Rex v To'ia [2004] TOSC 52; CR 270 2001 (14 December 2004)

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

CR 270/01

REX

-v-

SEMISI KOLOA’IA TO’IA

BEFORE THE HON CHIEF JUSTICE WEBSTER

Counsel: Ms Simiki for the Crown
Mr T Fifita for the Accused

Held at Nuku’alofa on 26 & 29 November & 2 December 2004

RESERVED DECISION GIVEN ON 14 DECEMBER 2004

Preliminary

The accused was charged on indictment with theft, contrary to sections 143 and 145(b) of the Criminal Offences Act (Cap 18). The particulars of the offence on the indictment (as subsequently amended at the beginning of the trial without objection) were:

Semisi Koloa’ia To’ia on or about the month of April 2000, you dishonestly took without any colour of right the following goods shown on the list attached which amounted to the value of $3,733.54 with the intent to deprive the owner, Tonga Cooperative Federation (TCF) permanently of those goods.

The value of the goods alleged to have been stolen was also amended prior to the trial without objection to $3,586.90.

The list which was attached to the indictment covered over 60 items totalling $3,733.54. It was not amended prior to or during the hearing.

Evidence

The Crown led evidence from Mr Po’uliva’ati Latu’ila, Manager with overall responsibility for the Tonga Co-operative Federation [TCF] delivery trucks; Ms Latai Tahaafe, Wholesale Stores Supervisor, TCF; Mr Moala Latu, former Delivery Truck Sales Clerk, TCF; and Mr Nuna Luka, former Delivery Truck Supervisor, TCF. The Crown also produced documentary exhibits. The accused gave evidence on his own behalf.

I reserved my decision at the end of the hearing.

Elements of the offence

As was correctly submitted by both Counsel, the burden is on the prosecution in a criminal trial to prove beyond reasonable doubt every element of the offence alleged. In the case of theft the elements to be proved are:

Appropriation by the accused

Of property

Belonging to another

Dishonestly

With the intention permanently to deprive.

To establish appropriation it is absolutely basic that the prosecution establishes to the same high standard of proof that the property in question was there in the first place.

Property allegedly stolen

In this case the accused was Supervisor and driver of a delivery truck (No 18) which sold and delivered the TCF's goods to small shops in Haveluloto. New stock was ordered by the accused from TCF's warehouse on a daily basis and loaded onto the truck by the accused and the Delivery Truck Sales Clerk, Mr Moala Latu. When the truck went to a shop, the shopkeeper would place an order with the accused, whose instructions were that he was to issue an invoice for the goods in the order and obtain cash payment for them before off-loading them from the truck to the shop. There was a conflict of evidence about whether delivery of goods on credit was permitted, which I shall deal with later. The Supervisor was to pay in the cash collected to the TCF on a daily basis.

The TCF carried out a stocktake of the goods in the truck every 2 weeks, and then carried out a reconciliation of the goods in the truck against the previous stocktake plus (or minus) daily orders of new stock and goods transferred from (or to) other vehicles, less sales during the 2-week period. The value of any shortages was deducted from the Supervisor's commission.

In this case a stocktake carried out on 26 April 2000 revealed the substantial shortages of around $3,000 referred to in the original indictment and accompanying list: the stocktake had been carried out at a day late due to the public holiday on the previous day, Anzac Day. The record of that stocktake was produced to the Court, spoken to by the witness Ms Latai Tahaafe, and showed the amount of each item, initialled by both Latai and the accused.

The previous stocktake had been carried out on 11 April 2000, but no similar evidence of the details of that stocktake were produced to the Court or spoken to in the same way - perhaps due to the absence of witnesses on account of the long delay in this case since 2000. Nor were the intervening order forms, transfer records or sales invoices produced to the Court. The evidence of that stocktake - which I regarded as the baseline which the prosecution had to establish as one of the key elements in the main part of this offence relating to the stocktake on 26 April - was a document (Exhibit 2) entitled "Product Reconciliation for Delivery Truck # 18 Commission Period 11/4 – 25/4/2000" [the 26 April Reconciliation]. That document was spoken to by the witness Mr Po’uliva’ati Latu’ila, Manager with overall responsibility for the TCF delivery trucks, who had compiled it using the records of the previous stocktake on 11 April and the daily orders, transfers and sales. It brought out shortages with a total cost of only $2,768.94. However it was accepted by the prosecution that that document was not primary evidence.

Mr Latu’ila also accepted in evidence that although he had been present for most of the time when those goods were physically counted he had not prepared the list of shortages and that it was possible that it could be wrong; and he also accepted that in fact the original list [with a total of $3,733.54] had a difference of over $200 in comparison with the final figure (including that from the stocktake on 27 April referred to below).

On those bases, I could not accept that the prosecution has established beyond reasonable doubt the baseline figures for the stocktake on 11 April, which is the foundation for the indictment as it relates to the stocktake on 26 April.

However after the stocktake on 26 April the accused worked for TCF for 1 further day before he parked his truck at TCF Headquarters and left to go home. After that he never returned. The consequence was that another stocktake had to be done on 27 April, which revealed a further shortage of just over $800 in comparison with that on 26 April, the previous day. That stocktake on 27 April was spoken to by the witness Mr Nuna Luka, who took over as supervisor of Delivery Truck No 18. In the absence of the accused he had done the stocktake, again initialling each item, along with Mr Haleli Tiueti (who was not a witness).

Attached to the Product Reconciliation referred to earlier was another sheet headed "Product Reconciliation for Delivery Truck # 18 on 27th April 2000". That document was again spoken to by Mr Latu’ila, who had again compiled it using the records of the previous stocktake on 26 April and the daily orders, transfers and sales. It brought out shortages with a total cost of $807.96. However once again there was no hard or primary evidence produced to this Court to vouch the stock transfers in to the truck or the sales.

There were 3 items on that list which involved stock transfers into the truck on 26 April, but as there was no back-up evidence to vouch them I cannot accept that the prosecution has established beyond reasonable doubt the baseline figures for them. The other 3 items were based on only the opening stock, so I accept the baseline figures for these as established beyond reasonable doubt as at 27 April as follows:

Diet Cola 1.5 ltr 9 $1.70 per unit

S/P Batteries 2’s “D” 72 $1.44 per unit

Winfield Blue 25’s 28 $38.85 per unit

(closing balance 22)

There was only 1 sale recorded in these items, of 1 unit of Winfield Blue, with an adjustment of 5 units, but as these act in favour of the accused and there was no suggestion that he had sold more, I do not consider further proof of these is required.

However the stocktake on 27 April gave the closing stock of these 3 items, and thus the following shortages, as:

Diet Cola 1.5 ltr 8 1 short $1.70 per unit $1.70

S/P Batteries 2’s“D” 66 6 short $1.44 per unit $8.64

Winfield Blue 25’s 6 16 short $38.85 per unit $621.60

TOTAL VALUE OF SHORTAGE $631.94

As there was clear, credible and reliable evidence that these items had been there in the truck on 26 April, but were not accounted for on 27 April, on the evidence I thus found it established beyond reasonable doubt that there were these shortages (and only these shortages were so established) from the goods entrusted by the TCF to the applicant on 26 April.

But when considering my reserved decision after the hearing, and referring back to the list of items attached to the indictment, I found that shows as follows:

Diet Cola 1.5 ltr a distinct and separate shortage of 9 units, as shown on the 26 April Reconciliation at page 2.

S/P Batteries 2’s“D” a distinct and separate shortage of 12 units, as shown on the 26 April Reconciliation at page 6.

Winfield Blue 25’s only a distinct and separate shortage of a different item - 11 sleeves Winfield Blue 20’s (at a different price of $30.30 per unit), as shown on the 26 April Reconciliation at page 7.

Thus I found that these 3 items, about which there was clear evidence, are not referred to in the list attached to the indictment, which is thus defective to that extent.

Amendment of indictment

Where no application to amend the indictment is made by either side, a judge, in exercising his discretion whether to direct an amendment or not, should invite the parties, and in particular the defence, to express their views on the matter before deciding to do so: Archbold (2003) para 1-148; R v West [1948] 1 All ER 718 (CA), 32 Cr App R 152; R v Gregory [1972] 2 All ER 861 (CA), 56 Cr App R 441. I had in any event done that at a short hearing on 2 December (having given advance notice of its purpose) before my attention was drawn to those references.

According to Halsbury’s Laws 4th Ed Vol 11(2) para 937, where at any stage of a trial (ie even after verdict), it appears to the court that the indictment is defective, the court must make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendments cannot be made without injustice: R v Fraser (1923) 17 Cr App R 182 (CA). The longer the interval between the arraignment and amendment, the more likely it is that injustice will be caused, and in every case in which amendment is sought, it is essential to consider with great care whether the accused person will be prejudiced thereby: R v Martin [1961] 2 All ER 747 (CA), 45 Cr App R 199,204; R v Radley [1974] Crim LR 312 (CA), 58 Cr App R 394,403.

The power to amend is not limited to those cases in which the indictment is bad on its face and, provided the amendment causes no injustice to the accused, alterations in matters of particulars may be made: Halsbury para 937 n 7. Any alteration in matters of description, and probably in many other respects, may be made in order to meet the evidence in the case, so long as the amendment causes no injustice to the accused: R v Smith & Pople [1950] 2 All ER 679,681 (CA), 34 Cr App Rep 168,177. Other examples have been an indictment for burglary alleging that the accused, having entered a building as a trespasser, stole 6 keys amended by the substitution of particulars that he entered the building as a trespasser with intent to steal property allowed as merely correcting a misdescription of the alleged offence (R v Norton [1970] Crim LR 282, (CA)); where there was evidence on the depositions to support a charge of receiving 8 paintings, the alteration of a count charging receiving 3 to charge receiving the 8 was held to have been properly allowed (R v Hall [1968] 2 All ER 1009,1011 (CA), 52 Cr App R 528); and amendment of the date of the offence was allowed after commencement of summing up (R v Bonner [1974] Crim LR 479 (CA)).

On 2 December Ms Simiki submitted for the Crown that the yardstick to be used was that the proposed amendment would cause no injustice to either party; and that there would be no injustice to the accused if this amendment were made at this stage as that information had been available to him from the stage of the Preliminary Inquiry. In addition, she submitted that it was clear that the accused's defence was geared to him never having stolen any of the goods in question and there was no alternative defence which would have a different impact if the indictment were amended. With reference to Clause 13 of the Constitution, she submitted that there was no suggestion that the charge should be altered, but only its particulars.

Mr Fifita for the Defendant submitted strongly that if the amendment were granted it would prejudice the accused as this was not the correct stage to amend the indictment. He said that he had agreed to 2 amendments to the indictment before the trial began and would have had no objection to amendment during the trial, but he strongly objected to the amendment after hearing all the evidence. He submitted that if the indictment were amended there would be injustice to the accused because it needed a new defence. He referred to a Clause 13 of the Constitution and submitted that the accused should be tried on what was on the indictment alone.

Clause 13 of the Constitution, to which Mr Fifita referred, provides as amended in 1990:

“Charge cannot be altered

13. No one shall be tried on any charge but that which appears in the indictment, summons or warrant for which he is being brought to trial:

Save and except that –

(a) where the complete commission of the offence charged is not proved but the evidence establishes an attempt to commit that offence the accused may be convicted of this attempt and punished accordingly; and

(b) where an attempt to commit an offence is charged but the evidence establishes the commission of the full offence the accused may be convicted of the attempt; and

(c) on the trial of any person for embezzlement or fraudulent conversion the jury shall be at liberty to find such person not guilty of embezzlement or fraudulent conversion but guilty of theft and on the trial of any person for theft the jury shall be at liberty to find such person guilty of embezzlement or fraudulent conversion.

(d) any Act may provide that a person charged with an offence may be convicted of another offence (not being a more serious offence) arising out of the same circumstances.”

In Pulu v R [2000] TOCA 17 (CA), the Court of Appeal considered a submission that it had been generally unfair to allow the prosecution to amend the particulars of the charge by adding in words of detail concerning the offence, after the Crown had opened its case and after the evidence of 3 of the 5 witnesses had been heard. In the circumstances of that case the Court of Appeal found no grounds for holding that there was any element of unfairness in allowing the application for amendment at that stage of the trial. Although experienced counsel were involved in that appeal, there was no mention of the position being affected by Clause 13 of the Constitution.

Although, for various reasons, in this case from the time of arraignment there has been a very long interval, both the list of allegedly stolen items and the Product Reconciliations had been available to the defence since at least the Preliminary Inquiry in November 2001, but at the trial there was no cross-examination of the prosecution witnesses, particularly Mr Latu’ila, about the details of the items in either document. The defence of the accused centred round 2 issues: proof of the existence of the allegedly stolen items as a whole prior to the 26 April stocktake; and whether sales on credit to shopkeepers were permitted unofficially.

In this case it is not the substance of the charge which is being considered for amendment, nor even the value of goods alleged to have been stolen (as the value of those 3 items falls within the amended figure of $3,586.90), simply the description of those goods.

I therefore found that there would be no injustice to the accused in amending the list attached to the indictment to include the 3 items referred to above, as it would not affect the defence put forward by him (which in any event has been successful in relation to the alleged shortage arising up to the 26 April stocktake). I also considered that Clause 13 of the Constitution does not of itself prohibit alterations to details of an indictment – provided again that no injustice results to the accused. It is clear from Halsbury that the whole trial has not yet been concluded, and Clause 13, having previously read “that which appears in the indictment ... and for which he was brought to trial”, was amended in 1990 to speak in the present tense – “that which appears in the indictment ... for which he is being brought to trial”: ie the indictment including amendments duly made according to law. I therefore decided it was necessary to make the amendment to meet the circumstances of the case and amended the list attached to the indictment accordingly.

Was there dishonest appropriation?

It was therefore established that on 26 April the accused had charge of those 3 items which were the property of TCF, but they were not there the following day. The accused said in cross-examination that he did not know where the goods listed under the shortages disappeared to. While it is not for the accused to have to establish the reason for their disappearance, his failure to offer any explanation at all in evidence does not help his defence.

In relation to whether the accused intended permanently to deprive the TCF of all or any of the items, there was a great deal of evidence about whether or not the TCF in fact permitted supervisors to grant credit to shopkeepers. While I accepted that the formal position was that TCF did not allow its delivery truck supervisors to grant credit to shopkeepers, equally I accepted the evidence of the accused that his Manager Mr Latu’ila had effectively allowed it when he told them that they were allowed to give goods on credit to retail shops if they thought TCF would be able to maintain money from it. That was supported by the evidence of the prosecution witness Moala Latu (the Sales Clerk in the accused’s truck) in his evidence–in-chief that selling of goods on credit was not allowed, unless to a party whom you trusted. I was unable to accept Mr Latu’ila’s evidence to the contrary.

I therefore considered that during the short time the accused was a delivery truck Supervisor, he did sell or give out goods on credit, as he admitted in evidence. But in relation to those goods I found that the accused believed that he had oral authority to do so if he thought TCF would be able to maintain money from it. However he himself said in evidence that the goods given on credit had been paid by the time he left his work, so there was no credit outstanding when he left TCF on 27 April, so the question of credit is not relevant to the issue of the accused’s intentions in relation to the goods which were short on 27 April. In any event in relation to the stock under the charge of the accused from 26 to 27 April, I found that it was unlikely that he would have given that amount out on credit in 1 day, particularly when he had already given in his resignation (see below) and was unlikely to have been able to collect repayment of any such credit.

Although there was some hearsay evidence about TCF having found some small shopkeepers who had purchased goods on credit, no such shopkeepers gave evidence and there was no evidence about that which would be admissible in terms of sections 88 & 89 of the Evidence Act (Cap 15). I therefore discounted that evidence.

There was also circumstantial evidence that the accused had not been paid for 2 or 3 weeks (which Mr Latu’ila admitted could happen when the Inventory section was slow); and that he found that his wages were not enough to maintain his family. He said he wanted relieved of his position and had given in his resignation to Mr Latu’ila on 26 April, but had been asked by Mr Latu’ila to continue working and someone to take his place would be found by the following day. The accused thus had a motive for recouping himself from the stock, especially as he had already given in his resignation and it was in his mind at that that would be his last day at work.

The cigarettes which were not accounted for would be easily resaleable, while the single 1.5 litre bottle of Diet Coke and the 6 packs of D batteries worth $8.64 in all are exactly the type of items and quantities which would be short due to petty pilfering and the accused treating the items as if they were his own and not TCF’s.

What is also very relevant in relation to this is the sequence of events after the ‘first’ stocktake on 26 April and on 27 April, as described in evidence by Mr Latu’ila. After the stocktake the accused and Moala had continued with their deliveries. Then between 7 and 8 am on 27 April Mr Latu’ila had received a phone call from 1 of his assistants to come to the Head Office because Delivery Truck No 18 was parked outside and Moala was there but the accused was not, although earlier he had been there and had told Moala that the key of the truck was in the truck. Moala had told Mr Latu’ila that the previous evening the accused had told him to meet him at Head Office the following morning as the truck was parking there. Mr Latu’ila had then found the key under the driver’s seat and he (and he said Moala) then went to get the accused from his home at Pea as Mr Latu’ila required a further stocktake to be done. When they returned to Head Office Mr Latu’ila went into the office to get the figures for the stocktake, and while he was at the office the accused took a taxi and left. As by this time Mr Latu’ila was suspicious about the accused, after taking advice from the Police, he once more went to search for the accused, but he was not at home. The accused did not work for TCF after that.

That evidence was not challenged in cross-examination, though Moala could not recollect going to the accused’s house, but he was not asked about the incidents in cross-examination. In his own evidence the accused said that, when he understood that TCF had not found the replacement for him which he said he had requested and been promised, he had parked the truck at the TCF compound and went back home.

In accordance with TCF's normal practice, the Sales Clerk Moala always kept the key of the back of the truck, where the goods were, but there was no suggestion in evidence that he had taken goods, and he was not asked about that in cross-examination. There was insufficient time and opportunity on the morning of 27 April for him to have appropriated the missing items and there was no evidence to the contrary.

I found all that circumstantial evidence taken together, including the accused's sudden disappearance in a taxi on the morning of 27 April, very powerful and the net effect of it was to establish beyond reasonable doubt the accused's intention to permanently deprive TCF of those 3 items. While the pieces of circumstantial evidence by themselves would not be conclusive of theft, together and with the other evidence they satisfy me beyond reasonable doubt. They did not raise any reasonable doubt as to the accused's guilt, but dispelled it.

I was thus unable to accept the accused’s evidence that he had never taken anything from TCF unless told to do so.

Conclusion

Although it was not established beyond reasonable doubt that there had been appropriation of the bulk of the items in the indictment (relating to the period up to the stocktake on 26 April) I therefore find it established beyond reasonable doubt that between 26 and 27 April 2000 the accused dishonestly appropriated property belonging to the TCF (namely 1 Diet Cola 1.5 ltr; 6 packs S/P Batteries 2’s “D”; and 16 packs Winfield Blue 25’s, of total value $631.94, included in the indictment as amended) with the intention permanently to deprive it of them.

I therefore find the accused guilty of the theft of those items.

NUKU’ALOFA: 14 December 2004.

CHIEF JUSTICE