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

CR 175/2008

R

v

Maile

Shuster J 
15 and 16 December 2008; 9 January 2009 

Criminal law – abetment of theft – all elements proved beyond reasonable doubt – guilty  

On 20th February 2008 there was a theft of $4,200 worth of property from the home of the complainant. The Crown alleged the defendant, with another person, abetted the theft. The defendant was charged with abetment of theft. The defendant pleaded not guilty. He denied knowing that the goods were stolen. 

Held: 

1. The Court applied the well-known test for dishonesty in R v Ghosh which states "it is dishonest for a defendant to act in a way which he knows ordinary people consider to be dishonest; even if he himself asserts, or genuinely believes he is morally justified in acting as he did." 

2. The prosecution proved its case beyond any reasonable doubt. The defendant was found guilty. 

Cases considered: 
Machent v Quinn [1970] 2 All ER 255 
R v Aziz and others [1995] 2 Cr App R 478 
R v Barrrick (1986) 7 Cr App R 
R v Ghosh [1982] 2 All ER 689 
R v Gomez [1993] 1 All ER 1 
R v Parker 53 Cr App R 289 CA 
R v Vye, Wise and Stephenson 97 Cr App R 134 

Statute considered: 
Criminal Offences Act (Cap 18) 

Judgment

The Defendant 

The defendant is charged on an Indictment filed on the l5th July 2008, he is charged with a single offence alleging- abetment of theft. The defendant was arraigned on the 12th August 2008 before me; he pleaded Not Guilty to the charge, as is his legal right. The hearing of this matter took place on the l5th and 16th December 2008, and on conclusion the matter was adjourned to today for a written judgment. 

The Charge 

• Count One - Abetment of Theft Contrary to section 8 & 143 & 145 (b) of the Criminal Offences Act (Cap 18) 40 

• Particulars of which are: - on or about the 20th February 2008 at Tofoa, you did abet SATI'O MATAKAIONGA in committing theft by directly assisting him to take the following goods:- 

• 2 Fala 15 (15 feet mat)                            valued at $800 
• Falu Uongokumi (20 foot mat)               valued at $600 
• 14 Kie waist mats                                    valued at $500 
• Fihu 20 (20 foot white mat)                    valued at $800 
• Paongo mat                                              valued at $400 
• Undecorated mat                                     valued at $400
• DVD player                                             valued at $400 
• Perfume                                                   valued at $300 

The total value of these good is $4200.00, knowing these goods were stolen; 

The Prosecution's Case 

As the indictment clearly states the prosecution allege the defendant (with another person) abetted the theft of $4,200.00 worth of Tongan property, from the home of the complainant, on the night of 20th February 2008. A complaint of theft was reported to the police, and an investigation commenced, which culminated in the defendant's arrest, interview and his subsequent committal by a Magistrate for trial in the Supreme Court.

The Defence Case 

The defendant as is his right under the law denies the offences as alleged in the Indictment and put the prosecution to strict proof. He gave his explanation of the events in a VCS to the police, and to this court. The VCS was not challenged by the defendant and is in evidence before me. The defendant also gave evidence in court; his evidence is accorded the same respect and consideration as any other parties. His defence is he did not know the goods were stolen. He also called a witness in his defence his co-accused. 

Essential Elements of the Offence of Abetment
Section 8 Abetment of crime and the punishment of an abettor 

Every person who directly or indirectly commands, incites, encourages or procures the commission of an offence by any other person, and, every person who knowingly does any act for the purpose of facilitating the commission of an offence by any other person is an abettor and shall (unless otherwise expressly specified by any enactment) — 

(a) Where the offence is actually committed in pursuance or during the continuance of such abetment, be liable to the same punishment as if he himself had actually committed that offence; and 

Essential Elements of the Offence of Theft 

To find the Accused Guilty of an offence of theft, under section 143 and 145 (b) of the Criminal Offences Act (Cap 18) the prosecution must prove each of the essential elements of the offence. In layman's terms and in a nutshell the essential elements of theft are:- 

• THE DISHONEST 
• APPROPRIATION OF PROPERY 
• WITH THE INTENTION OF
• PERMANENTLY DEPRIVING THE OWNER OF IT 

Leading Cases and Policy 

In considering this my judgment I have considered and applied the following leading cases widely known throughout the Commonwealth. These cases are routinely applied in common law jurisdictions for offences; or allegations involving theft, or cases involving dishonesty. They can be applied here in Tonga. 

• R v BARRRICK (1986) 7 Cr AR [s]. For allegations which concern Breach of Trust. It is trite law that a servant or agent owes a high duty of care to his employer to carry out his duties properly; and more important honestly. The higher up the scale one goes in a company, or organization, the higher the degree of responsibility is imputed in him by law; because without that trust; the business world and all organs of a government would be in chaos. 

• R v GHOSH [1982] 2 All ER 689. Is the well known test for Dishonesty, which states; "it is dishonest for a defendant to act in a way which he knows ordinary people consider to be dishonest; even if he himself asserts, or genuinely believes he is morally justified in acting as he did." 

• R v GOMEZ [1993] 1 All ER 1. Authority for the well established test of; appropriation and or, misappropriation of property. This is a Leading House of Lords case which all legal practitioners should read, understand and apply in cases such as this. 

• MACHENT v QUINN [1970] 2 All ER 255 DC. It is not necessary to prove all the articles or values mentioned in the indictment to have been stolen, if it is proved that the defendant stole any one of them. R v Parker 53 Cr App R 289 CA per Donaldson at page 229 it is submitted that the jury must be agreed on which particular item, or value was stolen. 

• DEFENDANTS GOOD CHARACTER DIRECTIVE. Modern Law says I must consider and apply to every case "a defendant's good character directive" that is to say good character cannot of itself provide a defence to a criminal charge, but it is evidence which I should take into account when I come to consider my verdict. See: R v Vye, Wise and Stephenson 97 Cr App R 134: R v Aziz and others [1995 2 Cr App R 478. 

The Burden and Standard of Proof 

Certification: As this is a trial before a Judge sifting alone; I certify I have directed myself in accordance with the Law on the Burden and Standard of Proof in a criminal case. Where appropriate I have given the Accused the benefit of any doubt. The prosecution brings this case; they must prove the case beyond any reasonable doubt so that I am sure he committed the offence. The defendant does not have to prove anything; because he is innocent until he is proven guilty. 

Voluntary Caution Statement 

I am also required under the law to consider a defendants voluntary caution statement and also his charge statement and confession as to whether they are voluntary; or not, in the true sense of the word. 

• I find as a fact upon hearing the evidence that the VCS Exhibit 1, is voluntary in the true sense of the word; 

• As is the charge statement Exhibit 2 and the confession statement Exhibit 3. 

• These documents were never challenged by the defendant 

Prosecution Case 

I heard a total of 3 prosecution witnesses who testified they knew the accused and had dealings with him concerning this particular case.

• The first prosecution witness PW1 testified she is the owner of a house in Tofoa which contained property which she says was stolen on the night in question, she identified property recovered by the police as her property. 

She told the court the house stored property and it was unlit at night. 

• The second prosecution witness PW2 was a taxi driver, he gave evidence and confirmed on oath he picked up the accused and took him to another house together with his co- accused, from where the defendant was arrested by the police with a quantity of property including a number of mats. The taxi driver's evidence is that he called at a house with no lights on- where his taxi was loaded with property including mats- quite late at night. He told the court he was asked to take the back roads and asked to drive near to a cemetery where he dropped the two men who then carried off the goods to a house from where they were later arrested. 

• The third witness was the Officer in charge of the case who arrested the defendants identified the property and who interviewed the defendant. 

• Most of what the witnesses said was never challenged or shaken by the defendant in his cross examination. At the conclusion of the case, I was formally asked by the Crown Prosecutor to find the accused guilty as charged. 

Defendant's Case 

The defendant elected to give evidence after his rights were explained to him by the court. The defendant's evidence basically followed his account contained- in his VCS and in his charge and confession statement. These documents have been translated and are in evidence by consent. The defendant denied knowing the property subject to the charge was stolen. In my view the defendants VCS is very relevant in determining either his guilt or innocence. He also called a witness in his defence a serving prisoner and his co-accused in this matter. 

Inferences and Speculation 

A court is not entitled to speculate, but it may draw inferences. There may be strong circumstantial evidence in which a court may say, when taken together will lead to the sure conclusion it was the defendant who committed the crimes. 

Circumstantial evidence can be powerful evidence, but it is equally important to examine it with care and to consider whether the evidence upon which the prosecution relies in proof of its case is reliable and if it does prove guilt; or, are there any other circumstances which are, or may be of sufficient reliability and strength to weaken or destroy the prosecution's case. Finally a court should be careful to distinguish between arriving at conclusions based upon reliable circumstantial evidence and mere speculation. Speculation in a case amounts to no more than guessing; or making up theories without good evidence to support them, neither the prosecution, the defence nor should I do that. 

Analysis 

In this case the defendant submits the prosecution has failed to prove its case beyond reasonable doubt, and he asks me to acquit him. I do not intend to rehearse the prosecution evidence in detail because in a case such as this, it is a question of who I believe on the evidence placed before me. Further this was a short trial with few issues. It is the evidence given in open court and on oath which goes to prove whether or not I find the guilt or innocence of this particular accused. In this case it is the evidence of PW2 which might succeed and help the prosecution to convict this defendant, but only if I care to believe his evidence, and if I assess him as a credible and truthful witness. 

Accordingly 

Assessing the evidence as a whole 

• I accept the evidence of the complainant that her home was broken into and the property subject of the charge was stolen on the night of the 20th February 2008 

• I believe PW2 the taxi driver when he told me he took the defendant and the co-accused in his taxi together with a quantity of property from the vicinity of the victim's home on the night of the 20th February 2009. 

• PW2 was unshaken in his cross-examination. Accordingly I believe PW2 and I accept his evidence. 

• I accept the evidence of the police officer that the accused was arrested together with a co-accused in possession of stolen property. 

• The facts reveal the defendant fully assisted in the transportation of the stolen property from an unlit house late at night, and in my view the fact the taxi driver was asked to travel using back roads and the fact the property was dumped near the cemetery and then transported to the co-accused's home on foot, speaks volumes, and it clearly goes to prove guilty knowledge on behalf of this particular defendant. 

• I reject the evidence of both the defendant and his co-accused they were both clearly involved in this crime and they were not credible witnesses. 

In my view the prosecution has proved it case beyond any reasonable doubt so that I am sure the defendant committed this offence. I believe the witness PW1, PW2 and PW3; I take into account the defendants VCS, his reply to the charge, and his actions, before, during and after the commission of this crime, applying the well known test for dishonesty contained in R v GHOSH [1982] 2 All ER 689. 

ACCORDINGLY I FIND THE ACCUSED GUILTY