Rex v Tenifa [2007] TOSC 53; CR 217 of 2006 (8 March 2007)

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

NO. CR. 217 of 2006

R E X

V

PAULA TENIFA

BEFORE THE HON. JUSTICE LAURENSON (JUDGE ALONE TRIAL)

Counsel: Ms Mafi for the Crown, Mr T. Fifita for the accused

Date of Hearing: 12, 13 February 2007
Date of Decision: 8 March 2007

DECISION

BACKGROUND

The accused Mr Tenifa has been charged with Theft under Section 143 of the Criminal Offences Act (Cap 18). The Crown alleged that on or about the 10 September 2006, the accused stole from Peau 'Ahomana cash of $3253.00, two cheques, one for $500 and the other $200. Mr 'Ahomana is the Manager of the Island Hut Restaurant Bar at Tofoa. The accused was employed there as a Security Officer and as such he lived on the premises at night.

On Sunday 10 September 2006 the business closed at midnight. Some people stayed on until about 3am. Mr 'Ahomana and others were then engaged in tidying up and stock taking. He counted at $3253.00 in cash and placed this cash in a black bag. At approximately 6am Mr 'Ahomana left the accused in charge while he drove two other employees home. He returned to the club about 8pm. He left again shortly afterwards to purchase some padlocks from a friends' shop. He went back to the club. He parked the vehicle in an enclosure at the club and locked the gate. The key had been left in the ignition and the accused and Mr 'Ahomana both have keys to the gate. Mr 'Ahomana went to the kitchen to make some food for them. He said that the accused asked if he could go and gets some other food from his family at Pea at about 10am. He was given permission to use the vehicle and came back about 10:30pm. .The two prepared the food while watching movies on TV. Mr 'Ahomana had an arrangement to meet the owner of the premises, Mr Prescott. They were due to have lunch together. He says he went looking for the bag with the money.

He didn't tell the accused what he was doing but asked him if he had seen the black bag. He said the accused said "no". Mr 'Ahomana went outside looked into the van, the bag was not there. He then went back to his friend's store. The bag was not there. He kept looking for the bag for about 2 hours until 1:30. The accused was still at the bar and asked him for a lift to his girlfriend's home, he agreed. Sometime prior to this Mr 'Ahomana says that he finally recalled leaving the bag with the money on the dashboard of the vehicle after he got back from purchasing the padlocks early in the morning.

The accused did not arrive to work on the Sunday night but he did turn up at about noon on a Monday when he asked for leave to enable him to attend a funeral. He gave no explanation for not having turn up on Saturday night.

On Tuesday about 6-6:30pm Mr 'Ahomana was together with all the other staff members attending a regular staff meeting. Amongst the matter discussed was the loss of the bag and the money. There seems to have been some discussion which tended to implicate the accused. He arrived about 7:30 and found people watching him. Mr 'Ahomana called him over, they went to the balcony by the bar. He was told that he (the accused) was thought to be implicated in the matter. Mr 'Ahomana said he was very quiet but said "Can I talk to you in another place." The two of them went to the parking lot where the accused started crying and said he felt bad for Mr 'Ahomana and then said he took the bag from the van because he needed the money for the funeral.

Mr 'Ahomana reaction was both sad and angry because the accused was his friend. He told the accused he wanted to discuss the matter with Mr Prescott the owner of the business and see if it would possible to come to an arrangement to save the matter having to be dealt with formally. The accused said all the money had gone and the cheques has been placed in the Trash at the funeral at Pea. Mr 'Ahomana spoke to Mr Prescott as a result which, the matter was reported to the Police.

Mr 'Ahomana later saw the accused at the Police Station that night and found that he had discussed the matter with his lawyer and as a result had denied liability.

He next saw the accused again in the Police Station at about 2 weeks later. The accused raised the question of whether they could come to an arrangement. He was told by Mr 'Ahomana this could only be done if he changed his plea to guilty. As a result they did come to an agreement namely that the accused would make payments each Friday of $100. Providing this was maintained until the next Court appearance he (Mr `Ahomana) would then ask for the case to be dropped. In fact the accused only made one payment $50 on the first Friday at which point he was given a receipt. He spoke to the accused a week later and asked him about his failure to make payments and was told that he had no work and no money and therefore the accused has not paid anymore. Mr 'Ahomana has paid $700 himself.

Under cross examination Mr 'Ahomana said he had left the key in the ignition on the Sunday morning and the accused had not asked permission to use the van to go and get the food while he (Mr 'Ahomana) was asleep. He said that both of them had keys for the gate and importantly he conceded that while they were in the bar they would not have been able to see anyone climbing the fence to get access to the car. He confirmed that his last memory of the bag was having placed this on the dashboard after returning from purchasing the padlocks. He denied threatening the accused and said that there was no intimidation.

The Crown also called Siu Folaumoetu'i, a waitress who has been employed by the Bar for the last 1 ½ years. She remembered the staff meeting on the Tuesday. She remembered the accused arriving late and then going and having a discussion with Mr 'Ahomana. While the accused was still outside she had gone outside to speak to him, he was crying, she asked him if he had taken the money and if so, what for. She said that the accused said that it was him and that he had a lot to use the money for. After that she said she went back into the building. She did not notice any sign of anger on Mr 'Ahomana's face.

The accused gave evidence and gave an account of the events substantially the same as that given by Mr 'Ahomana. There were differences in times and also the accused said that he had obtained permission to used the vehicle. Importantly he said that he had never seen the bag that day. He denied taking the bag and the money. He said that he had not made the admissions stated by Mr 'Ahomana and that Mr 'Ahomana had pushed him. Importantly he denied having any conversation with the witness Sui at the Bar and said that he only spoke to her when he was been taken off in the Police vehicle. He said she went out and asked him if he took the money and he said it wasn't me. He said that the only reason he was crying because he considered he was been threatened. He said on many occasions Mr 'Ahomana had the bag and took it with him to the van. He said he had taken it to him when he forgotten it in the van on other occasion and he did not seen the bag on the day in question.

The defence also called on Mr 'Alapuna. He said that he visited the Bar on occasion to deal with the equipment. He said that he never discussed the loss of the cash with Mr 'Ahomana. On one occasion which he could not specify he with another person had been in the bar and he overheard Mr 'Ahomana say to the other person "that the bag has been lost at Vaini." He could not enlarge on this nor could he explained why he had later mentioned this to workmates. Mr 'Ahomana was asked about this alleged conversation. He said that he knew Mr 'Alapuna but had no knowledge at all of the alleged conversation.

Discussion

In order to prove this charge the Crown must prove beyond reasonable doubt that it was the accused who at some point obtained the bag and took the money for his own use.

If the evidence of Mr 'Ahomana is accepted than the accused certainly had the opportunity to do so namely on either of the two occasions when he left in the vehicle. The key was in the ignition and he had a key to open the gate which enclosed the vehicle. The accused said he never saw the bag. Mr 'Ahomana acknowledge that it would have been possible for stranger to climb the fence, come in the truck and take the bag without been seen from where he and the accused was seated and speaking in the bar.

Were it not for the two confessions allegedly made to Mr 'Ahomana and Siu I am satisfied that whilst the circumstantial evidence point strongly to the accused having taken the bag with the money it could not be found beyond reasonable doubt that he was the culprit. The confession by Mr 'Ahomana that a stranger could have done so unseen, raises doubt sufficient to prevent such a finding. The crux of the case is, therefore, whether either or both of the admissions made to 'Ahomana and Siu are sufficient to remove that doubt. Also to be taken into account of is the fact that the accused did made one payment to $50 pursuant to the arrangement made with Mr 'Ahomana to repay the total sum.

The accused having allegedly made the two confessions nevertheless after receiving legal advice, consistently denied his guilt when interviewed by the Police.

Whether or not either or both of the alleged admissions should be accepted, in the end comes down to a question of the assessment of the credibility of the Accused, his supporting the witness Mr 'Alapuna and Mr 'Ahomana and Siu.

The accused apart from the alleged admissions has consistently maintained his innocence both to the Police and when giving evidence at trial. He said, essentially, he never saw the bag at all, he never took the bag on the money and, there is sufficient evidence to show that a stranger could have been responsible.

Mr 'Ahomana was in my view a quite impressive witness. He acknowledged that he acted carelessly when the bag was in his care. He also acknowledged without hesitation that a stranger could have removed the bag from the van in the car park. He confessed to having a concern for the accused who he said he was a friend and denied putting him under any pressure. His actions after the confessions were, he said, designed to save the accused having to face trial and possibly penalty. It was submitted on behalf of the accused that Mr 'Ahomana's actions were in fact designed to ensure he did not have to repay the money himself.

In fact, although there were no evidence given by the owner of Mr Prescott, Mr 'Ahomana's said that todate he had in fact paid some $700. There is also the evidence of the accused (although denied by Mr 'Ahomana) that he had been put under pressure to come to the arrangement to repay the money.

There is one point in Mr 'Ahomana evidence which seems to me to be significant. He said in his evidence that the accused told him that he had placed the bag and the cheques in the Trash at the funeral home at Pea. This is the sort of detail which I consider is unlikely to have been madeup by a person wishing to falsely implicate a person in the accused's position by alleging a confession which is untrue.

Despite his last point I have concluded that if the only confession was that made to Mr. 'Ahomana then I would have found it difficult to find that the Crown had proved beyond reasonable doubt that this confession should be accepted.

That's leaves confession to Siu. She was present at the Staff meeting were there seems to have been some discussions about the matter during which time suggestion were made that a psychic seen by Mr 'Ahomana had indicated the accused. The Crown had not called the psychic and I therefore rule that any evidence as to what was said by Mr 'Ahomana was hearsay and it should not be admitted. What is relevant here that there was some discussions with the staff in which the accused was mentioned as being, at least, a suspect. It is this fact which to my mind explained Siu's actions. When she saw the accused outside crying she went to find out herself whether he was involved or not. She asked him and he admitted that he had taken the money.

The accused later denied any such conversation though he did admit being asked by Siu at the Police Station.

Siu impressed me is a reliable witness who had no apparent reason to fabricate the evidence. She was a composed person who did not appear to stating any more nor less than the truth. Importantly there was no evidence or cross examination to suggest that she had anything to be gain by giving the evidence she did. I have concluded that this evidence should be accepted.

This being the case it serves to confirm what the accused had said a short time before to Mr 'Ahomana. To my mind the two confessions, although denied by the accused, plus the clear evidence that he had an opportunity to take the bag satisfies me beyond reasonable doubt that it was the accused who stole the bag and its contents.

There remains the defence witness Mr 'Alapuna He said that when he and another person was tending the bar equipment at the club on some unspecified date he heard 'Ahomana say to a person accompanying the witness that "he had lost the bag at Vaini." He knew nothing else about the conversation but for some reasons he repeated this brief snippet to other workmates. He did not explain why he did so. Mr 'Ahomana had no recollection of any such occasion let alone the conversation. Mr 'Alapuna seemed to be a reluctant witness and I find it difficult, given his vagueness and lack of any detail to place any credence on it.

For the above reasons I found that the Crown has proved its case beyond unreasonable doubt. The accused is accordingly convicted.

Further matters raised by the defence

The first matter raised related to an alleged inadequacy in the proof of the amount of cash lost. It was admitted that the only evidence of the amount was that of Mr 'Ahomana and that, by itself, was insufficient. I disagree:

Mr 'Ahomana has been the person responsible for counting the cash. It is I think significant that when he went to purchase the padlocks he had paid for these from his own pocket rather then take money from the bag because it had all been counted ready for delivery to the owner of the business. I see no reason why Mr 'Ahomana's evidence in this point should not be accepted.

The second later related to the indictment. The defence counsel had originally raised an objection based on the fact that the indictment had named Mr `Ahomana as the complainant rather than the owner of the money, namely, his employer. I overrule this objections noting that section 143(b) of the Criminal Offences Act Cap 18 refers to:

"... any other person permanently of any lawful interest possessed by him in such thing,"

In this case there was uncontroverted evidence that Mr `Ahomana did possess a lawful interest in the property namely as bailee or as Agent of the owner. This ruling was accepted by the defence counsel. The objection was, however, renewed on another basis namely that the indictment was defective because it did not specify:

(a) the nature of the interest of the stolen property
(b) there was no reference to either section 143(a) or (b)

I do not consider this ground to be made up. It would as a matter of practise have been better, I consider, to refer to section 143(b) but despite this, the indictment specifically referred to a person who quite clearly had a lawful interest in the property. Furthermore there was evidence to prove that the nature of Mr 'Ahomana's special interest. The absence of any particularity on this point has not caused any prejudice to the accused. From the very beginning he knew that the allegation was that the bag and the money had been taken from Mr 'Ahomana's possession. This objection is therefore overruled.

Having found the accused guilty he is convicted and remanded for sentence until 20 April 2007 at 9:30am.

Bail to continue on the same terms.

1. Probation report to be obtained.

DATED: 8 March 2007 JUDGE