R v Tauvaka [2021] TOSC 147; CR 16 of 2021 (1 September 2021)

[1] The accused, ‘Ana Lenilisi Tauvaka (Tauvaka), is charged that in or about June 2020 at ‘Utulau, she received from Kisione Tauvaka washing machines, stoves and freezers and other properties believing the same to have been stolen, contrary to S.148 (1) of the Criminal Offences Act.

[2] At the commencement of this trial, Crown Counsel amended the particulars of the charge, with defence counsel raising no objection, that the words:

be added after the word “freezers”. When Crown counsel came to the end of her submissions at the end of the evidence, she again amended the particulars of the charge, again with defence counsel raising no objection, that the words:

[4] Tauvaka, the accused, was living with her husband, and their son, Kisione, at Fatu Taulanga’s home, together with Fatu Taulanga and his wife and their children, at ‘Utulau. Kisione worked at a store business in Nuku’alofa named Adiloa’s. The store business had 2 warehouses where it kept its goods, one warehouse was at Kolomotu’a and the other was at Havelu, the keys to the Havelu warehouse being kept at the Kolomotu’a warehouse. Kisione knew of that.

[5] In or about May 2020, Kisione took the keys to the Havelu warehouse without knowledge or permission of the owner and stole 2 stoves, 3 chest freezers and Chinese mats from the Havelu warehouse. Those goods were sent by him to Niuatoputapu.

[6] On or about 16 June 2020, Kisione did the same thing and stole a number of stoves and freezers from the Havelu warehouse, using a truck of one, Folau, and took them to Fatu’s house where he and Tauvaka (his mother the accused) were living. He and Fatu and Tauvaka unloaded them into the house.

[7] On or about 18 June 2020, Kisione did the same thing again, and stole a number of washing machines, stoves, bicycles, freezers and lamps and they were again taken to and unloaded into Fatu’s house. Kisione and Tauvaka then subsequently took all the goods from Fatu’s house into the bush behind Fatu’s house. Some of those goods were subsequently moved to Lieta Fonohema’s house at Sia’atoutai and to Manu Lalakai’s house at ‘Utulau.

[8] Unknown to Kisione, someone saw him removing the goods from the warehouse on the third occasion and reported it to the store at Nuku’alofa who then checked and confirmed the theft of the goods. Complaint was lodged with the police and Kisione was arrested.

[9] Search warrants were issued on 23 June 2020 and the police, together with Kisione and Tauvaka, searched the house and the bush at Fatu’s home, Lieta Fonohema’s home at Sia’atoutai and Manu Lalakai’s home at ‘Utulau and found the following goods:

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1 freezer 320 l
2 freezers 130 l
3 bicycles (for adults)
1 washing machine 12 kg
25 (kerosene) glass lamps
1 microwave

[10] When the application was made for the search warrant on 23 June 2020, the complainant Adiloa store gave to the police officer who made the affidavit, Fe’ofo’ofani Moala, a list of the goods that had been stolen. That list was as follows:

The total sum of all the values of the goods listed were stated in the list as $12,910”, but the correct total, according to the list, the prices and the numbers given, is $10,060.

[11] On 24 June 2020, the same officer, Fe’ofo’ofani Moala, reported the work that had been carried out to the Deputy Commissioner and stated that the goods which were said to have been stolen, as conveyed by the complainant, from the warehouse were as follows:

QUANTITY	DESCRIPTION	PRICE	TOTAL
10 Pcs	3 Fold Mat Large	$76.50	$765.00
3 Pcs	Mountain Bike	$350.00	$1050.00
1 Pc	12 kg Washing Machine	$490.00	$490.00
3 Pcs	15 kg Washing Machine	$530.00	$1590.00
2 Pcs	Chest Freezer 270 L	$865.00	$1730.00
3 Pcs	Chest Freezer 320 L	$965.00	$2895.00
2 Pcs	Chest Freezer 130 L	$580.00	$1160.00
1 Pc	Microwave Panasonic NN – ST34HM	$370.00	$370.00
1 Pc	Sharp Refrigerator SJ-SJ360	$1300.00	$1300.00
1 Pc	Tent 3x4	$290.00	$290.00
1 Pc	Misini Tuitui Takai Nima	$320.00	$320.00
25 Pc	Maama Matangi	$19.90	$497.50
7 Pcs	2 Burner Gas Stove	$135.00	$945.00
8 Pcs	3 Burner Gas Stove (Ukamea)	$124.00	$992.00
1 Pc	5 Burner Gas Oven Stove	$1595.00	$1595.00
5 Pcs	4 Burner Gas Oven Stove	$795.00	$3975.00
		TOTAL =	$19964.50

[12] When Tauvaka, the accused, was questioned by the police, she said that the reason why she and Kisione had moved the goods from Fatu’s house to the bush at the back was so that Fatu would not be implicated if they had been kept in his house.

[13] After she was interviewed, the officer filled out a written statement of charges form on the same day 30 July 2020, which informed her that she was being charged with possession of stolen properly contrary to S.153 of the Criminal Offences Act in that she willfully and without lawful justification possessed:

[14] She then stated in her statement that she felt repentant for what happened.

[17] When the 3 accused were arraigned on 18 February 2021, the Crown offered no evidence against the first accused, Folau Tokotaha, and the charge (count 1) against him was dismissed and he was discharged. The second accused, ‘Ana Tauvaka, pleaded not guilty and a trial date was set. The third accused, Kisione Tauvaka, pleaded guilty to all counts 3 to 8 and he has been sentenced by this Court.

[18] So that whereas all 3 accused had been committed together from the Magistrate’s Court and have been jointly indicted for trial in this Court, only the trial of the second accused, ‘Ana Tauvaka, has been proceeded with in this trial.

[19] The Crown called and 2 police officers gave evidence, namely, Kalosi Tapueluelu, who carried out the questioning and charging of the accused and receiving the statement of the accused, which were produced as Exhibit 1 (7 pages), and Fe’ofo’ofani Moala who applied for and obtained the search warrants and who executed them, and he produced them and the search lists which recorded what goods were found where and his report, as Exhibit 2 (11 pages). Both officers were cross-examined and re-examined.

[21] Defence counsel, Mr. Tu’utafaiva, raised 3 defences in his submissions as follows:

(c) The evidence falls short and does not prove that the accused alone received the goods from Kisione in order that she had sole control and possession of them.

[22] Mr. Tu’utafaiva submits that the jurisdiction to try this case depends on the value of the goods which the accused received because the value determines the punishment, which punishment is provided to be the same as if the accused committed theft. That is the provision of S.148 (1) of the Criminal Offences Act which provides as follows:

[24] S.11 (1) of the Magistrate’s Court Act provides that the Magistrate’s Court shall have jurisdiction to try criminal cases in which the punishment provided by law does not exceed $1,000 or 3 years imprisonment.

[25] He then points to the goods which were found in the bush at the back of Fatu Taulanga’s place where the accused lived, and which are listed in the Search List (Page 4 of Exhibit 2). He says that if the values which are stated in the list provided by the complainant in page 5 of that exhibit are used to evaluate the properties listed in the search list Page 4, the total value of those goods found where the accused lived only comes to $6,255.50.

[26] He says that when Folau Tokotaha was discharged and Kisione Tauvaka pleaded guilty to his own charges, the only charge left in the indictment is the charge against the accused but which is within the jurisdiction of the Magistrate’s Court. He therefore submits that this Court has no jurisdiction to try or to decide this case.

[27] In reply to Mr. Tu’utafaiva’s argument, Ms. Lui, counsel for the Crown, submits that this Court does have jurisdiction over a Magistrate’s Court matter if it arises from the same facts of an offence triable in the Supreme Court. She points to the proviso to S.4 (1) of the Supreme Court Act, which provides as follows:

Provided that a summary offence arising from the same facts of an offence triable in the Supreme Court may be heard together in the Supreme Court.”

In support of her point, she refers to R v Veamatahau [1999] Tonga LR. 195.

[28] She also sought and an amendment was made to the particulars of the charge against the accused by deleting the words “valued at $22,934”.

[29] In response to the submission and amendment made by Ms. Lui, Mr. Tu’utafaiva submits that the Crown ought to have

(a) known the goods and the value of the goods which are alleged that the accused received, and

He says that unless the indictment contains those particulars and their values, the Court would not know which Court has the jurisdiction to try the case, the Court would not know on what basis it should base its sentence if it convicts the accused, but most importantly, the accused ought to know in sufficient detail in advance the charge with which she is charged and with which Court her trial, and sentencing (if be the case), will be held.

[30] Having considered this submission of Mr. Tu’utafaiva, I have to agree with Ms. Lui that S.4 (1) of the Supreme Court Act has provided that the Supreme Court shall have jurisdiction over a summary offence which arises from the same facts of an offence triable in the Supreme Court.

[31] The offence which is triable in the Supreme Court in the present case is the offence of serious housebreaking because it is punishable with imprisonment of up to 10 years.

[32] The facts of that offence are that Kisione Tauvaka, who resided with the accused, broke into the warehouse of the complainant on 3 occasions and stole 3 truckloads of goods from there and hid the goods of 2 truckloads in the bush behind the house where the accused and Kisione resided.

[33] To prove the housebreaking, the Crown had to prove the theft of the 3 truckloads of goods, and to prove the theft, the Crown had to prove that Kisione had possession of the goods or part of the goods, or that Kisione gave the goods to the accused or that the accused received the goods from Kisione.

[34] In bringing the charges of serious house-breaking and theft against Kisione, the Crown is also bringing a charge against the accused for receiving the goods from Kisione, as well as the charge of receiving brought against Folau Tokotaha. The charge against Folau Tokotaha has been dismissed, but the charge against the accused still remains. The charge against the accused arose out of the same facts of the indictable offence with which Kisione was charged. That charge has not been dismissed. In fact, it is very much part of this case because Kisione has pleaded guilty and has been sentenced by this Court in confirmation of the facts.

[35] I am therefore of the view that this case of the accused is properly within the jurisdiction of this Court by virtue of the provisions of the proviso to S.4 (1) of the Supreme Court Act as having arisen out of the same facts of the 6 offences of Kisione which are charged in the same indictment of the accused.

[36] That finding is consistent with the common law of England which has been incorporated into Rule 14. 2 (3) of the Criminal Procedure Rules 2005 of England which provides that an indictment may contain more than one count if all the offences charged

[37] Archbold 2009 at 1 – 157 on p.105 states that the question whether the charges are “founded on the same facts” such as to justify joinder under that rule should be tested by asking whether the charges have a common factual origin; if the subsidiary charge could not be alleged but for the facts which give rise to the “primary” charge, the charges are founded on the same facts for the purpose of the rule and may legitimately be joined in the same indictment: R v Barrell and Wilson 69 Cr. App. R. 250 CA.

[38] In the present case, I am satisfied that the subsidiary (or summary) charge of receiving which has been brought against the accused cannot be alleged against her but for the facts which give rise to the primary charges of serious housebreaking which have been brought against Kisione. Accordingly, the indictment is in order because it complies with paragraph (a) of Rule 14.2 (3) of the English Rules.

[39] Furthermore, it complies with paragraph (b) as well because it has been held in R v Kray, 53 Cr. App. R569 and in Ludlow v Metropolitan Police Commr. [1971] A.C. 29 HL. that two offences may constitute a “series” within the meaning of the rule, and that all that is necessary to satisfy the rule is that the offences should exhibit such similar features as to establish a prima facie case that they can properly and conveniently be tried together in the interests of justice, which include, in addition to the interests of the defendants, those of the Crown, witnesses and the public.

[40] In the present case, I am satisfied that there are similar and same features in the two offences because they both involved both the accused and Kisione, the goods were from the same warehouse, they were unloaded at the same place, ie, at Fatu’s house, they were unloaded by Kisione and the accused, they were then moved by Kisione and the accused from the house to the bush at the back, and both Kisione and the accused lived in the same house.

[41] In any event, I am not persuaded that the value of the goods with the receipt of which the accused is charged is less than $10,000. The evidence shows that the accused assisted in unloading 2 truckloads of the 3 truckloads of goods stolen from the complainant’s warehouse.

[42] Those 2 truckloads were both in June. The one truckload in May is the subject of the charge of theft against Kisione in count 6, which states that he took “2 ovens, 3 chest freezers and Chinese mats”. The 2 ovens must be 2 of the 5 x 4 burner gas oven stoves listed in paragraph 11 above, with a price of $795 each – that comes to $1,590. The 3 chest freezers may be priced at the higher price of $965. They come to $2,895. The Chinese mats may be priced $765. So that the total value of the truckload in May 2020 is $1,590 + $2,895 + $765 and they come to a total of $5,250. If I deduct that sum from the total sum of the 3 truckloads, $19,964.50, I get $14,714.50. That sum is the total value of the 2 truckloads which the accused assisted to unload and to move to the bush at the back. Therefore, the charge against the accused exceeds $10,000, and is properly within the jurisdiction of the Supreme Court.

[43] I therefore find that the argument advanced by Mr. Tu’utafaiva that this Court has no jurisdiction fails.

[44] The second argument of Mr. Tu’utafaiva is that the indictment of the accused is bad for duplicity because it charges in one offence 2 offences of receiving, because the accused stated in her record of interview that she assisted in unloading one truckload in one day and assisted in unloading another truckload on another day. These would be 2 offences but they have charged them against the accused as one offence only.

[45] He refers to Smith and Hogan, Criminal Law, 12^th edition (2008) at p.935 where the learned author states:

“... Since receiving is ‘a single finite act’ each receipt of stolen goods is a separate offence and, therefore, a single count for receiving a whole of goods found in D’s possession will be bad for duplicity if the receipt of various portions of that whole took place on more than one occasion.”

[46] In reply to that submission, Ms. Lui says that the accused only participated in unloading one truckload of goods because she said so in answer to question 17 of the record of interview:

[47] I do not think that that is correct. I think that the accused said that she was involved in unloading 2 truckloads on 2 different days. This is what she said in answer to questions 10 to 17:

A: Because I am Kisi’s mother and because I participated in moving the goods Kisi came with.

A: Me and Fatu and Kisi in one day Kisi came in Folau’s van with the goods and we unloaded it.”

[48] In considering the argument which Mr. Tu’utafaiva has submitted, I have to consider the law with regard to duplicity. Archbold 2009 states in 1 – 135 at p.95 that the general principle in respect of what has come to be known as the rule against duplicity is that the indictment must not be double; that is to say, no one count of the indictment should charge the defendant with having two or more separate offences. At 1 – 137 p.96, it states that “A given count on an indictment cannot be bad for duplicity if the details set out in that count allege only a single offence.”

[49] The count which concerns the accused in the present case is count 2 and the details set out in it are as follows:

‘Ana Lenilisi Tauvaka of ‘Utulau, on or about June 2020 at ‘Utulau you did receive from Kisione Tauvaka washing machines, stoves and freezers and other properties believing those items to have been stolen.”

[50] That charge does not charge the accused with having committed two or more separate offences. It only charges the accused with having received the said goods from Kisione in or about June 2020 believing those goods to have been stolen.

[51] The fact that the accused did receive 2 separate truckloads from Kisione Tauvaka on 2 separate days in the month of June 2020 does not render the count in the indictment bad for duplicity because the charge in the count does not allege 2 separate occasions of receiving in the month of June 2020.

[52] I am therefore satisfied that the count and charge against the accused in the indictment is not bad for duplicity.

[53] Mr. Tu’utafaiva’s final defence for the accused is that the Crown must prove that the accused did have possession of the goods, that is, that she had knowledge and control of the goods and he relies upon the authority of Smith and Hogan, Criminal Law 12^th edition. He says that the evidence which the Crown has produced and given is that the accused only assisted in unloading the 2 truckloads and in moving the goods from the house to the bush, and that there was no evidence that she had control of the goods.

[54] In reply to that Ms. Lui says that Tonga has provided in S.148 (5) of the Criminal Offences Act the answer to that submission. It provides as follows:

“(5) For the purposes of this section and of any other written law relating to receivers or receiving, a person shall be treated as receiving property if he dishonestly undertakes or assists in its retention, removal, disposal or realisation, or if he arranges to do so.”

[55] She says that the evidence has established that the accused did assist with the unloading of the goods from the two truck-loads and with the removal of the goods from the house to the bush at the back.

[56] In response to that, Mr. Tu’utafaiva says that the accused is only charged under S.148 (1) and not under S.148 (5) or S.148 (1) & (5), and so subsection (5) should not be considered because she has been charged only under S.148 (1).

[57] I agree with Ms. Lui. The offence of receiving is provided for only in subsection (1) of S.148. Subsections (2) and (4) apply to different situations and do not apply in the present case, but subsection (3) applies because it provides as follows:

“(3) Any person mentioned in subsection (1) may be indicted and convicted whether the principal offender has or has not been previously convicted, or is not amenable to justice.”

That subsection applies in the present case because the principal offender, Kisione, has already been convicted, and sentenced. But it can hardly be argued that the present charge against the accused is bad because it does not include subsection (3) in addition subsection (1).

[58] I consider that subsection (5) was expressly enacted to specify the law in Tonga with regard to receiving so that Tonga no longer has to rely on the law of England with regard to receiving. In fact, in England the offense is called “handling stolen goods”. S.22 of the Theft Act 1968 of England provides as follows:

“22 (1) A person handles stolen goods if (otherwise than in the course of stealing) knowing or believing them to be stolen goods he dishonestly receives the goods, or dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the benefit of another person, or if he arranges to do so.

(2) A person guilty of handling stolen goods shall on conviction on indictment be liable for imprisonment for a term not exceeding fourteen years.”

[59] The wording of the provision of that section 22(1) is such that the indictment must be worded to specify which act is charged, namely, receives, retains, removes, disposes or realises or assists in any of such acts.

[60] That is not how the provision of S.148 (1) of the Criminal Offences Act of Tonga is worded. It simply provides:

“148 (1) Any person who receives any property knowing or believing it to have been stolen or obtained in any way whatsoever under circumstances which amount to a criminal offence is guilty of an offence and is liable to the same punishment as if he had committed theft.”

[61] As long as the charge says that the accused has “received” any property believing it to have been stolen, the charge is complete. It does not need to say that the accused assisted in unloading or moving the property because subsection (5) of S.148 already provides the definition of receiving for the purpose of S.148.

[62] Furthermore, and independently of any consideration of the provisions of subsection (5) of S.148, I am satisfied on the facts which have been stated in evidence in this trial, that the accused did have control, as well as knowledge, of the goods which had been unloaded from the two truckloads. She had knowledge because she helped unload them into Fatu’s house and she also had knowledge where they were hidden in the bush because she helped moved them from the house and hid them in the bush at the back.

[63] She also had control of all the goods whilst they were so hidden in the bush because she was the only one at home who was aware of where they were hidden when Kisione went to work in the subsequent days, until some of the goods were moved to Lieta’s place at Sia’atoutai and to Manu Lalakai’s place at ‘Utulau. Before those goods were moved to those 2 places the accused was solely in control of all the goods hidden in the bush. She was therefore in every sense of the word in possession and control of all the goods. She has indeed received them all from Kisione.

[64] Furthermore, and more importantly, S.148 (5) does not provide that the person is to have possession and/or control of the goods in order that he is guilty of receiving. All that it provides for is that he “dishonestly undertakes or assists in its retention, removal, disposal or realisation, or if he arranges to do so”. The subsection provides as follows:

“(5) For the purpose of this section and of any other written law relating to receivers or receiving, a person shall be treated as receiving property if he dishonestly undertakes or assists in its retention, removal, disposal or realisation, or if he arranges to do so.”

[65] Accordingly, having considered the evidence produced by the Crown and the defences raised by the accused, I am satisfied beyond reasonable doubt that the Crown has proved all the necessary elements of the charge against the accused, namely, that in or about the month of June 2020 at ‘Utulau, she received from Kisione Tauvaka washing machines, stoves and freezers and other properties believing the same to have been stolen. That belief on her part is confirmed by her answers to questions 23 and 24 of her record of interview.

A. Because Kisi and I did not want Fatu implicated because we lived there because of him and because I was afraid.

[66] That evidence proves beyond doubt that the accused believed that all the goods in the truckloads had been stolen by Kisione and that she did not want Fatu implicated in receiving them by keeping them in his house, and that she herself was also afraid for herself. That completes the elements of the offence.

[67] I therefore find the accused ‘Ana Tauvaka, guilty of the charge of receiving the goods as charged, and I convict her accordingly.

Supreme Court of Tonga

R v Tauvaka [2021] TOSC 147; CR 16 of 2021 (1 September 2021)