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R v Vaiangina [2022] TOSC 41; CR 112 of 2021 (1 June 2022)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

CR 112 of 2021


REX

-v-

‘ALEFOSIO VAIANGINA


VERDICT


BEFORE: LORD CHIEF JUSTICE WHITTEN QC

Appearances: Mrs T. Kafa-Vainikolo for the Prosecution

The Accused in person

Trial: 21, 22 April 2022 (in Vava'u) and 1 June 2022 (in Nuku'alofa)

Verdict: 1 June 2022


Charges

  1. The Accused is charged with one count of serious housebreaking contrary to ss 173(1)(b) and (5) of the Criminal Offences Act and one count of theft contrary to ss 143(b) and 145(b) of the said Act.

Prosecution evidence

  1. Faleula Kapukava gave the following evidence. She is 65 years of age. She and her family have been employed to maintain the Royal Palace in Vava'u since the reign of King Tupou IV. Faleula cleaned and cared for the inside of the Palace while her husband, son and grandson used to maintain the grounds. Her husband is now 70 years of age and her son and grandson have since found work elsewhere. Therefore, in the last year or so, a boy by the name of ‘Atikono Eliesa has been employed to help with the gardens.
  2. To Faleula’s knowledge, ever since the Palace was built, no one has ever entered it without permission or stolen from it. She is the only person with keys to the Palace.
  3. On 26 October 2017, Faleula finished her cleaning work for the day, turned on the external lights, locked the doors and went home. The next morning, she returned to the Palace to commence work at 8:30 a.m. She unlocked the kitchen door and entered as she usually did. However, when she entered the kitchen, she felt something ‘weird’. In the kitchen was a refrigerator which usually contained meat. However, the meat had been taken out and was sitting beside the fridge. She was very worried that something had happened to the house, so she inspected every room.
  4. When she entered a room between the kitchen and the royal bedrooms,[1] she noticed ‘it was a mess’. Usually, there were koloa comprising Tongan mats, tapas, ngatu and two Fijian Lotaha Fisi mats placed neatly on a bed there. She knew the mats very well because they were for the beds of the Royal family. However, when she went in, she saw that only two remained. The following koloa were missing:[2]
  5. From her knowledge of the value of mats at the time, and from hearing people talk about how much they bought and sold them for, Faleula provided estimates of the value of the mats, which totalled $28,400. She added that, since then, their value had increased.
  6. Faleula then checked each of the other rooms. She noticed doors and drawers were open suggesting that the thief had examined the contents of the house. She then looked for the likely point of entry. She went out onto the verandahs and checked the doors. She saw that outside the King’s room,[3] three glass louvre panes had been removed from the bottom section of the louvres on that wall and placed in the garden area beside the verandah. They were stacked on each other but only partly overlapping. She did not touch them.
  7. Faleula then went straight to the Governor’s office to inform them what had happened. She was given permission to report the matter to the police, which she did later that morning. After she lodged her complaint and gave her statement, the police attended at the Palace. She was present while they conducted their work.
  8. None of the koloa have been returned.
  9. Detective Fangupo has been a member of Tonga Police for 14 years. For the past eight years, he has worked in the forensic division. His duties include taking photographs and fingerprints at crime scenes. Prior to this case, Detective Fangupo had been tasked with creating fingerprint impressions on more than 10 occasions. He received training in 2015/2016 in Tongatapu from Inspector Taufa, when he was in charge of the forensic division, and then from Inspector Pale.
  10. Detective Fangupo gave evidence that, on 27 October 2017, police received a complaint from Faleula about a break in at the Palace. When they arrived at the Palace, Faleula took them around to where the louvres were missing. Police also checked the perimeter doors. They were all locked except for the door next to the living area. Faleula told them that she had locked all the doors the night before. Therefore, Police deduced that that door was the likely point of exit.
  11. At the location of the missing louvres, the grass was still wet with dew. So Fangupo, while wearing gloves, placed the louvres outside the house to dry. He could see fingerprints on two of the louvres. Once they were dry, he brushed them with fingerprint powder. He then applied special adhesive tape over the prints thereby creating an impression on the tape. Backing paper was then applied to the tape to protect the impressions. He found nine latent fingerprints (exhibit P2). Faleula signed on the back of each to confirm they were from the louvres. Detective Vaomotou also recorded on the back of each details of the date, time, location, where the print was lifted and who lifted it.
  12. Fangupo handed the prints to the Chief of Police in Vava'u. He confirmed that the condition of the original latent prints produced in court was the same as when he handed them to the Chief of Police. He understood that the prints were later taken to then Acting Inspectors Taufa and Pale in Tongatapu, the two Tonga Police fingerprint specialists, for examination.
  13. In cross-examination, the Accused noted that #5 of the nine prints was missing. Fangupo confirmed that he prepared nine and pointed to the notation on the packet in which they were kept where Inspector Pale had written that he received nine prints.
  14. Inspector Leniti Pale has been a member of the Tonga Police for almost 20 years, 16 of which have been in the forensics unit. He is the current head of that unit. His qualifications include completion of a two-week training program in Apia, Samoa in 2008. Since then, he has conducted fingerprint analysis in close to 100 cases and given evidence in relation to his work in numerous of those cases.
  15. He explained what he described as ‘fundamental principles’ in fingerprint analysis such as the fact that ridge lines in human fingerprints do not appear on any other part of the body or any other person and that ridges and other characteristics in a fingerprint are permanent.
  16. In relation to this case, Inspector Pale gave the following evidence.
  17. In 2017, he received an envelope of latent prints in relation to a break-in in Vava'u which had been lifted by Officer Fangupo. He analysed the prints in accordance with the internationally recognised methodology known as ACE-V which stands for analysis, comparison, evaluation and verification. He explained that while nowadays, other law enforcement jurisdictions use specialised computer programs to compare latent fingerprints across large databases of recorded prints of persons who had been arrested in the past, in Tonga, where such programs are not yet available, he uses the traditional method of comparison using a magnifying glass.
  18. Inspector Pale compared the latent prints with the police file fingerprints of more than ten persons including the Accused. He explained that he chose the comparator sets according to whether those persons had known ‘similar backgrounds for this type of offending’. He also took into consideration other factors such as the location of the crime, here, being Vava'u. He looked for the records of persons in Vava'u with backgrounds in housebreaking as well as those in Tongatapu with similar backgrounds who had travelled to Vava'u.
  19. The balance of Inspector Pale’s work was explained by reference to a report he prepared (exhibit P3). The report included a memorandum, dated 13 November 2017, in which he recorded that:
“... on 3 November 2017, a full examination was completed by [him] on the fingerprints [taken by Det. SC Fangupo] and was concurring with the verification by A/CIP Taufa (subsequently identified) that the fingerprints were the same for the left forefinger, left middle finger, left ring finger, left thumb finger, right thumb finger, in the Fingerprint Form in the name of [the Accused] ...”
  1. The report also included:
  2. Inspector Pale explained that he had identified on the Mark Chart (which he prepared the same day as the Explanation document) 12 points of identification matching the latent #9 print with that of the Accused. Those points or characteristics were further described in the Explanation document as bifurcations, ridge endings, a delta and a core. He gave a further detailed explanation of how those characteristics appeared on the Mark Chart as well as other types of characteristics that can appear in human fingerprints. He added that in addition to the 12 points of identification he found, he also compared other features such as the ‘coincidence sequence’, for example, of the number of ridges between two points, and which confirmed his findings.
  3. Inspector Pale did not prepare Mark Charts for any of the other four fingers referred to in his memorandum. He said in evidence that they were ‘not important’ because they were ‘all similar to the other marks’ and therefore showed the ‘same identification’. He said it was ‘up to the Court’ if more mark charts were required. When asked (by the Bench) whether this was consistent with his training and usual work practice, Inspector Pale said that his usual practice is to:
  4. That is what Inspectors Pale and Taufa had in fact done in relation to latent prints 1, 6, 8 and 9. However, Inspector Pale admitted that he had no other written record of his findings for the other three prints, such as the location, number or characteristics of any identifying markings for the other fingers which he opined in his memorandum matched those of the Accused.
  5. When asked about how many points of identification were required for a match, Pale said that there is ‘no scientific reason for a fixed number of points’, that it could ‘be less than 12’, as found on latent print #9, and that it depended on factors such as the degree of force applied when the fingerprints were formed and the ridges between the lines. He agreed, however, that one point would not be enough. When asked whether he was able to specify any recognised minimum number for a match, he suggested ‘maybe four or five’.
  6. He was then asked if he could identify, in court, any points of similarity on prints 1, 6 and 8. He said he could not do so without conducting an examination again with a magnifying glass.
  7. Inspector Pale described Inspector Taufa as the other specialist in the forensic department and that he had the same certificate and training as Pale. Taufa had verified Pale’s identifications on more than 10 cases. The only other specialist in the force is Deputy Commissioner Tevita Vailea.
  8. In relation to the other four latent prints which were not marked as matching the Accused, Pale explained that it was ‘possible’ that those fingerprints ‘belonged to someone who stayed at the Palace’ or ‘that they were someone else’s fingerprints’.
  9. Finally, Pale denied any possibility that he was mistaken in his findings in relation to print #9 matching that of the Accused’s left forefinger.

Defence evidence

  1. At the close of the Prosecution case, the Accused elected to give sworn evidence. He also stated that he intended to call his sister, Tau ‘Ilolahia, and her husband, Semisi ‘Ilolahia, to give evidence that at the time of the break in, he was living with them in Tongatapu, in other words, alibi evidence. When asked where they were, the Accused said Tongatapu.
  2. When asked when he commenced living with his sister and her husband in Tongatapu, the Accused first said that he had stayed with them ‘for a very long time’. When he was pressed for a date, he initially said ‘2019’ but then said that he could not remember.
  3. When he was then asked where he was on 26 October 2017, the Accused said that he was in Tongatapu, living with Tau and Semisi. He then said that his earlier reference to 2019 was a ‘mistake’ and that he began living with them ‘ages ago’. He later said that he lived with them from ‘July 2017’ and that in 2018, he married and moved with his wife to Manuka in Tongatapu. Later again, the Accused changed that start date from July 2017 to ‘September 2017’.
  4. The Accused said that he is from Vava'u and that he grew up there, but that he went to school in Tongatapu. He also lived in Tongatapu in the 1990s. He denied visiting Vava'u during the times he was living in Tongatapu. But he then recounted one occasion when he came to Vava'u in ‘maybe May 2017’ for his father’s funeral, after which, he stayed and worked for his fare before returning to Tongatapu ‘before September 2017’. He then began laughing and said that after he was arrested, he was brought by police from Tongatapu to the Vava'u prison then back again to Hu’atolitoli prison.
  5. The Accused said that he was ‘not satisfied’ with Inspector Pale’s evidence because he ‘didn’t trust’ how Pale conducted his analysis. He opined that it should have been ‘done by a computer’.
  6. After denying the offending, the Accused was asked, if Pale’s evidence were accepted, whether he could explain how his fingerprint came to be on a louvre of the Royal Palace in Vava'u. The Accused’s only reply was that the police had used the fingerprint evidence as an excuse to accuse him.
  7. The trial was then adjourned part heard to enable the Accused to call his proposed alibi witnesses. However, in light of certain evidence the Accused had given in relation to the Prosecution witnesses and because he had not given notice, nor had he been granted leave to adduce alibi evidence, as required by s 108(2) of the Evidence Act, I directed that when the trial resumed, the Accused would still be under cross-examination if the Prosecutor wished to ask any further questions of him. Further, the last direction recorded that day stated:
“[10] The accused was reminded that he is to ensure that his two witnesses are to appear at court on the resumption of his trial, at which time, I will consider the above question of leave as required by the Evidence Act.”
  1. When the trial resumed on 1 June 2022 at Nuku'alofa, the Accused said that Mr Tu'utafaiva was engaged to appear for him. Mr Tu'utafaiva was contacted and he attended before the court. He explained that:
  2. After Mr Tu'utafaiva was excused, the Accused said that he had called his sister about giving evidence, and that she said she would but that she could not remember the dates he lived with her and her husband.
  3. The trial continued.
  4. During his further cross-examination, the Accused confirmed that he believed Inspector Pale had lied in his evidence about the Accused’s fingerprints. The Prosecutor then sought leave to cross-examine the Accused on his criminal history pursuant to s.121 of the Evidence Act, which provides, relevantly:
121 Persons charged with an offence are competent witnesses for the defence; rules as to evidence of such persons
(1) Every person charged with an offence and the wife or husband, as the case may be, of the person so charged shall be a competent witness for the defence at every stage of proceedings whether the person so charged is charged solely or jointly with any other person:
Provided as follows —
...
(f) a person charged and called as a witness in pursuance of this section shall not be asked and, if asked, shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is now charged, or is of bad character, unless —
...
(ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establishing his own good character, or the nature of the defence is such as to involve imputations on the character of the prosecutor or any of the witnesses for the prosecution; ...
  1. On the basis of the Accused’s assertions that Inspector Pale was lying, that is, casting imputations on the Inspector’s character, the Prosecutor was permitted to question the Accused on his criminal record. An official copy of his record from the Ministry of Police was tendered and marked exhibit P4. Relevantly, it contained at least six convictions for housebreaking and theft dating back to 1997, for which he was sentenced to various periods of imprisonment. The most recent conviction for housebreaking and wilful damage to a building was entered on 28 September 2016. The Accused was sentenced to two years imprisonment with the last year suspended for three years.[4] Due to early remissions, he was released from prison on 12 June 2017.
  2. In answer to further questioning from the Prosecutor about when he was in Vava'u around the time of the offending here, the Accused said that he returned to Tongatapu in August 2017.
  3. Neither Tau ‘Ilolahia or her husband, Semisi ‘Ilolahia, attended court to give evidence.

Submissions

Accused

  1. The accused made the following closing submissions, in summary.
  2. When he was released from prison in 2017, he ‘received benefits’ because he had changed his life and ‘abided by the rules’. He went to Vava'u for his father’s funeral who was a church minister. During the funeral, he promised himself he would never commit any offence again. Even though there were a lot of Tongan mats and other valuable items at the funeral, he ‘did not take anything’. After the funeral, he worked for his return fare to Tongatapu. He believes the reason he was charged with these offences is because the police saw him in Vava'u.
  3. When he returned to Tongatapu, he lived with his sister and her husband, who are Christians. He went with them to church events. He was initially unemployed. People who knew him such as prison and police officers got him small jobs to keep him occupied because they knew he had changed his life around. One sergeant from the prison employed him as a labourer in the construction of the officer’s house at Manuka. The Accused lived, worked and got married there. After the construction job, he was gainfully employed at a plantation. He has two children. He was thinking of going overseas on the seasonal fruit picking scheme to help provide for his family. To that end, he went to the Central Police Station to get a copy of his police records. It was Officer Pale who actually gave him a copy of his record. The officer told the Accused he could also get a letter from the Palace Office to ‘clear his record’. He has continued to work as a farmer and sells crops from the plantation on the roadside.
  4. One day when he returned home, he saw that he had lost some pigs. Police found the person who took them. The Accused asked the judge to forgive the thief. He said the court was happy that he had forgiven the thief because it showed that he was ‘living a new life’. In 2020, he also worked for the Commissioner of Prisons at one of his plantations. In 2021, he was arrested for this matter. He promised the court that he did not commit this offence and that he would never appear in court again because he was ‘living a brand-new life’.

Prosecution

  1. The Prosecutor summarised the prosecution evidence and submitted that it proved beyond reasonable doubt that the Accused committed the offences alleged. She further submitted that:

Accused’s reply

  1. By way of submissions in reply, the Accused stated:

Consideration

  1. The Prosecution’s case against the Accused rests entirely on Inspector Pale’s evidence. It is by that evidence that the Prosecution seeks to prove, beyond reasonable doubt, that it was the Accused who broke into the Palace on the night in question and stole the koloa.
  2. There have been few published decisions in the Kingdom in which fingerprint evidence has been considered in any detail.
  3. The science of dactylography (fingerprint analysis) is accepted as depending upon unique characteristics, although its value in any given case is determined by the number of points of identification which can be observed by an expert examiner, or more recently, upon certain more objective forensic tests: R v Yates, Parry, Hyland, Powick [2002] NSWCCA 520.
  4. Fingerprint evidence is cast on the unassailable premise that no two fingerprints are alike. Identification of one fingerprint with another may therefore provide a direct means of identification of an accused.[5] The courts take judicial notice of the fact that no two people have identical fingerprints, that is, no proof is required of this fact: Parker v R [1912] HCA 29; (1912) 14 CLR 681.
  5. Convictions have been upheld when there was no other evidence of identity: R v Castleton (1909) 3 Cr App R 74; R v Court (1960) 44 Cr App R 242.
  6. By long usage, expert evidence is given in the form of an opinion that the fingerprint of the accused is the same as that from the crime scene. Such an opinion is based on the cumulative effect of a number of points of similarity, each of which is itself an expression of opinion: R v Hien Puoc Tang [2006] NSWCCA 167 at [144]. The expert must point out the resemblances which lead to the conclusion that the fingerprints are identical, but the jury (or judge in a judge alone trial) has to decide whether the conclusion is correct. The identification of the characteristics of fingerprints and their patterns is a matter of expert evidence, and the jury (or judge) is not to undertake the task of determining the existence of characteristics or points of similarity: R v Buisson [1990] 2 NZLR 542 at 548 and 550 (CA). But it is for the jury (or judge) to decide whether one set of fingerprints is the same as another and to decide whether they accept the expert evidence: R v O'Callaghan [1976] VicRp 72; [1976] VR 676 (FC). In R v Buckley, 163 J.P. 561, the U.K. Court of Appeal cautioned that:[6]
“In every case where fingerprint evidence is admitted, it will generally be necessary, as in relation to all expert evidence, for the judge to warn the jury that it is evidence opinion [sic] only, that the expert’s opinion is not conclusive and that it is for the jury to determine whether guilt is proved in the light of all the evidence”.
  1. For many years, experts generally agreed that at least 12 identical points should be put forward to support identity. Although there was no rule that fewer could not be admitted in evidence, where that occurred, juries were warned that if that was the only evidence, they should be cautious of convicting on that evidence alone: Buisson, ibid.
  2. However, since the turn of the century, finger print science has moved to “friction ridge identification” whose methodology and guidelines are issued by the Scientific Working Group on Friction Ridge Analysis, Study and Technology (known as SWGFAST).[7] It enables fingerprint evidence to be given without reference to a minimum number of matching characteristics and has been accepted in England and Wales since 2001. It received the imprimatur of the New Zealand Court of Appeal in Carter [2005] NZCA 422; (2005) 22 CRNZ 476.
  3. The Guidelines identify a four-step process to determine whether a fingerprint can be matched to a particular person. The four steps are described as analysis, comparison, evaluation and verification. Analysis is the assessment of a friction ridge impression to determine suitability for comparison. Comparison is the direct or side by side observation of friction ridge detail to determine whether the detail of two impressions is in agreement based upon similarity, sequence and spatial relationship. Evaluation is the formulation of a conclusion based upon analysis and comparison of friction ridge impressions: evaluation may result in individualisation of friction ridge impressions, giving rise to identification or exclusion or an inconclusive result. Verification is a peer review process which must occur following a positive identification and which may occur if a finding results in exclusion or an inconclusive result. The verification process is an integral part of the procedure to identifying fingerprints now used by those who conduct analysis of them.[8]
  4. In some circumstances, it may be desirable to call an independent verifying witness in case the evidence is open to challenge, but such absence does not mean the evidence is inadmissible or requires a warning. It may be open to an expert to mention that the evidence has been peer reviewed as an exception to the hearsay rule: Mokaraka [2001] NZCA 378; [2002] 1 NZLR 793 (CA) at [38]- [41].
  5. Carter was referred to in Wallace [2010] NZCA 46 at [69], with the Court noting that:
“The present situation in the United Kingdom and New Zealand is that courts still largely accept a non-numerical standard, and challenges are not routinely made to the identification.”
  1. Recently, in R v Mahe [2020] TOSC 46, Niu J had occasion to consider fingerprint evidence, also given by Inspector Pale. It appears that in that case, the Inspector also presented only one Mark Chart comparing one latent print with that of the accused in that case. In that Mark Chart, Pale also plotted 12 points of identification which, ‘according to a worldwide rule of finger printing identification’, Pale said,[9] meant ‘there was a match’. Later in that judgment,[10] Niu J recorded Pale as having confirmed that ‘the world requirement was 12 points but that there could be more than 12 points which could be found’.
  2. Niu J referred to the following guidance, in cases where there is no applicable alternative national standards or non-numerical protocols, from the U.K. Court of Appeal in R v Buckley, ibid:[11]
“If there are fewer than eight similar ridge characteristics, it is highly unlikely that a judge will exercise his discretion to admit such evidence and, save in wholly exceptional circumstances, the prosecution should not seek to adduce such evidence. If there are eight or more similar ridge characteristics, a judge may or may not exercise his or her discretion in favour of admitting the evidence. How the discretion is exercised will depend on all the circumstances of the case, including in particular: (i) the experience and expertise of the witness; (ii) the number of similar ridge characteristics; (iii) whether there are dissimilar characteristics; (iv) the size of the print relied on, in that the same number of similar ridge characteristics may be more compelling in a fragment of print than in an entire print; and (v) the quality and clarity of the print on the item relied on, which may involve, for example, consideration of possible injury to the person who left the print, as well as factors such as smearing or contamination.”
  1. In this case, as in Mahe, Inspector Pale’s evidence was opinion evidence that five latent fingerprints found at the Palace matched the prints of five digits belonging to the Accused.
  2. Section 24(1) of the Evidence Act provides:
General rule
(1) Where the Court has to form an opinion as to the identity or genuineness of handwriting, or upon any point of foreign law, or of science, art, trade, manufacture, or any other subject requiring special knowledge or skill, evidence of their opinions may be given by any persons who, in the opinion of the Court, are possessed of special knowledge or skill in the particular subject under consideration.
  1. There was no challenge here to Inspector Pale’s expertise in fingerprint analysis through his specialized training and experience. Like Niu J in Mahe,[12] I am satisfied that Inspector Pale is suitably qualified to provide expert opinion evidence for the purpose of s 24(1).
  2. Subsection (2) then provides, relevantly, that:
(2) In any proceedings in which expert evidence is to be adduced, a statement by such expert containing —
(a) his qualifications and experience;
(b) such facts as are within his own knowledge;
(c) such facts as have been communicated to him by others, identifying the sources of such facts;
(d) his opinion; and
(e) his signature,
may, at the discretion of the Court, be admitted and shall be prima facie evidence of (a), (b), (d) and (e).
  1. In Bin Huang v Police [2020] TOSC 28 at [154], it was observed that:
“Subsection (2) confers on the Court a discretion to admit a statement of an expert as prima facie evidence of the matters stated therein save for such facts as have been communicated to him by others. In my view, the exercise of that discretion requires consideration of matters such as those discussed in Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No. 3) [2012] VSC 99 at [98], namely, whether the opinion evidence is:
(a) relevant or of sufficient probative value (the relevance rule);
(b) based on specialised knowledge, training or experience (the expertise rule);
(c) propounded wholly or substantially on facts assumed or observed that have been, or will be, proved (the factual basis rule);
(d) propounded wholly or substantially on that specialised knowledge (the expertise basis rule); and
(e) based on a statement of reasoning showing how the ‘facts’ and ‘assumptions’ relate to the opinion stated to reveal that that opinion is based on the expert's specialised knowledge (the statement of reasoning rule).”
  1. “So far as the opinion is based on facts ‘observed’ by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on ‘assumed’ or ‘accepted’ facts, they must be identified and proved in some other way. It must be established that the facts on which the opinion is based form a proper foundation for it. The opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight.”: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at [85] per Heydon JA.
  2. Further, the expert’s reasoning process must be exposed so as to demonstrate that the opinion is based on specialised knowledge: Ocean Marine Mutual Insurance Assn (Europe) OV v Jetopay Pty Ltd [2000] FCA 1463; (2000) 120 FCR 146 at [18], [23].[13]
  3. In Makita,[14] Heydon JA posed a series of questions in determining whether expert evidence is admissible, namely:
  4. In my view, s 24(2) of the Tongan Evidence Act should be interpreted consistently with the discipline and fairness inherent in the Makita requirements for expert opinion evidence. Further, and even though the observations there were made in the context of identifying the duties and responsibilities of expert witnesses in civil cases, I can see no rational reason for them not applying in criminal cases, perhaps even more so, given the higher standard of proof required and where there are, as yet, no dedicated criminal procedure rules in Tonga governing such evidence.
  5. In this case, Inspector Pale’s report did not fulfil the above requirements in relation to his conclusory opinion that the other four digits of the Accused, that is, other than the left forefinger shown in latent print #9, matched those found on # 1, 6 and 8. Without a Mark Chart and explanations of identified common characteristics, such as was prepared for print #9, the report did not identify the facts on which he based his opinion, nor did he expose any reasoning applied in forming those opinions. To that extent, the report:
  6. Therefore, in exercise of the discretion conferred by s 24(2), I admit into evidence only that part of Inspector Pale’s report which relates to the left forefinger of the Accused as shown in the Mark Chart in relation to latent print #9.
  7. In relation to the evidence of the Accused’s left forefinger, I was able to identify, from the Mark Chart and Explanation together with the aid of Inspector Pale’s viva voce evidence, the 12 points of identification he presented, and I am satisfied, beyond reasonable doubt, that latent print #9 is evidence of the Accused’s left forefinger having been on the Palace louvre.
  8. The Accused was unable to explain the presence of his fingerprint on the louvre. However, an inability to explain the presence of fingerprints, or a failure specifically to deny the fingerprints in question, does not amount to an admission by the defence. Strict proof is required: Chappell v. DPP, 89 Cr.App.R. 82, DC. For the reasons stated, I am satisfied that the Prosecution has adduced that proof.
  9. I found the Accused to be an unimpressive witness and his evidence unreliable. The numerous inconsistencies in his evidence about when he started living with his sister and her husband spoke for themselves. Neither of them supported him by giving evidence. The Accused’s attempt to impugn the character and evidence of the prosecution police witnesses combined with his own extensive criminal history for similar offending, further diminished his credibility.
  10. It may well be that since this offending (and apart from the 2021 offence for which he was fined), the Accused has endeavoured to reform his life. However, I am satisfied beyond reasonable doubt that the Crown has proved the elements of the 2017 offences, including, critically, that it was the Accused who committed them.

Verdict

  1. For the reasons stated, I find the Accused guilty on both counts.

NUKU'ALOFA
M. H. Whitten QC
1 June 2022
LORD CHIEF JUSTICE

[1] Room 3 on the sketch map tendered as exhibit P1.
[2] The Prosecution was granted leave during the trial to amend the particulars to count 2 of the indictment to align with Feleula’s evidence.
[3] Room 1 on the sketch.
[4] A seeming typographical error in the police record was clarified by reference to the Magistrates Court computer management system.

[5] Garrow and Turkington's Criminal Law in New Zealand, January 2013, by G L Turkington LLB and Professor J M E Garrow, Part IV, ‘Identification of Accused’.
[6] At 568.
[7] www.swgfast.org
[8] Garrow and Turkington's Criminal Law in New Zealand, ibid.
[9] [34]
[10] [38]
[11] [53] from Archbold 2003, para. 14 – 53.
[12] [54]
[13] See also Australian Securities & Investments Commission v Rich (No 2) [2005] NSWCA 152; (2005) 54 ACSR 326 at [96]–[102].
[14] [87]
[15] Assertion without proof, or a dogmatic expression of opinion.

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