Rex v Maue [2004] TOSC 53; CR 016 2004 (20 December 2004)

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

CR 16/2004

REX

-V-

BRUCE CHRISTOPHER MAUE

BEFORE THE HON CHIEF JUSTICE WEBSTER

Held at Nuku’alofa on 9, 10, 13 & 14 December 2004

Counsel: Mr Sisifa for the Crown
Mr Veikoso for the Defendant

RESERVED DECISION GIVEN ON 17 DECEMBER 2004

Preliminary

The accused was charged on indictment with housebreaking, contrary to section 173(2)(b) of the Criminal Offences Act; and theft, contrary to section 143 of that Act. The particulars of the offences on the indictment were:

Bruce Christopher Maue, on or about the 23rd November 2003, at Fo'ui, you entered the house belonging to Latai Mataele, looked after by 'Etueni Mo'ungaloa as a trespasser, and committed the crime of theft therein.

Bruce Christopher Maue, on or about the 23rd November 2003, at Fo'ui, you stole 5 pairs of Jeans @T$125.00, 2 long trousers (green and brown in colour) @T$100.00, 8 T-shirts @T$200.00, 1 body deodorant @T$5.00, 1 after-shave @T$50.00, 1 shaving set @T$12.00, these belonging to Ipu Mataele, but looked after by 'Etueni Mo'ungaloa.

Witnesses and procedure

The Crown led evidence from Mr ‘Aisea Tu’ineau, Kolovai, who had been a drinking companion of the accused for some of the relevant time; Mrs Irene Mo’ungola, Kolovai, whose mother, Mrs Latai Mataele, owns the house at Fo’ui from which the alleged theft took place from Mrs Mo’ungaloa’s brother, Mr Ipu Mataele; and Det LCpl Taniela Vea of Nukunuku Police Station. The Crown also produced real and documentary exhibits. The accused gave evidence on his own behalf; and led evidence from Mr Tonga Fotofili, his adoptive father; and Miss Lolohea (aka Tulikaki) Fotofili, the daughter of Tonga.

The procedure became somewhat confused when, during what was intended to be a voir dire into the admissibility of the statements etc, the accused's Counsel Mr Veikoso strayed from that matter into taking wide-ranging evidence from the accused, but as I was sitting hearing this case as a judge alone I did not consider that any prejudice was caused to either party.

I reserved my decision at the end of the hearing and gave it in outline on 17 December.

Elements of the offences

The burden is on the prosecution in a criminal trial to prove beyond reasonable doubt every element of the offence alleged. In this case the elements to be proved for housebreaking were that:

The accused had entered

A building or part of a building

As a trespasser

And committed a crime

In the building or part of the building.

In the case of theft the elements to be proved were:

Appropriation by the accused

Of property

Belonging to another

Dishonestly

With the intention permanently to deprive.

Credibility and reliability of witnesses

In relation to the witnesses, I accepted the prosecution witnesses 'Aisea Tu'ineau, Mrs Irene Mo'ungaloa and LCpl Taniela Vea as generally credible and reliable witnesses, although part of Mrs Mo’ungaloa's evidence could not be accepted because it was hearsay as she was called as a witness because her husband Mr 'Etueni Mo'ungaloa was overseas. LCpl Vea’s Police work was very careful, thorough and meticulous, including the interview notes and his Police notebook in which he recorded all that he did, and had the accused sign it at appropriate times. In particular I also accepted 'Aisea's evidence that the bag produced by the accused to the police was not the bag which the accused had with him on the weekend when the offences were committed.

I very much regret that I was unable to accept any of the defence witnesses as entirely credible and reliable. In particular the accused accepted that LCpl Vea had accurately recorded what he had told him at the interview etc, but denied that it was true and said he had lied to the Police and it was all lies. As I accepted the record of interview etc as admissible, that evidence did not assist his credibility. Nor was I able to accept that the bag which the accused gave to the Police from his home on 3 December was the bag which he had with him during the weekend when the offences were committed, nor were the razors those which were taken from the house at Fo'ui. I accepted that the razors were indeed those belonging to the accused's father Mr Tonga Fotofili and whether or not they were in the bag produced to the police was not crucial, as that bag had no involvement with the offences.

The accused's adoptive father, Mr Tonga Fotofili, and his adoptive sister, Miss Tulikaki Fotofili, both gave evidence about the bag the accused had given to the Police, but that appeared contrived and I was unable to accept it. The accused's father also contradicted the evidence of the accused, and of 'Aisea, about when he arrived back at Tokomololo on the Sunday evening and I was unable to accept the father's evidence and preferred that of the accused and of 'Aisea.

Where there was a conflict of evidence, in general I preferred the evidence for the prosecution.

The facts

This alleged housebreaking and theft occurred during a weekend drinking binge in which the accused took part. It was not disputed that he left home on the evening of Saturday 22 November and did not return home until the morning of Monday 24 November 2003. The accused and his companions slept on the beach at the Good Samaritan, Kolovai on the Saturday night and then on the Sunday went to the house at Fo’ui where the offences were alleged to have occurred (taken there by one of their number, Maloni Mataele, grandson of the owner of the house). By his own evidence the accused had around 20 beers during the day on the Sunday - he claimed that he was “drunk, but not really drunk”, but I consider that was an understatement and he must have been very drunk by the latter part of Sunday, and indeed later passed out, as testified to by the witness ‘Aisea. It was not disputed that on Sunday 23 November the accused was drinking at the house at Fo’ui from where the theft occurred.

The principal features of the evidence of the witnesses were as follows:

‘Aisea Tu’ineau was drinking with the accused for some of the time, but went to work at the Good Samaritan during the day on the Sunday. He had seen the accused go into the house at Fo’ui for beer several times. When they all left Fo’ui that evening to go cruising round Hahake he noticed the accused holding his bag, which was more full, and taking special care of it, and he felt that it contained a shaving set. He said that bag was not the same bag as the bag which was produced in Court (having been given to the Police by the accused). He said the bag produced in Court was smaller, of a different colour, and made of a different material. It was significant that he had said at the Preliminary Inquiry in the Magistrates’ Court on 30 January 2004 that he could not confirm the colour of the bag produced then, but its appearance. He said that on the Sunday evening the accused had passed out and they had carried him off the vehicle outside his home at Tokomololo, then he had got up and called after them for his bag and he had got in again and they had dropped him again in the middle of Tokomololo.

Mrs Irene Mo’ungaloa is the daughter of the owner of the house at Fo’ui (the owner being her mother Mrs Latai Mataele, who sometimes resides in America) from which the alleged theft took place; and it is she and her husband Mr ‘Etueni Mo’ungaloa who look after that house. The accused's Counsel Mr Veikoso objected to Mrs Mo’ungaloa being called as a witness, but I allowed that after giving a ruling, the substance of which is annexed to this decision. At the time of the incident Mrs Mo’ungaloa’s elder brother Ipu Mataele was living in the house. She described that on the allotment there is a residential house and a small house at the back usually used as a kitchen. She also described that there is a refrigerator just beside the entrance door, from which can be seen the door to the room which her brother Ipu was occupying. She also gave evidence that her brother Ipu had lost clothing (being jean trousers, long trousers and T-shirts), as well as cologne and a shaving set. Her brother Ipu had said (and I accept that was hearsay) his clothes had been there on the Sunday and he had blamed her nephew Maloni because he had brought people to drink in the allotment. She knew that her husband ‘Etueni had gone to lodge a complaint with the Police as her brother was going to leave to return to America.

Det LCpl Taniela Vea, with almost 18 years Police service, was the Investigating Officer. LCpl Vea's Police work was very careful, thorough and meticulous, including the interview notes and his Police notebook in which he recorded all that he did and had the accused sign it at appropriate times. His evidence essentially related to the arrest of the accused at his home at Tokomololo; his being taken before Magistrate Mafi at Nuku'alofa, who ordered him to be remanded in custody for 24 hours; and then to Nukunuku Police Station. After being detained in a cell at Nukunuku Police Station for around 2 hours, the accused was interviewed and admitted to these offences. He signed a record of the interview, his answers to the charges and a confession statement. He was returned to the cell, where he was detained overnight. The following morning he was taken to the house at Fo'ui and carried out a demonstration of how he took the allegedly stolen items from a suitcase in the room known to have been occupied by Ipu Mataele. He was then brought to the Magistrates’ Court at Nuku'alofa again and released on bail. The accused's Counsel Mr Veikoso challenged the admissibility of those documents and the evidence of the demonstration, but after hearing submissions I gave a ruling holding that they were all admissible. The substance of that ruling is also annexed to this decision. Where the accused’s evidence differed from that of LCpl Vea, I preferred that of LCpl Vea.

The accused's answers at interview, answers to the charges, and confession statement, together with his actions at the demonstration, which I accepted as generally true, except in relation to what happened to the stolen items, essentially amounted to admission of the offences.

The evidence of the accused, Christopher Maue, while accepting that LCpl Vea had accurately recorded what he had told him at the interview etc, denied that it was true and said he had lied to the Police and it was all lies, which I was unable to accept. After the demonstration the accused was taken to his home and presented LCpl Vea with a bag, which he said was the bag he had with him that weekend. However on all the evidence I found that that was not the bag the accused used that weekend. Crucially, in cross-examination about the demonstration, when asked how he knew the exact room from which the items had been stolen, the accused said that had been the only room open when he went to get the beers.

The accused's adoptive father, Mr Tonga Fotofili, and his adoptive sister, Miss Tulikaki Fotofili, both gave evidence about the bag the accused had given the police, but that appeared contrived and I was unable to accept it as establishing that the accused had had that bag with him during the weekend when the offences were committed. His sister said that the bag given to the police, although her bag, was used by her father for keeping his razors and his religious books, which appeared an unlikely combination and I was unable to accept that evidence. I did not accept that the disposable razors given to the Police by the accused were those which had been stolen, especially as they were of a very common type easily obtainable in Tonga. As already mentioned, the accused's father also contradicted the evidence of the accused, and of 'Aisea, about when he arrived back at Tokomololo on the Sunday evening and I was unable to accept the father's evidence and preferred that of the accused and of 'Aisea.

There is no requirement that a confession must be corroborated and a confession alone can be sufficient to justify a conviction, where the judge or the jury is satisfied that the confession is reliable and cogent evidence: Fa’aoso v R [1996] Tonga LR 42 (CA).

Even although the only direct evidence of the accused's involvement in the these offences was his answers at interview and to the charges and his confession, I was satisfied that these amounted to reliable and cogent evidence of the accused's involvement and the house breaking, the ownership of the items stolen, and the identification of the items. That was adequate evidence and additional evidence about these was not necessary, although I accepted the evidence of 'Aisea as corroboration of the facts to which he spoke; and the evidence of Mrs Irene Mo’ungaloa in relation to the ownership and occupation of the house at Fo'ui where the offences occurred and the fact that a theft had taken place that weekend.

The accused's answers at interview, answers to the charges, and confession statement, together with his actions at the demonstration, thus established beyond reasonable doubt that:

the accused entered part of the building at Fo’ui as a trespasser;

and there committed the crime of theft;

by appropriating the property of another (as described in the indictment);

dishonestly;

and with the intention to permanently deprive the owner of it.

Although the defence counsel Mr Veikoso put up a strong defence of the accused, I regret that I was unable to accept his submissions that LCpl Vea’s evidence was all based on hearsay, especially as Mr 'Etueni Mo'ungaloa had not given evidence – while the evidence of what the accused told the police may have been hearsay, that was admissible because he himself was a witness. Nor could I accept his submission that Mrs Mo’ungaloa’s evidence was all hearsay, as she plainly spoke to some facts within her own knowledge. I noted that similar arguments had been put to the Court of Appeal in Fa'aoso, but that Court had been unable to understand them and considered them obviously wrong. I therefore had no reasonable doubt that the evidence had established the guilt of the accused, so was unable to give the accused the benefit of any doubt, as Mr Veikoso submitted.

I therefore accepted that the necessary elements of the 2 offences had been established beyond reasonable doubt and I find the accused guilty as charged and convict him of both counts, ie house breaking and theft.

NUKU’ALOFA: 20 December 2004

CHIEF JUSTICE

RULING ON CALLING OF WITNESS MRS IRENE MO’UNGALOA

Mr Veikoso, Counsel for the accused, objects to the prosecution calling as a witness Mrs Irene Mo’ungaloa on the ground that she was not called as a witness in the Preliminary Inquiry in the Magistrates’ Court. I wish to make it clear that I consider that Mr Veikoso was fully entitled to make such challenge.

The issue of the prosecution bringing in to a trial new evidence which was not before the Preliminary Inquiry is an important subject. I commend the guidance on it and on pre-trial disclosure given by Hampton CJ in Fungavaka & Tapu [1997] Tonga LR 230, although that case deals with a slightly different aspect of it.

The basic position is that the prosecution must produce all the relevant evidence at the preliminary inquiry, so that there is full disclosure to the defence. But despite that circumstances such as those in the present case can arise where the prosecution is placed in the position of wishing to lead evidence not previously disclosed.

Mr Veikoso referred to section 41 of the magistrates Courts act (Cap 11), but I construe that as an instruction to magistrates and I do not hold that that prevents the Supreme Court from a hearing evidence which has not been given at the preliminary inquiry, although in general terms that is undesirable.

What is clear is that the Crown must not ambush the defence and must tell that the defence about any relevant evidence as soon as it becomes available. If the prosecution is going to call a new witness, the defence must be given a copy of the witness's statement as soon as possible. I am pleased to record that in this case the prosecution gave the defence a copy of Mrs Mo’ungaloa's statement of this morning before the trial began.

If the dispute arises - as in this case - about whether a witness should be called, then the basic question for the court is whether that would result in any unfairness or prejudice to the it accused. The court must ensure that there is a fair trial. If the prejudicial effect of the new evidence outweighs its property's value, the court should not allow it: eg R v Sang [1979] UKHL 3; [1979] 2 All ER 1222 (HL). See also Archbold Para 15-359 onwards and May, Criminal Evidence Para 1-22 onwards.

Coming to the specific issues in this case, although I have not seen any statements of Mrs Mo'ungaloa and her husband Mr 'Etueni Mo'ungaloa it seems to me that as Mrs Mo'ungaloa was there on the same time as her husband, her evidence is likely to be similar to the evidence which he gave at the Preliminary Inquiry, so unless Counsel wish to address me on any other aspect I consider that there will be no prejudice to the accused in allowing Mrs Mo'ungaloa to give evidence.

As I have already made clear, that does not have any bearing on whether some of Mrs Mo'ungaloa’s evidence may be hearsay, which is a separate question to be taken on a question by question basis on her detailed evidence.

[There were no further submissions from Counsel.]

DATED: 9 December 2004

RULING ON ADMISSIBILITY OF RECORD OF INTERVIEW, ANSWERS TO CHARGES, CONFESSION STATEMENT & EVIDENCE OF DEMONSTRATION

The accused has challenged the admissibility of the record of interview, charge and answer, confession statement, and evidence of the demonstration he did, the first 3 dated 2 December 2003 and the last on the following day, 3 December 2003.

I emphasise that this is the sole question with which the Court is dealing at present. The Court is not concerned with the truth of the accused’s answers or the confession or evidence of the demonstration at this stage.

There has been evidence from the Police officer who took statement, LCpl Vea of Nukunuku Police Station and the accused himself. I have to say immediately that in relation to their evidence about these events I had no hesitation in accepting LCpl Vea as a generally credible and reliable witness who had followed Police procedures carefully and thoroughly. Regrettably I was unable to accept the accused as an entirely credible and reliable witness in these matters, as his evidence varied and was contradictory, particularly in relation to his being taken to the Magistrate. He also claimed in evidence that what he had told the Police in his interview was all lies, but that his evidence in Court was the truth, which cast further doubt on his general credibility.

Under the law of Tonga and section 21 of the Evidence Act (Cap 15):

“No evidence shall be given of any confession in any criminal proceeding if the making of the confession appears to the Court to have been caused by any inducement, threat or promise relating to the charge and proceeding either from the prosecutor or from some person having authority over the accused person and sufficient in the opinion of the Court to afford the accused person reasonable grounds for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in regard to the proceeding against him ... .”

The principal objection of the accused to the interview, confession etc is that before he answered questions or made any confession he was scared because LCpl Vea was very aggressive and told him not to lie or he would be put back in the cell; and that this was a threat which induced him to give his answers and make the confession.

What section 21 stops is a confession where there was inducement which gave the accused reasonable grounds for supposing he would gain an advantage or avoid an evil and no acceptable evidence from either prosecutor or defence has emerged of likely advantage or evil.

By Section 107 of Cap 15 the burden of proving any fact, necessary to be proved in order to enable evidence of some other fact to be given, rests on the person who wishes to give the evidence, in this case the prosecution. Similarly under section 108 in a criminal case the burden of proving that the accused does not come within any exception lies on the prosecution. In other words the prosecution have to prove beyond reasonable doubt that there was no inducement or threat which caused the accused to make the confession.

There has been no evidence which I accepted that the accused was forced to sign; was threatened to make him sign; was suffering from being in custody for 2, or at the maximum 3 hours (he had been to a Magistrate); was affected by custody; nor was suffering from lack of food – indeed the accused’s evidence was that LCpl Vea had bought him a meal after his arrest while they were in Nuku’alofa and before they went to Nukunuku, although that was not accepted by LCpl Vea. There have been no allegations or evidence whatever of ill-treatment by the Police.

The accused readily accepts that the records of what he said are accurate, so it is clear that he was properly cautioned before the interview, and in my view his Answer 2 - “I am not forced to answer anything unless I want to and it will be recorded” - shows that he properly understood the meaning of the caution.

Nor was there any acceptable evidence that the accused was told he would be released if he confessed - on the contrary he had already been remanded in custody by the Magistrate at Nuku’alofa for 24 hours; and even after giving his answers and confession he was put back in the cell until the following morning.

So I find beyond reasonable doubt that there was no inducement, threat or promise within the terms of section 21.

In R v Rennie [1982] 1 All ER 385 (CA) the Chief Justice of England said (at p 388 h):

“Very few confessions are inspired solely by remorse. Often the motives of an accused are mixed and include a hope that an early admission may lead to an earlier release or a lighter sentence. If it were the law that the mere presence of such a motive, even if prompted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confession would be rendered inadmissible. This is not the law. In some cases the hope may be self-generated. If so, it is irrelevant, even if it provides the dominant motive for making the confession. In such a case the confession will not have been obtained by anything said or done by a person in authority. More commonly the presence of such a hope will, in part at least, owe its origin to something said or done by such a person [in authority]. There can be few prisoners who are being firmly but fairly questioned in a police station to whom it does not occur that they may be able to bring both their interrogation and their detention to an earlier end by confession.”

and at p 389 e:

“How, in particular, is the judge to approach the question when these different thoughts may all, to some extent at least, have been prompted by something said by the police officer questioning him.

.... [the judge] should understand the principle and the spirit behind it [the law] and apply his common sense; and, we would add, he should remind himself that “voluntary” in ordinary parlance means ‘of one’s own from will’ “

Doing exactly that, it is quite clear that the accused’s interview, answer to the charge and statement and participation at the demonstration were voluntary and may be admitted. I believe the accused was questioned firmly and fairly in the Police Station.

In conclusion I find no evidence of inducement, threat or promise relating to the charges and so there is no reason for these statements to be inadmissible under section 21.

Now under section 22 of the Evidence Act a confession made in custody to a police officer in answer to questions by him may in the discretion of the Court be refused. The exact terms of section 22 are:

“When confessions are admissible.

22. It shall be no objection to the admissibility in evidence of a confession that it was made-

(a) under a promise of secrecy; or

(b) in consequence of a deception practised on the accused person for the purpose of obtaining such confession; or

(c) when the person making it was drunk; or

(d) in answer to questions which the person making the confession need not have answered; or

(e) without any warning having been given to the person making it that he was not bound to make such a confession and that evidence of it might be given against him:

Provided always that where a confession is alleged to have been made to a police officer by the accused person while in custody and in answer to questions put by such police officer, the Court may in its discretion refuse to admit evidence of the confession.”

Section 22 says among other things that a confession may be admissible even if no warning was given that the accused was not bound to make a confession (although that was not the case here) and even if the accused need not have answered the questions. However the proviso is added that where a confession is made to a police officer in answer to questions when the accused is in custody, the Court has a discretion to refuse to admit evidence of the confession.

In this Court the then Chief Justice laid down that the test which should be applied in exercising that discretion is that in section 76 of the English Police & Criminal Evidence Act 1984: see R v Pailate [1989] Tonga LR 109; (see also R v Fainga’anuku 38-67/88). That test is in essence that the prosecution must prove beyond reasonable doubt that (even if the confession may be true) there was no oppression; and that nothing said or done was likely to render the confession unreliable.

For the reasons already given I am satisfied beyond reasonable doubt that there was no oppression; and that nothing said or done was likely to render the confession unreliable. I believe for admissibility purposes the confession is reliable for the reasons already given in relation to section 21.

I therefore decline to exercise the discretion under section 22, and I allow the record of interview, charge and answer and confession and evidence relating to the demonstration as admissible, pointing out again that this still leaves open the question of their evidential value or weight.

DATED: 14 December 2004