Rex v Manu [2010] TOSC 9; CR 156 of 2009 (30 June 2010)

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

NO. CR. 156 of 2009

REX

V

MASALU NGAUE ‘I MO’UNGA MANU

BEFORE THE HON. CHIEF JUSTICE FORD

Counsel: Ms Puloka for the Crown and Mr Tu’utafaiva for the accused

Dates of hearing: 29, 30 April and 3 May 2010.
Date of Submissions: 14 and 28 June 2010.
Date of Judgment: 30 June 2010.

JUDGMENT

The charges

[1] The accused, 23 year old Masalu Manu, is charged with one count of unlawful entry by night and one count of wilful damage to a building contrary to sections 174 and 178 respectively of the Criminal Offences Act (Cap 18). The particulars allege that on 26 July 2009 he entered a house at Kolomotu’a belonging to Peni Tonga at night without lawful justification and he intentionally and unlawfully caused damage to the house when he tore out the fly screen protecting one of the windows.

[2] The damaged window was the window to a bedroom in which the complainant's two daughters aged 12 and 2 were sleeping along with his 23-year-old sister, Siliani. Siliani and the two-year-old daughter were sleeping in the bed closest to the window. The 12-year-old, Toakase, had a bed of her own. There was evidence that a pair of shoes belonging to the accused was subsequently found inside the bedroom on the floor by the window. The incident happened in the early hours of a Sunday morning. On the Monday, the accused apologised to the complainant and gave him $150 to pay for the damage he had caused.

[3] The accused pleaded not guilty to the two charges. He elected not to give evidence himself but evidence was given for the defence by his de facto partner. The defence was based on drunkenness. In essence, the accused contended that he was in such a state of intoxication on the night in question that he was unable to form any intention at all, hence he lacked the requisite mens rea and, in any event, he denied having been the person who attempted to enter the complainant's home.

The Crown case

[4] Siliani told the Court that she suffers from a heart condition. She said that she was asleep and between 2 a.m. and 3 a.m. on 26 July 2009 she awoke and felt that there was someone in her room. The evidence was that the light in her bedroom was always left on at night. Siliani looked up and saw a person at the window. He had removed several louvres and the top half of his body was already through the window. She said that she could see him clearly from the waist up because the light in the bedroom was approximately only one meter away from the window. She said that he appeared to be angry with her because when she shouted out he shook his head and put his finger up to his lips which she took as a signal that he didn't want her shouting out.

[5] Because of her heart condition, Siliani struggled to get to the bedroom door but when her sister-in-law, the complainant's wife, heard her cry and came into the bedroom the man at the window had disappeared. The wife then called out to her husband Peni, the complainant, and told him that someone had entered his sister's bedroom. He entered and saw that the louvres had been removed and he immediately went around the outside of the house with a torch looking for the intruder.

[6] The property next door to the complainant's home is a disused commercial building and along the northern side of the building is what appears to be a covered car port without any walls but with a concrete slab floor. The complainant told the court that when he shone the torch around that area he noticed a person, later identified as the accused, on the concrete floor. He said that he had been sitting but when he shone the torch on him the person laid down. He then shone the torch on his face and he noticed that his eyes were flickering. The complainant observed that the clothing on the upper part of the accused's body was white in colour.

[7] At that point, the complainant decided to go back to the house and get his sister to come and identify the person. He ran back to the house and called out to his sister asking what the accused looked like and as they made their way back to where the accused was lying on the concrete pad, the sister described the intruder as a fair skinned boy, with longish hair wearing white clothing on the upper part of his body. When he then shone the torch on the accused and asked his sister to confirm whether he was the person she had seen, his sister cried. Another man appeared on the scene and the complainant asked him if he recognised the accused as a person from Kolomotu’a. The man said that the accused was not from Kolomotu’a.

[8] According to Siliani, at that point the complainant turned around to her again and asked her if this was the same person and she said, "yes". There was evidence that some months before the incident the accused had been struck around the nose with a broken bottle. It would seem that the wound had healed considerably but the complainant said that he had noticed "a bandage or something" on the side of the accused's nose.

[9] The complainant then called the police. The police arrived and walked over and shook the accused and picked him up and took him to the police vehicle. The complainant said that he noticed that the accused was smiling as he was led away by the police.

[10] Later that same morning, which was a Sunday, the family went to church. Toakase, the 12-year-old daughter, remained at home with her grandfather and while the others were away, on her grandfather's instructions, she tidied up her room. Toakase told the court that when she was tidying up the bedroom she found a pair of shoes on the floor in the gap (about 18 inches wide) between the window and Siliani's bed. The defence accepted that the shoes belonged to the accused.

[11] The complainant described in evidence how, on the following day, the accused came to see him with a woman (his de facto partner). They were very apologetic. The woman explained that she and the accused had been in the area the night before and that she had driven home without him because he was too drunk to get into the car. She said that she would have taken the accused with her on the night had she known that he was going to cause damage to the house but she said that the accused had been very drunk. They gave the complainant $150 to cover the costs of the damage.

[12] The Crown also called evidence from police constable Sione Pua'a who interviewed the accused at the Central Police Station on 26 July 2009. The relevant passage from the Record of Interview reads as follows:

"Q. And do you know the reason why you have been brought to the police station?

A. Yes.

Q. And what do you understand about it?

A. I think I must have done something.

Q. Were you at Kolomotua last night, Saturday 25 July 2009?

A. Yes.

Q. Masalu, I have information here that you entered a house at Kolomotua last night, Saturday 25 July 2009 is that true or not?

A. Maybe it's true.

Q. Why are you guessing?

A. I was too drunk and didn't know anything else."

The accused went on to explain that he had drank two bottles of alcohol at home on the evening in question starting at approximately 6 p.m. and then he had gone to the Steak and Rock Bar. The interview continued:

"Q. Masalu Manu there is a complaint here about your entering Peni Tonga's house at Kolomotu’a, what you say to that?

A. Yes, it's true.

Q. Do you know about these shoes here?

A. Yes.

Q. Whose shoes?

A. Mine."

The defence case

[13] The only witness called for the defence was 40-year-old Kalo Tu'ipulotu who the accused had described as his de facto partner. Kalo told the court how on the night in question, she had been at a function at the Dateline Hotel. Later she picked up the accused from the Steak and Rock Bar and they had driven a cousin who he had been drinking with to his home at Kolomotu’a. The witness described the accused as hopelessly drunk and "legless". At Kolomotu’a he went to urinate in the bushes and his partner was unable to get him back into her vehicle and so she drove home without him thinking that he would probably make his way to the cousin's house.

Discussion

[14] Identification is very much in issue and so I have reminded myself of the Turnbull guidelines laid down by the English Court of Appeal for judges in trials that involve disputed identification evidence -- R v Turnbull [1977] QB 224. There is a need to examine closely the circumstances in which the identification came to be made, how long the witness had the accused under observation, the distance and the light conditions. Although the subsequent identification of the accused by torchlight when he was sitting on the concrete slab floor at the commercial building next door was far from ideal, I have no doubt that Siliani had a very clear view of the accused in good light when she awoke and saw him entering through the window to her bedroom. She impressed me, as indeed did all the Crown witnesses, as being credible and reliable. Her evidence, of course, was strongly corroborated by the discovery of the accused's shoes inside her bedroom.

[15] Mr Tu'utafaiva placed emphasis in his submissions on the fact that Siliani made no mention of having seen a bandaid or any scars on the accused face when she saw him at the window. Crown counsel pointed out that there was no evidence about the colour of the bandaid and it could have blended well with the accused's fair skin. She also stressed the fact that Siliani had not been asked any questions about a bandaid in cross-examination. I accept the prosecutor's submissions in this regard. The evidence relating to the nature of the alleged scar and the bandaid was vague and somewhat confusing.

[16] The defence offered no innocent explanation as to how the accused's shoes came to be in Siliani's bedroom. Mr Tu'utafaiva accepted that one possible explanation was that the defendant took them off his feet and put them inside the room whilst trying to enter the room but counsel commented that it is hard to imagine any intruder doing that knowing that at some stage he would have to escape the room quickly to avoid getting caught. An alternative explanation, defence counsel submitted, was that the shoes had been planted in the bedroom so as to implicate the accused. That latter proposition was not put to any of the Crown witnesses but, in any event, having formed a very clear view of the honesty of all the Crown witnesses, it is not a submission that I am prepared to entertain.

[17] I accept the evidence of the defence witness Kalo Tu'ipulotu as to the accused's intoxicated state on the night of Saturday 25 July. It was clear that she was disgusted with his drunken performance and she was also no doubt remorseful that she had not persisted in getting him back into the car and driving him home. Whatever the accused's state, however, when the witness left him behind at Kolomotu’a, the evidence that he had subsequently, during the early morning hours of Sunday 26 July, been able to enter the complainant's home in the manner alleged by the prosecution is overwhelming.

[18] Intoxication is only effective in deciding issues of intent if it is reasonably possible that at the relevant time the accused was so drunk that he could not form any sort of intention at all. The law is that an act that is intentionally done, even if the intent is fuelled by alcohol, is something that the person is still responsible for. In other words, a drunken intention is still an intent. The fact that the accused was able to tear the fly screen off the window and then remove three glass louvres without any breakages is clear evidence that in his drunken state he still knew what he was doing. The same can be said for his actions in trying to persuade Siliani not to shout out for help.

[19] The other element the Crown needs to establish, of course, is that the accused did, in fact, enter the complainant's house. Although Siliani initially said that when she woke up there was someone in her room, she subsequently qualified that by stating that she only saw him from the waist up. In cross-examination it was put to her: "So when you saw this boy coming through the window you called out to your sister-in-law and she came? Yes." Later in cross-examination, defence counsel referred to, "This person who partially came through your window" and "You say the same person who came through your window was the same person you found on the verandah? Yes." It would seem from this exchange that only the top half of the accused's body had actually entered the bedroom.

[20] Section 174 of the Criminal Offences Act states: "Every person who enters or is found by night in any dwelling house, shop or other building of any kind whatsoever without lawful justification shall be liable to imprisonment for any period not exceeding five years." The meaning of "entry" was considered by the English Court of Appeal in R v Brown [1985] EWCA Crim 3; [1985] Crim LR 212, where the court took the view that a person could enter the building when only part of his body was actually within it. It was held that the accused had entered when only the top half of his body was leaning into a shop window.

Conclusion

[21] I am satisfied beyond reasonable doubt that the Crown has made out all the necessary elements of each offence and the accused is convicted accordingly.

NUKU'ALOFA: 30 JUNE 2010.

CHIEF JUSTICE