Mafi v Police [2007] TOSC 26; AM 10-2007 (15 October 2007)

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

AM 10 of 2007

BETWEEN:

ETILUNA MAFI
Appellant

AND:

POLICE
Respondent

BEFORE THE HON. JUSTICE ANDREW

Counsel: Counsel Mr. Kefu for the Appellant and Mr. Paasi for the Respondent

Date of judgment: 15 October 2007

JUDGMENT

The appellant was acquitted in the Magistrates Court upon two charges, the first being the disobeying of an order given by a Police Officer and the second being the obstruction of a police officer who was carrying out his duty.

The appellant appeals against the judgment of the learned Magistrate mainly on a point of law and seeks an order that there be a re-trial in this matter.

The case against the respondent was that he was driving a vehicle on the 1st March 2006 during a protest march and that he was ordered by police not to drive in Taufa’ahau Road but that he continued to do so in defiance of the order and in doing so he obstructed the police officer who had given him the order.

At the hearing of the matter the respondent gave evidence and denied that he had been driving at this time. He called witnesses in support who said he was not driving at this time and that he was walking with them on the road.

The learned Magistrate found as follows:

"In comparing the witness from the prosecution and the accused I do not know who is telling the truth and who is lying, some of the prosecution witnesses stated that he was driving the loader. According to the accused and his witnesses he did not drive and was walking. Therefore I have doubt on the issue of whether the accused drove or not. Because I have doubt whether the accused was driving, I give that privilege to the accused. It is therefore my finding that the accused had not driven from Mangaia to Pangai."

The appellant argues that the findings of fact made by the learned Magistrate erred in law in that it failed to observe the requirements of s.126 of the Evidence Act (that an accused person shall not be convicted upon the testimony of an accomplice unless it is corroborated in some material particular by other evidence) and that that should apply equally when a co-accused or an accomplice gives evidence for the defence.

S.126 is as follows:

"..An accused person shall not be convicted upon the testimony of an accomplice unless it is corroborated in some material particular by other evidence."

The appellant does not argue that S.126 should be read as "an accused person shall not be acquitted upon the testimony of an accomplice unless it is corroborated in some material particular by other evidence" but says that in this case too much weight was given to the evidence of an accomplice and evidence in general of an accomplice cannot be relied upon even when giving evidence for an accused unless it is corroborated in some material particular.

In this matter there is no evidence proving that those witnesses who gave evidence for the respondent were in fact accomplices. They merely said that the respondent was not driving any vehicle but walking nearby. In effect it was alibi evidence which left the Magistrate in doubt and he acquitted the accused. For that reason I would not allow the appeal nor order any rehearing of the matter.

Furthermore there is the matter of autrefois acquit. By S.12 of the Constitution no one shall be tried for an offence of which he has been acquitted unless in circumstances where he later confesses to the crime.

The Crown may however refer a point of law on appeal following the acquittal of an accused.

Insofar as the Crown seeks a ruling as to the effect of an accomplice of an accused giving evidence on his behalf and the necessity of that evidence being corroborated in some material way by other evidence it cannot be said that S.126 of the Evidence can be read that way such that an accused could not thereby be acquitted. That is, S.126 cannot be read as to say an accused cannot be acquitted on the uncorroborated evidence of his accomplice.

Who is an accomplice?

(a) Criminal participants of the actual crime charged, whether as principles and accessories before or after the fact or as persons committing, procuring aiding or abetting.

(b) Receivers giving evidence at the trial of those alleged to have stolen the goods received by them; the relationship between thieves and receivers being that of one sided dependance – there could not be a receiver unless the goods had first been stolen.

(c) The parties to other crimes alleged to have been committed by the accused when evidence of such crimes is received on the ground that it tends to prove something more than mere criminal propensity. : See Davis-v-Director of Public Prosecutions 1954 Act 378.

In my opinion there is no principle of law that an accused cannot be acquitted on the evidence of an accomplice who gives evidence in support of the accused. It is a matter of discretion for the fact finder. There is however a desirability of some from of corroboration of the evidence of an accomplice of the accused in these circumstance but, as stated, it is a matter of discretion in each case.

In R-v-Anthony [1962] VicRp 63; [1962] V.R 440, it was held that a warning to a jury was unnecessary when the accomplice gave evidence which was directed to exculpate the other accused, even though a jury might ignore the exculpatory evidence and use the balance as evidence against the other accused. See also R-v-Tooma 1971 R 211 and R-v-Royce Bently [1974] 2 ALL ER 347.

The appeal in this matter is dismissed.

NUKU'ALOFA: 15 October 2007

JUDGE