R v Lolohea [2006] TOLawRp 1; [2008] Tonga LR 1 (5 April 2006)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

CR 16/2006

R

v

Lolohea

Ford J
5 April 2006

Criminal law – housebreaking charge – all elements proved – guilty

The accused was charged with one count of housebreaking contrary to section 173(1) of the Criminal Offences Act (Cap 18). It was alleged that on Sunday 25 September 2005 he had entered the dwelling house of the complainant with intent to commit the crime of theft. The evidence for the prosecution was that early on the Sunday morning in question the complainant had locked up their home and travelled to his wife's parents to prepare an umu for the Sunday lunch. At approximately 10 a.m. he returned to check on his house and he noticed a person standing by the boundary of his allotment looking away from him towards the bush. The complainant then noticed that the back door to his house was ajar and a stereo player and some fine mats had been stacked alongside the door. He called out to the person standing by the boundary to his allotment who, he was satisfied, was the intruder but the person ran off. Subsequently, as he drove from his home to report the matter to the police, he noticed a taxi and he identified the passenger in the taxi as the intruder. The taxi driver gave evidence that he had driven the accused to the tax allotment adjacent to the complainant's allotment on the pretext that he needed to pick something up. The taxi driver had fallen asleep while waiting for the accused to pick up whatever it was he was supposed to be collecting. The accused did not dispute that he had been the intruder that the complainant had identified on his property on the morning in question but he said that he had gone there to steal a pig, not fine mats. He said that when the accused saw him looking towards the bush, he was really looking at the complainant's pigsty.

Held:

1. In order to establish a charge of housebreaking, the Crown needed to prove that the accused entered a building; that he entered the building as a trespasser and, at the time the accused entered the building, he had the intention to commit a crime while inside. It was not necessary for that intention to actually have been carried out.

2. The accused's explanation was totally implausible and it was rejected out of hand. Having rejected the accused's explanation, however, it was then necessary for the court to return to the Crown case and be satisfied that it had been properly made out. The court found that the Crown had presented a strong case through credible witnesses and had proven the essential elements of the offence beyond reasonable doubt. The accused was convicted accordingly.

Statute considered:

Criminal Offences Act (Cap 18)

Counsel for the Crown : Mr Kefu
The accused appeared in person

Judgment

The charge

[1] The accused is charged with one count of housebreaking contrary to section 173(1) of the Criminal Offences Act (Cap 18). It is alleged that on Sunday 25 September 2005 he entered the dwellinghouse of the complainant, Peni Tautua'a, at Nukunuku with intent to commit the crime of theft.

The Crown case

[2] The complainant told the court that at approximately 7 a.m. on the Sunday morning in question, he and his wife and three-year-old child locked up their home and travelled to his wife's parents to prepare an umu for their Sunday lunch. At approximately 10 a.m. he returned to check on his house and as he walked around the back of the house he saw a person standing inside the boundary of his allotment looking away from him towards the bush. He was suspicious that the intruder had committed theft. He then noticed that the back door to his house was ajar and that some fine mats and a stereo player had been stacked alongside the door. When the complainant had left the house that morning both the front and the back doors were securely locked and the fine mats were stored, where they were usually kept, in one of the bedrooms.

[3] The complainant called out to the intruder but he ran off towards the bush. He had been able to see him side on, however, at a close distance and he noted a scar on the side of his face, a tatoo on his neck and the items of clothing he was wearing.

[4] After inspecting the rest of his home, the complainant decided to report the matter to the police. When he drove out from the side road his house was on back onto the main road, he noticed a taxi which he stopped and reversed alongside of. He began to speak to the driver and immediately identified the passenger in the taxi as the intruder. When he confronted the intruder about being on his property, the driver reversed the taxi and drove off. In court, the complainant recognised and identified the accused as the intruder he saw that day.

[5] The Crown also called as a witness the taxi driver who confirmed having taken the accused to the complainant's property on the morning in question. The accused had told him that he wanted to pick up something. He said that the accused had instructed him to park on a tax allotment adjacent to the complainant's property and he had actually fallen asleep while waiting for the accused to pick up whatever it was he was supposed to be collecting. The taxi driver was asked if the accused was drunk. He replied: "I cannot confirm if the accused was drunk because I was drunk myself."

The law

[6] To establish a charge of housebreaking, the Crown must prove that the accused entered a building. The evidence in this case was that the intruder had broken into the complainant's house by removing a pain of glass from the louvre window next to the backdoor and then opened the locked door from the inside. Secondly, the accused must be a trespasser. Thirdly, the Crown must prove that at the time the accused entered the dwellinghouse he had an intention to commit a crime while inside. It is not necessary for that intention to have actually been carried out. Most commonly, as in this case, the crime that the Crown allege was intended is theft.

The defence

[7] The accused, who represented himself, elected to give evidence on oath. His defence, to say the least, was somewhat unusual. He did not dispute that he was the intruder the complainant had identified on his property on the morning in question but he said that he was there to steal a pig, not fine mats. He said that when the accused saw him looking towards the bush, he was really looking at the complainant's pigsty. The complainant admitted in his evidence that in looking towards the bush, the accused was also facing towards his pigsty. The accused called a witness, Sunia Mailau, who confirmed that early on the morning in question he (the accused) had told him that he was going to get a pig for a picnic they were organising for that day.

[8] The accused denied having entered the complainant's house and he firmly denied having anything to do with the fine mats and the stereo unit that had been placed by the back door.

Conclusions

[9] I do not reject the first part of the accused's evidence that he was intending to steal a pig. He has not been charged with that offence, however, and so I put it to one side.

[10] What I am concerned with is the offence of housebreaking and I must say that I did not find the accused's denials of that offence at all convincing. His explanation would involve acceptance of the extraordinary coincidence that while he was at the complainant's property that Sunday morning attempting to steal a pig, some other criminal was in the process of stealing the complainant's fine mats and stereo unit. Even the accused had to admit that this would have been an extraordinary situation.

[11] I find the accused's explanation totally implausible and I reject it out of hand. But I still need to come back to the Crown's case and be satisfied that it has been properly made out. The Crown has, in fact, presented a strong case through credible witnesses. I am satisfied that all the essential elements of the offence of housebreaking have been proven beyond reasonable doubt. The accused is convicted accordingly.