Rex v Fukofuka [2001] TOSC 31; CR 179 2000 (6 August 2001)

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

NO.CR.179/00

REX

-v-

SITENILI FUKOFUKA

BEFORE THE HON. CHIEF JUSTICE WARD

Counsel: Mr S. Sisifa for the prosecution
Mr Fifita for the accused.

Date of Trial: 1 and 2 August, 2001.
Date of Ruling: 6 August, 2001.

JUDGMENT

The accused is charged with two offences of Housebreaking and a count of theft in relation to one and wilful damage in relation to the other. All the offences occurred in the morning of Good Friday, 21 April, 2000.

Kelepi Makakaufaki lives in government quarters in Fasi and, in the house next door lives the mother of Siaosi Sovaleni. At that time she was away and so Siaosi used to visit the house to check it.

On that morning, Kelepi's house was left locked up when he went to church. He returned some time between 10 and 11 am to find that a window had been broken and, on inspection, the house had been ransacked. All the drawers had been pulled out and a few items stolen. He called for help and some young men from the vicinity came to assist.

One of those men, Lomilingi Po'oi, told the court how he noticed that a shirt had been left on the window through which entry had been made and a pair of sandals left outside. He started to look around for the burglar and went to the Sovaleni house next door. By the fence he saw some items of clothing that might have been abandoned by the thief. As he approached the other house, he saw that the door was open and called to Siaosi. He received a reply from inside that appeared to be the voice of the accused whom he knows well.

As he approached he saw the accused in the house in a pair of shorts only and the accused told him to get to the road or he would beat the shit out of him. The accused then came to the door and closed it.

Another man, Kuli Vanisi, who was also there heard something said from the house but could not say what it was. However, he also knows the accused and he saw him and identified him as the accused.

Both men then went to Kelepi's house to ask to telephone the police but, whilst there, they heard a shout "Sitenili is trying to run away".

They ran towards the other house and saw the accused climbing the high fence at the back of the premises. Lomilingi shouted to him to stop because he knew who he was but, as they approached, he was able to climb over and run off

When that house was checked, it was found to have been ransacked in the same way as had the first and a bag that belonged to Siaosi had been packed with items of clothing, including some identified by Siaosi as his, but then abandoned in the house.

The accused was seen by the police on 16 June 2000 and interviewed. In all his interviews and statements he firmly denied any knowledge of the incidents. He told the police that he had been drinking with some others from the previous evening until the early hours of the Friday morning. He was very drunk but knew what he was doing. He told them he was wearing a grey T-shirt and long jeans trousers. The next thing, however, was that he woke up lying naked in his bed at about midnight.

In court he gave evidence to the same effect. However, he said that he left the party very drunk and was unable to walk properly and he thought he might fall in the road and be run over so he lay down by the side of the road and went to sleep.

He was woken some time later and found that two of the women who had been at the party had shaved his hair off. He woke as they tilted his head to do the same to his eyebrows. He then went home. This was between 8 and 9 in the morning. He told the court that he was wearing a pair of dungarees, Blue Deer sandals and a brown T-shirt. When it was put to him that he had said grey to the police, he said it was the same thing in his mind.

He told the court that he had been to prison back in 1980 or 1986 and, since then, every time there was a break-in in that area, people suggested it was he who had done it. He also said that he had seen Kuli a few days after the events and asked him about his allegation but received the rather enigmatic reply that it was because of Lomilingi.

He also said that, when he was being interviewed by the police he was shown the clothes that had been left by the window in Kelepi's house. He told the police that the shirt was not his and the sandals were the wrong size and were too big. I note that these items have not been produced to the court and no reason has been given by the police witnesses but I take it in the accused's favour that he has been denied the chance to demonstrate that point.

The defence called two of the women who had been at the party and were involved in the shaving of his hair.

Lolohea Malafu was one of the two who actually shaved his head. She had been at the party and, when she woke and found the accused asleep drunk by the roadside, she decided to do it. She said it was between 8 and 9 and that the accused did not wake up at all.

She told the court she had driven to court that day with the Accused but had not discussed the case with him. Her evidence was her clear recollection. When asked what he was wearing, she said he had Blue Deer sandals, jeans and a greyish T-shirt.

The other defence witness was another woman who had attended the party and who watched her two companions shave the accused's head. She had also travelled with the accused to court and confirmed that they had not discussed the case at all. On the day of the offence she had been to a church service at 7 am and, on her return, saw the other two shaving the accused's head. She recalled that this was between 8 and 9am, that he did not wake and that he was wearing jeans, a greyish coloured T-shirt and Blue Deer sandals.

The case against the accused clearly depends on the evidence of his identification. There is no challenge that the houses were broken into, that the property alleged in count 2 was taken form Kelepi's house and that the window in Siaosi's house was broken as alleged in count 3. There is no dispute either that a man was seen in Siaosi's house and he later ran away by climbing the high back fence. I have no doubt that the same man committed all the offences charged. They were close in time and place and the manner in which the houses were ransacked was the same in both.

Identification evidence poses real difficulties and must be treated with considerable caution. I warn myself of the dangers of such evidence and also the fact that, in this case, the accused has throughout denied any involvement and has gone further and called witnesses to establish an alibi. If he is to be convicted, the court must be satisfied beyond reasonable doubt that he was the person seen and satisfied, to the same standard, that his denials are untrue and his witnesses are wrong.

I am satisfied the witnesses and the accused are not speaking the truth. I did not find their evidence credible. Their manner in court and the coincidence of the manner in which each remembered the clothes down to the make of sandals suggests clearly that they have discussed the evidence with the accused despite their denials of doing so. Whether or not there was such an incident as they described in which they shaved his head, I am satisfied it was not on that day.

The accused was interviewed after three weeks and said nothing of this unusual an incident. He remembered, and felt it important enough to mention, the party but did not mention the one incident that made it unusual. That fact would clearly have established his extreme drunkenness at a time not long before the burglaries when he was unable even to walk properly let alone climb a high fence and would have meant his appearance was markedly changed in a case where he was identified by people who knew him.

On the other hand, I find the evidence of the two identifying witnesses is truthful. Counsel pointed out differences in the account each gave. In particular he suggested that the evidence of Kuli as to the manner in which he saw the accused in the house meant that Lomilingi could not have seen him there in the way he described to the court. I have considered all those matters. I am satisfied beyond any reasonable doubt that both these witnesses saw the accused and made an accurate identification of him. I have no doubt that the opportunity for them to identify the intruder was good in bright daylight and from a very short distance away. Each had the chance to see him a second time and still made the same identification. I also note that another person also made the same identification. While these two were at Kelepi's house, their evidence was that some other person called out that Sitenili was running away.

I am satisfied beyond reasonable doubt that the accused committed both breakings, stole from Kelepi's house and broke the window in count 3.

He is convicted on all four counts.

NUKU'ALOFA: 6 August, 2001.

CHIEF JUSTICE