Rex v Koniseti [2004] TOSC 12; CR 059 2002 (16 March 2004)

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

NO. CR.59/2002

REX

-v-

‘ASINATE KONISETI

BEFORE HIS HON. MR. JUSTICE FORD

Counsel: Mr Sisifa for the Crown and
Mr ‘Etika for the accused.

Date of hearing: 20, 27 February and 10 March 2004.
Date of judgment: 16 March 2004.

JUDGMENT

Sione Filipe, the complainant in this case, is a 60-year-old retired businessman. He told the court that back in 2001 he was engaged in exporting and importing. He was also a wholesaler supplying goods to retailers such as restaurants, stores and takeaways. In addition, he operated three retail shops in the Nuku'alofa area. Sione kept his general stock in a locked warehouse at his securely fenced off property in Sopu. His liquor suppliers were kept in a large locked container on the same premises.

On 13 August 2001 Sione and his de facto partner, Meleane, travelled to Fiji and the United States. Part of the reason for the trip was to purchase goods for their business. They did not return to Tonga until 16 October 2001. While they were overseas Sione left the accused, 'Asinate Koniseti, in charge of the whole of his operations. 'Asinate was a police officer but for most of 2001 she was on leave from the police force. 'Asinate had started working for Sione in March 2001. Her duties included ordering and supplying goods for the retail outlets and collecting and banking the business proceeds. When Sione was away, however, she was given complete control of all activities, including a general cheque signing authority.

Before his departure, Sione implemented one additional safeguard. He left the key to the container and warehouse at Sopu with his elderly cleaner, Fono Latu. If 'Asinate required liquor supplies or other goods from the Sopu premises then she would need to arrange for Fono to be taken along to unlock the warehouse and the container.

When Sione and Meleane returned from overseas they immediately noticed a large decrease in their stock. 'Asinate did not report for work on their first day back. She claimed that she was sick. The court heard evidence as to how Sione subsequently, with increasing desperation, tried to meet with 'Asinate and to have her return the books she still had in her possession relating to the business. He was unsuccessful. 'Asinate never returned to work nor did she hand over the business records.

Sione arranged for an urgent stock take to be carried out. It showed liquor and goods missing from the Sopu premises totalling $151,510.50. He reported the matter to the police and 'Asinate was arrested and charged with theft. She denied the charge and the matter proceeded to trial.

One of the key witnesses for the Crown was 32-year-old Lou Hurrell. Lou said that she was a friend of the accused and she described to the court how the accused, who was then on leave from the police force, had come to live with her for about seven months in 2001. Lou recalled 'Asinate working for Sione Filipe and then taking over control of the business after Sione travelled abroad.

Lou's recollection of dates was not good in that she thought Sione had left for overseas in March or April 2001 but, by and large, I found her to be a credible witness. She told how, after she had taken over running the business, 'Asinate began bringing home various goods and liquor from her work. Lou recounted rather dramatically a delivery of liquor that 'Asinate brought home from work at about 11 o'clock one night. She said that it was made up of some 15 to 20 cartons of regal whisky and gin (there were a dozen bottles to a carton). ’Asinate asked for the outside light to the house to be switched off so that the truck driver could reverse up to the house and unload. The cartons of liquor were stacked in the bedroom by the bed.

The witness told the court that she had been surprised when the truck arrived and she asked 'Asinate what it was and 'Asinate had replied, "it's liquor to get some money for us".

Lou then explained how later they ordered a taxi and delivered part of the liquor supplies to a Chinese store. The proprietor gave 'Asinate in excess of $800 and some of the proceeds were given to Lou. The witness described how over the period Sione was away she made approximately five visits with 'Asinate and some of Sione's other employees down to the Sopu premises and on each occasion liquor was taken out of the container and delivered to Chinese stores for cash. These deliveries were made at random. The liquor had not been ordered by the shop proprietors and the transactions were not recorded anywhere in the company's books. The Chinese shop owners appear to have been keen to pay the discounted asking cash price of $12, $10 and sometimes $8 per bottle. Lou said that 'Asinate kept the proceeds and from time to time paid various cash amounts to her and other employees who had assisted in the covert operations. She told how on one occasion 'Asinate had paid out company cheques for $150 and $100 to relatives to meet church obligations.

Lou recounted one particular incident when they had gone to the Sopu premises but were unable to find Fono to pick up the keys. She told the court how they proceeded to borrow a crescent spanner from someone living nearby and Kamilo, the truck driver, removed the lock component to the container. A supply of over 10 cartons of whisky and gin (the driver later estimated the figure at 20 cartons) was then taken from the container and delivered to a Chinese store opposite the wharf and 'Asinate received over $1000 for the delivery. She paid Lou $400 from the proceeds and some money was also given to Kamilo. Significantly, after the lock had been screwed back onto the container that day, 'Asinate told Kamilo to use a handkerchief and wipe the door of the container and the lock and everything else that they had touched, "just in case the police came."

Fono Latu, who Sione had entrusted with the keys to the warehouse and the container, was also called as a Crown witness. I am satisfied that initially she was an entirely innocent party to what was going on and I accept that she must have been shocked and overwhelmed as it began to dawn on her what was happening. Although it was never put to her as such, I suspect that the turning point would have been after one of the trips to the container when 'Asinate gave Fono cash totalling some $500. The witness told the court that her regular weekly pay was $40 and she had never possessed such a large amount of cash before. She did not spend it but opened a bank account and kept the money on deposit until Sione returned from overseas.

Another key witness for the Crown was the truck driver, Kamilo Tongamoa. He confirmed that 'Asinate required him from time to time to make the various deliveries of liquor and goods to the Chinese shops that other witnesses had spoken about. He also confirmed that 'Asinate paid him various amounts for the deliveries including $300 on one occasion.

Referring to the incident when he removed the container lock with the borrowed crescent spanner, Kamilo said that after he had screwed the lock back in place 'Asinate had given him a handkerchief and had told him to, "wipe the door of the container and the lock and everything else that we had touched."

All of these witnesses were, of course, to varying degrees, accomplices and section 126 of the Evidence Act (CAP. 15) requires some corroboration of their testimony.

The accused, as was her right, elected not to give evidence but she had made an unsworn statement to the police which was unchallenged and produced in evidence. I find ample corroboration in that statement. In it she proceeded to name Lou, Kamilo, Fono and two or three other employees who she said had assisted but she made it sound as though she was not the ringleader but simply one of the recipients of the proceeds of the unauthorised transactions.

The police interviewing officer specifically asked the accused about Sione's stock take list of missing items which had totalled $151,510.50. She disputed that figure but admitted being involved in the unauthorised disposal of liquor and goods totalling $26,255.00. Accordingly, upon arraignment, Crown counsel sought and was granted leave to amend the figure shown in the indictment to the lesser figure.

The onus, of course, is on the Crown to prove all the elements of the offence beyond reasonable doubt. Theft is defined in section 143 of the Criminal Offences Act. There are four elements with the Crown must prove. First, a taking, that is a physical moving of the item for however short a distance, so long as the accused had the intention to steal the item at the time it was moved. Secondly, the taking must be deliberate and dishonest. Thirdly, the taking must be without colour of right, that is, without any honest but mistaken belief in a right to take it and finally, there must be an intention to deprive the owner permanently of the item. A mere borrowing would not be sufficient.

The defences advanced by Mr 'Etika in his typically succinct submissions were essentially threefold. First, he contended that the Crown had failed to prove that there was any "taking" of the liquor and goods by the accused. Counsel said that none of the witnesses had actually seen the accused taking the goods herself and in cross-examination he had obtained a specific concession from the truck driver, Kamilo, that it was he and others who had taken the cartons of liquor out of the container and loaded them on to the truck while the accused had simply sat watching or talking. The witness said, "we did not want 'Asinate to be involved in anything." When the court asked him to elaborate on that statement, Kamilo replied: "We did not want 'Asinate to do any work. She was the manager."

I find this particular defence without either substance or merit. Despite her attempts in the police Record of Interview to downplay her own involvement in the criminal spree, I have no doubt that the accused was the instigator and mastermind behind the blatant series of thefts from the complainant's Sopu premises.

The term "taking" is not defined in the Criminal Offences Act but to satisfy this requirement, it is sufficient, even if the accused does not move the items personally, if he or she causes or arranges for someone else to move them. That is exactly what happened in the present case. The accused was the person in charge and it was she who directed and oversaw the whole criminal operation.

As I understand the second defence put forward by Mr 'Etika, he argues that, as Sione Filipe had left the accused in charge of the business, she had the same colour of right to the goods and the liquor as Mr Filipe had - hence, so the argument runs, the Crown has not established the third element making up the charge.

The essence of the defence of colour of right is honesty of purpose. Where an accused person genuinely believed that he or she had the right to take the item, that is a good defence even if he was she was mistaken in both fact and the law. Similarly, an honest belief that the owner would have authorised the act is a good defence. It is for the prosecution to prove that there is no colour of right.

In this case, the Crown has satisfied me beyond reasonable doubt that at no stage did the accused even entertain the notion that she had colour of right to take the liquor and goods in question and dispose of them as she did.

The final defence advanced by Mr 'Etika was that the goods and liquor stolen had not been properly identified by any of the witnesses in evidence. The short answer to this omission is that the goods itemised in the indictment, as amended, appear to be precisely the same goods which the accused had admitted to in her Record of Interview with the police. The police statements were produced as exhibits by consent. If there was going to be a challenge to the items particularised in the list attributed to the accused then that needed to be put to the interviewing officer and counsel should have required his presence for cross-examination. That was not done.

I find the case against the accused quite overwhelming. The Crown has proved all the necessary elements of the offence beyond reasonable doubt and the accused is convicted accordingly.

NUKU’ALOFA: 16 MARCH 2004

JUDGE