Rex v Malele [2013] TOSC 3; CR09.12 (30 January 2013)

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

REX

V

HELENI MALELE

BEFORE THE HON. JUSTICE CATO

MR. LAKI NIU FOR THE COMPLAINANT
MR. POUONO FOR THE ACCUSED

VERDICT

[1] This was a private prosecution commenced by the complainant Manaloa Taufahema against the accused who was his sister for her actions in taking steps to demolish a house belonging to his mother in the village of Navutoka on Tongatapu.

[2] The Attorney - General declined to prosecute after the case had proceeded through depositions. Manaloa proceeded to privately prosecute the accused under an amendment to the Criminal Offences Act, in 2007. It was provided;

"2. Section 197 of the principal Act is repealed and replaced with the following –

"197. All prosecutions under this Act may be brought by the Attorney – General or the person aggrieved. "

[3] Although the Tongan Land Act provides that the eldest son, in this case the complainant, was on the death of his father heir to the allotment on which the family home was situated in Tonga, the house itself was made of fixed structures unlike the old traditional Tonga house which could be easily moved from allotment to allotment. This belonged to his mother Salome. Salome had outlived her husband and under the provisions of the Tongan Probate Act, she, as widow, inherited the house. Under Tongan law, a house is effectively regarded as a movable item being capable of ownership separate from the land on which the building is situated. She also enjoyed under Tongan law a life interest in the allotment; however the complainant Manaloa was the heir entitled to inherit the allotment on her death under the Tonga law.

[4] For the purposes of this prosecution, I consider that the complainant did have standing to commence a private prosecution. I accept that his evidence that his mother asked him to restore the house for her to return to when she died so she could lie in it before her funeral in Tonga. I also accept that probably she did represent to he and his wife at a meeting in Sydney that one day the house would belong to he and his children because as heir to the allotment, nobody else except Manaloa would have any practical enjoyment of the house. This may mean that he could support an action for a proprietary estoppel and derive a measure of equitable relief should his expectation to succeed to the property be denied on the death of his mother. In Inwards v Baker [1965] EWCA Civ 4; [1965] 2 QB 29, at 37 per Lord Denning MR stated;

"It is an equity well recognised in law. It arises from the expenditure of money by a person in actual occupation of land when he is led to believe that as the result of the expenditure, he will be allowed to remain there. It is for a court to say in what was the equity is satisfied. I am quite clear in this case; it is to be satisfied by holding that the defendant can remain there as long as he desires to as his home."

See further Pascoe v Turner [1979] 2 ALL ER 944

[5] In any event, as the heir to the allotment, quite independently of any representation, he would in my view have a sufficient interest to commence a prosecution, because, if his mother died intestate, under the Tongan Probate Act he would derive a share of the home.

In this case the accused was charged that;

Count one

"on or about the 21st day of February, 2001 at Navutoka, Tongatapu, intentionally and unlawfully caused damage of $10,367.00 to a dwelling house by paying for and instructing the driver of a front end loader to demolish and who demolished the west brick wall and part of the south brick wall of the dwelling house, and corrugated iron roof and timbers there at."

Count two

"on or about the 21st February 2011, at Navutoka, Tongatapu, intentionally and unlawfully attempted to cause damage of $50,000.00 to a dwelling house by paying for and instructing the driver of a front end loader to demolish the whole dwelling house and who began to do so and would have done so but for being stopped by the police."

[6] The charges appear to have been laid not as alternates but I do not propose for reasons which emerge to determine whether it was appropriate to charge two independent offences in the circumstances of this case rather than one count. Not do I propose to concern myself greatly with the amount of damage caused by the actions of the accused in plainly intentionally demolishing part of the house. It is plain she did that and it is also plain that Manaloa had spent a considerable sum of money in restoring what had become a rather derelict house in Navutoka because it had not been lived in for some years.

[7] I find not only did Manaloa at his mother's request restore the home by spending probably at least $30,000T but that he also spent money on reinstating some of the damage that his sister's attempts at demolition caused.

[8] The facts are within a narrow compass. Navutoka is a village on the Eastern side of Tongatapu. It has a charming outlook on to the outer reaches of the lagoon, where pigs can be seen fossicking for morsels in the shallow water, small fishing boats and canoes rest, and children play on the sandy beach under the shade of the tall coconut palms that border along it.

[9] Manaloa was one of several children of Salome and his father, the late Fetu'u Taufahema, who died in 1990. He with his siblings had spent their childhood in the area. He had seven sisters, of whom Litia, Fapiola, Kueni, and Kalisi I heard evidence from in this case. He had one brother. His mother, Salome, had not lived in the home at Navutoka since about 2005 but had resided with her daughters Litia and Kalisi who had been living in Sydney for some years. Manaloa owned another property nearby in Navutoka which he leased out. He also had lived with a large family in Sydney for many years.

[10] Sadly, Manaloa and his family fell out with his Sydney sisters principally Litia and Kalisi. The accused Heleni was close to these sisters and, although she resided in Tonga, she visited Sydney from time to time. At the time of an incident at a fundraiser held at a bowling club in Sydney (which appears to be a trigger for her actions) she was in Sydney.

[11] I do not propose to dwell upon the reasons for the family resentment at any length. Suffice it to say that Manaloa and his wife had a large number of children and there were various allegations made concerning not only certain of Manaloa's sons but the actions of a daughter of Kueni as well. At the function, Manaloa may have been seen by his sisters to support Kueni's daughter.

[12] At this function, Manaloa's own daughter Sandra was subject to certain abuse by either Litia and or Kalisi or both to which she responded also and this led to a fight between the sisters and Sandra .Manaloa intervened and appeared to break this up. However, that was not the end of this unfortunate family dispute, unfortunately.

[13] The flames of resentment burned bright I find in the minds of Litia, Kalisi and Heleni. They reported the incident to their mother and other information may have been received by her concerning Manaloa's sons and their activities, with the consequence that their mother gave written instructions to Heleni to demolish the house in Navutoka. The only reason for this that I can infer is that the sisters did not want their brother Manaloa succeeding to the house but more probably did not want his sons living there either. As a consequence, Heleni returned to Tonga with a written authority from her mother to have the house demolished. Approval for this was given to Heleni was given by a responsible authority. Heleni secured a contractor who proceeded to demolish the building. Not before substantial destruction had occurred, timely intervention halted further demolition. Manaloa found out about the actions of his sister and spent further money rectifying the damage. He then laid a complaint with the police. Heleni was said by the police to show remorse for what she had done.

[14] Manaloa, his wife, and his daughter Sandra as well as sisters Fapiola whose actions assisted to halt the demolition and Kueni were called for the prosecution. Amongst the defence witnesses, Salome, Litia, and Kalisi were called.

[15] I find the complainant an honest man and a credible witness who contrary to the denials of Litia, and Kalisi, was requested by his mother to improve the home at a family meeting at Kalisi's home, and did so at considerable expense. I also find that although his motivating factor was to answer his mother's request, his mother did, in his presence, probably assert that one day the house would belong to he and eventually his children. Evidence that there was such a meeting was supported by Kueni who was in Sydney at the time. I preferred her evidence to that of Litia and Kalisi. Her mother was, Kueni said, aware that improvements had been effected and was pleased by this news.

[16] I also found Sandra an honest witness who had simply stuck up for her brothers. By contrast, I did not find the sisters Litia or Kalisi reliable witnesses. Indeed, I preferred the evidence of Manola, his wife and Sandra to that of Litia and Kalisi whose evidence on any issues of conflict with that of Manaloa and his family, I found unreliable. I found Kueni as I have said an honest witness who found herself in an unenviable position.

[17] Beyond any reasonable doubt, Heleni intentionally caused damage to the house in question. Mr Pouono argued that it was not sufficient to simply cause intentional damage to a house. He argued that it had to be proven also that the damage was such that exposure to the sea, erosion or inundation was caused under section 178. The section, I consider, is disjunctive and every person who in any manner intentionally and unlawfully causes damage to any building would be guilty of an offence under s 178.

[18] That, however, is not sufficient to found guilt. The prosecution must prove also beyond any reasonable doubt the damage was caused not only intentionally but unlawfully. This immediately brought into focus he terms of the written authority that Heleni acted on.

[19] I considered closely the evidence of her mother Salome. I had some doubt whether she really knew at her advanced years (over 80) what she was doing, but, at the end of her evidence I formed the view that, although a measure of persuasion or influence by her daughters may have influenced her actions, she knew what she was doing. Indeed, at trial she confirmed that authority had been given to the accused. No medical evidence was called to suggest she did not understand what she was doing.

[20] Her recollection of signing the two documents giving her daughter power to act on her behalf and authority to act as agent in the demolition of her house was poor. It is plain she signed both documents in front of a JP in Sydney. It was not challenged that the documents were read out to her before she signed them. Although she recalled only one letter of authority and said that it was signed in Tonga and not in Sydney plainly the signatures on the documents are the same they are attested to by the same JP. I infer she signed both of them.

[21] In these circumstances, however, wrongheaded her actions might have been, and taking into also her uncertain recollection of events, I accept she gave both written and verbal authority to the accused to demolish the house. I am unable to conclude that she did not know what she was doing when she signed the authorities and instructed Heleni to act as agent in demolishing the house, or that the authority was given without consent. This is not a civil case of undue influence, where the circumstances might lead to an inference that Salome's consent was wrongfully induced and be sufficient to set aside a gift, transfer or demise of property, but a criminal case where the prosecution had to negative the fact of her instruction beyond reasonable doubt in order to establish that Heleni damaged or attempted to demolish the house unlawfully.

[22] It was in my view, however, very foolish and mean spirited of the sisters to allow Salome to act in such a way, and for Heleni to accommodate her. It also is of no credit for her that Heleni allowed herself to be the instrument or agent to effect demolition. In my view, it was vindictive action against a brother who had assisted his mother and carried out her wishes. It has left him considerably out of pocket. It is to be hoped that, in the interests and spirit of family unity, that the sisters Litia, Kalisi and Heleni will effect a decent financial statement with him and attempt a family reconciliation whilst their mother is still able to comprehend.

[23] Mr Nui argued that the terms of the written authorities meant that what he described as the authority to demolish was countermanded by the second document undated which was in terms of giving Heleni a power of management only. I do not, however, read the authorities that way. The first and undated one was of management and the second was an authority to demolish in which Heleni was expressly said to be the agent. I have no doubt that misguided though Salome was she gave written and indeed verbal authority for her daughter to demolish her home, which because the house belonged to her she was able to do.

[24] The consequence is that I find the accused not guilty on both charges and she is discharged.

[25] I thank both counsels for their helpful memoranda. I acknowledge Mr Pouono for agreeing to remain in the case after he had sought leave to withdraw.

DATED: 30 JANUARY 2013
JUDGE