Rex v Makahununiu [2005] TOSC 20; CR 316-318, 324, 342-344 2003 (18 August 2005)

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

CR 316-318/03

REX

-V-

1. KUSITAFU POHAHAU
2. SETALEKI MAKAHUNUNIU

CR 324/03

REX

-V-

SITALEKI MAKAHUNUNIU

CR 342-344/03

REX

-V-

1. KUSITAFU POHAHAU
2. SETALEKI MAKAHUNUNIU
3. NUNIA FATAI MAKAHUNUNIU

BEFORE HON CHIEF JUSTICE WEBSTER SITTING ALONE

HEARD AT NUKU'ALOFA ON 2, 3, 5, 8 & 9 NOVEMBER & 6 DECEMBER 2004 & 22, 23, 24, 29 & 30 MARCH & 4, 5, 6, 7, 8 & 20 APRIL 2005.

Counsel:
Prosecution: Mr Sisifa & Miss Guttenbeil
Accused: Mr Tu'utafaiva

RESERVED DECISION GIVEN ON 18 AUGUST 2005

Preliminary

These prosecutions related to 3 alleged incidents of housebreaking, theft and receiving, all concerning the Tonga Communications Corporation [TCC], but each involving different premises, though with an overlap of the accused persons. The 1st Accused Mr Kusitafu Pohahau is an uncle of the 2nd Accused Mr Sitaleki (or Setaleki) Makahununiu, whose wife Mrs Nunia Makahununiu is the 3rd Accused. The incidents occurred within a month of each other in February and March 2003.

The 3 cases were tried together because the 2nd Accused Sitaleki Makahununiu alleged that he had been assaulted and tortured by Police officers on 19 March 2003 while in Police custody in relation to the theft from the TCC phone shop on 7 March, and that any further statements he made to the Police about any of these offences were made in fear of the assaults being repeated. During the trial it was accepted by the prosecution that Police officers had assaulted Sitaleki on 19 March. It was then agreed that I should hear the whole evidence in all 3 cases without having a restricted voir dire and I reserved my ruling on the admissibility of statements etc by Sitaleki until this decision.

The trial was heard on 17 days, unfortunately in 4 sessions over a period of 6 months, due to the Court timetable, the confinement of the 3rd Accused Mrs Makahununiu and the illness of defence Counsel. The 3rd Accused Mrs Nunia Makahununiu gave birth to a son on 6 November and was not present on 8 & 9 November (when, with the consent of her Counsel, evidence relating to the alleged theft from the TCC phone shop on 7 March, over which she was not charged, was heard).

Evidence and submissions

Evidence for the prosecution was lead as follows from:

A - 17 February incident – theft over TCC counter

Mr Moahengi Tu'uhetoka, TCC Management; Mr Fifita'ila Fuko, former Security Officer, TCC; Mr Sione Telua, Clerk, TCC; Police Cadet Officer Peni Folaumoetu'i; and LCpl Peniola 'Ahofono, CID.

B - 7 March incident – TCC phone shop

Ms Mele Teukialupe (Lupe) Taumoepeau, Controller of Mobile Customer Services, TCC; Mr Paea He'ofa 'Iloa, Planter, Vaini, a neighbour of Mr & Mrs Makahununiu; Ms Fisi'iahi Tafolo, Sales person, Halaleva; Ms Salome Pomana, Nurse, Vaini, girlfriend of Mr Pohahau; LCpl Peniola 'Ahofono; and Mr Tangi Tiofilusi Nai, Fua'amotu.

C - 13 March incident – TCC safe

Mr Fifita'ila Fuko; Ms Lily Cocker, Assistant Manager, Westpac Bank of Tonga; Mr Paea He'ofa 'Iloa; Ms Salome Pomana; LCpl Peniola 'Ahofono; Mr 'Uatekini Halatoafa, Supervisor, TCC; Mr Siniasi Tupou, Clerk, TCC; Mr Vahanoa Uasila'a, Vaini, another neighbour of Mr & Mrs Makahununiu; Ms Salome Tupou, Te'ekiu; Asst Chief Inspector (formerly Insp) Siaosi Helepiko; PC Patelesio Tu'itavuki; Acting Inspector (formerly Sgt) Tupou M 'Otutaha; Cpl (formerly LCpl) Feleti Paasi, CID; PC Niua Kama, formerly CID; and WPC Palepina M Tonga, Special Branch.

Evidence for the defence in the voir dire was lead from the 2nd Accused Mr Sitaleki Makahununiu. Evidence for the defence at large was led from Mr Makahununiu; Dr 'Ala'una Fuka, Senior Health Officer, Vaiola Hospital; and the 3rd Accused Mrs Nunia Makahununiu. The 1st Accused Kusitafu Pohahau did not give evidence.

Documentary exhibits and articles were also produced by the prosecution and the defence.

On 8 and 20 April written and oral submissions were made by Counsel.

Charges against the Accused

A - 17 February incident – theft over TCC counter

On this incident Sitaleki Makahununiu was the only one of the present accused charged with housebreaking contrary to section 173(1)(b) of the Criminal Offences Act and theft contrary to section 143.

The particulars of the alleged offences were:

"(Count 1)

SITALEKI MAKAHUNUNIU, did on or about 17 February, 2003 at Fasimoeafi, enter as a trespasser into the Cable and Wireless Building, which is managed and looked after by Tonga Communications Corporations and committed further crime therein.

(Count 2)

SITALEKI MAKAHUNUNIU, did on or about 17 February, 2003 at Fasimoeafi, take without any color of rights cash about $4478, belonging to Tonga Communication Corporations."

B - 7 March incident – TCC phone shop

Kusitafu Pohahau was charged over this incident, along with his brother Senita Pohahau who has since died, with housebreaking, theft and wilful damage to buildings, contrary to section 178.

The particulars of those alleged offences were:

"(Count 1)

KUSITAFU POHAHAU, on or about the 7th of March 2003 at Kolofo'ou, you did enter Tonga Communication Corporations Office as a trespasser and committed a crime therein.

(Count 2)

KUSITAFU POHAHAU, on or about the 7th of March, 2003 at Kolofo'ou, you did take without any color of rights the following goods belonging to Tonga Communications Corporation but was managed and looked after by a Teualupe Taumoepeau and valued to a combined total of $9994.00;

10 x Alcatel Ucall 311 ($310.00) (valued at $3100.00)

10 x Alcatel Ucall 511 ($480.00) (valued at $4800.00)

2 x Nokia Ucall ($569 00) (valued at $1138.00)

1 x TV Screen (valued at $700.00)

others (battery, charger, leather case (valued at $256.00)

(Count 3)

KUSITAFU POHAHAU, did on or about 7th March, 2003 at Kolofo'ou, intentionally and unlawfully cause damage to Tonga Communications Corporations Office's door by breaking it inflicting a damage of $580.00."

Sitaleki (or Setaleki) Makahununiu was also charged over this incident with receiving stolen property, contrary to section 148.

The particulars of that alleged offence were:

"(Count 1)

SETALEKI MAKAHUNUNIU, did on or about 8th March, 2003 at Ma'ufanga, receive a mobile phone, about $311, brand Alcatel from a Senita Pohahau, knowing/believing that the mobile phone was stolen."

C - 13 March incident – TCC safe

Both Kusitafu Pohahau and Sitaleki (or Setaleki) Makahununiu were charged over this incident with housebreaking and theft.

The particulars of those alleged offences were:

"(Count 1)

Kusitafu Pohahau, on or about the 13th March 2003, at Fasi Moe Afi, together with Setaleki Makahununiu, you entered the premises of Tonga Communication Corporation as a trespasser, and committed the crime of theft therein.

(Count 2)

Kusitafu Pohahau, on or about the 13th March 2003, at Fasi Moe Afi, together with Setaleki Makahununiu, you stole 1 safe @ T$5000.00, cash @ T$6,459.30, F. POS @ T$23.17, various kinds of Cheques @ T$11,235.81, these amounted to a total of $22,718.28, these properties belonging to Tonga Communication Corporation."

and:

"(Count 1)

SETALEKI MAKAHUNUNIU, did on or about 13th March, 2003 at Fasi, enter as a trespasser into Tonga Communication Corporations Office and committed another offence therein.

(Count 2)

SETALEKI MAKAHUNUNIU, did on or about 13th March, 2003 at Fasi, take without any color of rights the following goods total $22718.28, which belong to Tonga Communication Corporations;

- a safe - $5000

- cash - $6459.30

- cheques $11258.98"

Mrs Nunia Makahununiu was also charged over this incident with receiving stolen property. The particulars of that alleged offence were:

"(Count 1)

Nunia Fatai Makahununiu, on or about the month of March 2003, at Vaini, you did received cash of T$500.00, from Setaleki Makahununiu, knowing that these cash were stolen from Tonga Communication Corporation"

Elements of the offences in law

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.

The elements to be proved for receiving stolen property were:

Receiving any property

(including dishonestly undertaking or assisting in its retention, removal, disposal or realisation, or arranging to do so)

knowing or believing it to have been stolen or obtained in any way whatsoever under circumstances which amount to a criminal offence.

Finally, the elements to be proved for wilful damage to a building were:

In any manner

intentionally and unlawfully

causes damage

to any building or vessel ... .

Chronology of events

It is helpful to set out at the start a general chronology of events from the time of the incidents until the release from custody of Sitaleki Makahununiu:

17 February Alleged Incident A over the TCC counter

18 February Incident A reported to the Police

7 March Alleged Incident B - TCC retail shop at Taumoepeau Building in Kolofo'ou broken into and mobile phones and goods stolen

8 March Incident B reported to the Police

13 March Night of Cyclone Ester

Alleged Incident C - TCC office at Fongoloa broken into and safe stolen.

14 March Incident C reported to Police

19 March Sitaleki arrested from Vaini, allegedly in relation to Incident B. Allegedly assaulted by Police officers questioning him en route to Central Police Station and further assaulted and allegedly tortured by Police officers at CID room in Central Police Station in presence of other Police officers

20 March Sitaleki taken before a Magistrate and charged in relation to Incident B, then later taken to Vaiola Hospital by Counsel Mr Laki Niu, where he was seen by Senior Health Officer Dr 'Ala'una Fuka

21 March Sitaleki interviewed by LCpl 'Ahofono in relation to allegation of receiving stolen property from Incident B from Senita Pohahau

24 March Search warrant executed at Sitaleki's home in Vaini, when he says that he was frightened and handcuffed by Insp Helepiko during the search

27 March Sitaleki taken again to Vaiola Hospital and seen by Dr Fuka because of continuing pain to his right wrist

28 March Sitaleki interviewed by Insp Helepiko about Incident C in the presence of PC Kama after he says he was frightened and sworn at by those Police officers

31 March Sitaleki interviewed about Incident A by CO Folaumoetu'i in the presence of Insp Lutua, he says after being frightened.

By then Sitaleki had been in Police custody for 12 days.

Assaults on Sitaleki Makahununiu on 19 March 2003

The starting point in this decision has to be the now admitted ill-treatment of Sitaleki Makahununiu after his arrest on 19 March.

Sitaleki Makahununiu said that he was arrested by the Police on 19 March when he was waiting for a bus at Vaini, with his baby son with him. After he had been taken to Vaini Primary School to leave his baby son with his wife, Sgt Alipate Finau put handcuffs on him and put him in the back of the vehicle. He said that LCpl 'Ahofono told him to put them on loosely, but his tone and facial expression meant the opposite, so Sgt Finau squeezed the handcuffs and cut the circulation to both hands. He said he was terrified.

Sitaleki said he was then choked by Sgt Finau, who was pounding his ribs and his chest and he could not breathe, it seemed to him as if he was being kidnapped by a bunch of terrorists. LCpl 'Ahofono had said to him maybe he knew why they were there, but he said he did not know and LCpl 'Ahofono started choking him and punching him on the ribs and chest. LCpl 'Ahofono said he had received a statement from a person at Video Hut that he had been trying to sell her cell phones, but Sitaleki told him that was incorrect and begged him to stop beating him. He said he had been choked and beaten about 8 different times. LCpl 'Ahofono had asked him if Kusitafu Pohahau had called him and told him to clean up, but Sitaleki said he had no knowledge of what he was talking about.

When they got to the Central Police Station, Sitaleki said he had been taken into the Charge Office, where they had taken his belt and slippers and then he had been taken to the CID Room. Insp Helepiko, Tupou 'Otutaha, Niua Kama, Saia Halatanu and Feleti Paasi were there. He said that he still had on the handcuffs behind, and LCpl 'Ahofono had instructed him to go to the corner. He said he had been scared as he did not want to trigger continued beatings and wanted the Police officers to see him as co-operative so that they did not beat him. He had heard the Police saying what's wrong with this guy and another saying that Sitaleki did not want to talk. He said he felt violated. He speaks and understands Tongan fluently.

Sitaleki said that he felt a person behind him and PC Kama was calling with his fingers out, trying to gouge his eyes out. PC Kama had told him to sit down Indian style cross legged facing Sgt Finau between 2 tables. PC Kama had then come behind him with large sandals, standing on the chain between the 2 handcuffs and had bounced up and down, causing him agonising pain. That had gone on for the best part of an hour and he could not feel his hands, which were swollen. As soon as PC Kama stepped on the handcuffs, Sgt Finau made a siren sound and asked if he liked that. LCpl 'Ahofono had then instructed him to move back and there was a counter-top there and a filing cabinet and an opening: LCpl 'Ahofono had stepped in front of him with his back to him and raised his right leg and kicked him backwards on the left side of his chest, so that he went flying into the open space between the cabinets.

Sitaleki then said that he needed his lawyer, but Sgt Finau had said "Oh no, we're not going to do nothing like that". Then Halatanu had instructed him to get up and sit on the bench facing the windows of the CID room and when he was sitting there he felt the presence of someone behind him – he was paranoid and aware of his surroundings – and felt the impact of a blow on his right ear, which was excruciatingly painful and caused him to fall to the ground. Halatanu then stepped on his leg and said to him "You're going to talk" and walked out of the CID room.

Then Halatanu told him to get back up on the bench and Fa'asolo had come in and told him to go to the corner on the other side of the CID room. Sitaleki said he wanted to go with his body but he was scared, hoping he would not inflict pain on him and he had felt a blow on the back of his head as soon as he started walking. Sitaleki said that he was still in handcuffs and his body was unbalanced and the blow had sent him stumbling down to the floor. As soon as Sitaleki fell to the floor he was being kicked and punched: "Why are you lying", "Why are you not telling the truth", "How does a young person come and deceive an old person like me", "How do you come and deceive the Royal Kingdom Police Force". Every time he came Sitaleki raised his leg up to block what was being done to him. Sitaleki said he was apologising, but he got a broken chair and picked him up to hit him with it, but he had blocked him twice and the third time he was slow and he hit him on the right side of the face with the leg of the chair. Sitaleki said he was dazed and was seeing lights and colours and something bad had just happened to him, he said he was being victimised.

Sitaleki said that he then told them that he would do whatever they wanted, but please stop hitting him and Fa'asolo had said to tell the Police everything, he would come back in 20 minutes, and he left the CID room. Then a Police officer, who was Taniela Faletau, came in and started talking, asking him about his family background: he had been sitting on the floor talking to Taniela Faletau and at the same time Insp Helepiko was there with a radio with a long aerial, saying "Just tell the Police what they want, they are going to love you after you tell them", but he was scared, the only person he wanted was his lawyer and he did not want any more beatings. Taniela Faletau had then just got up and left and Fa'asolo had come back.

LCpl 'Ahofono had still been in the room, but Sitaleki turned away from him as he did not want to trigger him. LCpl 'Ahofono was walking behind him and he heard a baying sound getting louder as he came to him. He saw it was a stun gun and Fa'asolo came close to him and asked LCpl 'Ahofono if he was talking, who said he was a very good boy, then he shocked him with the stun gun twice on the left forearm. He had felt terrible. After the first time he had done it again, saying just to be sure. Then LCpl 'Ahofono had come and asked him what happened and said "Oh, what the girl at Video Hut told me was true", but Sitaleki said in evidence that the truth was it was not true.

Another Police officer Paongo had come in and Sitaleki had asked him to loosen the handcuffs on his wrist, but he did not have the keys, so Sitaleki had asked him for some water and asked him to take $10 out of his pocket, which he had done, but as his hands were still in handcuffs Paongo had to pour water into his mouth for him.

Then Sgt Finau had done questions and answers and after that was finished had taken him back downstairs and put him in the cells.

Sitaleki said that the next day, 20 March, LCpl 'Ahofono had come to the cell and put the handcuffs back on and took him to the CID room early in the morning and conducted an interview. After that he had told him they were going to the Police Magistrates Court and he was going to say that Senita Pohahau had given him a cell phone. Sitaleki said that because he had been over 24 hours in a torture house he knew that he had to say that. He was told that he was being charged with the crime. The case had called and the Magistrate had asked him if he had anything to say. He had been there at the same time as Senita Pohahau, who had told the Magistrate he did not know why he was arrested and wanted to go home. Then the prosecutor had stood up and said that his witness (ie Sitaleki) said that Senita Pohahau had given him the phone. Sitaleki said that he had been made to take the Bible in his hand and was put under oath and the prosecutor had asked him if Senita Pohahau had ever given him at a phone. Sitaleki had told the Magistrate that before that there was something he wanted to tell him, but he had been told to answer the question and he said that Senita Pohahau had given him the phone because he was scared, so the Magistrate saw enough reason to remand Senita Pohahau. Sitaleki had said that he wanted to go home, but the Magistrate would not have it and remanded him in custody for 8 days, to come back the following week.

Sitaleki said that when he came out he saw the lawyer Laki Niu and bumped into him with a feeling of relief, like a guardian angel. He had told Laki Niu that he had been beaten and needed to go to hospital, so Laki Niu took him inside the court to the prosecutor and said "Look at what's happening to this boy, he's been beaten", but the prosecutor said he knew nothing about it, then they took him back to the Police Station, but Laki Niu had given instructions that he was to be taken to hospital. They had taken him up to the CID room and there had been a call from downstairs to see if he needed to be taken to the hospital, but he had been so scared that he had told them he was alright. Then while Sitaleki had been in the CID room they had asked him again and he did not want to give any resistance and told them "No". Later in the afternoon the Police had come and got him from the cell and he had seen Laki Niu who had asked if he wanted to go to the hospital and he had told him that he did. Laki Niu himself had then taken him to the hospital with 2 Police officers (one a heavy set person Vea) in Laki Niu's personal vehicle. At the hospital he had been seen by Dr Fuka, from whom he got a report when he was released from the Central Police Station. Then he had been returned to the Central Police Station.

Medical reports on Sitaleki

The medical report [Def Exhibit 1] from that hospital visit, timed at 5.25 pm on 20 March, stated:

"Type of case: Assaulted by Police Officer

Examination & Finding:

Fully conscious

Vital signs BP 132/73 P – 72 SPO2 99%

Head Haematoma Lt Temporal 4 cm diameter

Rt eye Haematoma of Rt Maxilla just below Rt eye

Lt ear Small cut 1-5 cm on the Pinnac

Necro Few scratches on Lt anterior neck and Rt lateral neck

(Being squeeze with two hands against some hard object – no stiffness)

Lt forearm Swollen of Anterior radius around wrist

5-6 cm hypopigmented lesion

Two marks of stun gun 2 cm apart

Rt forearm Hypopigmented lesion across the anterior radius around wrist

Chest Lt anterior wall swollen compared to Rt side

AE Normal

Renal Normal

(sgd) Fuka"

Sitaleki said that he had gone to the hospital again on a separate date because his wrists were swelling and in pain. The report [Def Exhibit 2] from that follow up visit, timed at 2.35 pm on 27 March, was:

"Type of case: Refer to Report date 20/3/03 Time 5.25 pm.

Examination & Finding:

Above person came in for complaining

(1) Rt wrist still swollen and now it became sore.

2 cm width Not inflamed

Opinion: Rt Naprosyn / [unclear]

(sgd) Fuka"

Dr Fuka said that Sitaleki had been fully conscious when he saw him on 20 March, and his vital signs had been normal, with blood pressure 132/73; pulse 72 and the oxygen concentration in his body 99%. When he examined him he had a swelling (haematoma) on his left temple about 4 cm in diameter; a swelling on his right cheek bone just below the right eye; a small cut of 1.5 cm on the pinnac just behind his left ear; a few scratches on his neck just beneath his left chin and on the right side, as if it had been squeezed with 2 hands against some hard object, but there was no stiffness; his left forearm had a swelling of the anterior radius around the wrist, with 5-6 cm of hypopigmented lesion (ie having darker colour than normal), also 2 marks of a stun gun (as he was told by Sitaleki) (like small holes of about 0.5 in, but no blood as it had happened one or 2 days before) in the skin of the forearm; his right forearm also had a hypopigmented lesion across the anterior radius around the wrist; and on his chest the left anterior wall was swollen compared to the right side. Below that the AE was normal and the renal region was also normal.

Dr Fuka considered that the marks on Sitaleki's wrists were caused by handcuffs locked too tightly with the Police key, due to Sitaleki's description of his cruel treatment by the Police; the wrists must have been swollen, but when the handcuffs were taken off the skin went back, leaving the hypopigmentation: only the top part of the skin would be affected and there was no mention of a cut. Dr Fuka said that the injuries had happened a day or two previously and the scars were drying up.

Dr Fuka said that none of Sitaleki's injuries seemed to be very serious and they would not affect him permanently or cause damage to the bones. No ice treatment had been given to Sitaleki that day.

Dr Fuka said that he had seen Sitaleki a week later, when he was complaining that his right wrist was still sore. The marks on it were 2 cm in width and not inflamed. He had given Sitaleki medication (a tablet or capsule to be taken by mouth) to take any time for joint pain.

Interview of Sitaleki on 21 March

Sitaleki was then interviewed again on 21 March by LCpl 'Ahofono about the thefts from the TCC phone shop, and gave answers to questions in interview, an answer to a charge of receiving, and a so-called confession, but as the prosecution withdrew these I do not record them here.

At this point I also have to record that I found the evidence of LCpl 'Ahofono about the confession on 21 March both not credible, in the sense that I found that he was lying in some instances, and also not reliable.

Search and Demonstration by Sitaleki at Vaini on 24 March

Sitaleki was taken out to his house at Vaini for a search under a search warrant to look for mobile phones. There were a number of Police officers with Insp Helepiko in charge. Prior to this the Police had received information from Sitaleki's neighbour Vahanoa Uasila'a about a metal cabinet being cut up at Sitaleki's allotment and along with the search team there was an engineer from the Ministry of Works, Mr Tonutonu.

Sitaleki was handcuffed during at least part of the search at his allotment, as the photographs show [Exhibit 11 Photos B2, B3, B4, B5, B6 & B8].

The evidence about what exactly occurred during the search was conflicting, even from the Police officers, and I do not think that the Police Diary of Action recorded all that took place, but I found that it was established beyond reasonable doubt that during the search Sitaleki was interviewed (apparently without a caution or any written procedure) and confessed that he had taken part in the theft of the safe, which had been cut up at his allotment, which tallied with the evidence of Vahanoa. Sitaleki had then shown the Police where the safe had been cut up in his new house under construction, and had shown them some of the concrete pieces from the lining of the safe and foreign coins buried beside his new septic tank, where the Police also found a TCC Cash Summary Sheet all crumpled up. However there was no evidence from TCC employees that the foreign coins had been in the safe. Sitaleki had also shown the Police a refrigerator in the small fale in which he was living on the allotment and a new washing machine still in its box on the verandah of the new house, both of which he said he had bought from the proceeds of the theft. Sitaleki had further told the Police that part of the safe and the trolley used to move it had been thrown into a neighbouring bush allotment, from which the Police recovered them. The base of the safe on wheels was produced in court.

Sitaleki also told the Police that a TV set from the TCC phone shop was with another neighbour, Paea 'Iloa, and had gone with the Police to recover that, as well as a box which he had given to Paea and which contained ammunition and 2 of the mobile phones stolen from TCC. The Police also saw and photographed the remainder of the cabinet of the safe which Paea was using as a potholder for cooking outside.

The Police also recovered from Sitaleki's neighbour Vahanoa the trolley, which he had found in the bush allotment, together with a small money box identified, but the latter was neither photographed nor exhibited in Court.

The Police further recovered from Sitaleki's wife Nunia her Westpac Bank passbook no 0127800130 [Exhibit 6], as Sitaleki told them that from the proceeds of the cash in the safe he had deposited $500 into her account.

Items recovered at Vaini as recorded on the search sheet signed by Nunia were:

SEARCH SHEET [part of Exhibit 9]

1. Refrigerator in house

2. Washing machine in verandah of new building

3. 1 Bank account No 0127800130 Balance $651.04

Bank book of Nunia

4. Pieces of rock part of safe

5. Overseas coins & piece of paper with summary

Photos at Vaini

The following photographs [Exhibit 11] were taken during the search and demonstration at Vaini on 24 March by PC Tu'itavuki, who spoke to them in evidence:

A1 Verandah with box

A2 Washing machine out of box

A3 Refrigerator

A4 Small house where refrigerator was

B1 Room of new build house directed by Sitaleki

B2 Room where safe opened with Sitaleki in handcuffs pointing

B3 Sitaleki pointing to metal filings

B4 Sitaleki on top of septic tank pointing to concrete from safe

B5 Other side of septic tank with Sitaleki pointing to coins

B6 Close up of Sitaleki pointing to coins

B7 Coins dug out from side of septic tank on top of septic tank

B8 Sitaleki pointing to bolt from safe (taken from bush on left of B4)

B9 Part of bushes where bolts found

C1 Paea 'Iloa's dwelling house

C2 TV screen Sitaleki admitted belongs to TCC

C3 Tin box (with 2 mobile phones inside)

C4 Inside of tin box showing other items

C5 Outer layer of safe with a fire in it, used to put pots when cooking

D1 Trolley

E1 Entrance to allotment where parts of safe thrown

E2 Part of safe in allotment

Diary of Action

The following are a number of entries from the Police Diary of Action [Exhibit 12] relevant to this decision. Those for 24 March were made by Sgt 'Otutaha :

Date & Time Diary No Particulars

14/3/03 1 Uate Halatoafa (m) 36 yrs of Tofoa complaint

1850 hrs about the TCC office being broken into at

Fasimoeafi and 1 safe worth $5,000 stolen with $19,536.22 cash inside. Total cost of item stolen $24,536.22 more or less and was stolen on 13/03/03 at 0338 hours or thereabout.

1855 2 CO Folaumoetu'i register & diary this action.

3 A/CIP Latu requesting the IO to complete this

this docket to submit on 23 04 003 and to do it in due course so that paper work is prepared also.

17/03/03 9 Meeting for the next move completed.

0940 hrs Statement kept herein

(1) Uate Halatoafa (m) Complainant

(2) Loufa Fonua (f)

(3) Siosiani Fili (f)

(4) Lopini Moala (f)

(5) Salome Tupou (f)

Search warrant is to be made at 2 residence 1. Senita Pohahau. Information has specifically mentioned it that TCC Office was broken into and telephones and other items stolen @ $10,554. Night of 07.03.03 – witness Fisi'iahi Tafolo with 2 exhibits. U Call phone [phone] & 9050404.

Andy Tapaatoutai re Salome Tupou statement and others

24/3/03 1 Inspector Helepiko with CID Officers arrived at

1623 hrs Sitaleki Makahununiu place together with Sitaleki.

Search Warrant read to him and his wife then search commences at the small house where they occupied. Search officers inside are LCpl 'Ahofono, LCpl Paasi, PC Tu'utafaiva, IP Helepiko & IP Halatanu.

1630 hrs 2 IP Helepiko interviewed Sitaleki Makahununiu in

respect of the safe and he admitted that they brought the safe and dismantle at his place.

1632 hrs 3 IP Helepiko cautioned Sitaleki Makahununiu in

respect of his admission to the TCC safe and he stated that the new washing machine and refrigerator were purchase with part of the money from the TCC safe.

1645 hrs 4 Inspector Helepiko seized Bank Passbook

0127800130. Balance of $651.04. Name Nunia Fatai.

1651 hrs 5 PC Tu'itavuki photographed refrigerator inside the

house purchased with money from TCC safe as well as the washing machine which was still inside it's box and was at the verandah of the building under construction.

1700 hrs 6 Search continued to the new building under

construction but no result.

1703 hrs 7 Proceeded outside the building and Sitaleki

directed/showed the place where safe was dismantle. Cemented blocks used as the inside wall of safe and was photographed by PC Tu'itavuki and Sitaleki also directed/show where coins were thrown and they were left beside the septic tank. They were photographed. Parts of the safe were discovered in the area as well as a record of Coin Summary which were seized as exhibits.

1712 hrs 8 Search completed and was witnessed by Sitaleki's

wife Nunia Makahununiu satisfied to the work carried out.

1720 hrs 9 Sitaleki admits that there are goods in the

neighbour, 1 TV Screen – Sony ; 2 mobile Alcatel, 11 ammunition boxes No 45 and were put inside a metal box. He took and just left it in the neighbour's house – Paea 'Iloa.

1725 hrs 10 Exhibits collected and Paea 'Iloa was asked

whether he is not satisfied with anything when work was carried out or the goods given to him by Sitaleki to be left at his house and he said he is satisfied and he signed his name Sgd P 'Iloa.

1730 hrs 11 Sitaleki again admit that the empty safe is at

Paea 'Iloa's place. Work was carried out and discovered that Paea 'Iloa's home is using it as a 'pot-stand'. LCpl Paasi cautioned him, photograph was taken of it and was seized as exhibit and Paea 'Iloa again signed it. Sgd P 'Iloa.

1738 hrs 12 Sitaleki directed/showed the eastern bush area

from his allotment where he threw parts of the safe and the trolley used for removing the safe from the TCC office.

1748 hrs 13 Search completed and signed by Nunia

Makahununiu.

......

25.3.03 11 CIP V U Fa'aoa completed checking the actions

taken regarding this complaint and there are lot yet to be done. Lots of charges yet to be completed and I do not know why. This is not a difficult case and has been sitting here for long without anything being done. No one from the search warrant officers has any statement filed. What are the exhibits being seized. The fact that Nunia was able to withdraw money from the bankbook is mere negligence. Applications should have been made to the Court to freeze the account immediately when it was apparent that this was stolen money. Please complete this to submit on 28/03/03. Isikeli Havea's statement is not included herein.

Interview of Sitaleki on 28 March

Sitaleki was then interviewed formally on 28 March by Insp Helepiko about the theft of the safe from TCC and gave answers to questions in interview, an answer to a charge of housebreaking and a so-called confession [Exhibit 10]. But these were all made after the facts relating to the theft and the questions had been discovered, and as these documents are not admissible, for the reasons given below I do not refer to them in detail.

Interview of Sitaleki on 31 March

Later, while Sitaleki was still in custody, on 31 March he had been taken upstairs to the CID room by Cadet Officer Peni Folaumoetu'i, who had asked him about Cable & Wireless with Insp Vili Lutua. Sitaleki said he told him he had no knowledge about what he was asking and Folaumoetu'i had laughed and said that LCpl 'Ahofono had told him that he had confessed to him and Folaumoetu'i told Sitaleki what LCpl 'Ahofono had told him. Sitaleki said that was wrong and CO Folaumoetu'i had said to him:

"Well, you wait. When 'Ahofono comes I will ask him because he told me that you have already confessed to him. If 'Ahofono tells me that you are lying I will beat you up."

Sitaleki admitted that the answers in the interview accurately recorded what he said and that he had written the answers to the charge in his own writing. But he said that he had been a long time in that torture house and was scared, so he felt the best thing to do was what they wanted him to do, so that he would not be beaten any more. That had taken place on the last day he was at the Central Police Station, when he had been in custody since 19 March. Sitaleki said he had had to make a story for CO Folaumoetu'i so that he was satisfied.

Admissions by Police

While I consider that Sitaleki in evidence was greatly exaggerating the extent and seriousness of the assaults, the medical evidence and also the Photo B4 [Exhibit 11] on 24 March confirmed that he did suffer injuries.

Even taking into account Sitaleki's exaggeration, I therefore preferred the evidence of Sitaleki about the assaults on 19 March to the evidence of the Police witnesses, in particular LCpl 'Ahofono, who denied the assaults.

On 9 November 2004 the prosecution conceded that Sgt Alipate Finau admitted that he had assaulted Sitaleki Makahununiu on 19 March and that he would not give evidence; and that the prosecution would not proceed on the record of interview etc of Sitaleki of 21 March, which it withdrew, but that it would still proceed in relation to the theft of the safe on the record of interview etc by Insp Helepiko on 28 March (referred to below); and in relation to the theft over the counter on the record of interview etc by CO Folaumoetu'i on 31 March (referred to below).

In the course of his evidence PC Niua Kama also admitted that on 19 March in the CID Room he hit Sitaleki Makahununiu and kicked his handcuffs, because he was angry with him. PC Kama accepted that it was possible that when he kicked Sitaleki he would be frightened of the Police, and that there were other Police officers in the room at the time.

Other Police witnesses who admitted being present at the CID Room when Sitaleki Makahununiu was there on 19 March – ie Insp Helepiko, Sgt 'Otutaha and LCpl Paasi – denied any knowledge of Sitaleki being assaulted.

The Court has to say yet again that assaults by Police officers on a person in custody are illegal and completely unacceptable and must not be allowed to take place. In this case it appeared that the assaults on Sitaleki Makahununiu were either supported or condoned by senior Police officers, which is totally wrong and I shall send a copy of this decision to the Hon Minister of Police so that he is aware of it.

I repeat, as I have done before, that prosecutions are most likely to be successful if they are supported by good Police ground work and hard evidence, which appears to have been available in this case.

Admissibility of records of interview, answers to charge & confessions etc

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

"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 Sitaleki to the records of interview, statements of charges and answers and the so-called confessions, and also the demonstration at Vaini, was that they were caused by the inducements, threats or promises relating to the charges, while he was in custody, proceeding from persons having authority over Sitaleki, which afforded him reasonable grounds for supposing that by making them he would gain an advantage or avoid an evil of a temporal nature in regard to the proceeding against him in terms of section 21. In addition, it was submitted for Sitaleki that the Court should exercise its discretion under the proviso to section 22 of the Evidence Act and exclude the demonstrations, records of interview, statements of charges and answers and the so-called confessions because the prosecution had not proved beyond reasonable doubt that (even if the demonstration and confessions may be true) there was no oppression or nothing was said or done to make it unreliable, taking into consideration the evidence as a whole from 19 to 28 March, with special regard to the evidence of Dr Fuka.

By Section 107 of the Evidence Act 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, threat or promise which caused the accused to make the confession; and that there was no oppression and nothing was said or done to make it unreliable. For the reasons given below I find that the prosecution did not do that in this case.

Para 15-35 of Archbold says that in deciding whether an admission is voluntary, the court has been at pains to hold that even the most gentle threat or slight inducement will taint a confession (R v Smith [1959] 2 All ER 193 (CMAC)). In Commissioners of Customs & Excise v Harz & Power [1967] 1 All ER 177 (HL) Lord Reid said:

"It is true that many of the so-called inducements have been so vague that no reasonable man would have been influenced by them, but one must remember that not all accused are reasonable men or women; they may be very ignorant and terrified by the predicament in which they find themselves. So it may have been right to err on the safe side".

On the evidence I have no doubt that under section 21 of the Evidence Act the answers given by Sitaleki at all his interviews, to the charges, and in his so-called confessions were caused by an inducement, threat or promise relating to the charge, proceeding either from the prosecutor or from some other person having authority over Sitaleki, which in my opinion did afford him reasonable grounds for supposing that by making them he would gain an advantage or avoid an evil of a temporal nature in regard to the proceeding against him. These statements and so-called confessions were given by Sitaleki on 21, 28 and 31 March, after he had been in custody since 19 March, when he had been assaulted by the Police. While I consider that Sitaleki in evidence was greatly exaggerating the extent and seriousness of the assaults, the medical evidence showed that he did suffer injuries and it is not possible to rule out the fear of further assaults as a reason for him giving these so-called confessions and statements. From this it follows that I find that the prosecution has not proved beyond reasonable doubt that there was no inducement, threat or promise and I rule that the answers in the interviews, to the charges and Sitaleki's so-called confessions and demonstrations and evidence about them are inadmissible, except as stated below in relation to facts found as a result of them.

Section 22 of the Evidence Act 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 on every occasion) 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. 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."

In this Court the then Chief Justice laid down that the test which should be applied in exercising that discretion under section 22 is the test 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 [1989] TOSC 1, 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 him I am not satisfied beyond reasonable doubt that there was no oppression; and I find that things were said and done which were likely to render the confessions by Sitaleki at least partly unreliable due to the assaults by the Police established in evidence and his continued detention in custody, so that it is not possible to rule out the fear of further assaults as a reason for him giving these so-called confessions and statements. I also believe for admissibility purposes the confessions are not completely reliable for the reasons already given in relation to section 21.

There was also an apparently voluntary confession given by Sitaleki at Vaini on 24 March, again while he was still in custody. That was not formally recorded and signed by Sitaleki, but it was recorded in the Diary of Action [Exhibit 12, Items 2-12] by Sgt 'Otutaha, whom I considered a credible and reliable witness in respect of these items, despite some of the procedural deficiencies which he accepted in cross-examination. Unfortunately the same could not be said about the evidence of Insp Helepiko. But that confession was also made while Sitaleki was in custody and cannot be admitted except as referred to below.

I therefore exercise the discretion under section 22, and I refuse to allow as admissible the records of interview, charges and answers and confessions and evidence relating to the search and demonstration in the mobile phone charge, and also the money over the counter charge and the theft of the safe charge, except as follows under the proviso to section 21 of the Evidence Act, which states:

"Provided that where any fact has been discovered as the result of information contained in any such confession evidence may be given of such fact and of so much of the confession as strictly relates to such fact.

Illustration

B's watch is stolen. A is arrested on suspicion, and a police inspector tells him "you had better confess, it will be better for you". A thereupon makes a confession in the course of which he says "I hid the watch in a hole at the foot of a big ovava tree near the church at Vaini". The police discover the watch there. Without the discovery of the watch no part of A's confession would have been admissible, having been procured by the inducement of the police, but as the watch has been found as the result of the confession, so much only of the confession as relates to the hiding of the watch would be admissible."

There were no objects or cash recovered in relation to the money over the counter charge, but there were a number of mobile phones recovered and produced as exhibits in Court in relation to that charge, also a television set (identified by Lupe Taumoepeau as similar to the one stolen from the TCC shop), so that Sitaleki's record of interview etc of 21 March would have been admissible, if it had not been withdrawn, to the extent that it relates to those phones recovered and that television set (which is circumstantial evidence, even although Sitaleki was not charged with receiving it). There was also a considerable amount of property recovered at Vaini in relation to the theft of the safe charge, particularly the piece of the safe and the TCC list (which again is circumstantial evidence, even although it was a copy that was produced in Court): but Sitaleki's record of interview etc of 28 March is still not admissible to any extent as those facts were not discovered as the result of information contained in them, although evidence of the search and demonstration, which occurred prior to finding those facts, is admissible to the extent that it relates to the property recovered.

I gave some consideration to the relationship between the various provisions of sections 21 and 22 in relation to the situation in this case, where facts were discovered as a result of the confession Sitaleki made at the search at Vaini on 24 March, but where that confession may have been caused by inducement, threat or promise when Sitaleki was clearly in Police custody and also thus subject to oppression in the circumstances as I found them.

I consider that the proviso to section 21 allowing for the admission of confession evidence relating to facts found is also relevant in relation to consideration of confessions under section 22, which ties in with the position in relation to evidence of the facts, considered below at page 19.

I therefore find that the evidence about the confession of Sitaleki strictly relating to the discovery of the parts of the safe, the fridge and washing machine, the Cash Summary Sheet, and concrete and the things held by Paea is all admissible. I accepted the evidence of Sgt 'Otutaha about these, especially as recorded in the Diary of Action [Exhibit 12], even though I found Insp Helepiko an unreliable witness to them.

I must also comment on the evidence which indicated that Police officers were asking Sitaleki informally about these various incidents at times when he was clearly strongly suspected of involvement in them. They conducted informal interviews before they conducted a formal question and answer session in a recorded interview. Detailed reasons why this is unlawful have been set out at length in Fainga'a v Lelea & Ors CV 38/03, 6.1.05 and in R v Mafi CR 69/00, 18.3.05. I must make it very clear that this practice is not lawful and that, once a Police officer suspects some criminal involvement by the person concerned, if any interview takes place it must be conducted under formal conditions including appropriate cautioning and recording.

Grounds of decision

A - 17 February incident – theft over TCC counter

As already mentioned, none of the stolen property was recovered and produced in Court, so the prosecution relied on the record of interview, answers to charges and so-called confession of Sitaleki on 31 March, which I have now found to be inadmissible, to establish his guilt. The prosecution accepted that there was no direct evidence as to the actual incidents of housebreaking and theft. While there was also some general evidence about the circumstances of the housebreaking and theft, that was so vague and incomplete that it barely established that the amount of money stolen was that in the charge against the accused. Indeed it also pointed to the possibility, in an office open to the public, of the theft having been carried out by some person or persons other than Sitaleki while the night watchman was otherwise occupied, thus raising a reasonable doubt about Sitaleki's involvement.

In relation to the statements etc in relation to these offences I also accepted the general terms of Sitaleki's evidence that in the CID Room on 31 March, when he told CO Folaumoetu'i and Insp Lutua that he knew nothing about this housebreaking and theft on 17 February, CO Folaumoetu'i then told him words to the effect, that:

"Well, you wait. When 'Ahofono comes I will ask him because he told me that you have already confessed to him. If 'Ahofono tells me that you are lying I will beat you up".

Taking into account the history of Sitaleki in Police custody from 19 to 31 March and the admitted assaults on him, this was further evidence that I could not rule out that Sitaleki was frightened before and during the recording of the interview, statement of charges and the so-called confession.

I therefore found that the elements of these counts against Sitaleki Makahununiu were not established beyond reasonable doubt and I find him not guilty of them and dismiss the charges.

B - 7 March incident – TCC phone shop

Kusitafu Pohahau faces the principal charges in relation to this incident of housebreaking, theft and wilful damage to a building.

Mele Teukialupe (Lupe) Taumoepeau was Controller of Mobile Customer Service of the then TCC Retail Shop at the Taumoepeau Building concerned, and by their confidential serial numbers she identified more than 8 mobile phones recovered by the Police as among those stolen. 4 of those were produced in evidence [Exhibits 1-4]. She said that the Police released to her 6 or 7 of the phones. She also identified the photo [Exhibit 11 Photo C2] of the TV set recovered from Paea 'Iloa as appearing to be the same as the one stolen from the shop.

Apart from the discredited statements etc of 21 March (which in any event could not be evidence against Kusitafu as Sitaleki's co-accused), the prosecution relies on witnesses to whom Kusitafu and Sitaleki distributed the mobile phones after the incident.

I found established beyond reasonable doubt from the evidence of Lupe Taumoepeau that the housebreaking, theft and wilful damage had occurred, and there was also evidence from Fisi'iahi Tafolo (whose identification of Kusitafu was unshaken in cross-examination), that Kusitafu had come to the shop where she worked and advertised 2 mobile phones for sale at $100 each, which after negotiation the owner of the shop bought for $90 each, then 2 weeks later Kusitafu returned and bought back the phones back. Kusitafu had given his girl friend Salome Pomana 2 mobile phones in March, which he told her were to keep, and he would fetch them later. It was after a day when the Police came and took possession of the mobile phones. Salome identified the colour of 2 of the phones produced in Court, based on her observation of the phones as identical to the phones produced in Court.

That evidence of those witnesses thus linked Kusitafu to being in possession of, or at least having dealings with, mobile phones similar to those stolen from TCC. However their evidence was not sufficient, as the mobile phones that they referred to in their respective evidence were not proved beyond reasonable doubt to be the property of TCC taken from their retail shop at Taumoepeau Building. Beyond that, there was nothing in the evidence of Fisi'iahi or Salome to establish that any phones which they had dealt with were among those 4 produced in court and identified by Lupe Taumoepeau as some of the phones stolen in this incident. The phones identified by Lupe were not proved to relate to Kusitafu's alleged offending. I regret that this appeared to be the result of sloppy Police work, perhaps the result of placing too much reliance on the confession from Kusitafu's co-accused Sitaleki, which is unfortunate because if that had not been so the results on these charges may have been different.

In any event the outcome was that I was unable to find that there was sufficient evidence to establish beyond reasonable doubt that Kusitafu was linked to the theft of these particular mobile phones and hence to the related housebreaking and wilful damage.

I therefore found that the elements of these counts against Kusitafu Pohahau were not established beyond reasonable doubt and I find him not guilty of them and dismiss the charges.

The position in the charge of receiving against Sitaleki is very similar. There was evidence from Tangi Nai (whose evidence I preferred to that of Sitaleki where there was a conflict of evidence), plus the mobile phones and television set found at his neighbour Paea's house and Paea's evidence (which I accepted and again preferred to that of Sitaleki where there was a conflict of evidence) that he had been given them by Sitaleki, all of which pointed to Sitaleki having knowingly received the mobile phones. Tangi Nai said that Sitaleki, accompanied by his wife, approached him at the Hahake and Hihifo bus station on Saturday 8 March and said he had an extra phone and asked whether he wanted to buy it for $10. Tangi Nai said he bought the phone from Sitaleki as he could tell that he needed the money. Then after 2 weeks Sitaleki and 2 Police officers arrived at his home at Fua'amotu demanding the return of the phone, when Sitaleki told him to return it because it was a stolen phone.

There was also credible and reliable evidence from Lupe Taumoepeau and Paea that the television set stolen from the TCC shop at the same time as the mobile phones was recovered from Paea's house, as he had been sold it by Sitaleki, which was circumstantial evidence linking Sitaleki further with the theft of the mobile phones.

But again beyond that, there was nothing in the evidence of Tangi or Paea to establish that any phones which they had dealt with were among those 4 produced in court and identified by Lupe Taumoepeau as some of the phones stolen in this incident. Tangi Nai did not identify or prove that the phone sold to him was one of the 4 phones produced in Court.

While that part of Sitaleki's record of interview on 21 March relating to that phone might have been admissible, as it lead to the discovery of the phone which Tangi Nai had, and so established that Sitaleki knew that it was stolen property, the answers to questions, answer to charge and so-called confession were withdrawn as exhibits by the prosecution for the reasons explained earlier.

Once more this appeared to be the result of sloppy Police work, again perhaps the result of placing too much reliance on the so-called confession from Sitaleki, and once more if that had not been so the result on this charge might have been different.

Again the outcome was that I was unable to find that there was sufficient evidence to establish beyond reasonable doubt that Sitaleki was linked to receiving these particular mobile phones. I therefore found that the elements of this count against Sitaleki Makahununiu were not established beyond reasonable doubt and I find him not guilty of it and dismiss the charge.

C - 13 March incident – TCC safe

The evidence from the TCC witnesses Fifita'ila Fuko, 'Uatekini Halatoafa and Siniasi Tupou established beyond reasonable doubt that the safe valued at $5,000 was stolen from the TCC main office on the night of Cyclone Ester on 13 March 2003 and that it contained at least $6,459.30 (in terms of the Daily Counter Cash Summary Sheet [Exhibit 8].

Although the search warrant [Exhibit 9] for the house of Sitaleki at Vaini was obtained on 24 March for the purpose of searching for the mobile phones, which, following the assaults on Sitaleki on 19 March and his record of interview etc on 21 March, appeared to be the focus of the Police work at that time, in fact the major evidence recovered from the search related to the later theft of the safe, as detailed in the list of articles seized in the search [Exhibit 9].

But, following the reasoning set out by Ford J in R v Bowe [2003] TOSC 8, I do not consider that that affects the admissibility of the evidence found in the search. Cross & Tapper on Evidence, 8th ed (1995) states (at 536):

"The English authorities on the admissibility of evidence procured in consequence of an illegal search are uniformly in favour of its reception although there are not many of them."

In R v Sang [1979] UKHL 3; [1979] 2 All ER 1222 (HL) the House of Lords held that the trial judge has no discretion to refuse to admit relevant evidence on the grounds that it was obtained by improper or unfair means and approved, with some qualification, the judgment of the Privy Council in Kuruma Son of Kaniu v Reginam [1955] 1 All ER 236 (PC), which went further and held that evidence was not inadmissible even though it had been illegally obtained.

In relation to Sitaleki that therefore means that in addition to the evidence of the objects found at and around his house in Vaini - the base of the safe produced in Court, the TCC Daily Counter Cash Summary Sheet of the money in it [Exhibit 8], the concrete pieces from the safe's lining, the trolley produced in Court, and the refrigerator and washing machine - the Court can also take into account those parts of Sitaleki's demonstration, including in particular the articles produced in Court and the photos taken at the search and demonstration [Exhibit 11, Books A, B, C, D & E], which relate to the facts found as a result of the search and demonstration. But the Court still cannot admit any parts of the record of interview, answers to charge or so-called confession of Sitaleki on 28 March [Exhibit 10], as those were given after those facts had already been found and so in terms of the proviso to section 21 those facts were not discovered as the result of information contained in that so-called confession.

Although there were discrepancies as to the actual contents of the safe, such as foreign coins, the contents are only circumstantial evidence in relation to the theft of the safe itself.

There was also the evidence of Sitaleki's neighbour Paea 'Iloa that in March 2003, after the cyclone, he saw a metal object like a cabinet on the rubbish heap at Sitaleki's house and asked Sitaleki whether he could use the metal object for a potholder. Sitaleki had agreed and Paea had taken the metal object to his allotment, where it was photographed by the Police [Exhibit 11 Photo C5], although not exhibited in evidence.

All that evidence satisfied me beyond reasonable doubt that Sitaleki had been in possession of the safe and its contents on the day following the theft: but while I was satisfied that that would be conclusive evidence of receiving the stolen property, it is not in itself sufficient without more to establish beyond reasonable doubt that Sitaleki took part in the actual housebreaking and theft.

Although the stolen property was not found on Kusitafu or on his property, there was more circumstantial evidence to link him to the principal crime. There was the evidence of Salome Pomana that he had borrowed her father's truck at the crucial time on the night of the theft, returning it at dawn; and also that he had a black car, which made a loud sound on acceleration.

There was also the evidence of another of Sitaleki's neighbours, Vahanoa Uasila'a, which was not contradicted and which I accepted, that he had seen and recognised Kusitafu driving that same truck on 2 occasions that night: at approximately 11-12 pm he had noticed from a kava party the truck belonged to Salome Pomana's father followed by a black car; and again, as he returned from the kava party that morning a truck almost hit him, which he noticed was the same truck he saw previously, that belonged to Salome Pomana's father.

Then there was the evidence of the eyewitness Salome Tupou, which again was not contradicted and which I accepted, that in the early hours of 13 March, she heard a loud car sound coming from the road at the cemetery. The car went and then came back to the same spot. She also heard a loud banging sound of some kind of metal being hit; and then heard the car leave again. Not long after that she heard a vehicle (a sort of a truck), which came and parked at the same spot where the car had parked: she further heard a sound like attempts to load a metal object onto the truck, and the truck then left.

The timings in some of the evidence from those 2 witnesses and Salome Pomana was to some extent contradictory and not entirely consistent and did not entirely correspond with the evidence from the Security Officer at TCC, Fifita'ila Fuko, as to the exact time when the housebreaking at the TCC office may have taken place, although I did not consider that Fifita'ila's evidence was entirely accurate as this occurred on the night of the cyclone warning. This was in any event circumstantial evidence which all went to building up the picture of Kusitafu's involvement and I did not consider that the exact timings were crucial in that picture, nor did they detract from the strength of the individual items of evidence which I found credible and reliable, given the way in which the various pieces of evidence came together.

Then Vahanoa Uasila'a gave evidence, which again was not contradicted and which I accepted, that early on the same morning (ie the morning of 13 March) Sitaleki approached him and asked for a grinder blade. Later that same morning, Vahanoa was woken by some grinding sound that came from Sitaleki's property and he went to that allotment to ask if he could render assistance. As he approached Sitaleki, he noticed someone running away from the scene (at the septic tank) and stated that Sitaleki had approached him and told him that everything was all right, giving him the impression that he was not wanted at that time. As he turned to leave, he noticed a metal cabinet-like object on top of the septic tank at Sitaleki's newly built house. Because this was an unusual morning, and he was suspicious, he went to his allotment and climbed a breadfruit tree, from which he watched Sitaleki and others dismantling the metal box. He later identified Kusitafu Pohahau and Salome Pomana as 2 of the people who were present with Sitaleki at the septic tank. Later Vahanoa noticed Kusitafu and another man carrying a part of the dismantled metal box from the septic tank and loading it into Kusitafu's car. Vahanoa also noticed Sitaleki throwing a trolley into a bush area close to his residence and took that trolley together with a small metal box that he had found in the same bush area. I preferred Vahanoa's evidence about all that to Sitaleki's denials.

That was further evidence which I accepted as credible and reliable as to Kusitafu's involvement in the housebreaking and theft, so that overall I had no reasonable doubt that, despite the discrepancies in the timings, Kusitafu had taken part in the housebreaking and theft.

Sitaleki also confessed at Vaini on 24 March that part of the money from the safe was used to purchase a refrigerator and a washing machine (Item 3 of the Diary of Action), and as the fact that the new refrigerator and washing machine were at his house and connected to the theft were discovered as a result of that confession, that part of that confession is admissible under the proviso to section 21 of the Evidence Act. Sitaleki and his wife Nunia explained in evidence that it was bought in January 2003, but the Police witnesses said, and the photos [Exhibit 11 Photo A1] showed, that the washing machine was new and was still boxed when it was discovered. Nunia said that they had used the washing machine since it was bought that January and after every usage, it was lifted and put back in the box. The prosecution submitted that if that had been the case then the appearance of the box would have been as it appears in photograph A2 (having been opened), but not as it appears in photo A1 (newly boxed). Because that evidence of Sitaleki and his wife Nunia was inherently improbable I was unable to accept it, and in this respect preferred the evidence of the Police officers and the photos.

I found that all that evidence, taken together with the objects found at Sitaleki's house, was sufficient to establish beyond reasonable doubt that Sitaleki had received a share of the money from the safe, with the uncontradicted inference that he also had taken part in the housebreaking and theft, as opposed to merely being in receipt of the stolen goods.

Even if I were wrong to admit the parts of the 24 March confession relating to the facts found, those facts themselves (ie the discovery of parts of the safe etc at and near Sitaleki's allotment) can be admitted and are very strong circumstantial evidence of Sitaleki's involvement in the theft.

On all the evidence – as, notwithstanding the Police treatment of Sitaleki, there were good, credible, independent witnesses and stolen articles found - I therefore find these counts of housebreaking and theft established beyond reasonable doubt in relation to both Kusitafu Pohahau and Sitaleki Makahununiu, but only in relation to the theft of the safe itself and the cash of $6,459.30, being a total of $11,459.30. I find them both guilty of these counts and convict them of them s amended accordingly.

In relation to the charge against Mrs Nunia Makahununiu of receiving $500 of the stolen property, Nunia in the record of interview on 13 May [Exhibit 13] acknowledges that Sitaleki paid that money into her account [on 18 March, Exhibit 6]. While that interview contains almost nothing direct in detail in relation to whether or not she knew that the money was stolen at that time or before her bankbook [Exhibit 6] was seized by the Police on 24 March, there was a strong inference, which was not rebutted, that she must have known that the money was stolen, supported by her answer to the charge on 13 May was "Yes, it is true" and her so-called confession "I feel very embarrassed for all that has happened" [Exhibit 13]. I was unable to accept her explanations about these to the contrary.

There was no reason why in her case the record of interview, answer to the charge and confession were not admissible. I concluded that these were genuine and voluntary, she is an educated person, being a primary school teacher, and wrote her own answers, and there was no evidence that suggested that she was forced or coerced into making them.

The prosecution submitted that the evidence as to how Nunia had withdrawn the money from the Bank suggested that she had known that the money was stolen and was part of the safe, when it must have been obvious to her on 24 March that her bankbook had been seized and was under investigation by the Police, but she did not inquire with the Police as to the status of the bankbook and instead reported it as missing and withdrew the money. However, I did not find those actions to be unequivocally referable to her knowing that the money had been stolen, particularly as, although the Police had taken the bankbook, her account itself had not been frozen (as noted by CIP Fa'aoa at Item 11 of the Diary of Action on 25 March). But that action did reflect adversely on her credibility, and on her evidence overall I was unable to accept her as a completely credible and reliable witness.

I therefore find the count of receiving stolen property against Mrs Nunia Makahununiu established beyond reasonable doubt and I find her guilty of that charge and convict her of it.

R M Webster
Chief Justice