Rex v Makahununiu [2001] TOSC 25; CR 195 2000 (6 July 2001)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY

NO.CR.195/2000

BETWEEN:

REX
Prosecution

AND:

SITALEKI MAKAHUNUNIU
Accused

BEFORE THE HON MR JUSTICE FORD

Counsel: Miss L. Simiki for the Crown and
Mr S. Tu'utafaiva for the accused.

Dates of hearing: 6, 7, 8, 13 and 14 of June 2001.
Date of judgment: 6 July 2001.

JUDGMENT

On 21 July 2000 there was an armed robbery at the Tatakamotonga branch of the Western Union office. The robbery was committed by one, Sefo Moala. The evidence was that some $5950 in Tongan currency was stolen.

Moala was apprehended later that same day and charged with robbery and unlawful possession of a firearm and ammunition. He pleaded guilty on both counts and on 12 June 2001 he was sentenced by Chief Justice Ward to a total term of imprisonment of 11 years. Two days later he was called as the Crown's principal witness in the present case against the accused, Sitaleki Makahununiu, who is charged with abetting Moala in the robbery. In the particulars it is alleged that the accused abetted in the commission of the Western Union office robbery by driving the getaway vehicle for Moala.

I say at once that I found Sefo Moala to be a co-operative and truthful witness. He appeared to have accepted the enormity of what he had done and he is now resigned to serving the long prison sentence. He had a story to tell and I am satisfied that his account of what took place was given without embellishment or rancour.

He told the court that he was 32 years of age and he had lived for some 24 years in Hawaii. In 1998 he returned to Tonga from Hawaii. Moala's account was in reality the Crown's case. At about 10 a.m. on the morning of 21 July 2000, Moala approached a local rental car dealer and persuaded him to give him the key to a late model Toyota so that he could start the motor and check it out. He then, as he put it, "took off in the car without permission" and drove it to a bush road where he removed both licence plates from the vehicle. He had with him a bag in which he had some items of clothing. One of the items was a beanie hat which Moala had converted into a head mask by cutting out eye and mouth holes. Also in the bag was a . 38 special pistol revolver with a revolving drum magazine capable of holding up to five bullets. After he ripped the licence plates off the car, Moala loaded the drum magazine of the gun with 5 live bullets and raised the cock of the pistol so that it was ready for firing. The gun remained in that cocked position throughout the subsequent robbery and getaway.

Moala then drove the car back out onto the main road and headed east towards Tatakamotonga. When he reached the village of Vaini he noticed the accused, who he knew only as "Leki" on the side of the road. He had known Leki to talk to for about a month because he was a friend of his first cousin and he was aware that Leki had recently returned to Tonga from the USA. He stopped the car on the side of the road and asked Leki if he wanted to go and have some beer with him and Leki accepted the offer. Moala suggested Leki get into the car and he continued driving east. At some point Leki asked where they were going and Moala told him that they were going to the Western Union office at Tatakamotonga to pick up some money that he was receiving from the States. When they arrived outside the office Moala parked the car and, without giving any reason, told Leki to jump into the driver's seat. He walked into the building carrying his small bag.

Moala then gave the court a rather graphic description of how he committed the robbery. His account was consistent with the evidence given earlier by the Western Union Clerk on duty that day, Emele Petelo. She said that she was the only person in the office at the time, which was about 1.15 in the afternoon and she had not noticed Moala enter the building. She said that when she first looked up and saw him wearing the beanie mask, dark sunglasses and pointing a pistol towards her she thought that he was just joking and so she said "Hello". Moala said "she then "freaked out, put her hands in front of her face and started screaming." Emele's evidence was that while she still had her hands up to her face she opened her eyes and saw Moala take the money from her tray, shove it into his bag and then run out to the car. She followed a short time later and tried to read the licence plate number as the car drove off but the plates, of course, had been removed. She said that she returned to her office and just felt numb - the fear, as she put it, came later.

After the robbery the car was driven to the outskirts of the village of Kolonga and abandoned on a bush track. An eyewitness observed the car being abandoned and noticed Moala and the accused then walk towards Kolonga. Moala said that when they reached the main road they waited for a bus and when it came along they climbed aboard and he sat down and counted out $500 from the money he had in his bag. He then went up to where the accused was sitting and stuck the money in one of his pockets and he yelled out to the bus driver to stop the bus and he got off at Kolonga. The accused carried on riding in the bus towards his home in Vaini. Another witness who got on the bus a short time later said that he sat beside the accused, they exchanged pleasantries and he noticed that the accused seemed "very happy" and he was looking around.

For his part, Moala said that he went and talked to some guys at Kolonga who knew him and he knew their faces but not their names and he bought them beer. After a while he told one of them that he would give him $20 if he would run him into town in his vehicle. The other person agreed but on the way they encountered a police road block outside the Vaini police station. Moala said that all the cars were being pulled over to the side of the road and stopped but he guessed that police officer stopping the vehicles must have known the driver of his car because he just waved them on. Moala's luck was not to hold, however, and he was apprehended later that same day.

The police recovered $2486 of the stolen money. The whereabouts of the remaining $3464 apparently remains a mystery.

It is against that background that the Crown invites the court to find the accused guilty of abetment in the robbery. It was implicit in the way the case was presented that the Crown accepted that the accused had no knowledge of Moala's intention to commit the robbery prior to when Moala entered the Western Union office. The Crown's case, however, was that even accepting the lack of complicity at that point in time, as soon as the accused heard the Western Union woman's scream he would have known that Moala had committed the robbery and, if he had wanted to, he could then have driven off but he elected to stay and drive the getaway car to Kolonga -- hence in the Crown's submission the accused in a very real way aided and abetted in the commission of the robbery.

As with any criminal case the onus remains on the Crown throughout to prove each element of the offence beyond reasonable doubt. The accused does not have to prove anything and he does not have to give evidence. The accused in this case elected not to give evidence apart from on the voir dire and at the end of that trial within a trial, I upheld his objection to the admissibility of certain police evidence for reasons which were fully canvassed in my oral ruling.

At the end of the Crown case, Mr Tu'utafaiva, counsel for the accused, made a number of submissions in support of his plea for an acquittal. His principal submission was that the charge of abetment was misconceived because the robbery had been completed as soon as Moala had finished putting the stolen money into his bag. Counsel submitted that if Moala had been apprehended at that stage then he could have been charged with robbery but the accused could not have been charged with abetment in the robbery because he knew nothing about it at that point in time. Counsel further submitted that the accused should never have been charged with abetment in the robbery because the robbery had been completed before the accused knew anything about it. Mr Tu'utafaiva submitted that section 8 of the Criminal Offences Act (CAP. 18) does not recognise an accessory after the fact as being an abettor.

At common law an accessory after the fact is a person not present at the time and place of the commission of the offence who, knowing that an offence has been committed, does some act which has the potential to assist the criminal to evade justice. An abettor, on the other hand, is a person who is present (presence, in this context, may be either actual or constructive) at the time when a crime is committed by another person who intentionally aids or gives encouragement to the offender in the commission of the crime. The mere passive presence of the accused at the scene of the crime is not sufficient to make him an abettor. It must be shown that there was also some intentional aid or encouragement of the principal offender in the commission of the crime.

The argument advanced by counsel for the accused in this case was that because the robbery offence had been committed at the point in time that the principal offender placed the Western Union money inside his bag, the accused, who did not at that point know that an offence was being committed, could not be guilty of abetment of the robbery.

A similar argument was considered and rejected by Finnigan J. in Rex v Henlika Funaki (unreported) CR App. 437/99, judgment dated 30 November 1999. In that case the principal offender committed the crime of theft by uprooting kava plants and carrying them to the roadside. He then went and arranged for the accused to come in his car and help the principal offender by transporting the stolen goods.

In the court below, the magistrate had held that the crime of theft had been completed before the accused had become involved and hence that he was not guilty of abetting the crime under section 8 of the Criminal Offences Act. On appeal the learned judge rejected that finding and held that by transporting the stolen goods the theft was still going on even though all the ingredients of theft had been present for some time.

In R v Tukia (unreported) CR 132-135/00, judgment dated 1 February 2001, Ward C. J. reached a similar conclusion in a case where, although the accused had not been involved at the scene of the armed robbery attack on a delivery van driver, he later participated in the disposal of the van and its contents and it was held that that action was sufficient to render him guilty of abetment of the armed robbery under section 8 of the Criminal Offences Act.

Mr Tu'utafaiva made special mention of the situation in New Zealand where a secondary party who is not an abettor can still be convicted of being an accessory after the fact. The point he made was that the driver of a getaway car might well be an accessory after the fact but there was no such offence under the criminal code in Tonga. But an examination of the New Zealand cases reveals that even those authorities are unhelpful to Mr Tu'utafaiva's submissions on the time factor.

In R v Turanga [1993] 1 NZLR 685, which was a bank robbery case, the question that arose was whether the acts of the driver of a second car (as opposed to the getaway car) used to complete the escape could be sufficiently proximate and contemporaneous to constitute aiding. Counsel had conceded (a concession "properly made," the court held) that the driver of the getaway car was liable as a party "even though, when the robber enters that car, the crime is complete because the actus reus of the robbery was concluded when the money was removed from the safe or from the teller and passed into the hands of the robber."

Williams J., after considering the authorities and the dictionary definitions of the word "contemporaneous," concluded that it did not mean at exactly the same time that the principal offence is completed and he rejected a submission that assistance given by the driver of the second car to the principal parties after they had committed the aggravated robbery did not constitute aiding and abetting but instead gave rise to liability as an accessory after the fact. At page 690, the learned Judge said:

"As Holmes J. once said, "elusive exactness is a source of fallacy throughout the law........ The fallacy in the present submission is to focus too strongly on the exact time the main offence was completed and ignore the primary question of whether the accused has done or omitted an act for the purpose of aiding any person to commit the offence."

Applying the approach adopted in those cases to the facts of the present case, it seems to me that if I were satisfied the accused become aware that an armed robbery had just taken place inside the Western Union office but still voluntarily elected to remain with the principal offender and drive the getaway car then I would be bound to enter a conviction of abetment even though the accused had no prior knowledge of the robbery.

The Crown's case is that the accused heard the woman inside the office scream and at that point he should have known that a robbery was taking place. There was no evidence that the accused had, in fact, heard the scream. There was evidence from two women in the vicinity that they had heard the scream but the accused was sitting in a late model car and there was no evidence as to whether the windows were open or closed or whether the car radio was on or off and, even if the accused had heard the scream, there is no evidence that he would have associated it with the Western Union office. There were other offices in the Western Union building and there were other houses and people in the vicinity. This is a criminal case and I cannot base a conviction on speculation.

The Crown is on much stronger ground, however, in its submission that when the accused saw Moala running out of the building with his mask still over his face, waving a gun and carrying the bag he must have realised that a robbery had been committed. The Crown submitted that a crucial factor confirming that the accused was aware of what had happened is what was called "the profanity" which the accused uttered to Moala just before Moala got into the car.

A closer look at this part of the evidence is now called for because it gives rise to a new issue which was not fully explored in submissions before me but, nonetheless, is an issue which clearly arises from the Crown's own evidence. It is a question of whether the accused, with the knowledge of Moala's criminal purpose, nevertheless, voluntarily elected to assist him by driving the getaway car or whether he was acting under compulsion sufficient to give rise to the defence of duress.

The element of compulsion arises out of the following passage of evidence which I set out in full. It is Moala's description of what happened after he left the Western Union office:

"I just ran out and went to the car and I saw Leki in the driver's seat and when I got closer I screamed at Leki, I just yelled at him to start the car but then Leki freaked out himself as I could just tell by the expression on his face that he was freaked out and when I got to the car the car was still not yet started then I pulled out the gun. I then put it to his face but I just put up the gun to my belly and then as a way of me -- that was my intention to intimidate him so that he would start the car and takeoff when I get in 'cause he said, before I did that, a profanity. "

Moala agreed to write down the "profanity". The words the accused had used were, "what the fuck you're doing?"

In cross-examination Moala was asked whether he still had the gun cocked ready to be fired after the robbery. His answer was:

"Yes, I had it on all the time even when trying to get Leki to drive the car I had it cocked the whole time. "

Moala was asked in evidence in chief what happened when they reached Kolonga. He replied:

"We parked the car and he (the accused) got out and walked away. I called him to come back. I knew I intimidated him. "

Halsbury's Laws of England, 4th ed, vol 11 (1), para 24 refers to "duress; compulsion" in these terms:

"Duress provides a defence to a charge of any offence other than murder and some forms of treason. Duress postulates the existence of threats of immediate death or serious personal violence so great as to overbear the ordinary power of human resistance to the doing of acts which would otherwise be criminal. . . the accused must show a proper foundation for the defence so that the issue is fit and proper to be considered by the jury; once this is done, it is for the prosecution to establish beyond reasonable doubt that the defence is not made out. "

On my analysis, the factors which the Crown rely upon to establish knowledge of the robbery and, hence, guilt of abetment of the robbery, such as the woman's scream, the running from the building by Moala while still wearing the mask and holding the gun and bag are all equivocal. The accused may or may not have heard the scream. If he did, then he may have been puzzled as to where it came from or what it meant. Similarly, his first reaction seeing Moala running from the building still wearing the mask and holding the gun and bag might well have been one of puzzlement or it may have been similar to that of the Western Union lady who told the court that she thought Moala was "just joking". The car was parked close to the entrance to the building and the accused, therefore, would have had only a very short time to try and work out what was going on.

If the accused did have doubts about what was happening then the reality would quickly have started to crystallise when he heard Moala screaming at him to start the car. The fact that the car's engine was not already running is a telling point. Moala said that he had to put the gun to the accused's face to get him to start the car.

On any view of the facts, that action must give rise to the defence of duress. The Crown submitted that as the accused was in charge of the "steering wheel" he could still have driven the car to the Mu'a police station nearby or he could have opened the door and got out, but with a cocked gun pointed at his face it was no time for heroics on the accused's part. As Lord Morris said in D.P.P. v Lynch [1975] UKHL 5; [1975] AC 653, 670:

"In the calm of the court-room measures of fortitude or of heroic behaviour are surely not to be demanded when they could not in moments for decision reasonably have been expected even of the resolute and the well disposed."

I do not accept that the car drove off at a "very high speed" as the Crown, in submissions, alleged. Moala was asked to describe the speed the car was driven at and he replied:

"I would not like to say. My intention was not to speed, my intention was to get away. We were just on the average. I was not paying attention to the speed because my intention was to get away."

Another eyewitness told how, immediately after the robbery, she tried to call out and attract the attention of two police officers who were operating a speed camera a little further along the road. Given the likely deterrent effect of the presence of a speed camera, I would need very strong counter evidence indeed before I would be prepared to conclude that the getaway car took off at anything other than an average speed.

The accused is perhaps fortunate that he is not facing a charge in respect of the $500 which Moala apparently placed in his pocket but there may well be a sound reason for that, not least of all the requirement in section 126 of the Evidence Act (CAP. 15) that would prevent the accused from being convicted upon the testimony of Moala (an accomplice) unless his evidence was independently corroborated.

The accused might also be morally criticised for not getting off the bus and reporting the robbery at the nearest police station but the failure to report a crime to the police is not a criminal offence.

The Crown made some point in closing submissions about the evidence from the witness on the bus from Kolonga who sat by the accused and described him as appearing "very happy." The court was invited to accept this evidence as an indication that the accused had been happy to facilitate in the commission of the robbery by driving Moala away from the scene. I am not prepared to draw the conclusion the Crown invites from this evidence. If the accused was "very happy," as alleged, an equally plausible explanation could have been just the sheer exhilaration of having survived the ordeal unscathed or perhaps simply the relief of finally being free from the clutches of, what must by then have seemed to him to be, a crazy, mixed up, dangerous individual.

In short, I see nothing in the accused's conduct which is inconsistent with his having acted at all material times under duress or, to express it in terms of the burden of proof, the prosecution has not established to my satisfaction beyond reasonable doubt that the defence of duress cannot be made out.

The accused is acquitted and discharged.

NUKU'ALOFA: 6 JULY 2001.

JUDGE