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Supreme Court of Tonga |
IN THE SUPREME COURT OF TONGA
Criminal Jurisdiction
CR 175 of 2008
THE CROWN
v
PIUTELI MAILE
BEFORE THE HON Mr. JUSTICE SHUSTER
TRIAL DATES 15TH AND 16TH DECEMBER 2008
DATE OF JUDGMENT 9th JANUARY2009
JUDGMENT
THE DEFENDANT
The defendant is charged on an Indictment filed on the 15th July 2008, he is charged with a single offence alleging abetment of theft. The defendant was arraigned on the 12th August 2008 before me; he pleaded Not Guilty to the charge, as is his legal right. The hearing of this matter took place on the 15th and 16th December 2008, and on conclusion the matter was adjourned to today for a written judgment.
THE CHARGE
The total value of these good is $4200.00, knowing these goods were stolen;
THE PROSECUTION'S CASE.
As the indictment clearly states the prosecution allege the defendant (with another person) abetted the theft of $4,200.00 worth of Tongan property, from the home of the complainant, on the night of 20th February 2008. A complaint of theft was reported to the police, and an investigation commenced, which culminated in the defendant's arrest, interview and his subsequent committal by a Magistrate for trial in the Supreme Court.
THE DEFENCE CASE.
The defendant as is his right under the law denies the offences as alleged in the Indictment and, put the prosecution to strict proof. He gave his explanation of the events in a VCS to the police, and to this court. The VCS was not challenged by the defendant and is in evidence before me. The defendant also gave evidence in court; his evidence is accorded the same respect and consideration as any other parties. His defence is he did not know the goods were stolen. He also called a witness-in his defence his co-accused.
ESSENTIAL ELEMENTS OF THE OFFENCE OF ABETMENT
Section 8 Abetment of crime and the punishment o an abettor
Every person who directly or indirectly commands, incites, encourages or procures the commission of an offence by any other person, and, every person who knowingly does any act for the purpose of facilitating the commission of an offence by any other person is an abettor and shall (unless otherwise expressly specified by any enactment)
(a) Where the offence is actually committed in pursuance or during the continuance of such abetment, be liable to the same punishment as if he himself had actually committed that offence; and
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. In layman's terms and in a nutshell the essential elements of theft are:-
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 here in Tonga.
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."
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.
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.
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. 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 offence. 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 the law to consider a defendants voluntary caution statement and also his charge statement and confession as to whether they are voluntary; or not, in the true sense of the word.
PROSECUTION CASE
I heard a total of 3 prosecution witnesses who testified they knew the accused and had dealings with him concerning this particular case.
DEFENDANT'S CASE
The defendant elected to give evidence after his rights were explained to him by the court. The defendant's evidence basically followed his account contained- in his VCS and in his charge and confession statement. These documents have been translated and are in evidence by consent. The defendant denied knowing the property subject to the charge was stolen. In my view the defendants VCS is very relevant in determining either his guilt or innocence. He also called a witness in his defence a serving prisoner and his co-accused in this matter.
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.
ANALYSIS
In this case the defendant submits the prosecution has failed to prove its case beyond reasonable doubt, and he asks me to acquit him. I do not intend to rehearse the prosecution evidence in detail because in a case such as this, it is a question of who I believe on the evidence placed before me. Further this was a short trial with few issues. It is the evidence given in open court and on oath which goes to prove whether or not I find the guilt or innocence of this particular accused. In this case it is the evidence of PW2 which might succeed and help the prosecution to convict this defendant, but only if I care to believe his evidence, and if I assess him as a credible and truthful witness.
ACCORDINGLY: - Assessing the evidence as a whole
In my view the prosecution has proved it case beyond any reasonable doubt so that I am sure the defendant committed this offence. I believe the witness PW1, PW2 and PW3; I take into account the defendants VCS, his reply to the charge, and his actions, before, during and after the commission of this crimes applying the well known test for dishonesty contained in R v GHOSH [1982] EWCA Crim 2; 1982 2 ALL ER 689.
ACCORDINGLY I FIND THE ACCUSED GUILTY
Shuster J
Judge of the Supreme Court
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URL: http://www.paclii.org/to/cases/TOSC/2009/23.html