Rex v Lea'aemanu [2012] TOSC 73; CR 38 of 2012 (2 July 2012)

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

CR 38 of 2012

REX

v

SEKOPE LEA'AEMANU

BEFORE HON. JUSTICE CATO

Counsel: Ms. Kautoke for Crown
Accused in person

Date of Hearing: 27th - 29th June 2012
Date of Judgment: 2nd July 2012

JUDGMENT AND VERDICTS

The accused Sekope Lea'aemanu stands indicted on 2 count of housebreaking under s 173 of the Criminal Offences Act and one count of theft under s 143 and 145(b) Criminal Offences Act (Cap 18)

The particulars of the offending are;

Count 1- housebreaking

On or about October 2011, at Kolomotu'a did enter the dwelling house of Tomasi Kapeli as a trespasser and committed a crime therein.

Count 2 - theft.

He did steal 25, 20 litre buckets of paint and 1 box of spray paint worth $3310.00

Count 3

On or about 9th November 2011, at Kolomotu'a did enter a dwelling house of Tomasi Kapeli as a trespasser and intended to commit a crime therein.

The accused had denied all charges, and had elected a Judge alone trial on the 16th April 2012.

The Evidence.

The Crown called several witnesses, a Tue Vaea who gave evidence of taking the accused in his taxi to the residence of Mr. Tomasi Kapeli at about 6am in the morning in October, 2011. Mr. Kapeli was an invalid who moved around in a wheel chair. He lived in a two story house at Kapeta which is part of Kolomotu'a.

The front door of the house had a security door. There was a garage which was part of the house. The garage door could only be opened from the inside by Tomasi.

On the first occasion, the witness said he parked on the road side behind the house and the accused returned buckets of paint which he said were damaged and had been left outside. He placed the buckets in the vehicle.

He then told him to drive to a residence in Vaini which is several kilometers away from Tomasi's residence. The paint was dropped off at an address in this area.

Then they returned to the area of Lomu Lomu in the central part of Nuku'alofa where he dropped the accused off.

One or two days later, the accused asked him again to drive to the same address. The accused this time told him to park at the entry of the house. This was about 7pm.

On this occasion, the accused Sekope opened the front door and entered the house. Then he went in and returned with buckets of paint. Again they went to Vaini. Sekope took the buckets to the same man as he had taken the earlier buckets to. He returned to Longolongo again, and dropped Sekope at an address there.

On this occasion, the accused had said it was his paint and Tomasi's.

A few days after that, he again was approached by the accused and he saw him open the door by putting his hand between the grills and opening the door. He said he knew how to do it. Then he produced buckets of paint and a box of spray paint.

Sekope put the paint inside the van and then he was told to drive to a place owned by a person by the name of Koli Moa. That is how he came to know the man to whom the accused had supplied the paint. That person was working on a house. This man known as Sione Kaho later gave evidence. The paint was taken from the accused.

On a later occasion, he drove Sekope who called Tomasi and asked him if he wanted a beer. Sekope got some beer and then was driven to Tomasi's home where the witness said he heard them talking inside and drinking. On this occasion the accused took two buckets of paint and put them in the car.

Then he came out also with two sliding doors.

The accused told the witness to hide the sliding doors.

It was then the witness thought the doors could be stolen.

He told Sekope take the doors and he went and hid the doors outside the house.

Sekope then told him to take the doors to a house in Houmakelikao. There the paint and the doors were taken inside.

He then returned Sekope to his home and went home.

He said he believed at that time it was stolen property.

On the last occasion, which was in November, the accused approached the witness and said he had a plan for them to get rich. The witness appeared to accede to this. The plan was for him to call Tomasi and inquire about paint, and then the accused would try to go to Tomasi's room and get something that would make them rich.

He did this and called Tomasi, who came and opened the door.

The witness had second thoughts and he told Tomasi of the accused's intentions. He told him that the accused intended to steal something from him.

Tomasi went to his room. Tomasi told him he had two women with him. Tomasi asked him to inform him if the accused tried this again.

At 5pm, the accused came and told him to go to Mr. Tomasi's house because the girls would be gone by then.

The witness called Tomasi. They arrived at Tomasi house and the accused disappeared.

Sekope had told him meantime that he had seen two women but to come back later.

Meanwhile, Tomasi had notified the police who had come and put the witness on alert. Sekope told him to return and he did so. The witness Vaea told Tomasi as directed to by the police. Sekope went into the house and ran out because he said there were two women in the house.

He dropped Sekope off at his home.

A Mr. Sione Kaho gave evidence that he had brought paint from the accused prior to the 27th October, 2011. He lived at Vaini.

He said he went to Koli Moa's house at Fanga to construct a fence. There were 20 litre buckets of paint, 4 litre cans of paint, and spray paint on the veranda of the home. The accused came and told him that is the paint. He confirmed all the paint was from the accused. The accused asked for money because he needed it for his child's medical needs. He thought he was buying damaged paint. Although finding this suspicious he gives the accused the money, and retained the paint. He had told him the paint was damaged paint and was not used. He did not know he had brought Tomasi's paint.

He had purchased paint earlier from Tomasi. He returned unused paint to the police.

Detective Constable Fahina gave evidence of the accused making voluntary statements and I questioned the officer about this. I confirmed to my mind that the statements were voluntary. The accused wanted and was given a cigarette. No inducements or threats were made.

In the first record of interview, the accused admitted to working for the complainant for seven years, and that he had sold paint for him. He was asked about the fact that Tomasi had made a complaint about him stealing bucket and cans of paint from his house and he said that is true but that they were not taken all at once but on different dates and they were all taken last month.

He confirmed that he had the job of sorting out damaged paint from paint that was still in good condition. He said all the damaged paint was taken out to a rubbish heap. These were hard and could not be sold. He said he was given permission to sell these damaged paints.

He said it was only damaged paint that was in the heap and not cans of spray paint. He confirmed that he took the spray paints and buckets of paint to Koli Moa's residence at Fanga. He confirmed that he kept the payments for the paint to himself.

He also said that he had never gone inside and taken paints.

He said when he worked at Tomasi's home, he was sorting out the paint and taking the paint which had expired and piling it there. He would carry out the buckets of paint together with these cans and leave it outside on the rubbish heap. He would then come by taxi at night and take these cans of paint.

He said there were about 4 or 5 cans of paint and for buckets of paint it was about four times or two.

He admitted also to taking 2 buckets and sliding doors to a person at Houmakelikao and selling paint to Moto at Vaini for $70 per bucket.

He denied ever entering the house and it was only the paint outside he stole.

He said Tomasi had no knowledge of this.

"He said the reason he did this was that he was disappointed with the man for not paying me ever since I started working so I decided to steal the goods and sell them to support my family's needs."

The accused who was unrepresented gave evidence on oath. Prior to this, he was advised that he could remain silent and no adverse inference could be drawn from this. He was also told he could make an unsworn statement which he could not be cross-examined on, as he would be if he gave sworn evidence. I had my doubts about the unsworn statement since the Evidence Act expressly requires evidence to be given on oath but was advised it was a practice still adopted in Tonga although I was not able to be directed to any relevant authority to this effect. It has been universally abolished as a practice elsewhere. In any event the accused elected to give evidence on oath.

He said that he had looked after Tomasi and his home whilst he was overseas. He said Tomasi had promised he and his wife and 2 children land and a house would be built for them. He said his wife had got sick of the promises and left him. He said he had raised this promise with Tomasi who had got angry with him. He said he knew Tomasi had deceived him and he got angry with him. He had asked him for money and he had got angry with him.

He said he did all sorts of things for Tomasi when he was ill. He would clean up after him, take him to the toilet and generally assist him.

He said Tomasi had told him he could have the damaged paint and to take it outside.

He said he was surprised when he lodged a complaint.

He said his wife had left and he was looking after the children.

He said he had not been paid for any of the work.

He said the promise was made at the time he started work.

He had he had a bank book to deposit proceeds from selling to Tomasi's account.

He did not go into the final event which was the alleged plan to get rich. He effectively in his record of interview admitted the offence of going into the house whilst Tomasi was spoken to by Tue Vaea. He said his intention was to take a few things. When inside he noticed the de facto partner there so he came out and went back home.

He said he had intended to try to steal a vibrator to sell to get money to help me.

He admitted in his written statement of charges form that the allegations forming the basis of the third count were true.

Also in evidence was his written statement of charges form in which he admitted theft of 25 buckets of paint worth $3250, 1 box of spray paint,$60, 2 sliding door windows $200, belonging to Tomasi Kapeli. He also said in his statement the truth was that he knew what he did was wrong but he was disappointed with what he had promised me, 7 years had passed but he has still not carried out what he had promised me.

Directions.

I remind myself that the Crown must prove beyond a reasonable doubt the essential elements of the offences.

As to the offence of housebreaking that the accused did enter the house of the complaint without the complainant's permission.

And that he committed theft meaning taking goods with the intention of permanently depriving the owner namely Tomasi of the goods and without colour of right.

As to the third count, similarly, with the difference that he intended to commit theft.

As to the second count that in the month of October 2011, he did steal from Tomasi the goods specified namely that he took them with the intention of depriving Tomasi permanently of them and (although this seems unnecessary to constitute theft) that he intended to convert these for the use of others without the consent of the complainant.

I also take the view that both Mr. Vaea, and Mr. Kaho were possibly accomplices at least to part of the alleged thefts. Both seemed to be suspicious of the accused's activities and proceeded on regardless. I therefore remind myself it is dangerous to act upon their evidence without corroboration. However, in the case of both if I accept the record of interview as admissions then their evidence is corroborated in a material particular namely that the accused admitted stealing the goods in question. In any event I found them both credible witnesses.

The Crown must essentially also negative beyond reasonable doubt to my mind colour of right beyond reasonable doubt, namely that at the material time the accused had an honest if mistaken belief that he was entitled to sell the goods in question in count 2. In essence on this point, the accused advanced two propositions first that he had permission to sell the damaged product which he said was stored outside the property; secondly, that he had a right to sell the property because the complainant had wrongfully reneged on an agreement he had with him to transfer land and build a house for him.

Judgment.

1. I find that the accused did remove goods namely paint from the residence of Tomasi without his consent with intention to permanently deprive him of them, and indeed to convert those goods by selling them and retaining the proceeds. I also record that I accept the evidence of the taxi driver Mr. Vaea who came across as a candid witness that he saw the accused enter the home and remove paint and other articles. This is at variance with the accused statement that he got the goods only from outside where damaged goods were stored.

2. I also find beyond reasonable doubt that the accused had no honest belief at the material time that he was entitled to sell those goods.

First, in his record of interview he did not assert such a belief. Further the circumstances of the offending involving taxi trips at times when he was not working there either at night or in the morning for the most part suggest that he was keen to avoid Tomasi knowing about these. On one occasion when he drank with Tomasi he took paint and the sliding door windows the latter of which he was anxious to hide. He impressed upon Mr. Vaea the need to hide them. That made Mr. Vaea so suspicious that later when the accused confronted him with a plan by which they could both get rich he alerted Tomasi who plainly made a complaint to the police as a consequence of which the accused faced these charges. Tomasi was not available to give evidence because he has since died.

Aside from the record of interview in his statement of charges the accused admitted the truth of the allegations of theft.

The allegation of an expectation of the transfer of a property and the building of a house was not mentioned in his voluntary record of interview. I infer it was a belated attempt to give credence to his assertion that whilst it was theft he was somehow entitled to take the action he did. Put at its best for the accused whilst it is possible that what he says about assisting Tomasi is true, this claim was never supported in his record of interview. He simply said "I was disappointed with this man for not paying me ever since I started working so I decided to steal those goods and sell them to support my family's needs." Nor did he ever assert a mistaken belief he had the right to sell the paint.

I accept also the evidence of Sione Kaho. Even if some of the paint was damaged as he seemed to assert I do not accept that Tomasi had given the accused permission to sell this paint.

Finally the accused did not account to Tomasi on his own admission for any money he received. Plainly he intended to convert those goods when he took them from the property.

As to the count of housebreaking, I accept the evidence of Mr. Vaea that the accused attempted to inveigle him in a plan and that he essentially reneged on this and that he later pursuant to an understanding with the police tipped off Tomasi when the accused went to enter the property and steal items. The accused essentially admitted his involvement in his record of interview and statement of charges.

I record that I heard and did not believe the accused's account. His alleged colour of right to count one and two I also reject beyond any reasonable doubt.

Accordingly, I find the accused guilty on counts one, two and three in the indictment and I enter convictions on those counts.

The accused is remanded for sentence on a date to be fixed.

JUDGE

Dated: 2 July 2012.