IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION

CR 350-351/2003

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

Dates of hearing: 9, 10, 11 and 19 February 2004
Date of written submissions: 27 February and 5 March 2004
Date of judgment: 8 March 2004

JUDGMENT

Much of this hearing was occupied by argument on the voir dire. Mr Tu'utafaiva made a strong challenge to the admissibility of the statements made by the two accused to the police. He contended that the statements were not given voluntary in terms of section 21 of the Evidence Act (CAP. 15) but as the result of threats and inducements by the police officer in charge of the case, PC Tu'vailala. Alternatively, Counsel submitted that the confessions should have been excluded in the exercise of the court's discretion under section 22 of the Evidence Act.

The so-called inducement was a statement allegedly made by PC Tu'vailala to the two accused back in the village when they were first apprehended. It was alleged that the officer then told them that if they confessed to the crime under investigation then things would proceed much quicker and the accused Sime was told that he would be free later that day to return to a church youth meeting in his village. It was also said that the officer had told the accused that they were being taken to the police station only to make a statement about a third party and then they would be released.

The "threat" was allegedly made to Napa'a. It was put to the officer that he had threatened Napa'a when he was first picked up in the police car by saying to him that if he did not own up to the crime then he would be the main suspect and the co-accused, Sime, would be a witness for the Crown. There were other submissions made in the course of the voir dire argument but those were the principal allegations relied upon.

Mr Tu'utafaiva quite properly put each proposition to PC Tu'vailala during cross-examination but the officer denied them quite vehemently. There was apparently another police officer present in the car who presumably could have given evidence in the case but for some reason he was not called.

In the end I ruled against the two accused and held that the statements were admissible. The Crown, in other words, had proved to my satisfaction beyond doubt that the statements were given voluntarily. After listening to the two accused, I was not satisfied that the statements attributable to the police officer had, in fact, been made but, even more importantly, evidence was given by the countersigning officers who had sat in on the interviews conducted by PC Tu'vailala back at the police station. They were both impressive witnesses and their evidence convinced me that the statements in question were voluntarily given. In fact, neither countersigning officer was seriously challenged under cross-examination over his assertion to that effect.

The charges faced by the accused relate to the theft of an outboard motor from a boat moored off the beach at Sopu in March 2003. Napa'a was charged with conspiring to commit theft, theft and receiving. Sime was charged with conspiring to commit theft and theft. A third party, Sefo Filimone, whose name figured prominently in the trial, was also charged at the same time with four counts relating to the stolen outboard motor. Sefo initially pleaded guilty to each charge. He was convicted and imprisoned. Subsequently, he appealed his conviction and sentence and that matter is still pending in the Court of Appeal. Sefo, as he was referred to throughout, did not give evidence in the present case.

Although the point was not taken by Counsel for the accused, the Crown should have been required to elect whether to proceed on the substantive charge of theft or on the conspiracy count. I am satisfied, however, that no prejudice has resulted to the accused from the oversight. The conspiracy count adds nothing to the substantive charge of theft and it is accordingly struck out from each indictment.

The same applies to the receiving charge against Napa'a. It relates to the same outboard motor. The Crown's case was that within a day or two of the theft, Sefo took the outboard motor around to Napa'a's house where it was left until it was eventually given to another person some two months later. Although there is thus a foundation for the charge, the Crown should not be encouraged to overload indictments. The gist of the Crown's case against each accused is that he stole the outboard motor and, hence, was guilty of theft. As is noted in Blackstone's Criminal Practice (1993) p.1146:

"Nothing is gained and much is lost in terms of simplicity of presentation to the jury if the indictment contains counts for all the offences of which the accused may possibly be guilty. This is without prejudice to cases where the prosecution evidence is such that the drafter is genuinely unsure about which of a number of possible alternative offences the jury might choose to convict on. In that situation it is proper to put all the alternatives in the indictment."

The principal is sound and it has equal application to judge alone trial. I am satisfied that there is no injustice to the accused in making the appropriate amendment to the indictment at this late stage. Accordingly, the count of receiving against Napa'a is struck out.

The case for the Crown was that Sefo was the mastermind in the criminal enterprise. He was leader of the Church youth in the Free Wesleyan Church at Ha'alalo. In March 2003 Sefo decided to steal an outboard motor and he invited the two accused to help him. On a subsequent day, Sefo picked up the two accused in his car and drove to Sopu beach. Sefo apparently identified a boat offshore fitted with an outboard motor and they then drove around Nuku'alofa for a period waiting for low tide. When they arrived back at Sopu, Sefo remained in the vehicle and the two accused walked out to the boat and retrieved the motor. It was placed in the boot of the car and Sefo then dropped the two accused back in their home village of Ha'alalo.

These facts were admitted by the accused in their statements to the police taken some time later after the stolen outboard motor had been retrieved although Sime said that they initially tried to remove a motor from another boat but that proved too difficult.

The stolen outboard motor was a 30 horsepower Yamaha coloured grey and blue. Napa'a told the police that Sefo brought the outboard motor back to his (Napa'a's) place where it remained until Sefo eventually sold it to a man called Leimoni who was training the Church youth of Ha'alalo for a concert.

The owner of the boat, Feleti Niua, was able to identify the period when the motor was stolen. He told the court that he reported the theft to the police and it was over two months later before it was recovered. He had no difficulty identifying the recovered outboard motor as his own, even though by then it had been painted black in colour.

Exactly how the motor came to be recovered by the police is a long and complicated story and even now the court is not satisfied that all the relevant facts have been disclosed. Needless to say, Sefo again figures prominently in the narrative. It appears that he is alleged to have given the stolen outboard motor to Leimoni Tatafu in payment for his services in organising the Church youth concert but he did not disclose that fact to the Church youth committee of which he was president. Instead, it appears that he falsely misrepresented to the committee that Leimoni needed $1500 to send his wife to New Zealand to visit her sick father. The committee secretary arranged for the $1500 to be given to Leimoni. Leimoni, believing that he was receiving the payment for his choreography work for the concert, then gave the $1500 to Sefo in exchange for the outboard motor.

Significantly, Leimoni told the court that after he handed over the money Sefo drove him to the accused Napa'a's house and he picked up the outboard motor which was inside the house by Napa'a's bed. Leimoni told the court that he estimated the value of the outboard motor to be around $3000 and, accordingly, he believed that he was getting a bargain from Sefo when he was able to purchase it for only half that price. Later that same night, however, Sefo apparently disclosed to Leimoni that the motor had been stolen from a boat in Sopu. Leimoni decided that he wanted nothing more to do with it and he delivered it back to the treasurer of the Church Youth Committee. A senior Church steward then took the motor to the police.

That is a summary of the evidence, as I understand it, relating to the recovery of the motor. None of those facts were really disputed by the accused apart from the evidence given by Leimoni that when Sefo gave him the motor it was picked up from beside the bed inside Napa'a's house. Mr Tu'utafaiva cross-examined Leimoni quite aggressively over this assertion and he put it to the witness that the motor was not by the bed but by the door to Napa'a's house. Leimoni, however, remained unshaken in his evidence and I found him to be a credible witness.

There were no eyewitnesses to the theft itself and the Crown's case depends almost entirely upon the statements made by the two accused to PC Tu'vailala. As was stated by Lewis J. in Fa'aosi v Crown App 8/96:

"There is no requirement that the confession must be corroborated. A Confession alone can be sufficient to justify a conviction where the judge or jury are satisfied that it is reliable and cogent evidence."

Theft is defined in section 143 of the Criminal Offences Act. There are four elements which the Crown must prove. First, a taking, that is a physical moving of the item for however short a distance, so long as the accused had the intention to steal the item at the time it was moved. Secondly, the taking must be deliberate and dishonest. Thirdly, the taking must be without colour of right, that is, without any honest but mistaken belief in a right to take it and finally, there must be an intention to deprive the owner permanently of that item. A mere borrowing would not be sufficient.

The onus is on the Crown to prove each of those elements beyond reasonable doubt.

Both accused elected to give evidence. Napa'a said that Sefo had come and asked him if he could help him take the outboard motor. Not long after the motor had been taken, Sefo have brought it around to Napa'a's home and had asked him if he could leave it with him. The witness said that it remained for some two months by the door to his house. In evidence in chief, Napa'a was asked by his counsel why Sefo had left the motor at his place. The witness replied, "he (Sefo) said the reason was that he wanted to come into town and do a deal with people who want to buy his motor."

Napa'a said that two or three days after Sefo had dropped off the motor at his home he appeared again and gave Napa'a $500 and told him to buy something for his kids. In cross-examination Napa'a admitted that by the time Sefo had given him the money, he knew that the motor had been stolen but he did not understand that the money he had been given had anything to do with the stolen motor.

The accused Sime in his evidence said that Sefo had come and asked him to help take off his outboard motor. They knew each other well because he was a member of the Church youth and Sefo was the Youth Committee president.

Although both accused appeared to be somewhat naive, I have no doubt that what each told the police in his record of interview was the truth of the matter and I did not believe their explanation in evidence before me that they thought the motor had belonged to Sefo. Their statements to the police were detailed and cogent. They clearly admitted stealing the outboard motor for Sefo and both went on to express remorse for what they had done.

The Crown has proved the count of theft against each accused beyond reasonable doubt and they are convicted accordingly.

NUKU'ALOFA: 8 MARCH 2004

JUDGE