Pisima'ake v Rex [2009] TOCA 11; AC 16-2009 (10 July 2009)

IN THE COURT OF APPEAL OF TONGA
NUKU’ALOFA REGISTRY

AC 16 of 2009

BETWEEN:

NISIFOLO PISIMA’AKE
Appellant

AND:

REX
Respondent

Coram: Ford P
Burchett J
Salmon J
Moore J

Counsel: Mr. Pouono for the Appellant
Mr. Kefu for the Crown

Date of hearing: 29 June 2009.
Date of judgment: 10 July 2009.

JUDGMENT OF THE COURT

Introduction

[1] The appellant appealed against his conviction and sentence on a charge of robbery contrary to section 154(1) of the Criminal Offences Act. Following a trial before Shuster J. he was convicted and sentenced on 11 February 2009 to 5 1/2 years imprisonment.

[2] As part of his appeal, the appellant also sought leave to call fresh evidence. We agreed to hear his application for leave along with his substantive appeal. At the conclusion of the hearing on 29 June 2009, we allowed the appeal and ordered a retrial. The appellant was granted bail and released from Hu’atolitoli Prison. We indicated that we would give the reasons for our decision at a later date and we now do so.

[3] An unusual feature of the case was that at the preliminary inquiry in the magistrate's court held back in March 2006, the presiding magistrate upheld a no case submission made by the appellant's then counsel at the end of the Crown case and discharged the appellant. The Attorney General then intervened, pursuant to section 37 of the Magistrates Courts Act, on the ground that he considered that the accused should not have been discharged. The accused was subsequently arrested on a warrant issued by Webster C.J. and committed for trial. As part of that exercise the Attorney General was provided with a complete transcript of the preliminary hearing and that transcript was also made available to the trial judge and to us at the appeal hearing.

The facts

[4] The trial judge summarised the relevant facts as follows:

"On the 3rd February 2006 the complainant UINISENI KIVALU was employed as an accountant at a Hot Bread Shop, she went by car over to her main office in order to deposit the daily shop takings of $467.00. The Crown says whilst the complainant was standing outside her Head Office, the accused approached the complainant and started a conversation with her. At a point in time he raised his fist, as if to strike at the complainant. The Crown alleges, the complainant in apprehension of being punched, moved backwards and into a defensive position, in order to defend herself. At this point the Crown say the accused reached out and pulled a bag of money from the complainant, which contained takings of $467.00 after stealing the money, the accused ran away, so the Crown say the offence of robbery is complete".

[5] Identification was a key issue at the trial. The 30-year-old accused, who was not represented by counsel, elected to give and call evidence on his own behalf. He denied carrying out the robbery. He was a taxi driver by occupation and his evidence was that on the night in question, which was 3 February 2006, he was engaged in carrying out taxi work around Nuku'alofa and he was not present at the scene of the crime. The Crown did not call any other eyewitness apart from the complainant. The accused called evidence from two eyewitnesses. In his conclusions, the trial judge made no adverse finding regarding the credibility of the two witnesses called by the accused but he did note that they did not see the offender’s facial features whereas the complainant said "she saw him face-to-face standing right in front of her."

[6] The complainant did not know the accused and she had never seen the offender before. Her evidence was that when she alighted from her vehicle at her head office it was starting to rain. She continued:

"I noticed that there was a guy who's walking from the verandah of the country fried chicken he walked up to me and asked if I was the wife of Malamala. I replied to him no the wife of Malamala has already stayed (sic) from the hot bread, this time he was walking up to me with the cup which he had brought from the shop and he was standing in front of the vehicle for I was about to close the door and he started to as if he was going to touch me and I backed off at this time my right hand was holding the paper with the plastic bag with the money inside between the money and the paper he grabbed money and he ran off with it."

[7] The complainant estimated that the robbery happened between 10 and 10:30 p.m. She said that after the robbery she started to run after the offender but then gave up and began crying. Her manager asked her why she was crying and then he told her to come into his office and explain what happened. There is a reference in the evidence to a person called "Joe" (in the preliminary inquiry he was referred to as "Joey"). After the robbery the complainant called out to Joe and she admitted in cross-examination that Joe was angry at her for not looking after the money and allowing the offender to run off with it. Joe worked at the Country Fried Chicken Restaurant and a witness described him as a friend of the boss. The witness said that he heard Joe swear at the complainant after the robbery.

[8] The following morning, which was a Saturday, the complainant went to see Lu'isa Malamala whom she referred to in evidence as "the wife of Malamala" and according to the transcript asked "if there was anyone with the behaviour of stealing." The transcript continues:

"1st Witt: And the wife of Malamala told me that the only person she knew that was like that was Nisifolo.

Pros: Why did you go to the wife of Malamala and ask about the individual who you saw robbed you from the side?

1st Witt: The reason was because that night the individual asked me about the wife of Malamala and I went to Malamala and asked her if anyone had the behaviour of stealing and she asked me why and I told her what happened and she said why don't we go to the residence of that boy."

[9] The two women then went in search of Nisifolo. First, they went to a place that he was renting opposite the hospital but he was not there and then they went to his home but he was not there either. Lu'isa then borrowed the complainant's mobile phone and she rang Nisifolo. Lu'isa was asked in cross-examination at the preliminary inquiry if she knew the appellant's phone number and she replied, "Yes, I had lied and told him that I was separated from my husband so he could come and take me." As a result of the phone conversation, Lu'isa found out that the appellant was at a Chinese shop, the two women then drove to the Chinese shop and as they drove past they saw the appellant. Lu'isa then hid and the complainant got out of the car and pretended that she was going to buy something. After the appellant walked out of the Chinese shop, the complainant went and asked the woman at the counter what he had purchased and she told her that it was a phone card. She asked if he had purchased anything else and the store women replied that there was nothing else.

[10] The complainant said that she was able to identify the appellant as the offender because he was wearing the same clothes that he had worn the night before and she also said that he had the same features. She explained that he was wearing black shorts, black T-shirt and a red bandanna and he had long hair. The complainant did not describe the offender's build at trial but in cross-examination at the preliminary inquiry she had described him as "short and skinny" and then, a few questions later, as "short and chubby". She was challenged on this evidence and was asked to state what description was correct. She answered that he was "short and chubby." The complainant did not speak to the appellant and she last saw him on the other side of the road from the Chinese store standing under a mango tree having a conversation with another man. The complainant then drove to the police station and lodged a complaint dropping Lu'isa off at her home on the way. It is not clear from the evidence on what day the accused was arrested but he made a written statement to the police on 10 February 2006 denying any involvement in the offence.

[11] Another witness called by the Crown was Sela Vea who worked at Country Fried Chicken. She recalled serving a customer with an ice cream and 2 cups of drink about 10 minutes before the robbery. She could not describe the customer's clothing or face but she said he was wearing a red bandanna. The witness said that there were other customers inside the restaurant at the time. In cross-examination by the accused she was asked, "is there anyone here in court that you see is close to the feature which you mean?" She answered, "No". In re-examination the witness said that what she meant by this remark was that she could not remember the features of the individual -- only the red bandanna.

The defence witnesses

[12] The two witnesses called by the appellant on the issue of identification both worked at the Country Fried Chicken Restaurant. Neither of them knew the appellant and it was clear from the evidence that the appellant had to go to some lengths to persuade them to give evidence on his behalf. They both had to be subpoenaed. The first was Sione Teu who worked as a cashier at Country Fried Chicken. He said in cross-examination that he had seen the robbery that occurred. On the night in question he was standing on the verandah of the restaurant before commencing his shift. He saw a boy come up to a girl, "Otara", who also worked at the restaurant and he asked Otara if she wanted to eat some ice cream. The witness said that after that the same boy " carried on what happened, that is, he ran off with the money from this lady Uini he ran off approximately 10 m then I heard Uini shout out for help . . . ". The witness said that the boy who carried out the robbery was wearing " black shorts and also a white greyish hood." He described the boy as "tall and skinny."

[13] The second identification witness called by the accused was 30-year-old Otara Folau. She said that on the night in question she was working at the Country Fried Chicken Restaurant and she went out on the verandah to smoke a cigarette. After she smoked the cigarette a boy walked up to her from inside the restaurant with a cup of drink and an ice cream and he asked her if she wanted the ice cream. She took the ice cream and the individual walked over to the other side of the verandah and stood there. Whilst she was eating the ice cream she noticed the individual again. He was standing over near the fish shop. She said that a short time later she heard the complainant cry out and she saw her standing next to her vehicle and the cup of drink was on the vehicle. She said she "noticed the individual who had taken the money had run off to the bushes near the containers." She also described seeing a man who was "a friend of the boss" walking up to the complainant and swearing at her and asking her why she didn't shout out for help instead of crying whilst the robber ran off with the money. Otara described "the robber" as "skinny and tall" and she said that he was wearing "shorts and a hood."

The fresh evidence

[14] Counsel for the appellant, who was not counsel at the preliminary inquiry, has filed an affidavit sworn by the person he seeks leave to call fresh evidence from, a Mr Fapaiano Kali. Mr Kali is an inmate at Huatolitoli prison. He states that in October 2008 he began serving a 10 year term of imprisonment for armed robbery committed on 23 March 2008. He says that one of his co-accused in the armed robbery was 'Alamoni Makafilia who apparently absconded overseas after the crime but he said that when they were at Halaleva after the robbery and before Makafilia absconded overseas, the latter told him about a "money snatching crime he had committed about February 2006." he said that 'Alamoni was involved in planning the theft with a lady who worked for the company. He continued:

"'Alamoni told me that the lady would collect the money and he would snatch the money bag containing the money from him and run away with it. However, 'Alamoni said that something went wrong, for not all the rent was collected, when he snatched the money bag. It was only one rent collected which was the Chip and Fried Chicken Store. As a result, the lady did not have a share in the loot. 'Alamoni went and spent the money. . . . I was sentenced to serve in Hu’atolitoli about October 2008, Nisifolo Pisima'ake was sent to Hu’atolitoli in January 2009. I learned from him his crime in which it related to the story told to me by 'Alamoni Makafilia. I got pity on Nisifolo Pisima'ake and I told him the story that was told to me by 'Alamoni Makafilia.”

Discussion

[15] It is clear from the foregoing that identification was the key issue at trial. The complainant was asked by the accused in cross-examination why she did not lodge a complaint with the police on the night of the robbery. She replied:

"I did not know your name on this night and when I came to give my statement to the Indian he did not tell me to lodge a complaint.”

[16] Had the complainant lodged a complaint with the police on the night of the robbery, the police, as part of their inquiries, would most likely have interviewed Lu'isa Malamala and that could have resulted in them also interviewing the accused. Had that been the situation, the police may well have arranged an identification parade to see if the complainant could identify the accused as the robber. That did not happen. Instead, as the trial judge commented, the complainant "carried out her own investigation.”

[17] It was Lu'isa who first suggested that the culprit might have been the accused and it was Lu'isa who tracked the accused down to the Chinese shop where he was buying a phone card. There was no identification parade from which the complainant had to identify the robber. There was only the one person before her at the Chinese shop and that was the accused. The complainant identified the accused in court as the assailant but it may be that the person she was identifying in court was in reality the person she had been able to get a good look at in the Chinese shop.

[18] The complainant had made the approach to Lu'isa Malamala because the robber had asked the complainant if she was the wife of Tevita Malamala. It is clear from the evidence, however, that the accused knew Lu'isa well and, if that was the case, one would have to ask why, if he was the offender, would he have asked such a question. The exact nature of the relationship between Lu'isa and the accused was not explored in evidence but she knew the house that he rented, the house that he owned and his telephone number. She lay down in the car outside the Chinese shop so that the accused would not recognise her. She also told him a lie over the telephone when she was trying to find his whereabouts by saying that she had separated from her husband "so that he could come and take her." All that evidence tends to show that there was a close relationship between Lu'isa and the accused and, if that was the case, the natural question that arises is why would he need to ask the complainant if she was Lu'isa i.e."Tevita Malamala's wife".

[19] In the seminal case on identification - Reg v Turnbull [1977] 1 QB 224, 231 the English Court of Appeal said:

"On matters of credibility this court will only interfere in three circumstances: First, if the jury has been misdirected as to how to assess the evidence; secondly, if there has been no direction at all when there should have been one; and thirdly, if on the whole of the evidence the jury must have taken a perverse view of a witness, but this is rare.”

The trial judge accurately directed himself in relation to the Turnbull warning on identification but for reasons that are not apparent from the judgment, he appears to have rejected the evidence of the two independent witnesses called by the accused in relation to identification without making any adverse findings as to their credibility.

[20] The extent of the obligation on a judge to give reasons for rejecting various pieces of evidence seems to depend upon the context of each given case: Regina v Owen Roger Clarke [2008] EWCA Crim 2650. In that case it was submitted that in his ruling the judge had failed to expressly state why he had decided to reject certain evidence. The court drew on Art 6 (1) of the European Convention [para 43] and held that whether the trial judge had an obligation to give reasons could only be determined in the light of the circumstances of the case but that principle would appear to be equally applicable in Tonga as Art 6 (1) simply provides for the right to a fair trial.

[21] To his credit, the Solicitor General did not seek to downplay the significance of all these issues and, in the finest traditions of the Bar, he conceded that because the appellant was not represented by legal counsel, his defence, which in his words, "involved legal technicalities", may not have been presented as strongly as it could have been and, in all the circumstances, a retrial might be appropriate.

[22] As stated at the outset, after careful consideration of all the evidence, we concluded that the conviction was unsafe and, accordingly, in the interests of justice, we allowed the appeal and ordered a new trial. At the retrial, it will be open to the accused to call the fresh evidence from Mr Kali if he so desires. It goes without saying that the new trial should be conducted by a different judge, so that justice may manifestly be seen to be done.

Ford P
Burchett J
Salmon J
Moore J