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R v Sakopo [2002] TongaLawRp 39; [2002] Tonga LR 259 (29 August 2002)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

CrA 13/2002

R

v

Sakopo

Ward CJ
29 August 2002; 29 August 2002

Criminal law – appeal against acquittal for theft – magistrate's decision not interfered with

The respondent was a serving police officer and was tried in the Magistrates' Court on 7 May 2002 charged with theft of a rug. The prosecution allege that, whilst he was on duty, he removed a rug from a vehicle that had been involved in an accident and was in the police station. He then placed it in the boot of his private vehicle. This was seen by a sergeant in the police station and the respondent was arrested. The respondent's defence was that another officer who was working with him had removed the rug and, when the respondent saw that, he told him not to do it. He then took the rug to make sure it was not stolen. He placed it in the boot of his car for safety. He accepted that it was not proper police procedure and he should have taken it to the charge office. He pleaded not guilty and was acquitted. The prosecution appealed that decision.

Held:

1. The magistrate had the advantage of having seen and heard the witnesses and, having done so, came to the conclusion that the respondent may have been acting honestly. That was a conclusion he could have reached on the evidence and the appeal was dismissed.

Counsel for appellant: Mr Pouono
No appearance for respondent

Judgment

The respondent was tried in the Magistrates' Court on 7 May 2002 on a charge of theft of a rug. He pleaded not guilty and was acquitted. The prosecution appeal that decision on the grounds that:

1. The decision that there is not sufficient evidence is wrong since it is against the nature of the evidence.

2. The decision to acquit the accused is wrong since it is against the nature of the evidence.

The respondent is a serving police officer and the allegation was that, whilst he was on duty, he removed a rug from a vehicle that had been involved in an accident and was in the police station. He then placed it in the boot of his private vehicle.

This was seen by a sergeant in the police station and the accused was arrested.

His defence was that another officer who was working with him had removed the rug and, when the respondent saw that, he told him not to do it. He then took the rug to make sure it was not stolen. He placed it in the boot of his car for safety. He accepted that it was not proper police procedure and he should have taken it to the charge office.

A lance corporal called for the prosecution agreed that there had been another officer who had taken the rug and that the respondent had told him not to so. The respondent then took the rug himself.

In his judgment, the magistrate summarised the evidence and stated that he doubted the element of dishonest taking and concluded; "Wherever the accused put the rug, he had a good reason for taking the rug to keep it from being lost and they would be blamed for it. Therefore I will acquit the accused for the reason of benefit of doubt."

The ground of the appeal is that the magistrate acquitted the accused on the basis that there was insufficient evidence but it can be seen from the passage quoted above that he did so because the prosecution did not satisfy him beyond reasonable doubt.

It is well established that an appellate court will only interfere with a lower court's findings of fact if it is satisfied that no reasonable court properly directed could have reached such a conclusion. It will not simply substitute its own opinion for that of the lower court.

It is easy to understand the prosecution criticism. It is hard to imagine that any court would believe, when an officer has put someone else's property in his private car when it would be just as easy, and in conformity with police practice, to place it in the charge office, that he is doing so to protect the property. However, the magistrate had the advantage in this case of having seen and heard the witnesses and, having done so, came to the conclusion that the respondent may have been acting honestly. That is a conclusion he could have reached on the evidence and the appeal is dismissed.