R v Fevaleaki [2018] TOSC 35; [2018] Tonga LR 297; CR 101 of 2017 (30 July 2018)

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

CR 101 of 2017

BETWEEN: R E X - Prosecution

AND: TAUFA FEVALEAKI - Defendant

BEFORE THE HON. JUSTICE CATO

Counsel: Mr Finau for the Prosecution

Mr Fili for the Defendant

V E R D I C T

1. The accused stood trial on six counts before me as Judge alone. These were 2 counts of forgery contrary to section 170(1) of the Criminal Offences Act. The first count related to making a false statement with intent, on or about 12^th June 2014 at Nuku’alofa, to deceive the Immigration Division of the Ministry of Foreign Affairs when he signed the name Sosaia Taufa Finau on an application for a Tongan passport. A further count, count 3 (dealing), related to using the document he knew to be a forgery when he submitted the application for a new passport to Immigration to rely upon it as if it were genuine.
   
2. Count 2 (forgery) involved making a false document on or about the 12^th June 2014 when signing the name Sosaia Taufa Finau on an application with intent to deceive the National Identity Card Office to act upon it as if it were genuine. Count 4 related to knowingly using this application for a National Identification Card (dealing) when he submitted the application for the card to the National Identity Card Office to rely upon it as if it were genuine contrary to section 172 of the Criminal Offences Act.
   
3. Count 5 related to an offence that, on or about the 21^st June 2014, at Fua’amotu knowing that the Tongan passport for Sosaia Taufa Finau was a forgery used it as if it were genuine when he used it on Fiji number FJ212 and the Immigration Division to rely upon it as if it were a genuine document, contrary to section 172 of the Criminal Offences Act.
   
4. Count 6 charged the accused that on or about the 12^th June 2014 at Nuku’alofa he did make a false statement in a declaration when he applied for a Tongan passport under the name of Sosaia Taufa Finau by failing to provide the other names he was known by in his passport application contrary to section 19(1) of the Passport Act.
   
5. Counts one to five require the Crown to prove beyond a reasonable doubt that the accused had made in relation to a relevant document (an application for a passport (count 1) or an application for a Tongan identity (count 2)) a knowingly false statement beyond a reasonable doubt. If the Crown was unable to prove this then the charges of forgery could not succeed and nor could any of the three charges of dealing with a forged document based on a false statement being established beyond reasonable doubt. I deal with these counts together.
   
6. The accused’s case was unusual. He gave evidence, and it also quickly had emerged at the hearing, when Immigration and Justice officers were questioned that the accused maintained that his family had provided him with two names although the name he had most used and been known as was Taufa Fevaleaki. His record of interview also recorded this.
7. Evidence was given by an officer from the Ministry of Justice that there were in existence two authentic birth records for Sosaia Taufa Finau and for Taufa Fevaleaki. In the case of Sosaia Taufa Finau, the birth certificate records his birth had been registered on the 1st October 1965 at the Tongatapu Registry office by his father Siosiua Finau. The age of Sosaia Taufa Finau as evidenced in the birth certificate produced in evidence was 26th September 1965, and he was said to be legitimate. It was recorded on the certificate that his father’s name was Siosiua Finau, with his place of birth being Tofoa. The mother’s name was given as Ane Finau, place of birth being Foa, Ha’apai, and the child was legitimate.
   
8. The birth certificate for Taufa Fevaleaki, also produced in evidence, was not registered until the 4th March 1981 by his father Siosiua Fevaleaki. This was a late registration of birth which requires an affidavit and application which the Crown was unable to locate. This certificate stated that Taufa Fevaleaki was born on the 18th September 1962 at Tofoa, Tongatapu. His father’s name was Siosiua Fevaleaki born at Tofoa and his mother Ane Fevaleaki place of birth said to be Lotofoa, Ha’apai and that he was a legitimate child.
   
9. The accused in evidence had maintained that his grandfather had been known as Finau and his father also had used this name. He said that since a child he had known that he had two names and at primary school had occasion to advance his name as Sosaia Taufa Finau and use a birth certificate. The evidence that emerged revealed that he had obtained an earlier passport RO1574 in the name of Taufa Fevaleaki in 2002 and had travelled quite extensively on this between 2005 and 2011. On 18^th March 2012, however, a no fly order had been placed as an alert, he admitted, because of a court hearing relating to maintenance payments. This passport had not been cancelled and expired in February 2015. However, the stop order meant that he could not use this to depart from Tonga. This led him to apply for a second passport in the name of Sosaia Taufa Finau which he made application for on the 12th June 2014 signing it himself as S T Finau on a declaration in a discrete part of the application. Although all the details were filled out as personal details in the first part of the form that related to personal identity, a box that related “to other names you are known by” was not completed. The accused said that he had not filled the form but that it had been done by a friend of his father’s whose name was Sosefo Ngungutau. Mr Ngungutau denied that he had done so when he gave evidence.
   
10. On the issue of whether the accused in using the name Sosaia Taufa Finau had knowingly made a false statement in order to secure a passport and Tongan identification, I had difficulty. The Crown submitted appropriately that the passports related to different people because the names were different. The accused had used the name Fevaleaki throughout his life and had obtained an earlier passport in that name. He also admitted having several children under the name of Fevaleaki in his record of interview. It seems plain that Fevaleaki was the name he ordinarily used and I had real doubt that he was genuine when he said that he had two names and that he believed he was entitled to use the name of Finau as his own. However, although I felt considerable concern about the veracity of the accused’s position, I was still left in doubt about whether he might possibly be telling the truth that he had been given two names and had two birth certificates by his father. Although I felt that as a matter of common sense it would be unlikely for him to have two birth certificates in different names and with different birth dates, there was a similarity about aspects of both birth certificates that caused me some unease as to whether I could reject the accused’s evidence on this point and the possibility that what he was saying was the truth.
    
11. It would have been helpful had I heard from the father as to why he registered the birth of Taufa Fevaleaki as late as 1981 and whether the accused did have two birth certificates. I would have been interested to know more of his own history. Also I would have wanted to learn whether Sosaisa Finau and Taufa Fevaleaki were one and the same infants despite the age differences expressed on the certificates. It would have been useful to know, had the Crown been able to obtain the father’s application and the affidavit for late registration in 1981 for Taufa Fevaleaki, the reason for registration being so late. Similarly, obtaining the live birth certificates that ordinarily I was told are required to register a child within the normal period of 12 months may have assisted because they would have confirmed whether the two infants had indeed been born on different dates.
    

12. I was informed by the accused that his father was overseas but too old to travel. There was no other evidence adduced that rebutted the accused’s evidence that Sosaia Finau and Taufa Fevaleaki were both names he believed that he was entitled to use. Further, intrinsically the birth certificates suggest something of a common relationship. They both relate to a child born in Tofoa, and the parents have common Christian names Siosiua and Ane. The father in both is said to come from Tofoa and Ane from Lotofoa or Foa, Ha’apai. The similarity may be more than coincidence and at least to my mind suggested that the accused might possibly be telling the truth when he said that both names and birth certificates related to him and not to separate individuals as the age differences suggest. The Accused said his grandfather, whom he did now know well as a child was known also as Finau and his father had also used this name. At the end of the day, although very sceptical, I was left with the possibility that, on this issue, the Crown could not prove to my satisfaction beyond reasonable doubt that the accused, either in his record of interview or at trial, had lied on the issue as to whether he had two names and had two birth certificates. Accordingly, it could not prove beyond reasonable doubt an essential element that underlay these five counts namely that the accused had knowingly made a false statement when he represented that he was Sosaia Taufa Finau for a passport and Tongan Identification and had subsequently knowingly dealt with false documents. Accordingly that being the case, he is acquitted on counts 1-5.

13. However, count 6 is a quite a different matter. Essentially, it is count 6 that encapsulates the overall criminality involved in this case. It is clear that the accused, in his answers in the record of interview, well understood that he could not fly out of Tonga on the passport in the name of Taufa Fevaleaki because he was put on a black list. On 12^th June 2014, he signed and it was not disputed by him that he did sign the application for a Tongan passport in the name of Sosaia Taufa Finau giving all appropriate details aside from the one which was critical in this case namely whether he was known by any other name and what that was. He knew and indeed had admitted this to the police officer who interviewed him that he would not have obtained the passport had he told Immigration Tonga that he had a passport in the name of Taufa Fevaleaki. I infer from this that he deliberately did not insert the name Taufa Fevaleaki in the passport application because he well knew the likelihood they would search to see whether there was a passport issued under this name. I accept the evidence of Mr Ngungutau that he did not fill out the particulars, and I hardly think he would have forgotten about doing so had he done this. He had no reason I could see to lie about this. I also note that the accused’s answers in his record of interview about this aspect of the case and his dealings with Mr Ngungutau over his application were very uncertain. I also note that in the declaration box of the passport application before signature appear the words, “The information given in this application is correct to the best of my knowledge”. His motivation was plainly to obtain a passport under his second name and it is also plain beyond any reasonable doubt, in my view, that he signed this application knowing full well that it was incomplete and accordingly false because he was known as Taufa Fevaleaki. I find that he deliberately failed to include this information because he knew that this would likely lead to the discovery that he was the possessor of a passport under that name and that he had been placed on an alert or black list for flying out of Tonga. He gave evidence that he could read the passport application which was in Tongan and he did not appear to me to be a person without a reasonable level of intelligence, so I dismiss any suggestion that the failure to detail the relevant information was in any way through inadvertence or an innocent oversight. I accepted the evidence of Mr Ngungutau that he did not fill in the application and I could see no reason why he should lie about this. Accordingly, I find all essential elements established on this charge beyond reasonable doubt and he is convicted to await sentence.
    

C. B. Cato
DATED: 30 JULY 2018 J U D G E