Rex v Latu [2018] TOSC 55; CR 40 of 2017 (16 October 2018)

IN THE SUPREME COURT OF TONGA CR 40 of 2017
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY
___________________________________________________

BETWEEN: R E X - Prosecution

AND: SIOSAIA LATU - Defendant

BEFORE THE HON. JUSTICE CATO

Counsel: Ms. T. Kafa and Ms. ‘A. ‘Aholelei for the Prosecution

Accused appeared in person

V E R D I C T

1. The accused was charged with two counts; one of serious arson and an alternative of abetting serious arson under sections 177(1) and (2) of the Criminal Offences Act, and sections 8(a), 177(1) and (2) of the Criminal Offences Act.
   
2. The evidence was in a narrow compass. The accused was at the time aged about 17. He and a witness, Samipeni Latu, had been fighting on the 28th November, 2015 at Havelu. There had been an earlier altercation between he and the accused that day near a bus stop in down town Nuku’alofa. Later that day, Samipeni met the accused who was with his uncle in Havelu near his home. The accused was married to a woman who was Samipeni’s next door neighbour. A fight ensured which was stopped by a third party. Samipeni went home and later went to work. He did not see the accused again that day.
   
3. He said he met the accused later and the accused had apologized for burning his family’s vehicle. He said there had been ill feeling about the accused’s marriage to one of the women in the area.
   
4. Pakiaola Latu said she lived in Havelu and she had woken up in her home to find her family’s van was on fire. That was at about 3am on the morning of the 28^th November 2015. They had the vehicle for about a year and had purchased it for $16000. The fire brigade came and the vehicle had been destroyed by fire. She said there had been some kind of explosion.
   
5. Fekita Mafile’o aged 23 gave evidence under an indemnity saying he had been present with the accused at about 4.30pm after he said he had been fighting. He said that the accused was with his uncle Oki (who has not been located by Police) and that they went to his home in Fanga and prepared some food. Later, they had walked into town and after that went back towards Havelu where they got some food from a relative of the accused. They rested near a mango tree opposite Tupou High School in Havelu. The accused said he wanted to get the boys who had earlier attacked him. They walked into the Havelu area. He said they walked to a residence near a cemetery which was where Samipeni and his family lived. He had heard a suggestion that Oki and the accused were going to set fire to a car and was alarmed about this. He was asked to bring some cardboard that they had used earlier to sit on but was too scared to do so. The accused and Oki walked back from the residence where they had tried to look into the house, and both had cardboard boxes they had been using to sit on under the mango tree earlier near Tupou High School and then to fan themselves. They had left them at the frontage of the property when they went to look inside. They later both came and got them. Oki took a cardboard box from the accused and the accused stayed at the gate area. He heard the accused say to Oki maybe you only set fire to the car only. He was about 7 meters from the accused and Oki when he heard them talking. Oki took the box from the accused and used that and a box he was carrying to light and throw into the car having torn the plastic cover of the window of the car. The witness saw the box being lit and ran away. He ran back to Fanga. Later, the accused and Oki came to his residence and Oki asked for a shirt which he received. There was no cross-examination of this witness.
   
6. Officer Finau gave evidence that the accused had made out a record of interview on the 14th December, 2015 in which he appeared to admit that it was he, Okilangi Moala and Fifita who had set fire to the vehicle. He said he was not guilty and in a second statement elaborated on the record of interview. He said that he, Okilangi and Fekita had intended to go to Samipeni’s house to attack the occupants whilst they were sleeping. He said Oki had said to burn the car but he had said no. He wanted to attack. He said that Oki had wanted to make the whole family suffer, not just Samipeni. He said Oki had walked over and torn the plastic covering of the rear window, and had burned a piece of the card board and threw it at the car window. He said he was standing with Fekita on the roadside when this occurred.
   
7. The accused gave evidence and essentially denied that he had set fire to the car or had wanted it burned. He had said he intended to beat up Samipeni at the residence. He gave evidence that it was Oki alone who was responsible for burning the car and he had said he did not want this in a conversation with Oki. His uncle was aged about 32-or 33. He admitted being close to Fekita when Oki burned the car. He said that Oki had taken the paper box he had brought with him. He said if he had the same intention as Oki he would not have stopped outside the residence.
   

Reasons

8. I was impressed with the evidence of the witness Fekita who gave evidence under an indemnity to tell the truth. He gave evidence carefully and I did not have any reason to believe he had any involvement in earlier fighting and no involvement in the arson of the car, either. He was not in my view anything more than a spectator to events and there was no evidence adduced to suggest he was anything more. He was not in my view an accomplice. I considered that his account was reliable.
   
9. I preferred his evidence to the accused on the question of the accused’s involvement. I accept his evidence that he had heard the accused tell Oki merely to burn the car and thus had given knowing encouragement to Oki to burn the car, although he did not do it himself. Although he stood at a distance of about 7 meters from Oki when he used the cardboard to burn the car and set it alight he was not merely like Fekita an innocent spectator. He admitted that he did nothing to stop Oki from burning the car.
   
10. I consider that the accused, who had been in a fight earlier with an occupant of the house, was still so angry about what had happened that morning and later that day that he beyond any reasonable doubt gave knowing encouragement to and so did aid and abet Oki to commit serious arson. I reject the accused’s evidence to the effect that he was a mere spectator.
    

Verdict

11. The accused is found guilty convicted of serious arson of a motor vehicle on or about the 28^th November 2015. He is remanded in custody for sentence.

C. B. Cato
DATED: 16 OCTOBER 2018 J U D G E