To'aho v R [2025] TOCA 19; AC 29 of 2023 (16 May 2025)

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

AC 29 of 2023
[CR 17 of 2023]

BETWEEN
FILIMONE TO’AHO
Appellant

AND
REX
Respondent

Hearing
8 May 2025

Court:
Randerson, Harrison and Morrison JJ

Appearances:
Filimone To’aho in Person
Tupou Vainikolo for the Respondent

Judgment:
16 May 2025

JUDGMENT OF THE COURT

Introduction

[1] Filimone To’aho was found guilty of eight counts of obtaining money by false pretences following a two-week trial in the Supreme Court before Tupou ALCJ and a jury. He was convicted and sentenced to eight years imprisonment.
[2] Mr David Corbett represented Mr To’aho as counsel at trial and was instructed to file an appeal against conviction. His notice raised two grounds of alleged errors by the trial judge. Mr Corbett was granted leave to withdraw when the appeal was called for hearing in November 2024. Mr To’aho now represents himself and wishes to proceed on the grounds identified by Mr Corbett.
[3] At Mr Corbett’s request, repeated by Mr To’aho, the Registry has produced a copy of the trial transcript. Mr To’aho complains about aspects of its completeness and accuracy but, as will become apparent, we do not regard those complaints as material. A copy of the trial Judge’s summing up cannot be located. We are satisfied that its absence does not cause any injustice. The appeal points relate to the admission of one item of evidence and an alleged omission to sum up on one discrete point.

Facts

[4] The relevant facts were largely agreed and recorded in a summary tendered at trial. Mr To’aho alleged offending followed a similar pattern for eight separate transactions entered into over a one-year period. In each case the eight complainants answered advertisements placed by Mr To’aho for the sale of valuable vehicles and on one occasion boat engines. The complainants subsequently entered into agreements with Mr To’aho or entities controlled by him to purchase the advertised property. Payment was on terms requiring a deposit with the balance over time pending delivery of the vehicles and engines from overseas suppliers, normally from Japan.
[5] The complainants each paid most, if not all, of the purchase price in advance of the promised delivery of the vehicles and engines. But the vehicles and engines were never delivered. Mr To’aho never repaid the vehicle buyers, one of whom had paid a total of $116,000 for three vehicles. The eighth complainant, a member of the Tongan nobility, agreed to buy four boat engines from Mr To’aho for $41,600. He paid a 30% deposit in advance of delivery. Again, the engines never arrived. The noble was able to recover most of the $9,800 paid as a deposit.
[6] Mr To’aho obtained $243,486 from these transactions. A balance of $232,186 remains unpaid to the vehicle buyers. At trial, Mr To’aho gave evidence in his own defence and called witnesses as well. The thrust of his defence was that he was himself scammed by foreign suppliers. He said that when he found out about these repeated deceptions he attempted unsuccessfully to replace the vehicle orders. As Mrs Vainikolo observed, he also blamed other factors for his non delivery of vehicles including the advent of Covid 19 and a tropical tempest.

Appeal

[7] Two grounds of appeal were raised in the notice of appeal filed by Mr Corbett and adopted by Mr To’aho in argument before us. The first ground is that Tupou ALCJ allowed the admission of hearsay evidence which negatively affected the minds of the jury. This ground relates to only one charge. In evidence in chief one of the complainants, Helen Toli, referred to what Mr Corbett says was an email which was not produced in Court. The gist of the email was said to be that a Mr Fili, a Tongan lawyer who was not called as a witness to advance the Crown case, had not purchased a vehicle from Mr To’aho.
[8] This is a confusing and misleading submission. The document was not an email and nor was it of a hearsay nature. It was created by Mr To’aho. It was a screenshot of his Facebook post, thanking a well-known lawyer, Mr Fili, for buying a Toyota HiLux at a promotion price advertised by Mr To’aho. It is also incorrect to claim that the document was not produced in Court. It was expressly identified in the agreed book of admitted documents produced at trial with Mr Corbett’s consent.
[9] Mr To’aho says that after listening to an audio recording of the evidence he is satisfied that Ms Toli said words to the effect that she had contacted Mr Fili to inquire whether he had purchased a vehicle from a named company, and that Mr Fili replied in the negative. If that evidence was given, we accept that it was hearsay. But it was so insignificant in the overall evidential context that it could have had no bearing on the jury’s verdict on this discrete charge.
[10] We cannot see any merit in this ground. It is unsurprising that Mr Corbett did not raise any objection to the document’s admission at trial, or that the trial judge did not refer to it in summing up. We note also that Mr Corbett did not respond to Her Honour’s express invitation to raise any errors or concerns at the end of her summing up,
[11] The second ground of appeal is that Tupou ALCJ erred in law by allowing the Crown to cross examine Mr To’aho about his involvement with a company called Super Cheap. Mr Corbett submitted in written submissions filed on appeal that Super Cheap is well known to the Tongan public as a scam business, leading to Mr To’aho previous conviction relating to the sale of motor vehicles under that company’s name. He submitted that by association this line of questioning negatively affected Mr To’aho right to a fair trial.
[12] Mr Corbett had further submitted that during closing the Crown referred to the Super Cheap name, asserting to the jury that Mr To’aho was attempting to hide or conceal this information from the jury. He submitted that the judge erred in law in her summing up by not reminding the jury that Super Cheap was unrelated to this case.
[13] We do not see any merit in this ground either. In cross examination at trial Mrs Vainikolo challenged Mr To’aho’s evidence in chief that he did not start selling cars until 2020. In answer Mr To’aho admitted that his assertion was untrue; he had been in the business under various corporate guises since 2014. He volunteered that he was in fact involved in selling cars for Super Cheap in 2017. He gave an explanation of the reason why he had stopped this practice.
[14] Mrs Vainikolo submits that the purpose of Mr To’aho’s untrue evidence was to convey to the jury that he was a newcomer to the car selling business when he entered into the subject transactions in 2020, apparently to lay the foundation for a submission of commercial vulnerability to the deceptive practices of others. Before us Mr To’aho did not deny Mrs Vainikolo’s account of the relevant exchange in evidence. He sought to rationalise his original false statement on the ground that he was only on trial for events which occurred in 2020, and apparently his earlier commercial activities were irrelevant. That explanation might have some plausibility if he had not lied on oath about the earlier period. He was the party who put this issue falsely before the jury, and he cannot now complain about the inevitable effect on his credibility once his lie was exposed.
[15] Furthermore, Mrs Vainikolo confirms that the Crown did not lead any evidence of Mr To’aho’s previous conviction, which was unrelated to Super Cheap.
[16] The Crown’s case against Mr To’aho was very strong if not overwhelming. The facts spoke for themselves in exposing his repeated deceptions. Findings of guilt were inevitable unless he was able to raise a doubt based on his own evidence and that of his witnesses. His explanation that he was himself the victim of scams would have faced obvious credibility problems given the multiplicity of the transactions, the duration of their occurrence, and his failure to repay his victims. The verdicts must stand.

Result

[17] Mr To’aho’s appeal against conviction is dismissed.

Randerson J

Harrison J

Morrison J