatakamotonga. The evidence established that up until the date of the incident giving rise to the present charges the three families enjoyed a close relationship. The two accused were particularly well acquainted with the complainant's husband who was actually overseas at the relevant time. They would call into the complainant's house from time to time to, watch television and videos. The families would also exchange food supplies such as vegetables and fish. I am satisfied that both accused would have been more than welcome to enter the complainant's home at any reasonable hour of the day. In no way would they have been regarded as trespassers. 

The evidence leading up to the incident at the complainant's home was complicated by another event earlier in the day involving the same victim, Keni. I need not go into the details of that first incident but suffice it to say that Keni was involved in a fight. I must say that I did not find Keni a very impressive witness and his evidence about the fight was self-serving and vague. He did say that three men had attacked him and one was the accused, Silifou. Keni made out that he was an entirely innocent party but I do not believe him. 

The day in question was a Saturday and Keni had been drinking beer since the early morning hours. I am satisfied that by the afternoon he was very drunk. The complainant told the court that the incident happened about 3 pm. 

As I have mentioned, Keni is the complainant's nephew. He had apparently walked to her house after the earlier fight which had taken place on the outskirts of the village of Tatakamotonga down by the lagoon. The complainant's 18-year-old daughter, Salote, was at home when Keni arrived on the scene. She said in evidence that he had swollen eyes and blood running from his mouth and nose. 

Keni sat down inside the livingroom of his aunty's house and Salote ran over to the tap to fetch some water and a towel to wipe the blood from his face. Apparently Keni's half-sister Ngalu was also present. She had been with Salote but she was not called as a witness and it was difficult from the evidence to pinpoint her exact movements and involvement, if any. 

In terms of what happened next in the narrative, however, it is significant that Keni was at that point in the company of three women relatives: his aunty (the complainant), his first cousin Salote and his half-sister Ngalu. It is common knowledge, and evidence was given to this effect, that in Tongan society the use of swear words in the presence of any female company is unacceptable. Swearing by a male person in the presence of close relatives such as an aunty, sister or first cousin is particularly offensive and strictly taboo. 

It appears from the evidence that after Salote had wiped the blood from Keni's face he looked out the front door and spotted the accused Silifou who was standing over the road outside his own home. Keni proceeded to walk outside swearing at Silifou. I need not repeat the language used but I accept, as the witnesses indicated, that it was particularly offensive. 

Silifou then jumped over the fence on his property and came running after Keni. Keni ran back inside his aunty's house. Silifou entered the house and the aunty immediately moved over to him and tried to hold him off and calm him down. She apologised to Silifou over Keni's swearing but Silifou broke free and started punching Keni on the back of the head. Keni then ran out the back door with Silifou chasing after him. They ran around the house and just as Keni was about to re-enter the house through the front door the other accused, Kolofoua, arrived on the scene. 

They all entered the house and again Silifou threw more punches at the back of Keni's head. Salote, who appeared to be a reasonably credible witness, told the court that the reason Silifou attacked Keni was because Keni had been swearing at him. She said that she had found Keni's swearing offensive. 

In a statement made to the police, Kolofoua said that he had gone across and entered the complainant's house to stop Silifou from beating Keni. There was evidence that Kolofoua held on to Keni at one stage around the upper part of his body but, while technically that amounts to an assault, the assault that he has been charged with is punching Keni, not holding on to him. There was no evidence from either the victim or any other witness that Kolofoua had punched Keni and that was the basis of the no case submission which I upheld. Neither accused gave evidence. They did not have to of course because, as in any criminal case, the onus is on the Crown to prove all the necessary elements of each offence. 

As I have indicated, Silifou pleaded guilty to the assault charge but denied the count of housebreaking. Kolofoua denied both charges and he has been discharged on the assault charge. I am only concerned, therefore, with the two housebreaking counts. 

I do not have any difficulty in deciding the case against Kolofoua. I am satisfied that he did not enter the house as a trespasser or with the intention of committing a crime. Although he was sympathetic to Silifou's situation, I accept that his main objective was to break up the fight. Kolofoua is, accordingly, discharged on the count of housebreaking. 

With Silifou the situation is different. Crown counsel submitted that while he had the right to enter the complainant's home to watch television and videos, he did not have permission to enter the house to commit a crime. He became a trespasser, Crown counsel submitted, when he entered the house with intent to commit a crime. Counsel referred to a passage from Adams on Criminal Law, para CA 241.02 which states: 

"The best evidence of intent to commit a crime will be proof that a crime was committed inside the premises entered . ."

In this case, the crime the Crown relies upon is the admitted act of assault. 

For his part, Mr Tu'utafaiva submitted that there are two elements to the offence of housebreaking, namely, (1) that the accused entered the building as a trespasser and (2) with intent to commit a crime. Responding to the prosecutor's submissions, he argued that if every person who enters the building with intent to commit a crime is thereby a trespasser then there would be no need for the section to make any specific reference to entering "as a trespasser". Those words, on that approach, would be mere surplusage whereas the court should endeavour to give significance and meaning to all the words used in a section creating an offence. 

Both counsel referred to helpful and relevant legal authorities and I am obliged to them for their succinct submissions. Reference was made also to section 9(1)(a) of the (UK) Theft Act 1968 which creates the offence of burglary. The wording is virtually identical to section 173(1)(a). It reads: 

"9.(1) A person is guilty of burglary if 

(a) he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2) below." 

The offences mentioned are theft, inflicting grievous bodily harm, rape and causing unlawful damage to the building. 

Reference was also made by counsel to cases decided under the English legislation, in particular, R v Collins [1972] 2 All ER 1105 and R v Jones [1976] 3All ER 54. In Jones's case, which is perhaps the most relevant to the facts are the present case, two accused were charged with burglary. It was alleged that they had broken into a house belonging to the father of one of the accused and stolen two television sets. The father had not been in the house at the time. When he later discovered that the television sets were missing he made a complaint to the police and the two accused were subsequently arrested and charged. 

The defence raised was essentially that the complainant's son had unreserved permission to use his father's house at any time and the question the court, had to consider was whether, in these circumstances, the son could be said to have entered the house as a trespasser. The court held that a person is a trespasser if he enters the premises of another knowing that he is entering in excess of the permission that had been given to him, or if he is reckless as to whether his entry was in excess of the permission. The court added a proviso that facts had to be known to the accused which enabled him to realise that he was acting in excess of the permission given. 

Crown counsel invited the court to follow that reasoning in the present case and find Silifou a trespasser because when he entered the complainant's house with the intention of assaulting Keni, he was entering in excess of the otherwise effective unreserved permission he had to enter the house. 

Jones's case can immediately be distinguished, however, from the facts of the case before me because in that case the premises were unoccupied at the time of entry. The court, in other words, was dealing with a hypothetical situation in that it had to consider whether the accused had entered the house with the knowledge that entry was being effected in excess of the permission he had been given by his father. For his part, the father obviously had second thoughts about the matter after his son had been charged with the offence. He changed his story and in the end was declared a hostile and unreliable witness. So the court had to have recourse to legal principles to determine whether or not the son was a trespasser. 

In the present case, the situation is quite different because the house was occupied at the time of entry and I am able, therefore, to make a clear finding on the facts as to whether or not Silifou was a trespasser. I do not need to revert to legal principles to resolve this element of the offence. 

As a starting point, I am satisfied that the complainant would have realised that her nephew, Keni, was inviting trouble as soon as he went outside in his drunken state and began shouting abusive words to Silifou. When Silifou then chased Keni back into the complainant's house, it is significant that the complainant did not try to prevent Silifou from entering her home nor at any time did she tell him to leave. What she did was apologise to him over her nephew's abusive behaviour and she tried to prevent Silifou from attacking Keni. In other words, the complainant's concern was not over Silifou having entered her house but over what was going to happen once he caught up with Keni. 

Even though the complainant feared what was going to happen to her nephew, I am satisfied that she never at any stage regarded Silifou as a trespasser and, for his part, Silifou did not have the necessary mens rea to be a trespasser. My finding in this regard is, of course, consistent with the observations I made earlier in this judgment to the effect that prior to the incident, the accused and the complainant's families were good friends and good neighbours and the accused had an unwritten licence at all reasonable hours to come and go from the complainant's property at will. 

The Crown, in other words, has failed to establish to the required standard of proof in criminal cases that Silifou entered the complainant's house as a trespasser and he is acquitted and discharged, accordingly, on that count.