R v Valu [2004] TOLawRp 40; [2004] Tonga LR 257 (13 August 2004)

IN THE SUPREME COURT OF TONGA

R

v

Valu

Supreme Court, Nuku'alofa
Ford J
CR 397/2003

6 and 11 August 2004; 13 August 2004

Criminal law – housebreaking – confession admissible – convicted

On the night of Saturday the 23rd of August 2003 the Crown alleged that the accused broke into a store at Tokomololo operated by the complainant, Pulotu Uele, and took, without colour of right, five cartons of tin corned beef, one carton of gas lighters, 10 kg of sugar, one carton of peanuts and one carton of milk totalling in value $610. The accused was charged with one count of housebreaking and one count of theft. The accused denied the charges. There were no eyewitnesses to the break-in.

Held:

1. There was a voir dire hearing to rule on the admissibility of certain documents. The Court considered all the evidence and ruled that the record of interview, statement of charges and so-called confession documents taken by the police had been voluntarily given and that they were, therefore, admissible.

2. Although the onus was on the Crown to prove all the necessary elements of an offence, if an accused person wished the court to believe in the existence of any particular fact then the burden of proof was upon him to prove it.

3. Although, therefore, there were no eyewitnesses to the break-in, the Court found the accused's confession to the police in relation to the two offences reliable and cogent and the Court was satisfied that the Crown proved all the necessary elements of each charge. The accused was convicted accordingly.

Case considered:

Fa'aoso v R [1996] Tonga LR 42 (CA)

Statute considered:

Evidence Act (Cap 15)

Counsel for Crown: Mr Sisifa
Counsel for accused: Mr Kengike

Judgment

The accused is charged with one count of housebreaking and one count of theft. It is alleged by the Crown that on the night of Saturday the 23rd of August 2003 he broke into a store at Tokomololo operated by the complainant, Pulotu Uele, and took, without colour of right, five cartons of tin corned beef, one carton of gas lighters, 10 kg of sugar, one carton of peanuts and one carton of milk totalling in value $610. The accused denies the charges.

There were no eyewitnesses to the break-in. The Crown called evidence from the storekeeper, the police interviewing officer and two other witnesses, Masima Kaufusi and Tevita Heimoana. The store proprietor, Uele, explained how he had closed his shop at around 10:30 p.m. on the Saturday night and had gone to a kava club. He did not realise that his shop had been broken into until the following morning when he discovered that the bolt on the back door had been broken and various items of groceries had been taken. He promptly reported the matter to the police.

Forty five-year-old Masima Kaufusi told the court that the accused is his nephew. He said that between 11:30 p.m. and midnight on the day in question, he and others were drinking kava on the verandah of another shop in Tokomololo which belonged to Teni Sapoi when the accused suddenly rode up on a bicycle and called out to one of the drinkers, Tevita Heimoana. Masima said that the accused then left and later returned carrying a pink bag containing tins of corn beef and some cartons of milk. The witness said that the accused tried to sell the goods inside the bag and he thought that Tevita had said that he would take them. Masima was asked in re-examination whether Tevita had remained at the shop during the time that the accused was away getting the bag and he said that he had done so.

The other Crown witness, 20-year-old Tevita Heimoana, was also at the store drinking kava. He recalled the accused riding up on his bicycle but he denied speaking with him. He said that he (the accused) then left the shop and approximately half an hour later he returned on his bicycle carrying a pink bag containing tins of corned beef. Mr. Heimoana said that the accused tried to sell the grocery items to the shopkeeper but Teni was not interested in buying anything and so the accused rode off again on his bike leaving the pink bag at the shop.

Tevita admitted that he knew the accused very well but he denied the proposition put to him in cross-examination that, when the accused first rode up to the shop on his bicycle, he spoke to Tevita and they both had then gone off together and returned to the shop with the stolen goods in the pink bag. Tevita also denied that the pink bag belonged to him.

When police constable Fine was called by the Crown to produce statements taken from the accused, Mr Kengike objected to their production upon the grounds that they had not been given voluntarily and were, therefore, inadmissable under section 21 of the Evidence Act (Cap 15). At that point, I called for a hearing on the voir dire.

In evidence on the voir dire, the 19-year-old accused told the court that he had been arrested by two police officers between 4 p.m. and 5 p.m. on 3 September 2003 and in the police car on the way back to the police station they had threatened him. The accused described the threat in these terms:

"They asked me if I had committed the offence and I said, 'no'. They then said, 'you better speak the truth or we'll kick you'."

The accused admitted that nothing untoward happened to him once they arrived at the police station and he had no complaints about the way that constable Fine conducted the interview at 8 a.m. the following morning. In cross-examination the accused admitted that he had not told anyone about the "threat" made by the officers in the police car and he had revealed that information to his lawyer, for the first time, only on the morning of the court hearing.

At one point during cross-examination, the accused appeared to admit that the "threat" had not, in fact, taken place but a short time later he seemed to resile from that concession. Then, at the very end of his evidence, in answer to a question from the court, the accused said that the statement he had given to the police had, in fact, been voluntarily given but what he had told the police was not the truth because he had really been taking the blame for the offender who was his "very close mate", Tu'ipulotu Taliauli.

After considering all the evidence on the voir dire, I ruled that the record of interview, statement of charges and so-called confession documents taken by the police had been voluntarily given and that they were, therefore, admissible.

When the hearing resumed, Mr Kengike submitted that the accused's confession to the police alone was insufficient to justify a conviction unless it was corroborated in some material respect. Counsel did not cite any authority in support of that proposition and what he was suggesting was clearly wrong. As the Court of Appeal has said in Fa'aoso v R [1996] Tonga LR 42 at 44:

"There is no requirement that a confession must be corroborated. A confession alone can be sufficient to justify a conviction, where the judge or the jury is satisfied that the confession is reliable and cogent evidence."

As with any criminal prosecution, the onus remains on the Crown throughout to prove all the necessary elements of each charge beyond reasonable doubt. The accused does not have to give or call evidence.

In this case, the accused elected to give evidence. He was asked by his counsel about his movements on the night in question. He explained that he had been at Fasi earlier in the evening and then around 11 p.m. he had hitchhiked home to Tokomololo. He told how he biked to Teni's shop and talked to Tevita Heimoana. He said that Tevita told him where some stolen goods had been hidden and so they both went to the spot. Tevita got a pink bag from his home and they filled it with corned beef cans and cartons of milk and then they had both gone back to Teni's shop trying to sell the shop proprietor the items in the bag. The accused said that when he realised that the shopkeeper was not going to buy any of the goods, he left the bag at the shop and went home to bed. The accused admitted that he knew the goods were stolen but he denied having stolen them himself. He told the court that he believed Tevita was the culprit.

The Crown's case relies heavily upon the accused's record of interview with constable Fine. The accused told the police officer that on the night in question he and his friend Tu'ipulotu Talia'uli, who he referred to as "Puloto" had started drinking two bottles of rum at around 6 p.m.. The interview continued:

"Q18. After drinking, where did you go then?

A. We walked over to the township of Tokomololo and to the shop of PulotuUele beside some guava trees and planned to break into the shop.

Q19. Who initiated the plan to break into Pulotu Uele's shop?

A. Pulotu Talia'uli.

Q20. How did you break into Pulotu Uele's shop?

A. Pulotu Talia'uli used an iron (metal) and put it through the bolt of the back door and forced it open so we went inside.

Q21. What were you doing inside the shop?

A. I only took the corned beef carton and we took it then to "Vaikeli". We returned to the shop and again took more corned beef cartons and the milk box as well as a bag of sugar and we took them also to Vaikeli. I think we twice came back to take these goods to Vaikeli. We only ate one pound of corned beef and afterwards we parted and Pulotu Talia'uli went and slept.

Q22. Were did you go afterwards?

A. I came and again met one Tevita Heimoana of Tokomololo and I told him that we should go again and get something to pawn from the goods we had taken to Vaikeli.

Q23. Were you able to do that with Tevita Heimoana?

A. Yes, we went and took about five corned beef and some tins of milk and packed it in a pink handbag.

Q24. Were you able to pawn those goods?

A. Yes, I and Tevita Heimoana came to Sapoi's shop at Tokomololo and pawned it there but Sapoi's son did not accept it so I left the bag with Tevita Heimoana and I went to sleep."

The accused was asked questions in cross-examination about that particular passage from his record of interview. He continued to maintain that what he had told the police was not true because he was taking the blame to protect his mate, Pulotu. He said that he had suspected that Pulotu had been involved because when the police came to arrest him they had asked him if he had seen Pulotu.

The accused's statement to the police is obviously incriminating and, if I accept it as credible, it is sufficient in itself to establish the Crown's case. Although the onus is on the Crown to prove all the necessary elements of an offence, if an accused person wishes the court to believe in the existence of any particular fact then, under section 106 of the Evidence Act (Cap 15), the burden of proof lies upon him to prove it.

The accused called no other evidence to establish his assertion that he was elsewhere when the break-in occurred. His defence, therefore, relies heavily upon the Court forming a favourable assessment of his credibility.

Crown counsel highlighted in his submissions two matters arising out of the accused's statement to the police which he submitted the accused could only have known about if he had been involved in the break-in. First, counsel asked rhetorically, if the accused's story was correct and the only goods he had seen at "the spot" where Tevita had shown him the stolen goods were tins of corn beef, how was it that he was able to correctly say in his statement to the police that a bag of sugar had been taken from the shop?

When this same query had been put to the accused in cross-examination, he responded that he had known nothing about the goods taken from the shop but the police officer had read out to him a list of the stolen items. He was challenged by Mr Sisifa on this statement and it was put to him that the officer had not read out any list of items taken from the shop. The accused seemed to accept that proposition and he then indicated that Tevita had told him that sugar had been taken from the shop. I did not find either explanation convincing.

The second point Crown counsel highlighted was the fact that the accused had been able to correctly tell the police that access to the shop had been gained by breaking the lock on the back door. How would he have known that, Mr Sisifa again asked rhetorically, unless he had been present. When the accused had been asked for an explanation, his response was, I was just guessing. I did not think of any other way of getting into the shop." Again, I did not find that explanation convincing.

It is also difficult to understand the assertion by the accused that he had made the false admissions to the police because he wanted to take the blame for the offence as Pulotu was his close mate. It is obvious that that proposition does not stand up to scrutiny. In his statement to the police the accused clearly identified Pulotu as the ringleader. The police officer confirmed in evidence that after obtaining the statement from the accused, a warrant had been issued for Pulotu's arrest but they had been unable to locate him. Constable Fine acknowledged that Pulotu was known to the police. He said, "this man (Pulotu) is a runner, a speedster. We cannot catch him." The significant point, however, is that far from protecting Pulotu, the accused had very clearly identified him to the police as the main culprit.

Finally, an important part of the accused description of events was rebutted by his uncle, Masima Kaufusi. The accused had said that when he rode up to the shop on his bicycle on the first occasion he had talked to Tevita and Tevita had told him about the stolen goods and they had then both gone off together to retrieve them. For his part, Tevita denied that this had happened. I am not convinced that Tevita was as innocent as he proclaimed in court but, significantly, even though Masima was obviously uncomfortable giving evidence against his nephew, he confirmed in evidence that Tevita had not gone off with the accused.

Although, therefore, there were no eyewitnesses to the break-in, I find the accused's confession to the police in relation to the two offences reliable and cogent and I am satisfied that the Crown has proved all the necessary elements of each charge. The accused is convicted accordingly.