R v Tongatu'a [2024] TOCA 4; AC 14 of 2023 (28 May 2024)

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

AC 14 of 2023
[CR 121 of 2021]

BETWEEN
REX

- Appellant

AND
SIAKI TONGATU’A

- Respondent

JUDGMENT OF THE COURT

Court: Harrison J

de Jersey J
Heath J

Counsel: Mr. J. Lutui - DPP for the Appellant
Respondent – unrepresented

Hearing: 21 May 2024
Judgment: 28 May 2024

Introduction

[1] The Attorney- General appeals with leave out of time given by Randerson J against two related questions of law following trial before Cooper J sitting as a Judge alone in the Supreme Court of Tonga arising from his acquittal of Siaki Tongatu’a on charges of possessing illicit drugs – methamphetamine and cannabis - and utensils. Our determination of these questions will not in any way affect or invalidate Mr Tongatu’a’s acquittal^[1]

[2] The composite questions are whether the Judge was correct to find that the main Crown witness was an accomplice and as such Mr Tongatu’a was not to be convicted in the absence of corroboration.^[2]

Supreme Court

[3] The Crown initially charged Mr Tongatu’a along with Pevele Fisilau and Sione Uhi on four counts of possessing illicit drugs and utensils. Before trial it entered a nolle prosequi against the latter two men. The prosecution was satisfied that they were not involved in the commission of the crimes. Mr Tongatu’a faced trial alone on those counts. and on a fifth count jointly with Tevita Latu.

[4] Mr Fisilau’s evidence, which fell into a narrow factual compass, was directly relevant to the first and fourth counts. Cooper J found that one day in June 2022 Mr Fisilau approached the back door of Mr Tongatu’a’s fale at Vaololoa; that just as he was about to enter Mr Tongatu’a moved to the doorway and threw out a distinctively marked plastic bag; that the bag hit Mr Fisilau and fell to the ground; and that immediately thereafter Police officers rapidly entered to the building, the inference being that Mr Tongatu’a had discarded the bag to avoid apprehension. We note that this sequence of findings does not match the sequence of Mr Fisilau’s evidence but nothing material turns on it. The prosecution alleged that the bag contained illicit drugs and was at the relevant times in Mr Tongatu’a’s possession and control and that he knew its contents.

[5] Mr Tongatu’a cross examined Mr Fisilau briefly at trial. Mr Tongatu’a acknowledged throwing the bag at Mr Fisilau and striking him. His challenge was confined to whether the bag struck on the left or right side of Mr Fisilau’s body. The distinction was immaterial to the elements of the charges which the prosecution was required to prove. Relevantly, Mr Tongatu’a did not suggest to Mr Fisilau that he had knowingly assisted him in his possession of the bag and its contents or their disposal. Mr Tongatu’a did not give evidence in his own defence. Mr Fisilau’s evidence was essentially uncontradicted.

[6] Cooper J made these brief findings:

“When it came to receiving the word of Mr Fisilau there was a need for exercising caution. His evidence fell into the category identified in R v Makenjuola [1995] 3 All ER 730; uncorroborated evidence of an alleged accomplice. He plainly had potential reasons to implicate Mr Tongatu’a, not the least it meant bringing to an end the case he himself faced on the indictment... Taking the word of Mr Fisilau as proving the Crown’s case beyond reasonable doubt was impossible. It is to be noted the Crown had at one time rejected his explanation, as given in his statement to the police. Indeed, until the very start of the trial. Following the principles in R v Makanjuola, the Court clearly needed something more before his evidence could prove their (sic) case.”

Result

[7] We are satisfied that the Judge erred in law, and that his error had a material bearing on his verdict of acquittal. Our brief reasons follow.

[8] An accomplice is a person who participates in the crime charged^[3]. It must be established that he or she knowingly, voluntarily and intentionally assists another to commit the offence. There was no evidence adduced at trial that Mr Fisilau fell into that category. He was simply a bystander or visitor to Mr Tongatu’a’s house during the relevant events.

[9] The Judge’s brief and unreasoned conclusion on this issue proceeded on the apparent premise that Mr Fisilau was an accomplice because the Police had originally charged him with the same offences as Mr Tongatu’a. That fact, and the Crown’s entry of a nolle prosequi against Mr Fisilau, were not evidence of his participation in crimes of possessing illicit drugs and are irrelevant (although a nolle prosequi would not of itself preclude a Court from finding that a witness was an accomplice if supported by evidence at trial).

[10] Mr Fosilau was not an accomplice and no corroboration direction of the type mandated by section 126 of the Evidence Act was necessary. The dicta in R v Makanjoala, a guideline judgment in sexual offending cases, did not apply.

[11] We add for completeness that if corroboration was required, there was ample evidence to independently support or verify Mr Fisilau’s account. It was found in Mr Tongatu’a’s self-incriminating assertion in cross-examination that he threw the bag at Mr Fisilau, which he accepted. Mr Fisilau’s adoption of Mr Tongatu’a’s statement constituted probative evidence of his possession of the drugs. The Judge did not explain why he omitted to refer to this corroboration in the reasons for his verdict.

____________________
Harrison J

____________________
de Jersey J

____________________
Heath J

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^[1] Section 17 of the Court of Appeal Act
^[2] Section 126 of the Evidence Act
^[3] Police v Mafi [2007] Tonga LR 256