Rex v Tupou [2015] TOSC 41; CR34-27 (24 September 2015)

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

CR 24-27 of 2015

BETWEEN:

REX
Prosecution

AND:

1. MISIMA TUPOU
2. TOU NGAUE
- Defendants

BEFORE THE HON. JUSTICE CATO

Counsel: Mr. Aho for the Prosecution
Mr. Corbett for the Defendants

REASONS AND VERDICTS

[1] The accused Misima Tupou and Tau Ngaue were charged with one count of robbery contrary to section 154(1) and (2) of the Criminal Offences Act, simple arson contrary to section 177(1) Criminal Offences Act, and (4) of the Criminal Offences Act and causing serious harm contrary to section 107(1) (2) (b) and 4 of the Criminal offences Act.

[2] The Crown in order to establish an accused committed robbery beyond a reasonable doubt must prove on the basis of the evidence admissible against that accused;

(1) That the accused was the person in involved in the acts at Longolongo on or about the 22nd November, 2014;

(2) Namely taking the property of the complainant as particularized in the indictment or part thereof with intention to permanently derive that person of this property;

(3) By using violence to the complainant Feng Sheng Pei the person lawfully in possession;

(4) So as to put him in fear and thereby overcoming his opposition to the taking of the said property.

[3] In order to establish arson, the Crown must prove on the evidence admissible against that accused;

(1) That the accused;

(2) at Folaha;

(3) willfully and without lawful excuse set fire to the vehicle (L14696);

(4) belonging to the complainant

[4] In order to establish the offence of serious bodily harm, the Crown must establish beyond a reasonable doubt;

(1) that the accused;
(2) willfully and without lawful justification
(3) caused serious bodily harm namely a fractured collarbone; and; or a fractured and displaced nasal bone, and, or a fracture of his left eye orbit to the victim;
(4) by punching him

Harm means –

(a) any injury which seriously or permanently injures health or is likely so to injure helth;

(b) any injury involving serious damage to any external or internal organ, member or sense short of permanent disablement; or

(c) any wound which is not severe; or

(d) any permanent disfigurement which is not of a serious nature.

[5] The Court alleged that the accused acted pursuant to a joint unlawful enterprise; that is shared a common purpose to cause harm to the complainant, and made it clear by their actions that was their common intention. Such an intention could be inferred from their conduct. Each party to the joint enterprise is equally liable for the consequences of acts done in pursuance thereof.

Ford J in R v Fakatava [2000] TLR 76

[6] I remind myself also that, although this is a joint trial, each accused must be Judged separately on the evidence admissible against him, and, in particular, declarations of an accused in a record of interview or in discussions with police in the absence of a co-accused are inadmissible against that co-accused.

CROWN CASE

[7] The Crown alleged in its opening that, on or about the 21st November 2014, the accused drove to an area in Longolongo (Tu'atakilangi) known as Feng Sheng Pei's market garden. The next day the accused assaulted (punched) and robbed the accused of his van, and a sum of money, and various other items. The injuries alleged were a fractured collarbone, fractured and displaced nasal bone, and a fracture of the wall of his left eye orbit. They then drove the complainant in his vehicle, LI 4696, to an area in Veitongo where they left the complainant in a bush allotment, and travelled on to the Folaha area. They set fire to the accused's van and then called a third party Hosea Te'ekiu to pick them up from the Folaha area and he then took them into the Kolomotu'a area to Tupou's residence.

[8] Hosea Te'ekiu had also been charged in the present case with abetment to robbery, and simple arson, but on application, by his counsel Mr Tu'utafaiva, I ruled that he did not have a sufficient case to answer and he was acquitted and discharged. I have put his record of interview to one side.

EVIDENCE

[9] The first witness was the complainant Feng, Sheng Pei, a very slightly built man, who gave evidence through a Chinese interpreter that he resided in Fasi and said he grew vegetables, at Longolongo. On about the 6th November, 2014, he said he was in his vehicle at his plantation at about 6am, when all of a sudden someone came and took some of his property money and also cigarettes. He said from what he could remember that he had his keys in his pocket and this person tried to force the key from him and he was assaulted. He said he had been standing outside the van and this person came from behind. He identified that person in the dock as Misima Tupou. He said he hit him from behind. He said after he was struck and he could not recall anything until he woke up in hospital. He said later that Tupou had his head in the vehicle asking for his keys when he was hit from behind by a forceful blow which knocked him out. He said there was there was enough light to see. He said he would have seen the man he was standing close to for about a minute and a half to two minutes. He was later recalled to give further evidence concerning photographs that had been produced of three scenes; the first being the market garden, the second being a bush allotment at Veitongo where he had been taken and left according to evidence given by SC Heimuli of a conversation and demonstration he had with the accused Tupou, and a third area at Folaha where he identified his car as the burnt out car. He also confirmed that a blue shoe located at the scene was on had been wearing earlier that day and that a large spanner and keys belonged to him and had been in the car and not left by him in the grass where they were located and photographed.

[10] Sione Moala gave evidence that on the 22nd November, 2014 he was on his way to a fair. He lived in the Folaha area. He travelled on the Folaha Road and then to the Taufa'ahua Road and onto the fair. He returned home and saw a vehicle burning and there were people at the scene so he stopped the vehicle and got off. It was a minibus. He said he saw a white vehicle on the road about 15-20 metres from it. He did not know the number or model of the white car. Later in his evidence, he said he had seen the vehicles on his way to the fair. There was no cross-examination of him.

[11] Officer Tu'itavuki gave evidence of photographs taken of the area of the market garden at Longolong, the area at Veitongo where the complainant was located and the burnout car in the Folaha area. He also produced photographs of the accused in the condition he was when found and taken with both accused by Senior Constable Heimuli on different dates. He also produced sketch plans of the areas. Nothing was, however, produced that forensically linked either of the two accused with any of the three crime scenes.

[12] SC Heimuli gave evidence that he was with Cpl Vea when he participated in two records of interview with the accused Tupou, the first relating to the robbery on the 29th December 2014 and the second relating to the arson on the 18th January, 2015. He also produced a charge sheet and a voluntary statement from Mr Tupou, in accordance with Tongan practice. He also produced two records of interview and associated documents, charge sheet and statement from the accused Ngaue, one relating to the robbery, taken at 2100 hours dated the 25th January 2015, and a second relating to the arson at 2210 hours on the 25th January, 2015. Both accused challenged the admissibility of these records of interview, and ancillary statements, and in a separate ruling I found all to be voluntary and ruled that they were admissible. They constitute the only direct evidence against the accused of participation the robbery and arson.

[13] In his record of interview. Mr Tupou stated that he knew why he had been brought to the station. He was brought there as a result of a crime that we committed. When asked what the crime was that he committed, he said it was theft and robbery. It took place he said at Tu'atakilangi, on the roadside off bypass road in a vegetable garden belonging to a Chinese individual. When asked ti was you and who else committed that robbery, he said it was he, Tau and Poni. He said we went there by vehicle. It was a rental car white in colour and belonged to Tau. When asked how did you all commit the robbery, he replied, "I was driving Tou's car, Tou and Poni got out and committed the robbery of the Chinese individual." He said was forcibly grabbed and put at the back of the vehicle and beaten and taken to a bush allotment in Veitongo. At Veitongo, he said after Tau had beaten the Chinese individual he left him in a bush allotment in Veitongo and they took the bush road to Vaini whilst he went and waited from there. He was asked when Tou (Ngaue) and Poni (Ahohako) got to Vaini where did they go next? He said, "Poni phoned me to follow them behind and I followed them they telephoned me to keep on going and then turn back whilst they turn to a bush allotment and burn the vehicle." He was asked did you see where the vehicle was set on fire? He replied, 'Yes under a mango tree on the side of the road, I do not know whose bush allotment it is." He said Poni was wearing a black singlet and shorts, whilst Tou was wearing a checkered blue hoodie and rugby shorts. We all went home after that. He said they took the road to Tokomololo from Ha'ateiho and got gas at a Petrol station in Tokomololo, and then they continued on the road to Liahona and then took the road to Sia'atoutai. We continued on the road to Liahona and then took the road to Sia'atoutai. We continued on the Eastern road and stopped off at Hofoa to throw away Tau's hoody leaving him shirtless and then we travelled through Sopu until we got to my place in Kolomotu'a. They all went to sleep in Kolomotu'a. It was between 9.00 hours to 10.00 hours. Later, he went with Tau and Poni to the market. He then went back to Kolomotu'a with Poni and Ate. Poni then went after we ate and I remained at our place. He admitted the complaint by Feng Sheng Pei aged 49 regarding an assault on him as well as a robbery at his vegetable garden in Tu'atakilangi was correct. He was then charged.

[14] The written statement of charges from recited to him the charge as assault with intent to rob under section 155 (1) (3) of the Criminal Offences (Amendment) Act whereby at about 6am on the 22nd November, 2014, he willfully and without legal justification punched Feng Sheng Pei and he robbed him of $90.00 in cash, van LI4696 valued at $1650000, chemical sprayer $500.00, mobile phone $70.00, chemical $60.00 total value of $17220.00 without his consent. When invited as to whether he wished to say anything and after being cautioned, he responded that it was true and he regretted the wrongdoing he committed. He said he had changed his life and apologized to the complainant. This procedure was carried out at 12.40 hours on the 29th December, 2014. Later under caution again, he said he made this statement of his own free will and acknowledged a caution. He stated that he felt remorseful for what he had done, and he could confirm that his was the last time anything like this would ever happen again. That was made on the same day at 12.50pm.

[15] On the 18th January 2015 at 6.12 hours, he was again interviewed. This was about the arson. He said he knew why he was brought here. It was burning the Chinese vehicle. He said it was the Chinese from Tu'atakilangi. It was burning a minibus vehicle that was set on fire. It was colour blue. It was burnt on the road to Folaha. He said it was myself Tau and Hosea. He said we went on the Folaha Road and Tau set the vehicle on fire. He said it was set on fire with a lighter. The tank and then the seats were set on fire. He said it was the seat at the front to the passenger's seat and the seat at the back insider the van. He said he stood and looked out to the road for a guy Hosea who came in Tau's car. After the vehicle had been set on fire, he ran with Tau and waited for the guy, Hosea who was coming in Tau's car. When they got to the road, Hosea was not there yet. Hosea came and they went into town. Hosea started to run and Tau changed with him and Tau drove. He said they returned and went to Tokomololo and filled up at the petrol station at Hofoa and then went into Hofoa. They then went to Kolomotu'a and slept. They arrived at 9am. He said two men came in a white car and we came in Tau's car and dropped Hosea to Hala'ovave and came into town and dropped me into the Talamahu market and Tau went in his car. He was then charged with arson.

[16] After he being charged with arson of the car belonging to Feng She Pei said to be worth $16500.00 LI 4696 colour blue model Toyota Noah, under caution he said, "it is true and I regret the wrongdoing I committed." He said, "I have changed my life. I apologise to the complainant." That was signed at 18.35 hours on the 18th January.

[17] He also said in a voluntary statement made under caution about the same time that, "I feel remorseful for what I have done but I am hopeful that I will get another chance because I have changed my life and I wish to apologise to the victim."

[18] Later, this accused participated in a demonstration on the 6th February, 2015, whereby he showed police where the assault and robbery initially took place, where the complainant was taken to and dropped off in a bush area at Veitongo, and where the complainant's vehicle had been burned at Folaha. He also made further verbal admissions to SC Heimuli set out at para 21, which I considered to be important.

[19] The accused, Tau Ngaue, participated in a record of interview on the 25th January 2015. He said that he knew he was present because of a robbery at Tu'atakilangi which happened towards the end of the year but he did not remember the time. He said he, Misima and Hosea went with him to carry out the robbery. There was no one else who was concerned with it. He was told he would be charged with theft, assault, and robbery, and cautioned. He was charged with assault with intend to rob, the particulars being he punched Feng Sheng Pei and robbed him of cash, the van LI4696, chemical sprayer, mobile phone, chemical, total value of $17220. Under caution, he said 'the allegations are true." Shortly after, in a voluntary statement, he also stated the allegations were true, and, he apologised to the police of Tonga and the people of the land "for the offence I did affecting the country." That was at 22.36 hours.

[20] Later that same evening, he made a second statement stating he knew the reason he had been brought to the station was because of the arson of a vehicle belonging to the Chinese individual. He said it was a Minibus Toyota Noah. The burning took place on the road to Folaha. He said it was Misima who burnt the van we went together. After being charged, he said shortly afterwards, under caution, the allegations are false, I did not burn the vehicle. He said further, also under caution in his voluntary statement, I state that he allegation against me are wrong as it was not me that did the burning.

[21] SC Heimuli also gave evidence of carrying out a demonstration with Mr Tupou on the 6th February, 2015. Mr Ngaue had declined to participate in the demonstration and he was returned to the station. According to SC Heimuli, he accused, Mr Tupou, had told him that he and Mr Ngaue had entered the market gardens, and the accused's van was there. They had assaulted the accused and he mentioned Mr Ngaue also in that regard and had placed him in his van, whereby Tupou held him down whilst Ngaue drove to the area in Veitongo where Tupou demonstrated where the complainant had been left, the officer said about a hundred meters from the road. After that, they had, Tupou said, driven to an area in Folaha where the complainant's vehicle had been burned by them. He said Mr Ngaue had used some clothing and placed it inside the fuel tank and set the car alight. After that, Hosea Te'ekiu had picked them up in a vehicle he was driving. The defence did not challenge these admissions, in cross-examination.

[22] Officer Tu'itavuki was recalled to give evidence on aerial maps of the scenes and said the distance between the market garden and Veitongo was about 5 miles, and from there to where the vehicle was found along a track off the Folaha road, about 8 miles.

[23] Dr Aholelei gave evidence that the complainant had suffered serious but not permanent injuries and serious harm within the meaning of section 2(b) of the Criminal Offences Act, namely a broken clavicle or shoulder bone, a broken nose and broken bone in the eye socket. There was no challenge to her evidence.

[24] Officer Siale gave evidence of attending an area on the Folaha road where a blood stain had been located and where a witness had shown him where the complainant had been located.

[25] Both accused gave evidence. Mr Tupou said he had been drinking kava at a club at Ulutea when he had texted Mr Ngaue to take him to an area where a friend Poni 'Ahohako and a Sailosi Lau'i was drinking with others, after Poni had invited him to come for a drink. He said Tou came about 3 o'clock. He described this as a common area for drinking near the complainant's market garden. He said he was driven there and then Mr Ngaue left. He continued drinking there and in the later morning about 4-4.30 am he said he arrived home, had a meal and went to sleep. He said Poni had come around about two days later and told him that Sailosi had suggested they do a robbery. He denied being involved in any of the night's criminal activities. He said he had told the police lies concerning his records of interview because he had been induced to do so by the promise of an early release. He said he told them false stories because, if he had told the truth, they would not have believed him and would keep him in custody. He also said he had demonstrated to the police the various areas because he had been told where they were by Poni. As to where the burnt vehicle was he had simply been driven there by Police. He said that he had told Police when he was first arrested that he had been home asleep. This was not, however, put in cross-examination of Senior Constable Heimuli when he gave evidence, at trial.

[26] Mr Ngaue also denied involvement in criminal activity. He said he had been with Hosea Te'ekiu after spending some time at a night bar in town and then was at the car park at "the Billfish" later when he received a text from Misima Tupou, whom, he acknowledged, was his half brother and whom he was residing with at the time. He said that he went to pick him up and they left Tupou at the place near the vegetable garden at Tu'atakilangi where the drink up was going on. He went home after being out elsewhere with Mr Te'ekiu to find Tupou already asleep. He did not wake up for some hours. He denied being involved and said he had made false statements to the police concerning his involvement because he wanted to be released early. He also said he had been subject to threats, scolding and strangulation at Tu'atakilangi when he was taken on the demonstration. He said he told them he did not know anything. He admitted that he had been given a warning by the police officer before doing so. He said he was returned to the prison after the demonstration. He said he had told Cpl Vea that he had no involvement. He said that he had told the police lies deliberately. He said he thought Vea realized they were false. He said he had told the truth to police before and had not been released early even though the police had later offered no evidence. He denied any involvement. He said that he had overheard Poni talking to Masima about the robbery and an assault.

[27] The final defence witness was Mr Poni 'Ahohako. He admitted to being a very good friend of Mr Tupou. He admitted to being a serving prisoner. He was aged 20. He said that Masima Tupou had arrived after he had texted him with Mr Ngaue early in the morning of the day of the robbery, but that both had left before he proceeded with a person he said was Sailosi to go to the market gardens. He said the Chinese man was assaulted by Sailosi, placed in the vehicle and he had driven the vehicle to Veitongo. During the course of the drive, Sailosi had further assaulted the complainant. He said he was dumped out of the car on the road at Veitongo. The vehicle was later burned. He was warned before giving his evidence that he was not obliged to answer questions concerning his involvement but elected to do so.

SUBMISSIONS

[28] Mr Corbett submitted that the identification of Tupou was unsatisfactory and there was no identification of Mr Ngaue at all. He complained that the person who found the complainant on the road at Veitongo had not been called. The Crown explained that he was overseas. He said that both accused said their statements had been induced and could not be relied upon. He said both gave evidence that they were sleeping when the offences occurred. He said Masima was only able to participate in a demonstration because he had derived information from Poni as to where the crimes occurred. He complained that the complainant could not say who had robbed him, nor who had assaulted him. He submitted the charges had not been made out in relation to either accused beyond reasonable doubt.

[29] Mr Aho conceded that the Crown case against both men depended on my accepting that they had voluntarily made admissions that were reliable. He submitted they were. He said rightly credibility was for me but he submitted that the Crown case was established beyond a reasonable doubt in relation to both accused on all charges. He submitted that it was inconceivable that both men would make deliberately false confessions if the truth were both home in bed.

RULINGS

[30] I did not believe the evidence given by either of the accused. Both accused made admissions in writing of being involved in robbery and arson to SC Heimuli and I have ruled these were voluntary. I do not consider that either of the records of interview were as penetrating as they could have been had more questions been asked, but they plainly contain damaging admissions both to robbery and arson, as do the associated documents with the exception of Mr Ngaue's assertions that he did not burn the car which I will deal with later. It is fair to say there is no independent forensic evidence that would link the evidence of the complainant and the dock identification of Tupou as the man standing near the car was an acceptable and reliable identification. Dock identifications have been generally discredited as unfair and unsafe, and alternative methods of a more representative process such as a parade or a photo montage should be adopted.

[31] I do not, however, accept either Mr Tupou or Mr Ngaue as honest and reliable witnesses. I reject as I have done on the voir dire any suggestion that their admissions were induced. I find fanciful their suggestions that the incriminating statements they made were induced and that, as a consequence, they deliberately proceeded, each separately, to make false admissions of involvement. Mr Ngaue admitted to a caution being given to him before he refused to participate in a demonstration with Tupou at the market garden in February, 2015. I find this inconsistent as the prosecutor suggested in cross-examination with his evidence that he was exposed to violence, bad language and scorn at that stage. Effectively, each raised alibi, that is being present elsewhere at the time of the criminal incidents, without an alibi notice being served on the prosecution as is required under the Evidence Act. In my discretion, I allowed this alibi evidence to be raised late. No supporting witnesses were called, however, which would have caused me greater concern about the absence of an alibi notice. The fact that I do not believe the accused is not, however, an end to the matter. There is no onus on an accused to prove his or her innocence. The onus remains on the Crown to prove the essential elements of the charges beyond a reasonable doubt so I turn to the Crown case which, as I have said, depended essentially on the various records of interview and statements the accused had made.

[32] The question I address is whether, in these circumstances, it is safe to rely on the admissions to secure convictions. R v Fa'aso [1996] TLR 36 emphasises the importance of close scrutiny of the issue of the integrity of evidence derived from admissions of the accused where that is the only evidence that incriminates the accused of an offence. I see no difficulty, here. Neither of the accused is what you might describe as a young person, both are aged about 24, or a person under some kind of intellectual or mental disability, and thus potentially more easily led into admission. Neither struck me as shrinking violets. I have considered the issue of inducements and allegations of violence on the voir dire also and I do not consider the statements were anything but voluntary. For these reasons, I consider, it is safe to act upon the admissions made by both accused and the associated documentation, although there is no other independent evidence implicating either accused. As I have said, I am not prepared to rely on the complainant's dock identification of Mr Tupou as being present, in the market garden by the car.

[33] I did not believe that portion of the accused Tupou's record of interview of the 29th December, 2014 in which he implicates a person known as Poni as the person who assaulted the complainant with the accused Tau Ngaue, and not he. He did not make any mention of this person's involvement in his second record of interview of the 18th January 2014. Nor do I accept he was only, as he seems to assert, the driver. I accept the verbal admissions of Mr Tupou on the demonstration testified to by SC Heimuli, took place. These were not challenged by his counsel, and nor did Tupou appear to deny them, when giving evidence. I and nor did Tupou appear to deny them, when giving evidence. I accept also that they acted in concert and I infer a joint enterprise to rob. I accept also that Tupou said he had held the complainant down in the backseat, whilst Ngaue had driven first to Veitongo where the complainant had been dumped off the road, and they had driven on to Folaha where they burned the vehicle under a mango tree, before being picked up by Hosea Teekiu on the main road at Folaha. Mr Tupou did not put to SC Heimuli that he had said he was asleep at the time, he was arrested as he said he had in evidence.

[34] The inference I draw is that sometime around 6am on or about the 21st November, 2014 Mr Tupou and Mr Ngaue formed an intention to rob the complainant. Tupou was not present, I find, beyond reasonable doubt in the events that followed, merely as a disinterested spectator but as a willing participant in a robbery, and in its aftermath. There was, I have no doubt, a common plan to rob although when it had been conceived, is not established. I find beyond reasonable doubt that both accused early that morning got out of the car that took them to the market gardens and went inside and assaulted and robbed Mr Pei of the property alleged in the indictment, although he only mentioned some money, his keys and the car. The charge, assault with intent to rob details the property taken and were put to Mr Tupou who admitted his involvement in those events and apologised also for his actions. I consider that serious harm is always a possibility when a plan exists to steal which anticipates some violence as was the case here as the actions of the robbers demonstrates. Plainly, there was serious violence. The photographs taken before treatment, of the accused's face, the fact that he was knocked out at the gardens, soon after the two entered the garden area, and the injuries about which we heard evidence from the doctor all evidence serious harm. Whether they all occurred at Longolongo seems likely if, as the complainant says, he lost consciousness there and did not regain consciousness until hospital, but he may have incurred assaults later in the car and later in the area at Veitongo where he was located near an area of blood staining. The fact that Tupou admits to holding the accused down in the van as Ngaue drove to Veitongo suggests he may still have been conscious and assaulted again later to subdue him further. In any event, the fact that Mr Tupou admits doing this, in his verbal conversation with SC Heimuli at the demonstration, and driving first to abandon the complainant at Veitongo and later is present, also on his own admission, at the arson establishes just how closely he was involved with Mr Ngaue, that morning. He, on his own admission, to Heimuli was present when the car was burned the says by Ngaue in his record of interview, and in his verbal statements during the demonstration. I find beyond any reasonable doubt that he is guilty of robbery of the property particularized and put to him in the charge sheet and admitted to; and to which he referred in his voluntary statement. I find beyond any reasonable doubt also, as I have said, he was part of the follow up plan to callously take and abandon the complainant in Veitongo, far from his market garden and to then burn his vehicle at Folaha, in an area off the main road, much further away. The only motive I can infer is that both men wanted to conceal what they had done. It matters not, in my view, who was the more aggressive of the two, in so far as causing harm to the complainant is concerned or who actually set fire to the car, because I have no doubt that both were a party to a plan to rob, and to cover their tracks. I find, accordingly, beyond a reasonable doubt Mr Tupou guilty of causing serious harm to the complainant as part of their joint enterprise to rob the complainant of his property as particularized which involved violence and later arson of the vehicle.

[35] In relation to Mr Ngaue, I expressly put to one side the records of interview of Tupou or his verbal admissions implicating him. I look only at his verbal admissions implication him. I look only at his records of interview and the accompanying documents such as the charges and statements he made. Whether he was the principal perpetrator of the violence or of the arson matters not because I have no doubt he was present on his own admission as part of a plan Mr Tupou to rob, and later cover up their actions. The information he supplied Police on the 25th January 2015, relating to the robbery and later his admission to being present at the arson, convinces me beyond a reasonable doubt that he was part of a plan to rob and later dispose of the vehicle. I draw the inference, although there is no direct evidence from him about taking the complainant in his vehicle to Veitongo or abandoning him there, as there is from Mr Tupou in his verbal admissions on the demonstration to SC Heimuli, that the complainant could not have got to the Veitongo area other than by being taken in his vehicle which was later set on fire on Mr Ngaue's admission in Folaha. Mr Ngaue was no innocent bystander coming upon a fracas in the market garden nor later an innocent bystander at the arson, but was I find very much a party to the robbery, violence and subsequent arson. He admitted to the former in his charge sheet, and statement to the robbery and apologized for it. He later stated that he disputed the allegation that he burned the car, which he blamed on Tupou, and was not guilty of this charge but he plainly admitted being present in circumstances that were obviously in furtherance of the joint enterprise to rob and conceal or cover up their involvement in a crime. I reject any submission that he was not involved in a common plan to rob and conceal with Mr Tupou, and I find also beyond a reasonable doubt that he was responsible, as a party to the joint enterprise for the serious harm that was caused to the complainant either by Tupou or he or both, acting in concert. Likewise, even if, as he asserts, Mr Tupou burned the car and not he, this was, I have no doubt, part of the common plan to rob, and later dispose first of the victim and then of his car. I see no other reason for taking the complainant and dumping him at Veitongo or getting rid of the car at Folaha other than to conceal their crime. I have heard no evidence to suggest that either accused at any time tried to intervene to withdraw from the robbery or subsequent events. Their defence is that they were not involved, at all.

[36] Finally, I did not believe Mr Poni 'Ahohako when he said it was out of remorse that he had come forwards to give evidence exculpating the accused. He admitted he had not told the police his trial version of events when they had asked him about his involvement. He was a close friend on his own admission of Mr Tupou, and Ngaue, who was living with Tupou, would also have known him well. I do not believe him when he said that neither Tupou nor Ngaue was present, at the robbery. On his own admission, he was a serving prisoner and awaiting a further sentence. He was not a person of good character and I did not find his account at all convincing. I do not, however, rule out completely that he was in some way involved in the events of that evening with Tupou and Ngaue because Tupou mentioned his involvement in his first record of interview. I do not accept however, his version of events. I am satisfied beyond reasonable doubt for reasons I have given that both accused made voluntary incriminating admissions, and that there were no inducements beyond any reasonable doubt also on the trial evidence I heard, and I reject their assertions that they told the police deliberate lies about their involvement. I find it disingenuous that persons with, as Mr Aho in cross-examination suggested to both accused, had innocent explanations should tell deliberate lies to the police and in some measure of detail incriminating themselves, in serious criminal activity.

[37] I accordingly, find the accused both guilty of robbery, arson, and serious violence as charged in the indictment pursuant to a joint unlawful enterprise and I convict them both of these crimes. They are both remanded in custody for sentence.

C. B. Cato
J U D G E

DATED: 24 SEPTEMBER 2015