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R v Vete [2004] TongaLawRp 41; [2004] Tonga LR 263 (19 August 2004)

IN THE SUPREME COURT OF TONGA

R

v

Vete anor

Supreme Court, Nuku'alofa
McElrea J
CR 112-3/2001

16-19 August 2004; 19 August 2004

Criminal law – assault with intent to rob and possession of arms without a licence – guilty

The Crown contended that on 9 May 2001 the two accused, Vete and Latu, and their former co-accused Latu Inu Paseka (now deceased) decided to rob the complainant, a Chinese businessman (Ming Seng Tsay), using a gun provided by the first accused Vete, and when they found he had no money on him they assaulted him to try and get him into their car, still with the intent to rob him. The gun used was not licensed. The two accused were each charged with assault with intent to rob (count 2) and with possession of arms without a licence (count 3). Vete's defence was that while he was there at the time, the Crown did not prove that he provided the gun, or had any intent to rob, or assault Tsay other than by possibly holding his hand. Latu's defence focussed on the reliability of the only witness who identified him (Molonai Holeva), based on alleged discrepancies.

Held:

1. Although the Crown did not have to prove particular items of evidence beyond reasonable doubt but only the components of the offence, the gun was so relevant to both charges that it was only safe to apply the criminal standard of proof to the dealings with this gun. The Court was satisfied beyond reasonable doubt that Vete got the gun from his home and put it in the car for a purpose he had discussed with at least Paseka, namely the incident that was about to occur, or possibly some other incident if a more convenient target appeared in sight. While acknowledging the accuseds' right to silence, there was no denial from Vete which had to be balanced against the evidence so strongly stacked against him by the Crown.

2. The definition of assault includes wilfully and without lawful justification applying or attempting to apply force to another person, directly or indirectly. It need not be a violent act, and intentionally taking hold of the victim's hand or arm without his consent would be an assault, as would the pushing of the victim towards the car.

3. Intention to rob was proved beyond reasonable doubt for each accused by a process of inference from a number of proved facts, and it was the only reasonable conclusion on the evidence.

4. The remaining elements of count 2 - identity of accused, identity of the complainant, and time and place of offending - were all proved beyond reasonable doubt. As all components of the charge were proved beyond reasonable doubt, the court entered a guilty verdict against each accused.

5. The elements of the charge in count 3 were the identity of the accused, the date and place of the offence, the possession of the arm and the lack of a licence.