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R v Pohahau [2005] TongaLawRp 30; [2005] Tonga LR 363 (18 August 2005)

IN THE SUPREME COURT OF TONGA

R

v

Pohahau anors

Supreme Court, Nuku'alofa
Webster CJ
CR 316-318/03, CR 324/03, CR 342-344/03

2, 3, 5, 8, and 9 November, 6 December 2004, 22-24, 29, and 30 March, 4-8, and 20 April 2005; 18 August 2005

Criminal law – housebreaking, theft, and receiving – some guilty findings

Evidence – confession given under duress – limited admissibility

The prosecutions related to three alleged incidents of housebreaking, theft and receiving, all concerning the Tonga Communications Corporation [TCC], but each involving different premises, though with an overlap of the accused persons. The first accused, Mr Kusitafu Pohahau, was an uncle of the second accused, Mr Sitaleki (or Setaleki) Makahununiu, whose wife Mrs Nunia Makahununiu was the third accused. The incidents occurred within a month of each other in February and March 2003. The three cases were tried together because the second accused alleged that he had been assaulted and tortured by Police officers on 19 March 2003 while in Police custody in relation to the theft from the TCC phone shop on 7 March, and that any further statements he made to the Police about any of these offences were made in fear of the assaults being repeated. During the trial it was accepted by the prosecution that Police officers had assaulted Sitaleki on 19 March.

Held:

1. The Court had no doubt that the answers given by Sitaleki at all his interviews, to the charges, and in his so-called confessions were caused by an inducement, threat or promise relating to the charge, proceeding either from the prosecutor or from some other person having authority over Sitaleki, which afforded him reasonable grounds for supposing that by making them he would gain an advantage or avoid an evil of a temporal nature in regard to the proceeding against him.

2. The prosecution had to prove beyond reasonable doubt that there was no inducement, threat or promise which caused the accused to make the confession; and that there was no oppression and nothing was said or done to make it unreliable. The Court found that the prosecution did not do that.

3. The Court ruled that the answers in the interviews, to the charges and Sitaleki's so-called confessions and demonstrations and evidence about them were inadmissible; except evidence of the search and demonstration, which occurred prior to finding those facts, was admissible to the extent that it related to the property recovered.

4. The Court therefore found that the evidence about the confession of Sitaleki that strictly related to the discovery of the parts of the safe, the fridge and washing machine, the Cash Summary Sheet, and concrete and the things held by Paea was all admissible.