IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

CR 440 -445/03

BETWEEN:

REX
Prosecution

AND:

1. SIAOSI FUNAKI
2. TONGA SIMIKI
3. TOME UHI
4. KATOA HOLANI
5. TEASIO ‘I LOMA
6. SIONE TUPOU BOURKE
Accused

BEFORE HON JUSTICE FORD

Counsel: Mr Sisifa for the Crown; Mr Kengike for the first accused; Mr Tu'utafaiva for the second and sixth accused and Mr Fakahua for the third, fourth and fifth accused 

Dates of trial: 7, 8, 9, 10 March 2005
Dates of written submissions: 24, 31 March and 7 April 2005
Date of judgment: 20 April 2005

JUDGMENT

Background

There are six accused before the Court. The first accused, Siaosi Funaki, is charged with one count of theft and the five other accused are charged with abetting Funaki in the commission of the theft. The particulars of the theft count set out in the indictment read as follows:

"PARTICULARS

Siaosi Fata Funaki

On or about the month of June and July 2003, at Fanga, you stole: 365 cartons of chickens, 13 cartons of hot dogs, nine cartons of mutton neck (sic), five cartons of turkey tails, these properties amounted to a total value of T.$19,045.00 belonging to 'Ofa Simiki."

'Ofa Simiki told the court that she has been in business since 1996 trading under the name of "OSB Trading". She described her business as wholesaling and retailing. The evidence was that she imports by the container-load, cartons of chickens, turkey tails and hot dogs from the United States and cartons of mutton and lamb products from New Zealand.

The two containers were apparently always stored to the side of the building in which the OSB shop is situated. As product was required in the shop, it would be taken by the complainant's delivery truck from the container to the shop and all leftover would then be returned to the container by the same method each night. Although the evidence was rather vague, it would appear that deliveries were also made from time to time directly from out of the containers to other retail stores around Nuku'alofa. The accused Funaki, Simiki and Burke were responsible for these particular tasks. 

The evidence was confusing as to whether there were, in fact, one or two containers located to the side of the OSB building. In the end, I do not think that anything hinges on the point and so I have proceeded on the basis that, at all material times, there were two containers but I acknowledge that that factual statement may not be correct; the Crown's evidence on the matter was quite ambiguous.

'Ofa Simiki explained in evidence how at any one time she would employ on the average approximately 15 staff but her employees are invariably young people with a low level of academic achievement. Her mission, she told the Court, is to provide an opportunity for such youngsters to try and make something out of their lives. The complainant explained that her employees are not given any specific job descriptions. They are expected to help each other and work in whatever area of the business the demand may, from time to time, require.

The evidence was that three of the accused, the first, second and sixth accused, all worked for the complainant. The second accused is, in fact, her stepson. The second and sixth accused both lived at the complainant's house at the time of the alleged offending.

The Crown Case

'Ofa Simiki wrote a letter dated 17 July 2003 which formed the basis of her complaint to the Police. The letter, as translated, read:

"Sir,

I 'Ofa Simiki, 43 years old, residing at Fangaloto, do wish to make a complaint in regard to my container which was stationed at my shop at Fanga. Inside were 945 cartons at 15 kg each -- 50 boxes of hot dogs, 20 boxes of crab meat, 100 boxes of turkey tails. I have proved today that 365 cartons of chickens, 13 cartons of hot dogs, five cartons of turkey tails and nine cartons of lamb necks have disappeared.

So the items that have disappeared are like this:

9 cartons of lamb necks x $96 = $864.00
365 cartons of chickens x $47 = $17,155.00
13 cartons of hot dogs x $57 = $741.00
5 cartons of turkey tails x $57 = $285.00
 total = $19,045.00

I have gathered information from 'Akosita Tangulu, Salesi, Paula, Lini that this is what has disappeared.

Thank you

'Ofa Simiki."

'Ofa may have been able to satisfy herself as to the nature and amount of product that had disappeared from her container or containers but she did not produce any documentation whatsoever to back up her claim and when challenged in cross-examination on this aspect of the case, I found her evidence less than convincing.

The Crown is required to prove all the elements of the various charges beyond reasonable doubt. 'Ofa said that she had relevant supporting documentation which would establish the figures she gave to the Court but the documentation was not produced in evidence. It should have been. Unless the prosecutor had a clear agreement with defence counsel that these matters were not in dispute then it behoved him to produce the evidence needed to back up the Crown's case.

Nevertheless, having regard to the totality of the evidence before the Court, I am prepared to accept, as proven beyond reasonable doubt, that cartons of product were stolen from the containers on more than one occasion over the two-month period in question.

To establish a theft charge, it is not necessary for the Crown to prove that all the articles mentioned in the indictment had been stolen. If it is proved that the accused stole one of the items then that is sufficient -- see Machent v Quinn [1970] 2 All ER 255.

The case for the Crown in opening was that the charge arose out of six separate incidents during June and July 2003 where all or some of the offenders were involved.

Apart from 'Ofa Simiki, the Crown also called evidence from 'Anau Ngalu. 'Anau told the Court that she was working at the OSB store in 2003 on clerical duties and she and 'Ofa kept the keys to the containers. She had been instructed by 'Ofa to give the keys to "the boys" when they needed them but the boys were meant to return the keys to the office or to 'Ofa after use. 'Anau related how, sometime in June or July 2003, she had given the keys to the containers to the first accused, Funaki, and he had failed to return them but she said that she had not realised that the keys had not been returned until after the theft had been discovered.

The next witness called by the Crown was Malusiu Motulalo ("Malu"), a 31-year-old motor mechanic from Kolomotu'a. Malu told the Court about one incident on the night of 16 July 2003. He was asleep at his home and he was woken by the accused Holani and asked if he had a vehicle available to make some deliveries. Malu agreed to make available a 3 ton truck he had been working on which actually belonged to Holani's father on condition that he go with them and that he drives the vehicle. He was paid $100 to make the delivery from the containers to a Chinese shop.

Malu said that there were four people involved in loading the truck with cartons from the containers but he could identify only Holani, Funaki and Tu'itakau. The witness told the court that he had no idea that there was anything unlawful going on because nothing was broken into. He explained how, when they arrived at the shop, Funaki went into the shop using a key and then another key was used to open one of the containers. He also made the observation that the containers were parked under a bright outside light.

Malu explained how two of the men fetched the cartons from out of the container while the other two were up on the deck of the truck stacking the cartons in place. He estimated, but he was not certain, that there could have been more than 100 cartons taken from the containers that night and delivered to the Chinese shop.

Another witness for the Crown was Salesi Funaki (the Court was not told if he is related to the first accused). Salesi was returning home that same night and as he turned into his residence not far from the OSB store he noticed the truck with the cartons on the back pulling out onto the main road. He immediately recognised one of the people on the back of the truck as the first accused, Funaki, because he was a frequent customer at the OSB store where Funaki worked. The witness was unable to identify anyone else on the truck but he told the court that, because of the late hour, he was suspicious that they might be stealing and so he took a note of the vehicle's registration number.

The only other witness for the Crown was a police investigating officer, Lance Cpl 'Ahofono, although there was a challenge on the voir dire by Mr Fakahua on behalf of his three clients and three other police officers gave evidence during the hearing on the voir dire.

The First Accused 

As was their right, none of the accused gave or called evidence but they each made unsworn statements to the police, which the Crown case relies upon to a large extent. In his "record of interview", the first accused, Funaki, who is charged with theft admitted stealing 'Ofa Simiki's goods from the container about six times. The interview continued:

"Q. What did you take the first time and how much?
A. 10 cartons of chickens and five cartons of mutton flaps.
Q. When was the second time?
A. June.
Q. What did you take and how much?
A. 10 cartons of chickens and five cartons of mutton flaps.
Q. What about the third time?
A. 15 cartons of chickens.
Q. And the fourth time?
A. Seven cartons of chickens and seven cartons of mutton flaps.
Q. And the fifth time?
A. 10 cartons of chickens.
Q. What about the sixth time?
A. 80 cartons of chickens, five cartons of hot dogs and nine cartons of lamb necks."

Funaki went on in his unsworn record of interview to say that all the stolen goods were sold to two Chinese shops at Kolomotu'a and the $4000 received in return was shared between all the boys who had stolen the goods. He named four of the other five accused but, of course, an unsworn statement made by an accused person cannot be used as evidence against anyone else apart from himself.

The Other Five Accused

The remaining five accused are charged with abetment to theft. The indictments are identical. They read:

"STATEMENT OF OFFENCE

ABETMENT TO THEFT, contrary to sections 8 and 143 of the Criminal Offences Act

PARTICULARS OF OFFENCE 

(Name of accused), on or about the month of June and July 2003, at Fanga, you abetted Siaosi Fata Funaki in which you assisted him in stealing 365 cartons of chickens, 13 cartons of hot dog, nine cartons of mutton neck, five cartons of turkey tail, these properties amounted to a total value of T. $19,045.00 belonging to 'Ofa Simiki."

As this Court stated in R v Makahununiu (unreported) CR 195/2000 (judgment dated 6 July 2001):

"An abettor is a person who was present (presence in this context may be other actual or constructive) at the time when a crime is committed by another person and who intentionally aids or gives encouragement to the offender in the commission of the crime. The mere passive presence of the accused at the scene of the crime is not sufficient to make him an abettor. It must be shown that there was also some intentional aid or encouragement of the principal offender in the commission of the crime."

The Unsworn Statements 

As mentioned, the Crown relies to a large extent upon the unsworn record of interview of each accused and certain other police documentation to the extent that such evidence was ruled admissible after the voir dire hearing. Reference has already been made to the first accused's record of interview.

In relation to the police documentation produced in respect of the second accused, Simiki, Mr Tu'utafaiva, in his detailed written submissions, analysed the series of questions and answers recorded in the record of interview and he made the very valid point that many of the questions are ambiguous and confusing because in parts when Simiki is describing the movements of cartons from a container into the truck he is obviously talking about his regular work routine as an OSB employee. Likewise, the "sales" Simiki talks about making with goods loaded from the container into the truck could well be sales to retailers. The questions asked by the police officer are simply unclear. In his record of interview, Simiki denies any involvement in the thefts.

Mr Sisifa acknowledged that Simiki, in answering a number of questions, denied any knowledge of the thefts, but he submitted that the accused contradicted his answers in his response to other questions. Crown counsel relies upon Simiki's answers in the statement of charges: "Yes it is true" and in his voluntary statement: "What had happened is true, but the value of the amount that I was involved in is too much." At that stage, however, Simiki had been charged by the police, not with abetment to theft, but with the offence of theft as a principal.

The third accused, Uhi, admitted in his police record of interview to stealing 80 cartons of chickens and five cartons of mutton flaps from a container at 'Ofa Simiki's shop and taking them to two Chinese shops. Uhi was asked how many times he stole goods from the container. He answered twice -- once when Malu drove the three ton truck and on another occasion when he took and pawned five cartons of mutton flaps.

Uhi was also asked by the Police Interviewing Officer whether he knew he was stealing and he replied, "yes". He was duly charged in the Magistrates' Court, along with the other accused, with, "theft of 365 cartons of chickens, 13 cartons of hot dogs, nine cartons of lamb necks, five cartons of turkey tails belonging to 'Ofa Simiki worth a total amount of $19,045." In this Court he, like the other accused apart from Funaki, has been indicted, not with theft, but with "abetment to theft." 

The fourth accused, Holani, admitted in his record of interview taking goods from the container on two occasions. The first, when Malu drove the three ton truck. Holani told the police officer that he stood on the back of the truck stacking the cartons as they were brought out of the container. He said that they took 22 cartons that night and sold them to various Chinese shops. Holani said in his statement that on a second occasion in July, he and others took 30 cartons of chickens from one of the containers.

The fifth accused, Tuitakau, admitted in his record of interview stealing cartons from a container on one occasion only in July, namely, when they used the three ton truck driven by Malu. He said that on that occasion they took 30 cartons of chickens and five cartons of mutton flaps and sold them to a Chinese store. Tuitakau said that he only found out when he arrived at the container that the boys were going to steal goods from the container but he said, "I thought I'd take part in the theft."

The final accused, Burke, admitted in his record of interview stealing "20 plus" cartons of chickens from inside the shop on about five occasions and another eight cartons from a container on one occasion. He said that all the thefts took place in June.

Submissions and the Law

In his general submissions on the Crown case (which I will treat as submissions made of behalf of all the accused), Mr Tu'utafaiva attacked the form of the indictments as being bad for duplicity in that the one Count alleges that a number of thefts took place over a two-month period in June and July whereas no more than one offence should be charged in a single count.

In response, Mr Sisifa submitted that "because the dates, actual goods and amounts cannot be ascertained" the case falls within the "continuous offence" principle. Reliance in this regard was made on the old authority of R v Henwood (1870) 11 Cox 526 and the more recent case of R v McCabe [1992] Crim LR 885.

In the Henwood case, the defendant was charged with one count of theft of a number of articles from his employer over a nine-year period there being no evidence as to when the articles had been stolen or on how many occasions. Bovill C.J. said:

"Had there been evidence of distinct takings, it would have made no difference, for the case then would have been similar to the taking of coal at different times in a mine ( R v Bleasdale (1848) 2 C&K 675), and the case of cutting trees at such times as to form one continuous taking ( R v Sheppard (1868) 11 Cox 234)."

In McCabe, it was held to have been appropriate to charge one offence of 76 library books that were found together in the defendant's home which must have been taken from one or more of the 32 different branches of a library that were all owned by the same local authority.

Counsel did not produce a copy of the judgment in the McCabe case and the decision is not fully reported in the citation given; all that appears is the headnote. What is stated in the headnote does not seem to fit easily into the single activity category of case. In reference to McCabe, Archbold 2001 also makes the point (p1-143a) that:

"The commentary in the Criminal Law Review highlights the difficulty of applying the principle in respect of certain types of offence." 

As is noted in Blackstone's Criminal Practice, third edition (p.8.10), "theft is clearly not a continuous offence." The same text does, however, acknowledge the difficulty prosecutors have in drafting an indictment for theft where the evidence is that the accused on numerous occasions over a lengthy period stole items of property but it is not possible to particularise the exact days on which the appropriations occurred. To overcome the difficulty, the Courts have recognised it is possible to have a single count alleging that on days within an overall period, the accused stole all the relevant property, provided that the conduct of the accused amounted to a continuous offence over a period of time. Blackstone observes that such an allegation is usually referred to, as theft of a "general deficiency" and a count drafted in this way is not bad for duplicity. The learned authors go on to state (p D8.16):

"The test as to whether it is proper to have a single count is: Can the separate acts attributed to the accused fairly be said to form a single activity or transaction. It follows from that test that, if the particulars of a count can sensibly be interpreted as alleging a single activity, it will not be bad for duplicity, even if a number of distinct criminal acts are implied. Thus the rule against duplicity rests ultimately on common sense and pragmatic considerations of what is fair in all the circumstances."

I note that English case law has also acknowledged that a continuous taking or a taking over a period where it is not possible to prove discreet offences should be treated as one theft: Wilson v Read [1956] Crim LR 418; R v Firth (1869) LR 1 CCR 172.

Blackstone makes another important point relevant to the present case (p D8.23):

"Where a count is bad on its face for duplicity, the defence should move to quash it before the accused is arrained. Although the objection can be taken at a later stage, the Court of Appeal has disapproved of the defence postponing the application to quash for purely tactical reasons . . . In cases of quasi-duplicity, the defence should wait until the close of the prosecution case."

In the present case, objection on the grounds of duplicity was raised for the first time in defence counsel's submissions at the end of the case. No specific miscarriage of justice on this ground alone, however, has been claimed by the defence. I am satisfied that the charges do have a common factual origin and, in all the circumstances, I do not intend to quash the indictments as being bad for duplicity.

The other general submission raised by Mr Tu'utafaiva again relates to the wording of the indictments. The point counsel makes is that all the accused, apart from the first accused, are charged not with theft but with abetment of theft and they are not charged with jointly abetting the first accused or with acting for a common purpose.

The first defence raised under this head is that the indictments disclose no offence because the relevant wording of section 8 of the Criminal Offences Act provides:

"Every person who directly or indirectly commands, incites, encourages or procures the commission of an offence by any other person is an abettor" but the particulars of the offence allege that the five accused "assisted" the first accused. Mr Tu'utafaiva submitted that as "assisted" is not a term used in section 8, then the indictments do not disclose any offence. In the alternative, counsel submitted that, in any event, there is no evidence that the five accused abetted the first accused by assisting him in stealing the goods in question.

In response, Mr Sisifa submitted that the indictments clearly state the offence against the five accused as abetment of theft, thus satisfying the requirements of clause 11 of the Constitution. In relation to the particulars, Crown counsel submitted that the word "assisted" as it appears in the particulars of the offence means the same thing as the term "encourages" which does appear in section 8.

Even accepting that submission, however, it begs the question, why did the draughtsman not use "encourages" which is the word used in the statute. The omission has the hallmarks of drafting sloppiness. Returning to Blackstone, the learned authors state (p A5.1):

"The phrase "aid, abet, counsel and procure" maybe, and generally is, used as a whole even though the accused's conduct may only be properly described by one of the four constituent words. Partly for this reason, the precise meaning of each constituent word has not been authoritatively determined, but "aid" and " abet" are generally considered to cover, respectively, assistance and encouragement given at the time of the offence, whereas "counsel" and "procure" are more apt to describe advice and assistance given at an earlier stage."

Archbold Criminal Pleading, Evidence and Practice (2001, and Supplement 2003) (p 7.78), states that a conviction will not be rendered unsafe on account of some drafting or clerical error, or omission, or discrepancy, or departure from good or prescribed practice."

McElrea J. noted in another case involving a challenge to an indictment -- R v Saafi (unreported) CR 300/03 (judgment dated 12 August 2004), that:

"Standing back from the cases and returning to the requirements of the Constitution, the question is whether the offence with which the accused is charged is clearly stated in the indictment."

Findings

I accept that the particular requirement highlighted by McElrea J has been complied with but there is another element to clause 11 of the Constitution which is of particular relevance to the present case and that is the requirement that the grounds of the charge must be clearly stated in the particulars.

One of the points made forcefully by defence counsel is that the particulars of the offence do not set out the grounds relied upon in support of the claim that the five accused abetted the first accused in the commission of the theft. Defence counsel ask rhetorically, how are the five accused alleged to have abetted the first accused.

It is a fair question and it has particular relevance in the present case because, to the extent that the accused were involved in the commission of an offence, it seems clear that they were joint principals rather than abettors.

There is nothing in the particulars to indicate how the Crown alleges that the five other accused abetted the first accused. In their statements to the police their admitted involvement was as principals to the crime of theft and they were each charged in the Magistrates' Court with the offence of theft. What changed, defence counsel might well ask, between the laying of the charges in the Magistrates' Court and the presentation of the indictments in the Supreme Court where the offence is described as abetment to theft.

The usual practice is to charge a person as an abettor when he or she could not possibly have been guilty as a principal offender. That does not appear to be the situation in the present case. Blackstone (p A 5.1) states:

"A principal offender is the actual perpetrator of the offence, the person whose individual conduct satisfied the definition of the particular offence in question, whilst an accessory is one who aids, abets, counsels or procures the commission of the offence."

Both Mr Tu'utafaiva and Mr Sisifa cited (with different emphasis) the following passage from Smith & Hogan, Criminal Law, 10th edition, p145:

"Anyone whose assistance or encouragement in fact caused another to commit a crime would be a principal. The separate body of law of accessory liability is based on the assumption that the accessory does not cause the actus reus."

In the present case, to the extent that the various accused admitted an involvement, it was clearly an involvement as principal. Why they were not charged as such is not apparent to the Court but, as I have said on previous occassions, it is not up to the Court to patch up the prosecution case.

Section 42 (3) of the Criminal Offences Act provides that where the Court concludes that an accused person is not guilty of the offence specifically charged but the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence then he may be found guilty of that offence.

That provision, however, must be read subject to clause 13 (d) of the Constitution, which provides that the substituted offence cannot be a more serious offence. The Court, therefore, is not entitled to substitute the offence of theft for a count of abetment to theft.

For the foregoing reasons, notwithstanding their obvious involvement as a principal in one or more of the actual thefts, and distasteful as it is for that reason, I find that I have no alternative but to acquit and discharge all of the accused with the exception of the first accused.

In relation to the first accused, Funaki, the position is different. He admitted to theft and he was charged with theft. I am satisfied on the basis of his admissions and the other evidence adduced by the Crown that all the elements of the charge of theft have been established in his case beyond reasonable doubt.

Mr Kengike's submissions were confined in the main to challenging the admissibility of Funaki's statements to the police but counsel did not challenge the admissibility of that evidence on the voir dire hearing. In fact, Mr Kengike did not participate in the voir dire hearing which occupied a full day of the trial. As a consequence, the allegations of oppression and unfairness, which he has made in his closing submissions, were never put to the police officers concerned and they have never had the opportunity to respond. In any event, I find no reason for excluding that evidence.

The first accused is convicted accordingly on the one count of theft but, for the reasons stated earlier, only in respect of the goods to which he has specifically admitted stealing.

NUKU'ALOFA: 20 APRIL 2005

JUDGE