Rex v Lokosuka [2007] TOSC 1; CR 188, 190, 191-2006 (24 January 2007)

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

NO. CR.188, 190, 191/2006

REX

-V-

KIKILOI LOKOSUKA
TEVITA MOELANGI
PETELO FINAU

BEFORE THE HON. CHIEF JUSTICE FORD

Counsel: Mr Kefu and Ms Moa for the Crown;

Dates of hearing: 26, 27 and 30 October 2006
Dates or written submissions: 15 November and 13 December 2006
Date of judgment: 24 January 2007

JUDGMENT

The case for the prosecution

[1] The third accused is charged with one count of robbery contrary to section 154 of the Criminal Offences Act (Cap 18) and the first and second accused are each charged with one count of abetment of robbery. There was originally another accused also facing a charge of abetment of robbery but he absconded while on bail and a warrant has been issued for his arrest. The case relates to the killing of a pig which allegedly belonged to the complainant. The incident occurred on an allotment at Tatakamotonga in the early morning hours of Tuesday 16 May 2006.

[2] The 54-year-old complainant told the court that he lives in a "shack" on the eight acre tax allotment in question. He kept referring to the allotment as his allotment but later in his evidence in the course of cross-examination he explained that the shack is on his father's allotment and his own allotment is diagonally across the road from his father's allotment.

[3] The court ended up taking a view of the area in question which included the so-called "shack". It comprised of a few sheets of old roofing iron crudely cobbled together to provide a form of shelter with a makeshift bed underneath. Although it had some protection on two sides, it did not have any proper walls. There were some water containers on the ground outside and at the time of the inspection the water appeared to be light green in colour. The shack itself was well hidden by the surrounding tall grass. As the group approached the area one of the police officers lifted a single strand of barbed wire to allow the inspecting party to walk under it. The strand of barbed wire was located approximately 100 feet out from the shack and was roughly of chest height. Presumably it was there as some form of security. Any stranger entering the area would have had difficulty observing the barbed wire.

[4] The complainant, who had a habit of prefixing any contentious statement with the words, " as God is my witness", told the court that he lives and sleeps and does his washing in the shack. He said that at the material time he kept six pigs on the allotment, three small ones and three mature sows. He does not have any form of pigsty and there are no fences on the allotment. He agreed, in cross-examination, that there were a number of wild pigs in the area and he was aware that they were causing annoyance to neighbouring farmers, in particular, Tapa whose crop of sweet potatoes had suffered considerable damage. He was aware that some of the locals would hunt the wild pigs on a regular basis using pig dogs in the hunt. He disagreed, however, with the suggestion that the sow in question was a wild pig. He explained that he had a special call sign for his pigs which he demonstrated to the court several times without having to be invited to do so. It could fairly be described as an ear piercing shrill, "kuui, kuui, kuui, kuui" type of sound.

[5] The complainant told the court that around 4 or 5 a.m. on Tuesday 16 May 2006 he was awoken by the barking of dogs. He said that he looked out and saw a pig being chased by the dogs. When he stood outside his shack he saw two men who he identified as the first and third accused and told them to stop chasing his pig. He then went back to his shack, picked up his .22 rifle and loaded it. He told the court that at that point, however, he thought of the consequences if he shot someone and as he did not want to go to prison he took the bullets out of the rifle and when he caught up with the two men he confronted them holding his empty rifle.

[6] At that stage the pig was on the ground still alive but it had been surrounded by a number of dogs. The complainant said that the first accused then punched him to the ground and he saw the third accused stab the pig with a knife killing it instantly. The third accused then took the knife out of the pig, stepped over and hit the complainant on the back with the knife handle and punched him in the face. The complainant said that when that happened he was sitting on the ground holding his rifle and the first accused was sitting on top of his legs. After the third accused assaulted the complainant he took his rifle off him and threw it into the surrounding bushes. In cross-examination the complainant denied that during the struggle the rifle had gone off. He repeated that he had removed the bullets.

[7] The complainant said that he then noticed a vehicle nearby and the second accused and his colleague who has absconded came over from the direction of the vehicle and one of them told him to go away and so he left the scene and walked in the dark to the Mua Police Station to report the incident. In cross-examination, it was put to the complainant that after the third accused had taken the rifle off him and thrown it away, he (the complainant) had told all the accused to leave and take the dead pig with them. The complainant agreed with that proposition. The evidence was that the dead pig was then taken away by all the accused and cooked and eaten. It was also put to the complainant in cross-examination that the pig was a wild pig which had first been located by the dogs on Tapa's sweet potato plantation and was eventually killed not on the complainant's father's allotment but on another neighbouring allotment belonging to Fusi Sakisi. The complainant denied those propositions and maintained that the pig was found and killed on his father's allotment and he repeated that his pigs never left that allotment.

[8] The Crown formerly produced police documentation including a record of interview taken from each accused. In their written statements, each of the accused admitted that the pig was the complainant's pig but I am not prepared to place any reliance on those admissions. Whilst no formal challenge was made on the voir dire to the admissibility of the documentation in question, the officer in charge of the Mua Police Station frankly admitted having assaulted the first accused "because he was a relative", by slapping him a number of times over the head causing him to bleed from the ear. He also admitted that each of the accused had initially said that the pig was killed on Fusi's allotment but he (the officer) had told them all to "keep it short" by admitting that the pig belonged to the complainant. Against that background, I am not prepared to place any reliance on the statements given to the police.

[9] The police officer in question was also asked in cross-examination about another person involved in the pig hunt by the name of Palema 'Amone. Mr 'Amone was the driver of the vehicle which appeared on the scene after the pig had been killed and he appeared to be the organiser of the pig hunt. The officer agreed that Mr 'Amone was going to be a Crown witness in the case and that he had maintained from the outset that the pig had been found on Fusi's allotment.

The defence case

[10] As it turned out, 48-year-old Mr 'Amone was not called as a witness for the prosecution but he was called by the defence. He is a mechanic by occupation. He is also a pig hunter and he owns pig dogs. He was a credible witness and, with one or two minor exceptions, I accept the evidence he gave to the court. He is one of Tapa's neighbours and Tapa had complained to him about wild pigs causing damage to his sweet potato plantation. He, therefore, organised the pig hunt which led to the incident using his vehicle and his hunting dogs. He told the court, and I accept, that the pig was originally tracked down by the dogs on Tapa's sweet potato plantation and he confirmed that it had been killed, not on the complainant's father 's allotment but on the neighbouring allotment belonging to Fusi.

[10] The witness said that after the incident he was asked by the police to go and retrieve the complainant's rifle from the spot where the third accused claimed to have thrown it. He said that he did so and he found the rifle on Fusi's allotment close to the point where the pig had been killed. He was able to identify where the pig had been killed because of the crushed grass and blood on the ground.

[11] The third accused elected to give evidence. He claimed that the pig killed was a wild pig; that the dogs had located it on Tapa's allotment and chased it and it had been killed on Fusi's allotment.

Discussion

[12] As I have indicated, I accept Mr 'Amone's evidence which was confirmed by the third accused. I should add that I did not find the complainant a convincing or impressive witness. Bearing in mind the high standard of proof required in criminal cases, I was not persuaded that the complainant had been able to identify the pig as being one of his pigs as distinct from a wild pig. In other words, I do not accept it proven that the pig killed was his pig, nor do I accept that it was killed on his father's allotment.

[13] There is one other aspect of the case which appears to me to be misconceived and it relates to one of the important elements in a charge of robbery. The particulars of the robbery count in the case against the third accused state:

"Petelo Finau, on or about 16 May 2006, at Tatakamotonga, you took a pregnant sow valued at $1000.00 from 'Amalani Tu'iono by using violence on him, in that you hit him on his back with a cane knife and then punched him on his face causing him to fall and then you killed his pregnant sow, so as to put him in fear and thereby overcome his opposition to the taking of his property."

[14] The first point I make is that the evidence established that the sow was killed before the complainant was hit on the back with the handle of the cane knife. The more significant point, however, is that I am satisfied on the evidence that the reason why the complainant was assaulted was because he had pointed the gun at the third accused and had threatened to shoot him. The third accused said in evidence that he was trying to recover the gun off the complainant because he was afraid that the complainant would shoot him and he claimed that while they were struggling, the gun went off. Once he was able to recover the rifle he threw it into the nearby bushes. I accept this version of events apart from the statement that the gun discharged. Significantly, the witness Palema 'Amone did not say anything in his evidence about the gun going off.

[15] The other significant point in this scenario, however, is that the force and violence directed at the complainant by the third accused was part of his effort to try and wrest the gun from his grasp. It was not directed at the taking of the pig. At that point in time, the pig was dead. Once the third accused removed the gun from the complainant's grasp and threw it into the bush, that was the end of the assault on the complainant. The complainant was free to walk away and he admitted that he did walk away at that point, eventually arriving at the police station. The accused could, theoretically, have also walked away without taking the dead pig. That was unlikely, of course, but it could have been the case. What happened, however, at that point was that the complainant actually told the accused to take the dead pig with them. They did so. That does not amount to robbery.

[16] Robbery is defined in section 154 of the Criminal Offences Act (Cap 18) as:

"The taking of anything capable of being stolen by using violence or threats of injury to the owner or person in lawful possession of the thing taken or to any property of his so as to put him in fear and thereby overcome his opposition to the taking."

To satisfy the "using violence or threats of injury" element of the offence, the Crown must prove that the violence or threats of injury to the owner or person in lawful possession were intended to put that person in fear and thereby overcome his opposition to the taking. There must be a direct connection, in other words, between overcoming the opposition to the taking and the use of violence or threats of injury.

Conclusions

[17] In the present case, the prosecution has failed to establish this element of the offence. I am satisfied on the evidence that the acts of violence identified by the first and third accused were directed towards recovering the rifle from the complainant not to overcoming the complainant’s opposition to the taking of the dead pig. Therefore, even had I found that the pig was owned by or in the lawful possession of the complainant, I would not have been prepared to hold that the taking of its carcass amounted to robbery in terms of the definition in section 154 of the Act. As no offence of robbery has been established, the charge against the first and second accused of abetment of robbery must also fail.

[18] While both the first and third accused, the latter in particular, assaulted the complainant and that type of conduct cannot be condoned, they have not been charged with assault and, in any event, this court does not have jurisdiction in respect of the summary offence of common assault.

[19] For these reasons, each of the accused is hereby acquitted and discharged.

NUKU'ALOFA: 24 JANUARY 2007

CHIEF JUSTICE