Langi v Police [2006] TOSC 12; AM 034 2005 (4 April 2006)

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

AM 34/05

TAULOTO LANGI
Appellant

v

POLICE
Respondent

DECISION ON APPEAL

The Appellant was convicted by Magistrate Foliaki at Mu’a Magistrates’ Court on 23 November 2005 of Theft (contrary to Sections 143 & 145(a) of the Criminal Offences Act) of 20 sandalwood trees, in all worth $400.00, belonging to Viliami Vehekite, on or about November 2004. He was sentenced to:

1. 3 months imprisonment suspended for 6 months.

2. To pay compensation of $400.00 to Viliami Vehekite of Talafo'ou, within 1 month, with 3 months imprisonment in default of payment.
   

The Appellant appealed on the ground that the learned Magistrate erred in fact and in law as follows:

'1. Order compensation was not in the summons. It is a breach of natural justice.

2. In assessing evidence to support his findings that the confession was made voluntarily, not even said that his findings was beyond reasonable doubt.
3. Further grounds as will be advanced on the hearing (if further grounds will be advanced the respondent will be given sufficient notice)'
   

Ground 1 was withdrawn prior to the hearing and no further grounds were put forward – although these would always have been subject to leave of this Court.

At the hearing of the appeal the Appellant’s Counsel amplified Ground 2. In addition to saying that the learned Magistrate did not say that his finding was made beyond reasonable doubt, the Appellant’s Counsel claimed that the decision was not made on the whole of the evidence, but simply on the finding of the voir dire that the Appellant’s record of interview, answer to charge and so-called confession was admissible. The Appellant’s Counsel said that was now the sole ground of appeal.

The ground that the decision was not made on the whole of the evidence was not borne out by the transcript of the trial, which showed that under cross-examination the Appellant gave evidence that he had gone with his father and apologised to the complainant:

'XXD C/PROS: It is true I was angry and told Naufahu to name me for all the stolen sandalwood in the East. Yes, I went and apologized to Viliami because I had confessed at the Police Station and my father told me to and I went with him and apologized to Viliami.

RXD FIFITA: I only went to apologise because my father told me to but I did not want to apologise.'

That was a matter the learned Magistrate took into account in reaching his decision:

'I don't quite believe you were scared and added to that Soane Naufahu saying that you will be locked up until after the strike, but at the time the work was conducted the strike had not yet occurred. I therefore do not accept your claim that you were kept in custody until after the strike, because the strike did not occur until 22/7/05 but you were interviewed before 16/5/05. This evidence is therefore untrustworthy.

It is possible for me to doubt that you gave your confession freely because it is understood that three police officers were present in the room at the time. But whilst I had doubts, you gave evidence in the witness stand, that you went with your father to apologize and that you were told by your father.

Prosecution has therefore done its job in proving that the confession you gave was given independently and that is grounds enough and I therefore find you guilty on the charge in summons 644/05.'

In addition, when passing sentence the learned Magistrate said:

'You have been found guilty and I believe the evidence offered by the prosecution. I understand that your not guilty plead is based on what happened when you were interviewed by police. But my decision is based on the evidence given in court. You have brought these charges upon yourself. I do believe you stole this sandalwood ...'

It is therefore quite clear that the learned Magistrate took into account the whole evidence, so regrettably the appeal is not based on the correct facts.

It is true that the learned Magistrate did not say that he found the charge proved beyond reasonable doubt. While I believe that it is sensible for a Judge or Magistrate always to use these words when making a finding of guilty in a criminal court – so as to remind oneself of the high standard of proof required in a criminal case – that is only the equivalent of being sure on the evidence before you. In this case the learned Magistrate said that the confession was 'grounds enough', and later said that his decision was based on the evidence given in court, and that he believed that the Appellant stole that sandalwood, so I accept that on the evidence the learned Magistrate was sure of the Appellant’s guilt.

There was ample evidence of the Appellant’s guilt. In the record of the interview of the Appellant by the Police he stated:

'1. Do you know why you have been brought to the police station?

Yes

2. Why?

Stealing sandalwood

3. Whose sandalwood?

Viliami Vehekite

4. Who else went with you to cut down this sandalwood?

Myself and Mani

5. How were these trees uprooted?

We dug around them and then chopped them down with an axe.

6. Where was this sandalwood taken?

They were taken and weighed and sold to a Chinese person at Tokomololo.

7. How many did you uproot?

I don't recall.

8. Did you uproot them during the day or night?

Day

9. How did you take the sandalwood to Tokomololo?

In my van

10. When was this?

About November last year.

11. Where did this happen?

At Makaunga.'

Then in his so-called confession the Appellant stated unequivocally:

'It is true that I went with Mani and stole sandalwood at Viliami Vehekite's allotment with the intention of making some money for ourselves.'

I was referred to the case of Fa'aoso v R [1996] Tonga LR 42 (CA), where the Court of Appeal made it clear that 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 jury is satisfied that the confession is reliable and cogent evidence. That was clearly the position in the current case.

Regrettably this appeal therefore has little merit and I refuse it, affirm the decision of the learned Magistrate and uphold the conviction of the Appellant.

Compensation of $400 is to be paid to the Supreme Court for Viliami Vehekite within 1 month of today’s date, in default of payment the Appellant is to serve 3 months imprisonment.

R M Webster
Chief Justice

4 April 2006

Because of the charge brought against you on what you did on the .... day of November 2004 at Talafo'ou. You committed Theft contrary to Sections 143 &145 (a) Chapter 18 Laws of Tonga 1988 Vol. 1. In which you stole 20 Sandalwood trees belonging to Viliami Vehekite worth $400.00.

Ct You have been found guilty and I believe the evidence offered by the prosecution. I understand that your not guilty plead is based on what happened when you were interviewed by police. But my decision is based on the evidence given in court. You have brought these charges upon yourself. I do believe you stole this sandalwood and your penalties are as follows

1. Three months imprisonment suspended for six months starting from today.

2. Compensation of $400.00 to be paid to Viliami Vehekite of Talafo'ou, within one month from today if not you will be imprisoned for three months.

COURT IS ADJOURNED 1600 HRS.

This is a true transcript of my folio which I recorded during the hearing at Mu'a on 23/11/05.

Sgd: Clerk
Sgd: V. Foliaki Magistrate