R v Vakalahi [2022] TOSC 12; CR 120 of 2021 (4 April 2022)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU’ALOFA

CR 120 of 2021

BETWEEN : REX

Prosecution

AND : PITA VAKALAHI

- Accused

BEFORE HON. JUSTICE NIU

Counsel : Mr. F. Samani for the Crown.

Mr. S. Tu’utafaiva for the accused.

Trial : 23 and 24 August 2021.

Submissions : by Mr. Samani filed 18 March 2022.

: by Mr. Tu’utafaiva filed 23 March 2022.

Verdict : 4 April 2022.

VERDICT

Charge

[1] The accused is charged with one count of demanding a bribe whilst serving as a member of Tonga Police contrary to S.164 (2) (a) (i) and (b) of the Tonga Police Act, namely, that on or about 27 October 2019 at the Central Police Station at Nuku’alofa, he demanded $640 from Sinai Lelea as an inducement not to charge her with traffic offences in the execution of his duty as a member of the Tonga Police.

The evidence

[2] The evidence in this trial were given by Sinai Lelea, now Sinai Lefai Mafile’o and by police officer, Siosateki Vainikolo, for the Crown, and by the accused himself, Pita Vakalahi, for himself.

Crown evidence

Sinai Lefai Mafile’o

[3] Sinai Lefai Mafile’o, (Sinai) 23 years of age, a married woman, wife of a police man, having been married on 29 September 2020, said that on the night of 26 October 2019, a Saturday, whilst driving, she had an accident in that she hit the fence of the Teacher Training School. She said the vehicle belonged to a Chinese man with whom she was living.

[4] She said that the accused and another police officer came and took her to the Traffic Office at the Central Police station and was tested for alcohol and was put in the cell there until the next morning when the accused brought her into the Traffic Office and questioned her.

[5] She said that she asked the accused if she would go to Court and that the accused said yes but that there was a way for her not to go to Court, and asked her if she wanted to go to Court. She said that she told him no because she had not been to Court before and that she was afraid to go to Court. She said that the accused told her that his help for her not to go to Court was for her to pay him $540 for her offence of drunk driving and $100 for driving without a licence.

[6] She said that the accused gave her her copy of the “tickets” which he had read to her, that is, for 2 offences, for drunk driving and driving without a licence. She said that the tickets did not state the date when she was to go to Court. She said that she no longer had those tickets.

[7] She said that she told the accused that if she got the money she would return and give it to him.

[8] She said that on 28 October 2019, she texted the accused and said that she apologised that she did not have the money because she had to repair the damage to the fence of the Teacher Training School first. She said that the accused replied that he was giving her 21 days to pay him the money.

[9] She said that the accused had written his telephone number on the ticket he gave her and that that number was 779-1189.

[10] She said that the costs of repairing the fence came to nearly $8,000 and that the fence was repaired in the following week.

[11] She said that after about 2 days, that is, on 2 November 2019, she texted the accused and told him that she would come and give him the money she had which was $400. She said that the accused told her not to come to his work but to meet him at Longolongo the following day.

[12] She said that the following day was a Sunday and she went to Longolongo but found that she could not contact the accused because she had only a Digicel phone and that the people there had only Digicel phones as well. She said that she instead netted with one Heilala Pamata as a result of which she decided not to give the money to the accused and had not paid him the money or any money at all.

[13] She said that the paper (the ticket) which the accused had given her was pink in colour, and that she had not been to Court about the accident at all up to now.

[14] When cross-examined by Mr. Tu’utafaiva, she said that she was living with a Chinese man at the time at Havelu and that she also lived at Matahau but that she continued to keep in contact with him. She said that she and the accused had talked at the Central Police Station that the Chinese man would repair the fence. She said that she could not recall any talk with the accused that once the fence was repaired there would no longer be any need for the Court case.

[15] She said that she was not alcohol tested at the scene but that at the police station she blew into the machine, twice, and that the accused told her the result after each test. She said that one test was 600 odd and that the other was 540 and that the accused told her she would be charged with the lower number, 540.

[16] She said she could not recall if she was given a copy of the print out from the machine.

[17] She said that on the Sunday, she was told she would be charged with careless driving and damaging the fence.

[18] She said that she was given a pink paper and a yellow paper, and that the accused told her to bring the paper with her when she would pay the money, and that he would cancel the case. She said that she could not remember being told to pay the money to the Court at all. She said that what she was told by the accused was to bring the papers with the money to him, that is $540 for the drunk driving and $100 for driving without licence.

[19] It was put to her that she was not telling the truth and she said that it was true that she was told to get him the $540 and $100 and he would cancel the case and that it was the truth and that he told her that. She said that she asked the accused if she would go to Court. She said that she asked him that at the time that he was writing the charge and that he coughed and said that he would go and take his pill while she could go and smoke and he showed her where to go. She said that she was not given the papers then.

[20] She said that his instruction that he be given the $540 and $100 was given to her while she was outside smoking, and that she replied that she had not been to Court before. She said that she was afraid to go to Court and she agreed to pay the money to him. She said that she agreed to do that in order that she would not be charged because she had never been to Court before and was afraid to go to Court.

[21] She said that she did not know what the money was for but that it was to be given to him. She said that he had said in a text that he had sent to her later that the money be given to him for something of his (“ke ‘ai ‘aki ‘ene me’a”).

[22] She said that in their talk, she was told that when she would have the money, she was to ring him. She denied that she was told that she had to fix the fence and to let him know when it was done so that he could talk to the school to cancel the case.

[23] In re-examination, she said that their talk was that she was to give the money to him, not to the Court.

[24] I asked her and she said that the accused rang her on 2 November 2019 and told her to give him money “ke ‘ai ‘aki ‘ene me’a” (for something of his). She said that he meant the $640 and that he told her to give it to him the next day.

[25] Mr. Tu’utafaiva again asked her, and she said the accused did send her a text to give him the $640 for his purpose (“ke ‘ai ‘aki ‘ene me’a”). She agreed that the payment she was to give to the accused was for his own personal purpose and not for the purpose of payment of her debt to the Court for her offences. She agreed that that was why she agreed to pay him.

[26] She said that she knew it was wrong of her to agree to pay him the money but she just did not want to go to Court. She said that it was true that he told her not to come to him at work the next day.

Siosateki Vainikolo

[27] Siosateki Vainikolo, 37 years old, a policeman for 15 years, working in the Professional Standard Unit of the Tonga Police, said that he made an affidavit and applied for and obtained a search warrant which he produced, all 4 pages, as Exhibit 1. He said that he served that warrant on Tonga Communication Corporation (TCC), as a result of which he received from TCC a record of all calls and texts from telephones no. 779-1189 in the name of the accused, Pita Vakalahi, and no. 770-8950 in the name of one, Sione Haoniu’unga from 28 October 2019 to 20 November 2019, comprising 120 pages, which he produced as Exhibit 2.

[28] He then went through those pages in Court and marked the following:

P.1 -3 Outgoing calls from 770-8950 to 779-1189 (3)

P.3 to 6 Incoming calls to 770-8950 from 779-1189 (2)

P.6 to 55 Outgoing texts from 770-8950 to 779-1189 (75)

P.56 to 101 Incoming texts to 770-8950 from 779-1189 (5)

P.101 to 102 Outgoing calls from 779-1189 to 770-8950 (2)

P.102 to 104 Incoming calls to 779-1189 from 770-8950 (3)

P.104 to 111 Outgoing texts from 779-1189 to 770-8950 (36)

P.111 to 120 Incoming texts to 779-1189 from 770-8950 (56)

[29] The records showed the exact time date and duration of each call and the exact time and date a text was sent.

[30] In cross-examination, he said that he requested the records for those days because of what the complainant had told him and that he only got the records for those days.

Defence evidence

Pita Vakalahi (accused)

[31] Pita Vakalahi, 28 years of age of Ha’ateiho, said that he had been a policeman and that he began as such in 2016. He said that he was on suspension because of this case, since May 2021.

[32] He said that on 26 October 2019 he was working the shift from 1500 to 2300 hours at the Traffic Division with WPC Langi, and at about 2100 hours he received a telephone call and he and Langi went to the By Pass Road where the Teacher Training School was. He said he saw a car had crashed into the fence and that there was a girl in the driver’s seat of the car. He said that Langi carried out an alcohol test on the girl and that it showed “Alcohol” on the equipment and that Langi arrested her.

[33] He said that they took her to the Traffic Division at the Central Police Station and that he carried out the alcohol test himself there. He said that the first test recorded 630 micrograms of alcohol and that the second test recorded 540 micrograms. He said that they took the second result as the correct result and charged the girl with it. He said that he wrote the work he did in the station diary and in the diary of action. He then produced a photocopy of the form he had filled in when he was doing the two tests and which showed his and the girl’s signatures which showed the results of the two tests, as Exhibit 3. He also produced a photocopy of the two printouts from the Drager machines which he had used and which were also signed by the girl, Sinai Lefai, as Exhibit 4. He said that the girl was then put into the cell.

[34] He said that at about 9 am the next day, he brought the girl out from the cell into the Traffic Office to charge her for driving without licence. He said that he issued her with a Traffic Infringement Notice which was a form in 3 copies, the white copy for the driver, in accordance with S.14 (1) of the Traffic Act. He said that that section pointed out the fine to be imposed, which he said was $100 and which was signed by Sinai. He said that he explained to her that that fine had to be paid to the clerk of the Court within 21 days, and that she signed the form, and that he gave her the white copy of the form.

[35] He said that the other 2 copies were to be taken to the Court, and that he went and put them under the security door of the traffic division for the workers there to work on, that is, to take them to the Court.

[36] He said that he then worked to charge Sinai with drunk driving and with careless driving and that he used the forms thereto. He then produced the charge form for the drunk driving as Exhibit 5. It showed that the work on it was done at 0927 hours on Sunday 27 October 2019 and that another officer, Mala’efo’ou, was present, and that Sinai was charged with having 540 micrograms of alcohol, and that she signed it at 9:30 am, as well as by himself and by officer Mala’efo’ou. It showed Sinai’s answer to the charge: “The charge is correct. I plead guilty”. He said that Sinai was given the yellow copy of the form, the white copy being put into the file and the pink copy being left in the butt.

[37] He said that he interviewed Sinai and he produced the record of that interview as Exhibit 6. It shows that in was carried out at 0939 hours and that it was signed by himself, Sinai and by officer Mala’efo’ou. It shows that Sinai stated: “I was just driving and I dozed off (tulemohe) and the car hit the fence”.

[38] He said that he then charged Sinai with careless driving and that Sinai wrote on the form “Guilty”. He said that all 3 of them signed it, himself, Sinai and Mala’efo’ou, and that Sinai was given the second copy, the first being for the file and the third being kept in the butt. He produced a photocopy of the form as Exhibit 7.

[39] He said that he then issued Sinai with a notice of intended prosecution for careless driving and which was signed by all 3 of them, and he produced a photocopy of it as Exhibit 8.

[40] He said that the station diary also recorded what was done but that he did not have it or a copy of it, but that he had a photocopy of the diary of action which recorded all the actions which he had done on the case and he produced that photocopy as Exhibit 9.

[41] As to what Sinai has said, namely, that he had told her to pay him money, he said no. He said that Sinai was released as soon as all work was completed.

[42] He said that all the documents which he worked on were put in the file and that the butts were taken to the office where the people in the next shift would follow them up.

[43] He said that it was a requirement that all charges be registered in the register of prosecutions in order that a register number be allocated to each charge, and that he registered the driving without licence charge on 27 October 2019, and that the other 2 charges were registered on 11 November 2019.

[44] He said that normally when a charge was ready for prosecution it is entered in the register. He said that in this case, the driving without licence charge was ready and it was registered on 27 October 2019 but that as to the other 2 charges, he needed a plan (map) of the scene of accident before the charges could be registered. He said that finally on 11 November 2019 he had the approval of officer, Longosai Taufe’ulungaki, to have the two charges registered for prosecution, without any map having been done.

[45] He produced photocopies of the covers of the files for the two charges as:

Exhibit 10 (a) for the drunk driving charge with no. 5754/2019.

Exhibit 10 (b) for the careless driving charge with no. 5755/2019.

[46] When cross-examined by Mr. Samani, he agreed that Exhibits 5 and 7 were not summons issued by the Court for those respective charges.

[47] As to Exhibits 10 (a) and 10 (b), he agreed that the date “11/10/19” written on it as the date of registration was wrong, and that the correct date should be “11/11/19”. He said that that was the date when all work on the case was complete even though the map had not been done.

[48] He said that Sinai had asked him if there was a way that she did not have to go to Court and that he told her that he would give her a notice to pay $100 and that she had to pay it to Court.

[49] He said that as to the careless driving charge, he asked Sinai that if she would repair the damaged fence, he would contact the officer at the school to have the matter resolved by agreement and not by going to Court. He said that Sinai agreed and that that was why he repeatedly contacted her to follow up the status of repairing of the fence. He said that she wrote out a phone number and gave it to him, saying it was her phone and for him to ring her about the status of repairing of the fence.

[50] He said that on about Tuesday or Wednesday of the following week an officer from the Teacher Training College contacted him, and as a result, he rang Sinai and that a Chinese man answered and that the man gave him a phone no. at which Sinai was contacted. He said that Sinai told him that she was still trying to get the money to fix the fence.

[51] He said that it was may be the following Monday that he patrolled along By Pass Road and he saw Chinese workers fixing the damaged fence. He said he stopped and asked them and then he left. He said that not long after that day, he spoke with officer Longosai and that he decided to finalise the docket and to proceed with the case.

[52] He said that on about 10 or 11 November 2019, he saw defamation of himself in Facebook, and that he confirmed that there was nothing more to do about the file but to register the charges and to put them in for prosecution.

[53] He said that at that time he had 7 or 8 other dockets of traffic accidents and that he was asked by the sergeant to register the files and to hand them over for prosecution. He said that he gave these 2 files to the prosecution on 11 November 2019.

[54] Mr. Samani put to him that the work on the file had been completed on 29 October 2019 and that it was ready for prosecution then because he had written on entry no. 8 in the diary of action (Exhibit 9):

“29.10.1908 Pc. Vakalahi diary atu ai pe ‘ae docket ke hu atu ‘o hopo.”

(Pc. Vakalahi hereby forwards this docket for prosecution).

The accused said that that entry meant that the interview and the charges were finished but the other works were not finished.

[55] Mr. Samani also put to him that in Exhibit 6 (the record of interview), Sinai had admitted that she committed the offence and that there was nothing more to be done to prove she committed the offence. He said that he understood that a map of the scene had to be done.

[56] Mr. Samani also put to him that the fence had already been repaired in the week following the accident. He said that the fence was not fixed in the week following the accident. Mr. Samani asked him why he did not put that to Sinai when she said in her evidence that the fence was fixed in the week following the accident and he said that it was because he had no chance to speak to his counsel about it then.

[57] Mr. Samani put it to him that that was a lie and that he made that up and he said that it was not a lie. He said that he would not have wasted his time writing up all the things required like the station diary, etc when the officer in charge would find out. He said that no accident is prosecuted on the confession alone because at the trial a lawyer would defend the case.

[58] There was no re-examination and I asked and he said that he had no notebook and did not know if WPC Langi had one, but that Langi had a paper with her and that she wrote on it when they went. He said that it was her who wrote the entries in the station diary at may be 10 pm and that the alcohol tests finished at about 11 pm and Sinai was then put in the cell.

[59] He said that it was him who had written all the 8 entries in the diary of action and that he did that on Sunday morning.

[60] He said that his telephone no. was 779-1189, and that Sinai called him on 28 October 2019 and again on 30 October 2019. He said that on 28 October 2019, Sinai texted him 3 times. I asked him if he still had those 3 texts and he said that he had deleted them. I asked him and he said that he did not think to keep those texts as evidence.

[61] Mr. Tu’utafaiva asked him and he said that he did not know the owner of telephone no. 770-8950, Sione Haoniu’unga. He said that the texts were from Sinai. He said that the Chinese man had given him that phone number as the one that Sinai was using.

The delay

[62] At the end of the evidence for both sides, I directed, at the request of both counsel, that Mr Tu’utafaiva would file his submissions by 3 September 2021 and that Mr Samani would file his by 10 September 2021 and that I would give my verdict on 24 September 2021. Unfortunately, I overlooked to follow up those submissions or to recall the case for further direction, and neither counsel filed any submissions. It was not until late January 2022 that my attention was drawn to the matter because the Court computer system had noted it as outstanding. By then the COVID 19 lockdown had begun, and I issued direction for the matter to be called in chambers on 9 February 2022. It was called on that day and with agreement of both counsel, I directed that the defence submissions be filed by 4 March 2022 and Crown submissions by 11 March 2022, and that the verdict be given on 21 March 2022.

[63] As it turned out, Mr Tu’utafaiva did not file his submissions and Mr Samani filed his on 18 March 2022. Contact was made to Mr Tu’utafaiva and he filed his submissions on 23 March 2022. He raised legal issues which Mr Samani had not touched and had had no opportunity to touch. Contact was made to Mr Samani and he asked to file his submissions on 28 March 2022 and on 28 March 2022 asked to file them on 29 March 2022, and which he has done. I adjourned the verdict on 28 March 2022 to be given on 1 April 2022, and extended the bail of the accused accordingly. The lockdown is still in progress.

Defence Submissions

[64] Mr Tu’utafaiva has raised 2 defences, namely,

(1) that Sinai was an accomplice and her evidence was not corroborated

by other evidence as is required by S.126 of the Evidence Act; and

(2) the evidence established that the accused did charge Sinai with the offences, and that he did not refrain from doing so, as having been induced by the alleged $640 Sinai was to pay him.

Accomplice evidence

[65] As to the first defence, Mr Tu’utafaiva refers to S.126 of the Evidence Act which provides as follows:

“126. An accused person shall not be convicted upon the testimony of an accomplice unless it is corroborated in some material particular by other evidence.”

[66] He refers to the evidence of Sinai that she asked the accused whether she would go to Court and that the accused said yes but that there was a way for her not to go to Court and asked her if she wanted to go to Court and that she replied no. She said that the accused then said that his help was for her to pay him $540 for drunk driving and $100 for driving without licence.

[67] Mr Tu’utafaiva submits that that evidence of Sinai is accomplice evidence because:

(a) she told the Court that she told the accused that she would pay the accused the money the following day;

(b) she intended to pay that money to the accused in order for him not to charge her or to take her to Court;

(c) she admitted, when cross-examined, that she knew that what she did, that is, in offering to pay the money, was wrong; and

(d) it is an offence under S.165 of the Tonga Police Act if a person offers to give any member of the Tonga Police any money to refrain from doing any act in the execution of the member’s duty as police officer, and that Sinai was such a person.

[68] He submits that there is no “other evidence” to corroborate the evidence of Sinai. He says that the TCC records (Exhibit 2) produced by Officer Vainikolo contain no record of the contents of messages conveyed in the calls and texts indicated. The assertions made by Sinai as to those messages are only “accomplice evidence” which have not been corroborated by “other evidence”, and therefore the accused cannot be convicted on the evidence of Sinai at all, as is provided in S.126.

[69] Mr Samani for the Crown has submitted that Sinai was not and is not an accomplice because she only agreed to a demand which was made by the accused. She did not “offer to give” the money, such as S.165 requires, to make her act an offence under S.165, because it was the accused who had demanded that she pay him the money, before she agreed to pay the money. He says that the meaning of “offer to give” in S.165 is to advance at first instance an offer of money or other benefit to a Police Officer before being demanded to do so, that is, being the party who initiates the transaction.

[70] He therefore submits that a person who agrees to a demand made by a police officer which constitutes an offence under S.164 does not make that person guilty of an offence of “offering to give” a bribe to the police officer under S.165. He says that Sinai therefore committed no offence and was not an accomplice for the purpose of S.126 of the Evidence Act.

Consideration

[71] In considering both counsels’ submissions, I have to consider who, in S.126, is an accomplice. There is no provision, as far as I am aware, in any legislation in Tonga which defines what or who is an accomplice.

[72] I look however at the Tongan version of S.126 and it provides for the word “accomplice” as “kaunga hia”. “Kaungahia” (one word) is defined in Maxwell Churchward’s Tongan Dictionary (1959) as “accomplice or associate in crime or wrong doing (hia)”, which is similar to the definition of “accomplice” in Oxford’s Dictionary (1979) as: “associate, usually subordinate, in guilt or crime”.

[73] The words “kaunga hia” (two words) are the words used in the Tongan version of the provisions of S.8 of the Criminal Offences Act which provide for “an abettor”. That provision is as follows:

“8. Every person who directly or indirectly commands, incites, encourages or procures the commission of an offence by any other person and every person who knowingly does any act for the purpose of facilitating the commission of an offence by any other person is an abettor and shall (unless otherwise expressly specified by any enactment) –

(a) where the offence is actually committed in pursuance or during the continuance of such abetment be liable to the same punishment as if he himself had actually committed that offence; and
(b) where the offence is not actually committed shall be liable where the offence abetted was murder to imprisonment to life or any less period and in the case of abetment of any other offence to imprisonment for a period not exceeding one half of the longest period to which the person committing that offence might be sentenced or to a fine not exceeding one-half of the maximum fine which a person committing that offence might be sentenced to pay.”

[74] In the absence of any statutory definition of the word “accomplice” in the legislations of Tonga, I have to use and apply the definition of the word “abettor” and of the Tongan words “kaunga hia” which are contained in those provisions of S.8 of the Criminal Offences Act. I consider that the Legislative Assembly, in enacting the provisions of S.126 of the Evidence Act (which became law on 17 August 1926) and the provisions of S.8 of the Criminal Offences Act (which became law on 6 September 1926), had deliberated and approved those provisions in the Tongan language, and that they had specifically chosen to use, and they used, the words “kaunga hia’ in the Evidence Act and the word “kaungahia” for those provisions in the Criminal Offences Act as meaning the same thing. The two expressions, “kaunga hia” and “kaungahia” mean the same thing, namely, an accomplice and an abettor.

[75] But whereas “accomplice” was not defined in either Act, the word “abettor” is, in S.8 of the Criminal Offences Act. That definition is that the offence is committed when the person knowingly does any act for the purpose of facilitating the commission of an offence. That means that the abettor, or accomplice, is only guilty for the acts which he had already committed prior to the commission of the offence by the other person.

[76] That is because the acts which he commits after the commission of the offence by the other person, such as facilitating the getaway, hiding the person, receiving or hiding the items which are the subject of or connected with the offence, are separately provided for in sections 13 (harbouring criminals), 15 (conspiracy) and 148 (receiving) of the Criminal Offences Act.

[77] That is clarified by S.11 of the Criminal Offences Act which provides as follows:

“11. Proof

Every person who counsels, incites or procures another to commit an offence which that other commits is an abettor of that although it may be committed in a different manner from that which was counselled.”

The critical words used are “to commit”. It is not an offence if the counselling, inciting or procuring is carried out after the offence has already been committed by the other person.

[78] I therefore agree with Mr Samani that when the accused told Sinai to give him $540 for the drunk driving and $100 for the driving without licence so that she did not have to go to Court, Sinai had not commanded, incited, encouraged or procured or facilitated the accused to tell her that. Her agreement to pay him those monies was made subsequent to the statement of the accused instead, and it was not made as an “offer to give” the accused the money, such as S.165 requires, because the accused already told her that if she did not want to go to Court, she had to pay him that money.

[79] I also consider that the statement by Sinai to the accused that she did not want to go to Court because she had not been to Court before, was benign. It did not indicate one way or another that she wanted to do something unlawful so that she did not have to go to Court.

[80] I therefore do not accept that Sinai was, or is, an accomplice or abettor for the purpose of S.126 of the Evidence Act, and I do not accept that her evidence required corroboration as is provided for by that section.

Acceptance of evidence by defence

[81] I have also considered that in raising the defence of S.126, the accused has thereby elected to accept the evidence of Sinai as true, although, he, the accused, denied in his evidence that he had told Sinai to pay him $540 for the drunk driving and $100 for the driving without licence at all. He has had to accept and to submit that her evidence was true in order that he could argue that Sinai was and is an accomplice for the purpose of S.126.

[82] I also note that Mr Tu’utafaiva has not argued or submitted that the two grounds of defence which he has raised are in the alternative. In fact, he argues in the second ground that the accused did not demand the payment of $640 from Sinai as an inducement for him not to charge her with traffic offences because he says the accused in fact did charge Sinai with a Traffic Infringement Notice for driving without licence and with drunk driving of having 540 micrograms of alcohol and with careless driving for damaging the fence as well.

Corroboration

[83] Even if it can be said that Sinai was and is an accomplice for the purpose off S.126, I am satisfied that the evidence of Sinai is corroborated in some material particular by other evidence, namely:

(a) Sinai said that after the accused told her to give her the $540 and $100 (so that she did not have to go to Court) the accused wrote his telephone number on one of the “tickets” he gave her and told her to ring him when she would have the money. The TCC records (Exhibit 2) which the witness, Siosateki Vainikolo, has produced, show that Sinai telephoned the accused on that telephone number (779-1189) the next day Monday, 28 October 2019, at 12:21:30 hours. Sinai could not have known the accused’s telephone number unless the accused had given it to her, which she said he did. The records also show that the accused called her back at 15:46:42 hours on the same day, and they did talk for over a minute on both occasions. That corroborates Sinai’s evidence that the accused gave her his phone number.

(b) Sinai also said in her evidence that on 28 October 2021, she texted the accused and apologised that she did not have the money because she had to pay for the repair of the damaged fence first, and that the accused replied that he was giving her 21 days to pay him the money. That evidence is corroborated by the TCC records because it shows on P.8 of that record that Sinai sent to the accused’s telephone 6 texts on the same day, 28 October 2019 between 15:51:00 and 16:24:22 hours. That evidence is further corroborated by the evidence of the accused himself. When I asked him questions, he said that on 28 October 2019, Sinai texted him 3 times and he said that he deleted those texts from his telephone.

(c) When I consider the sheer number of 75 tests from Sinai to the accused and 36 tests from the accused to Sinai in the period of 10 days from 28 October 2019 to 6 November 2019, as shown in the TCC records, I consider that that corroborates Sinai’s evidence rather than the accused’s evidence. I do not believe and I do not accept the accused’s evidence, when cross-examined by Mr Samani, that Sinai agreed to repair the fence and that that was why he repeatedly contacted her to follow up the status of repairing of the fence. If there was any such agreement with Sinai, the accused would have written down something to that effect in the record of interview or in the answers she gave when charged in the notice of prosecution of the drunk driving or careless driving, or in the diary of action, or anywhere, but he did not. The fact that he deleted the texts from his telephone confirm to me that the texts were incriminating of him rather than prove that the texts were about the repair of the fence.

(d) The accused did hold the file on Sinai and did nothing further on it from 27 October 2019 onwards. He wrote on the diary of action in the file, entry no. 8, that the docket be forwarded for prosecution. That meant, as he wrote, that there was nothing further to be done on it and that the prosecution proceed to charge her in the Magistrates Court with the offences. He did not write on it that a map or plan of the scene was required to be done, or that the fence had to be repaired for the purpose of settling the matter with the school. He did not even write on it that he had issued Sinai with a Traffic Infringement Notice for $100 for driving without licence. Nothing is written that Sinai even had had no driving licence at all, anywhere. That holding of the file corroborates Sinai’s evidence that the accused told her that if she paid him the money, he would cancel the case. By holding on to the file, or docket, as he did, he would be able to “cancel” it by simply destroying it.

[84] I therefore am satisfied that even if Sinai was and is an accomplice, but which I am satisfied she is not as I have found, her evidence has been corroborated in some material particular by other evidence in this trial.

Inducement

[85] Mr Tu’utafaiva submits in the second defence of the accused that an essential ingredient of the offence with which the accused is charged is that the accused refrained from charging Sinai with the offences she had committed. He points out that the accused did charge Sinai with the offences she committed as he has shown in the copies of the charges which he produced as exhibits in this trial, and is therefore not guilty of an offence under S.164 of the Act.

[86] Section 164 (2) (a) and (b) of the Tonga Police Act, under which the accused is charged, provides as follows:

“(2) A person commits an offence if the person:

(a) is

• (i) a member of the Tonga Police, or
• (ii) performing a function on behalf of Tonga Police; and

(b) demands any money or other benefit as an inducement to do or refrain from doing any act in the execution off the person’s duty as a member or in the performance of the person’s function on behalf of Tonga Police.”

[87] The charge with which the accused is charged in this trial is as follows:

“Pita Vakalahi of Ha’ateiho, on or about 27 October 2019 at the Central Police Station Nuku’alofa, you did demand $640 from Sinai Lelea as an inducement to refrain from charging her with traffic offences in the execution of your duty as a member of the Tonga Police.”

[88] The essence of this offence is that the person (the accused) demands money (or other benefit) as an inducement to refrain from doing an act which he is required to do in execution of his duty as a police officer. The mens rea of the offence is that he intends to refrain from doing the required work. If he has that intention when he makes the demand, he has committed the offence already, although he later on carries out the required work.

[89] In this case, although the accused had already charged Sinai with the offences she had committed, the required work which he still had to do was to forward the file to the prosecution division of the Tonga Police to formally charge Sinai with summons issued by the Magistrate’s Court in respect of the charges which he had already charged her with.

[90] The accused did not forward the file to the prosecution division for 15 days, that is, from 27 October 2019 to 11 November 2019, and I am satisfied that it was because he refrained from forwarding it to the prosecution division, and that he refrained from forwarding it because he had demanded $640 from Sinai in return for ensuring that Sinai would not go to Court for her offences.

[91] His claim that he was too busy to forward the file because he had another 8 cases of traffic accidents to attend to, and that he still had to draw a plan of the scene of the accident is not supported by the fact that he kept in constant contact with Sinai by phone and by texts from 28 October 2019 to 6 November 2019 instead.

[92] It is also supported by the fact that there has been no prosecution of Sinai at least by May 2021 when the accused was suspended from duties, and by the fact that there has been no summons issued by the Magistrate’s Court against Sinai in respect of the $100 fine she was said by the accused to have issued to her on 28 October 2019. I believe and I accept the evidence of Sinai that she has never been charged with any offence in respect of her driving accident of 27 October 2019 up to now.

[93] I bear in mind the statement of the law on corroboration which is stated in Halsbury’s Law of England (3^rd edition), Vol.10, p.460 at paragraph 846 which is as follows:

“846. Nature of corroboration. Evidence in corroboration of a witness’s evidence must be independent testimony which affects the accused by connecting, or tending to connect, him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only that the crime has been committed but also that the prisoner committed it. The nature of the corroboration will necessarily vary according to the particular circumstances of the offence charged, but it must tend to show that the story of the witness that the accused has committed the crime is true. A false statement by the prisoner to the police is not necessarily corroboration, but it may be so.”

[94] Having considered all the evidence given and produced in this trial, I believe and I accept the accept the evidence of Sinai. It is corroborated by the TCC records and by answers given by the accused himself in his evidence as I have stated.

Conclusion

[95] I am therefore satisfied beyond reasonable that the accused did demand from Sinai $640 as an inducement to refrain from charging her with traffic offences in the execution of his duty as a member of the Tonga Police, contrary to S.165 (2) (a) (i) and (b) of the Tonga Police Act, such as he is charged in this trial, and I convict him accordingly.

Niu J

Nuku’alofa: 4 April 2022. J U D G E