Rex v Sefo [2005] TOSC 21; CR 171,172,174-2004 (1 January 2005)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NEIAFU REGISTRY

NO. CR 171,172,174/04

BETWEEN:

REX
Prosecution

AND:

1. SIESI HALA’API’API SEFO
2. NAIOKA TISIOLA TU’IPULOTU
3. ‘ALILIA FIREBRAND GUTTENBEIL
4. SINIOLA FALETAPU LELEIFI
Accused

BEFORE THE HON MR JUSTICE FORD

SUMMING UP TO JURY

The trial has now reached the stage where all of the evidence has been presented and counsel have completed their closing submissions to you. I am now required to do two things: first, to give you certain directions as to the law and, secondly, to summarise the evidence. In performing those two tasks I will endeavour to relate the one to the other, that is, to relate the relevant legal principles to the evidence. When I have completed those directions and that summary, you will be asked to retire to consider your verdict in the privacy of the jury room.

The first direction of law that I am going to give to you concerns our respective functions. You and I have quite different functions and the difference is readily and simply identifiable. My responsibility is solely in the area of the law. During the trial it involved my acting, in effect, as a referee making sure that all the rules of evidence and procedure were observed. At this stage, my responsibility is, as I have just mentioned, namely to give you directions on the law and to sum up the evidence.

For your part, you must accept as authoritative anything I now tell you about the law because the law is my province. Every word that I now say to you in the summing up is being recorded on tape and, if I should make some error in relation to the law then my error can be reviewed by a higher court on appeal. That is the way our judicial system works and that is the safeguard built into the system in case I get it wrong. But at this stage you are bound to accept and to act upon the directions of law that I am about to give to you.

Your responsibility, on the other hand, lies in deciding the facts of the case and then applying to the facts as you find them to be the legal principles that I will outline to you. What has been proved is for you and for you alone to determine. I have no responsibility at all in that regard.

In performing my role I must necessarily refer to the evidence. I do not propose to refer to it all. Accordingly, the first observation I make to you in this context is this. You should not think that merely because I refer to some part of the evidence and not to some other part that you should confine your attention to the evidence to which I directly refer. If I fail to refer directly to something that you regard as significant then you are perfectly entitled to give to that material the weight that you consider it deserves.

The second observation I make to you in the same context is this. Except in areas where there appears to be no real dispute, I will be endeavouring to express no opinion in relation to the facts at all. If I do express an opinion, or if you suspect that I might be hinting that I hold an opinion, then not only are you entitled to disregard that opinion or possible opinion but you are obliged to disregard it unless, of course, that opinion happens to coincide with the opinion you have yourself independently formed. I repeat that it is not any part of my function to decide the facts. That is your responsibility and your responsibility alone.

There is one other matter to which I should refer in the context of dealing with your functions. One of the main virtues of using juries as we do is that it enables the community, in effect, to put forward a random selection of representatives to look after its interests and primarily, of course, its interest in ensuring that justice is done. You will possibly find that amongst your ranks you have a fairly diverse range of backgrounds and attitudes. Hopefully you will. You should each participate in your discussions in the jury room because all of you are equals and each of you will be responsible for your ultimate joint decision.

I referred just then to your "joint decision" because under our system of law your verdict, whether it be guilty or not guilty, must be unanimous. That is not to say that you must agree upon the same reasons for your verdict. You may individually rely upon different parts of the evidence or place a different emphasis upon parts of the evidence. However, by whatever route you each arrive at your decision, that final decision of either guilty or not guilty must be the decision of you all unanimously before it can become your verdict.

In coming to your decisions about the facts you must, of course, consider all of the evidence both for the Crown and the defence. What you make of the witnesses and the evidence is entirely a matter for you. It is for you to decide what witnesses and what evidence you regard as being credible and reliable. Credibility is honesty, sincerity. Reliability can be different. A person may be entirely honest but may be mistaken.

You do not have to accept everything any witness said. You may think that part of what somebody said is credible and reliable but you may have doubts about other parts. If that is the position then you are quite entitled to accept the evidence you consider credible and reliable.

You must consider only the evidence you have heard during the trial. If you have heard anything about this matter in the past back in your villages or elsewhere, or if you have heard about something that sounds like it, you must put that out of your minds. It is fundamental to our system of justice that people are entitled to be tried solely on the evidence given in this Court in a formal way and tested, if necessary, by cross examination.

You must put to one side any feelings of sympathy or anger or distaste about what you have heard or about the people involved. Society expects judges to go about their business as calmly and objectively as they humanly can. In this trial, when it comes to deciding the facts, you are the judges.

The next general matter is most important of all. In every criminal trial the onus of proving the charge or charges rests upon the Crown. That onus rests upon the Crown from the beginning of the trial until the end - it does not shift.

There is no onus on an accused person to prove that he or she is innocent. There is no requirement or expectation that an accused person should give evidence or call other people as witnesses.

The written statements which the various accused made to the police and the bank officials investigating the matter are not of themselves sworn testimony because they were not given on oath but they are properly part of the material for you to consider. What you make of the truthfulness, accuracy and weight of those statements is for you to decide. In the same way that you may accept parts of what a witness said in evidence and not accept other parts, you may accept parts of what was said in a statement and not others.

It is important for you to understand that when there are several accused as there are in this case then any statement that one of those accused made either to the police or the bank investigators or officials can only be evidence for or against the person who made it. The statement is not evidence for or against any other co-accused mentioned in it. The statement must be totally disregarded when considering the evidence against any other accused.

The reason for this is quite obvious when you think about it. Each of the accused was interviewed separately. There was no opportunity, therefore, for one accused to challenge or contradict what the other might have been saying about her.

In this same context, reference was made by the prosecutor to the first accused, Sefo, and to her refusal to answer some of the questions asked by the police. Her silence is not evidence against her. Indeed you will have noted that the warning given to her by the police at the time expressly advised her that she was entitled to remain silent. It would be quite wrong for you to reason that because she refused to answer some of the questions that she must have something to hide or be guilty of one or more of the offences charged.

The Crown must prove all of the necessary elements of each charge beyond reasonable doubt. Proof beyond reasonable doubt means simply that you must be sure, you must be satisfied of guilt before you can convict. If you are not so sure, not satisfied, then you should acquit. But equally if you are sure, you are satisfied then you should convict.

Yesterday you heard some very well presented submissions from counsel for the accused and the Crown prosecutor and I am sure that what each of them said to you in their closing addresses will still be very fresh in your minds.

There are just two points I want to make to you now about the prosecutor's address. First, you may recall that at one point Miss Simiki said words to the effect that in Nuku'alofa the perception is that the prosecution never wins before a jury in Vava'u. Now that statement should not have been made and counsel should have known better. Unfortunately, because I had to wait for a translation, I was unable to stop it being said.

You must try and totally disregard the comment. Your function is to decide the case on the evidence before you and you must not feel intimidated in any way by such a remark.

The other point is that Crown counsel referred to other charges the Crown could have brought had been able to do so. Again, whether that is right or wrong, the comment should not have been made.

You have 11 counts in front of you and you must make findings on those counts in accordance with the evidence and the directions that I give you. You must put out of your minds everything Crown Counsel said to you about any charges that are not before the Court.

In this case there are now three accused. Each is entitled to be tried solely on the evidence applicable and admissible as to that particular accused. You must consider the position of each accused separately and come to a separate considered decision about each. Because they are jointly charged and have been jointly tried, it does not mean that they must all be guilty or not guilty.

The second point is that the indictment's contain five counts against the first accused and five counts against the second accused. It is important that you consider each count separately and come to a separate decision about each.

You will be asked for separate verdicts on each of them. You may reach different verdicts on different counts. You may conclude on the facts that if you find a defendant guilty or not guilty on one count then it would be difficult to come to a different conclusion on another count. That is entirely up to you.

An important part of my function is to explain to you the various elements which the Crown must prove in respect of each charge before you can bring in a guilty verdict. But I will not repeat the legal principles in respect of each accused and so it is important that you remember what I say the first time about the various elements of the offence which the Crown must prove.

There are three different criminal offences you are concerned with. They are falsifying accounts, forgery and embezzlement. The first four counts against the first accused and all the counts against the second accused are "falsification of accounts" contrary to section 159(b) of the Criminal Offences Act.

So let me tell you now something about that offence. I have arranged for you to be given copies in the Tongan language of the various sections in the Criminal Offences Act that I will be referring to. It will make it easier to follow what I am saying. (Reads to Jury section 159(b)).

Well, the first element the Crown must prove is that the accused was employed as a clerk, officer or servant of a private employer and you will probably not have much difficulty in concluding that the Crown has established this element of the offence. It did not appear to be disputed that all of the accused were employed in one or other of those capacities by a private employer, namely, the ANZ bank.

The next element requires the Crown to prove that the accused acted wilfully and with intent to defraud. "Wilfully" simply means intentionally. The word "defraud" means getting something from someone by deceiving that person or organisation into giving you something when they would not have done so if they had known the truth. "Deceiving" somebody is simply deliberately leading that person into believing something you know to be untrue.

And you will notice that, in general, it need not be the employer that the accused intends to defraud. It could be anyone. In the present case, however, the Crown alleges that the accused intended to defraud the ANZ bank. We know that because that is what is said in the particulars of the offence. So that is what the Crown must prove.

In other words, to establish the second element of the offence the Crown must prove that the accused deliberately intended to deceive the ANZ bank into giving them something which the bank would not have given them had the bank known the truth.

The third element in the offence which the Crown must prove is the requirement set out in section (b). The Crown must prove that the accused made or concurred in making a false entry in a book or document belonging to the employer. The "documents" the Crown relies upon in this case are the various internal credit vouchers.

The next requirement, however, is the most controversial. The Crown must prove that the monetary amount specified in each voucher is a "false entry" within the meaning of subsection (b) of section 159. There is no special definition of "false entry" and so you apply your ordinary common sense understanding of the term. Are they dishonest entries intended to deceive the bank?

Now I'm not going to take you through each count because the respective counsel did that yesterday and you will remember clearly what they all said and what the prosecutor said.

What I am about to say relates to the charges against both the first and second accused. The main point made by Mr Tuútafaiva and Mr Fakahua in relation to the falsification of accounts charges was if, as the Crown alleges, the vouchers were false in that no money was deposited with the teller but the teller's computer was used to create a false entry in the respect of accounts then where is the evidence of that?

Defence counsel submitted to you very strongly that if that was, in fact, the case then it would mean that the teller's cash in her cash draw at the end of the day would have to be short by at least the corresponding amount of the amount stated in the voucher. But counsel asked you rhetorically, where were the teller cash sheets for the respective days which would have shown such deficits.

Mr Tu'utafaiva also reminded you of the explanations given for the source of the first accused's funds in her facsimile (Exhibit 14). Defence counsel reminded you that on the day Ms Blake came to Vava'u, namely 18 November 2003, the tellers' cash and vault cash balanced. They said if there was a problem it was caused by a fault in the ATM machine. You will need to consider those points.

The Crown prosecutor acknowledged that the teller cash sheets were not produced in evidence but she submits that there is ample other evidence to prove to you beyond reasonable doubt that no money was deposited with the vouchers.

In this regard, she reminded you of the various irregularities in the vouchers. You will need to go through them but you will recall that she pointed to the absence of the teller's stamp confirming the receipt of the money and, in many cases, the absence of a breakdown of the funds.

Miss Simiki also took you through the evidence given by the teller's of consistent deficits in their cash balances at the end of the day. Some of the shortages were large. Otile Siasau spoke of shortages from her cash draw of $4000, $5,000, and even $10,000 on one occasion. Well, you will need to consider all that evidence.

Crown counsel also reminded you of the evidence of the spending patterns of all three accused and she suggested that the only reasonable inference that could be drawn from that evidence, coupled with the other evidence called by the Crown, is that the accused must have committed the offences charged. Well it is up to you entirely as to what you make of those respective submissions by defence and Crown counsel.

Count five against Sefo is a charge of forgery in respect of the loan document - Exhibit 12. I need to now tell you the essential elements in the offence of forgery. You will see them set out in section 170 of the Criminal Offences Act which you have before you.

There are three elements the Crown must prove in order to establish a charge of forgery:

First, that the accused made a false document. "Made"" has the ordinary meaning of producing something, wholly or partly. "Document" in this context also has its everyday meaning. That is, paper marked with something capable of being read.

You will see in section 170(3) the definition of a false document. In essence, a document is false if it purports or pretends to be made by someone who did not in fact make it. It is alleged by the Crown that the loan document was a false document because Sefo added the signature of Mr Valente by photocopying the note, including Mr Valente's signature, on Exhibit 11 and transposing that onto Exhibit 12. The Crown contends that that action makes a false document under section 170(3) (a).

The second element the Crown must prove is that at the time the accused made the false document (if that is your conclusion) she knew that it was false. In other words, that she did not think even mistakingly that it was a genuine document.

Thirdly, that at the time the false document was made, the accused intended that it would be acted upon by some person as if it were genuine. The Crown's case is that Sefo intended that ANZ bank officials would treat Mr Valente's signature as being his genuine signature to the particular loan document in question. Crown counsel points to the fact that the loan was actually drawn down in December 2002.

You will recall the points made by Mr Tu'utafaiva in relation to this count. Among other things, he said to you, well, no expert evidence was called by the Crown to show that the little note containing Mr Valente's signature was photocopied onto Exhibit 12. He suggested that there may have been a typographical error in the date on the first page and it should have read 2002 like the date on the second page.

He also says that if the first accused was responsible, why would she be so foolish as to put Mr Valente's signature onto the document dated 24/11/03 when she would have known that by then he no longer worked for the bank.

Miss Simiki says you, you don't need to be an expert to see that the note containing Valente's signature has been photocopied and she pointed to the line between the words "your" and "approved" and says that it really came from a third page of Exhibit 34 - the Tukuafus' original loan application from June 2002.

She also stresses that no other loan documentation was held by the bank relating to the Tukuafus apart from the original loan documents - Exhibit 34. Well you need to consider all that evidence.

Turning now to the one count against the fourth accused, Siniola Leleifi, the charge she faces is embezzlement contrary to section 158 of the Criminal Offences Act.

You have a copy of that section. The Crown is required to prove that the accused received the money on behalf of the bank - that is, that it came under her control. The Crown's case is that she took the $2000 from her cash draw.

Then the Crown has to prove that she converted the money to her own use. Well that is what the Crown says she did and the prosecutor reminds you of the evidence of her salary compared with her expenditure. The Crown referred in particular to her spending at Look Sharp.

Well, Mr Taufaeteau put it to you that there was no direct evidence that she took the money or that her cash draw was short by that amount on the day in question. He also reminded you of her interview (Exhibit 27) in which she said that she got the money from her mother in New Zealand via Western Union for the Church annual pledge.

Miss Simiki says in response, well, if that is the case then where is the Western Union receipt?

All those are all issues for you to consider.

I just remind you again that the Crown must satisfy you beyond reasonable doubt on these factual matters before you can convict.

I have now completed all I have to say to you before asking you to retire to consider your verdict. I shall now tell you what will happen when you return with your verdict. You will take your places in the jury box. You're Foreman will then be asked to stand. He should be in a position to state clearly the verdict on each count. The registrar will then direct this question to him, "are you all agreed upon your verdict?" If you are all agreed, the registrar will then ask, "what is your verdict, is the accused guilty or not guilty of the particular count? The appropriate answers will then be given by the Foreman.

With those final directions, I have now completed my summing up to you. I just remind you finally that any verdict you reach must be unanimous. I ask you now to retire to the jury room to consider your verdict.

NEIAFU

JUDGE