Rex v Naisuku [2008] TOSC 9; CR 192-2007 (13 June 2008)

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

CR 192 of 2007

R E X

-V-

VILIAMI HAISINI NAISUKU

BEFORE THE HON. JUSTICE SHUSTER

Counsel : Mrs. Fonua for the Crown and Ms. Tonga for the Defendant
Date of Extemporaneous Judgment : 12 June 2008

EXTEMPORANEOUS JUDGMENT

THE DEFENDANT

The Defendant is charged on an Indictment filed on the 3rd June 2008, He is charged with two offences alleging theft. He was arraigned on the 5th October 2007 before Justice Andrew, and pleaded Not Guilty to a single count indictment as is legal right. The Hearing took place on the 12th and 13th June 2008; the accused was convicted after trial.

• Count One

Theft contrary to section 143 & 145 (b) of the Criminal Offences Act (Cap 18)

• Particulars of which are: - on or about the month of March 2006 at Malapo with another you did dishonestly and without colour of right take one black sow belonging to Hamani Guttenbeil valued at $800, which was caught in Lolesio’s trap, by cutting it up and distributing it with the intention of depriving the owner permanently of such pig, and converting it to your own use.
  
• Count Two.

Theft contrary to section 143 & 145 (b) of the Criminal Offences Act (Cap 18)

• Particulars of which are: - on or about the month of March 2006 at Malapo, you did dishonestly and without any colour of right take:- eight piglets valued at $480. I brown sow and its ten piglets to a value of $1,100.00 I female pig valued at $300.00 and one male hog valued at $300.00 to the total value of $2,180 belonging to Hamani Gutenbeil, with the intention of permanently depriving the owner of such pigs and converting them for your own use.
  

THE PROSECUTION’s CASE.

The prosecution alleges the accused (with another person) stole a number of pigs as alleged in the indictment filed in court on the 3rd June2008. The prosecution says one of the stolen pigs’s, was cut up and eaten; the other pigs were seen by a prosecution witness kept penned within the accused’s allotment and in his boundaries. The pigs subsequently disappeared, and have not been recovered.

An allegation of theft was reported to the police, and an investigation commenced, culminating when the defendant was arrested, formally interviewed and committed by the Magistrate to stand his trial in the Supreme Court which took place on the 12th and 13th of June 2008. The defendant was found guilty after trial and an extemporaneous judgement given. There follows my full reasoning for finding the accused Guilty as charged on both counts.

THE DEFENCE CASE.

The accused as is his right under the law, denies the offences as alleged in the Indictment and puts the prosecution to strict proof. He gives his explanation of the events in a VCS to the police and this court. The VCS was not challenged by defence counsel. The accused gave evidence to in court his evidence is accorded the same respect and consideration as any other parties. The accused did not call any witnesses on his behalf as is his right.

THE ESSENTIAL ELEMENTS OF THE OFFENCE OF THEFT

To find the Accused Guilty of an offence of theft, under section 143 and 145 (b) of the Criminal Offences Act (Cap 18) the prosecution must prove each of the essential elements of the offence of theft.

In layman’s terms and in a nutshell the essential elements are:-

• The DISHONEST
  
• Taking of anything (usually property)
  
• With the intention of permanently depriving the owner of it.
  

LEADING CASES AND POLICY.

In considering this my judgment I have considered and applied the following leading cases widely known throughout the Commonwealth. These cases are routinely applied in common law jurisdictions for offences; or allegations involving theft, or cases involving dishonesty. They can be applied and accepted here in Tonga.

• R v BARRICK 1986 7 Cr AR [s]. For allegations which concern Breech of Trust. It is trite law that a servant or agent owes a high duty of care to his employer to carry out his duties properly; and more important honestly. The higher up the scale one goes in a company, or organization, the higher the degree of responsibility is imputed in him by law; because without that trust; the business world and all organs of a government would be in chaos.
  
• R V GHOSH [1982] EWCA Crim 2; 1982 2 ALLER 689. Is the well known test for Dishonesty, which states; "it is dishonest for a defendant to act in a way which he knows ordinary people consider to be; dishonest; even if he himself asserts, or genuinely believes he is morally justified in acting as he did."
  
• R v GOMEZ 1993 I ALLER 1. Authority for the well established test of; appropriation and or, misappropriation of property. This is a Leading House of Lords case which all legal practitioners should read, understand and apply in cases such as this.
  
• MACHENT v QUINN 1970 2ALLER 255 DC It is not necessary to prove all the articles or values mentioned in the indictment to have been stolen, if it is proved that the defendant stole any one of them. R v Parker 53 Cr App R 289 CA per Donaldson at page 229 it is submitted that the jury must be agreed on which particular item, or value was stolen.
  
• DEFENDANTS GOOD CHARACTER DIRECTIVE. Modern Law says I must consider and apply to every case "a defendant’s good character directive" that is to say good character cannot of itself provide a defence to a criminal charge, but it is evidence which I should take into account when I come to consider my verdict. See: R v Vye, Wise and Stephenson 97 Cr App R 134: R v Aziz and others [1995 2 Cr App R 478.
  

THE BURDEN AND STANDARD OF PROOF

Certification: As this is a trial before a Judge sitting alone; I certify I have directed myself in accordance with the Law on the Burden and Standard of Proof in a criminal case. I have directed myself of the need to consider the evidence in respect of each charge and for the defendant separately. Where appropriate I have given the Accused the benefit of any doubt. The prosecution brings this case, they must prove the case beyond any reasonable doubt so that I am sure he committed the offences. The defendant does not have to prove anything; because he is innocent until he is proven guilty.

VOLUNTARY CAUTION STATEMENT

I am also required (under modern law) to consider a defendants voluntary caution statement[s], and also his charge statements as to whether they are voluntary; or not, in the true sense of the word. I find as a fact upon hearing the evidence that the confession Exhibits I, is voluntary in the true sense of the word; as is the charge statement Exhibit 2. These documents were never challenged by the Defense

PROSECUTION CASE

I heard a total of 4 prosecution witnesses who testified they knew the accused and had dealings with him concerning this particular case and the defendant himself gave sworn evidence to the court.

• The first prosecution witness PW1 testified he was the owner of a number of pigs in Malapo and he testified they all went missing. He sent his son to look for them thinking they may have strayed off into the bush. He described the pigs as pets. He told the court there was a point in time when he with went in his truck, (with others) and freed one of his pigs from a trap the pig was injured. He testified he, transported the injured pig to his home. He valued the pigs as per the valuation shown in the indictment.
  
• The second prosecution witness PW2 is the complainant’s son; he testified he saw the pig’s subject of court two within the accused compound at his allotment. He described how he was assaulted and hit by the accused on the head when he spoke to him about the location of his father’s pigs.
  
• The third prosecution witness was the Town Officer he told the court about the Rules the village had in place to cover, issues concerning stray pigs. I accept that what was said by PW3 must have been known to the accused and I find as a fact that he had knowledge of the Rules and Regulations of the Village.
  
• The fourth Prosecution witness was the interviewing police officer who also charged the accused. He admitted he did not put questions to the accused about the second count.
  
• Most of what the witnesses who gave evidence said was never shaken by learned defence counsel.
  
• I was asked by the Prosecutor to find the accused guilty as charged.
  

The defendant gave evidence after he initially said he did not wish to go into the witness box and after his rights were explained to him by the court. The accused’s evidence follows his account in his VCS and in his charge statement which has been translated and is in evidence by consent.

THE DEFENCE CLOSING ADDRESS

The accused is charged with two counts of theft. The Crown has failed to prove dishonesty. The first witness said he found the pigs in his hose. He said they were gone. No one saw the accused steal or take them from his fence. PW1 also sent his son to search for the stolen pigs. PW2 reported back the pigs were at my client’s house inside the fence. But, Mr. Hamani GUTTENBEIL did not lodge any complaint, he did noting. As a reasonable man he would go straight to the man and demand the pigs, and if the man did not return the pigs he would o straight to the police and lodges a complaint and also asks the police for assistance. Mr. Guttenbeil was aware where the pigs were kept and in evidence on oath he stated my client stole the pigs and sold them, and he did nothing to report it to the police. In my clients brief of evidence he did not say he sold the pigs on. If you want your rights you will tell everything to the police because you want truth and justice and all the relevant information you will tell the police. You will tell all to the investigator and this did not happen. PW2 said he was threatened when he went and asked about the stolen piglets. PW2 also said he was scared my client might kill him. PW2 said they went to the police station to lodge a complaint, but did not lodge a complaint about assaulting or threatening. The witness statement is unreliable. If PW2 said he was seeing the piglets and was assaulted that is a good claim to lodge against my client. But they did not lodge any complain. In the proof of evidence they did not tell them of the assault or the seeing of the piglets. PW2 said he would do anything just to support his father Hamani because it was his future. In the proof of evidence he did not explain to police but he was explaining in court. If he explained to the police then they might also explore the assaulting. The other witness PW3 the Town Officer in his evidence he said there was no complaint about his lost or stolen pigs. From the evidence the Crown has failed to prove there was dishonesty. The second element there was no intention to permanently deprive the owner. Hamani and his son said they took the pig back to their home. PW2 said he went again to search for the stolen pigs he then went again to my clients allotment and saw the pigs and then he went back home to seek assistance from his father and their two friends. They went to bring back the black sow pig caught in the trap and my client fare-welled them. Hamani confirmed the son saw the black pig in the trap and it was brought back from the trap, this from the witnesses they took back the black sow pig to their home. There was no intention to deprive the owner of the pigs because the pig was caught at the trap and was returned back to Hamani. PW1 also stated on oath whether he found any of his stolen pigs and he said yes. The black sow pig was caught in the trap on the allotment, In cross-examination he stated the black sow was taken back, but the rest of the pigs were not found. The crown failed to prove beyond a reasonable doubt the element of intention to permanently deprive the owner. The pig was returned and taken home my client did not permanently deprive them of the pigs. My client wanted it investigated. It was the black pig where the police questioned my client he explained everything. He said he saw the trapped pig and went to the village, and when he came back he saw that the pig had died. He cut it up and distributed it. It seems the pig was a different pig because Hamani had taken back his pig. This was confirmed by the police officer when he gave evidence (PW4) He was aware only one pig was caught in the trap. The police officer did no question my client about the rest of the pigs only the pig caught in the trap. The evidence given by the police is that if this is true that was the pig my client cut up. It was in the trap. The police did not have any facts or reliable evidence for the second count upon which to charge my client. My client gave evidence on oath and stated that he did not sell any pigs o palangi’s or in the village. He said the pigs inside the fence were his pigs. PW2 came to his allotment and my client took him to the pens to see if the pigs inside the pens were his but they were not. My client also stated he cut up the pig that was caught at the trap. My client is not guilty because the pig was released. The crown has failed to prove its case, there is insufficient evidence.

INFERENCES AND SPECULATION

A court is not entitled to speculate, but it may draw inferences. There may be strong circumstantial evidence in which a court may say, when taken together will lead to the sure conclusion it was the defendant who committed the crimes. Circumstantial evidence can be powerful evidence, but it is equally important to examine it with care and to consider whether the evidence upon which the prosecution relies in proof of its case is reliable and if it does prove guilt; or, are there any other circumstances which are, or may be of sufficient reliability and strength to weaken or destroy the prosecution’s case. Finally a court should be careful to distinguish between arriving at conclusions based upon reliable circumstantial evidence and mere speculation. Speculation in a case amounts to no more than guessing; or making up theories without good evidence to support them, neither the prosecution, the defence nor should I do that.

CONCLUSION

In this case the Defence submits the prosecution has woefully failed to prove their case beyond reasonable doubt, and they ask me to acquit the accused of all charges. I do not intend to rehearse the prosecution evidence or the prosecutions closing, speech because in a case such as this, it is a question of whom do I believe, on the evidence placed before me and this is a very short trial with few issues. It is the evidence given in open court which goes to prove whether or not I find the guilt or innocence of this particular accused. In this particular case my view is it is the evidence of PW2 which convicts this accused person but only if I care to believe his oral evidence and if I assess him as credible

ACCORDINGLY:-

• For the benefit of defence counsel, the Crown are free to add delete alter or modify charges, or, prefer different counts in an indictment, at any time up to sentence. The new indictment or charge must however be based upon the evidence which comes out at trial, and upon which the accused has been formally committed by a Magistrate.
  
• Perhaps this is why the police officer did not question the accused concerning the contents/wording of count two, because count two did not exist. Counsel dwelled upon this point in her closing speech. It is evident at a point in time the crown reviewed the evidence and then added a second count. Thus it is a Crown Prosecutor who is ultimately responsible for drafting every indictment for trial in the Supreme Court, and not the police or a police officer.
  
• Assessing the evidence given in this trial as a whole. I fully believe the witness PW2 when he told me he saw the stolen pig’s subject of count 2 in the hands of this accused and I find as a fact they were inside the fenced allotment of the accused, during the period specified in this indictment as witnessed by PW2.
  
• The stolen pigs were described and detailed by both PW1 and PW2 as pets, and with that in mind I fully believe PW2 recognized his father’s stolen pigs, having cared for them over the past number of years, for example I heard evidence that, one of the sow’s was five years of age.
  
• I ask myself, would PW2 come to court and deliberately lie to assist his father? Having observed this young man in court giving evidence, I came to the conclusion he was a competent, and truthful witness; who gave cogent and quite damming evidence against the accused. He was quite unshaken in his cross-examination. I believe PW2 and, all of his evidence
  
• I also believe PW2 was assaulted by the accused and believe him when he told me he was scared of him though not a charge it is part of the Res Gestae of the case. See R V Andrews a House of Lords decision.
  
• I find as a fact the stolen piglets subject to court 2 in this indictment were present and were concealed within the allotment of the defendant, on the date in question and were in fact stolen pigs as is defined under the Act.
  
• I wish to say and for the avoidance of doubt, and because I find as a fact that; if a pig (or other domesticated animal) is caught in a trap, and if the pig or animal dies, then the property of the live pig or animal will have been changed substantially, i.e. from a live pig into a dead pig, if that is the case then it has been appropriated. If the property has been cut up and eaten hidden or destroyed, then that will clearly be a dishonestly appropriation
  
• Going even further if a pig, or a domestic animal, is caught in a trap, and a person finds it in the trap then walks off into town without releasing the animal forthwith, and or fully complying with local village regulations, then those facts may help to provide evidence that might amount to theft, but dependent upon the facts of the individual case.
  
• I also find as a fact, that the use of traps to catch pigs or other animals which result in serious injury to the pig (or other animal) is unlawful, is cruel, and inhumane.
  

I FIND THE ACCUSED GUILTY ON EACH COUNT OF THE INDICTMENT.

NUKU'ALOFA: 13 June 2006
JUDGE