R v Kaufusi [2022] TOSC 84; CR 204 of 2021 (14 September 2022)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

CR 204 of 2021

BETWEEN : REX Prosecution

AND : HATENI KAUFUSI Accused

VERDICT

Before: Justice P. Tupou KC
Appearances: Mrs. ‘A. Aleamotu’a for the Prosecution
Mr. Tu’utafaiva for the Accused
Trial 23 August, 2022
Date: 14 September, 2022

The Charge

1. On 8 March, 2022 the accused pleaded not guilty to one count of theft, contrary to section 143 (a) and 145(a) of the Criminal Offences Act and one count of robbery contrary to sections 154(1) and (2) of the said Act.

Prosecution’s witnesses

2. Fifita Manu is the complainant for the theft charge. He said he was a security officer for the Chinese Embassy when his car was stolen. He explained that there are 3 guard houses at the Embassy. He was stationed at house number 3 closest to the main road. On 5 September, 2021 he was working with Tony and Mahe. He had worked a night shift and because his replacement did not show he stayed on to cover him. His car was parked under a tree towards the back end of the Embassy. Guard house number 3 is directly opposite that tree. Tony was stationed at house number 3 and was approximately 3 metres away from his car. Between 8-9am he had walked to his car to charge his phone and left the keys in. He returned to station and fell asleep for 20 minutes when he woke up his car was gone. He asked Tony and then called the police. The car was described as a small blue car which he had for 7 months’ prior the offence. In it he had clothes, 2 jackets, his passport, and an alcatel TCC phone. It was two days after the offence that the police took his statement and 4 or 5 days later they found his car. He did not remember where the police had found the car and the car was returned to him with the keys 3 weeks later. The front bumper of the car along with his clothes, passport and telephone were gone.
   
3. Walter Uhamaka (“Walter”) is a security officer from Fasi. He was employed by Tukuingapahu Security for 5 years. On 5 September, 2021, he too, was working a night shift at the Chinese Embassy until 7am that Sunday morning. He would cover the next shift until his replacement got there. Between 7:30 – 9am a taxi turned in from Vuna Rd and stopped in the middle of the road close to the complainant’s car, a man got off and headed for the complainant’s car. When the man got to the car, Walter opened the guard house door slightly and asked him what he was after and the man answered, “I’m just taking bro’s car and will come back”. He had not seen him before. But he thought he had a prior understanding with Mr. Manu about it. When the man got into the car, Walter turned back to his notes he was writing. He estimated they were about 10 metres apart and did not see him properly but could see his face from the side. The man wore a black t-shirt and shorts. He had black skin, was short in stature and had an army style haircut. The man drove by and hit the hooter when he went past. The duration of their encounter was about 2 minutes or less. The police put a photo montage together. He went to identify the man he saw from the said photo montage about 9 days after the offence. Three folders were shown to him labelled from “A” to “C” from which he had identified the accused. Although he did not see the man’s face he picked the accused’s photo based on his recollection of the shape of face the man had.
   
4. During cross-examination Walter agreed that he only got a side view of the guy’s face but the photos shown to him by the police were frontal views of the 7 faces in each folder. The following questions were put to him by Mr. Tu’utafaiva;
   

Mr. Tu’utafaiva: What did the officer tell you?

Witness: He told me to observe carefully and not to rush. They gave me the folder and I looked. I looked from 1-7 and from 7-1 and I could see the shape that I saw.

Mr. Tu’utafaiva You saw from the side?

Witness: Yes

Mr. Tu’utafaiva: And it was from this side view that you pointed out the photograph?

Witness: Yes

Mr. Tu’utafaiva: Look at folder C – you pointed at photograph number 1, the person is facing you?

Witness: Yes

Mr. Tu’utafaiva: This is not a sideview?

Witness: Yes

Mr. Tu’utafaiva: Would it be correct to say that you did your best to assist the police?

Witness: Yes

Mr. Tu’utafaiva: I put to you, it is possible that you are wrong.

Witness: That is right.

5. In re-examination the witness was asked the following questions;

Prosecutor: you said the person had black skin?

Witness: he was darker than me

Prosecutor: in the photos they are the same colour?

Witness: yes

Prosecutor: they are all brown?

Witness: yes

Prosecutor: it’s understood you did not see his face?

Witness: yes

6. Ashley Tupou is the complainant for the robbery charge. On 7 September, 2021 she was working at the Luna’eva Gas Station at Hihifo Rd. She said at around 8pm a small blue car pulled up and parked under the mango tree. She overheard him say, “I cannot get there the water has overheated”. It was a male, he wore black hood and long black trousers. She did not see his face he was looking down and did not take off his hood. He was parked there for about 5 minutes and then closed the bonnet of the car and left. About 2 minutes later he returned for fuel. He asked for $10 worth of fuel and drove off. She did not see his face. He returned a 3^rd time and parked in front of the oil room on the premises. At this time, Ms. Tupou was sitting on a chair. About a second later he accelerated right up to her, opened the car and went toward her. His face was covered and she could only see two eyes. He lunged at her and she engaged with him and pushed him. As he fell down he grabbed her t-shirt and they both fell onto the cement floor. She was on top, as she got up he grabbed her little money bag that she had on her. He pulled it and the chain broke and he ran off with it, got in the car and sped off. Inside her bag were her receipts, bank card and $584.She said that she knew the amount in the bag was $584 because she was short by that amount on the day. She said that their intake would be reconciled against the amount of fuel used.
   
7. Police Officer Patalesio Tu’itavuki (“Tu’itavuki”) has been in the police force for 23 years with about 18 years in the forensic unit. He put together the photographs in the photo montage. He said this is done when it is requested by the investigating officers. Inclusion of photos is based on instructions from the investigators involved. He said that he received his instructions from Police Officer Satini. Here, they were instructed to use photos of inmates who were serving time for theft and housebreaking and to include a photo of Hateni Kaufusi, the accused. He said there were 3 different folders labelled “A” – “C” and the same 7 photos were used but switched for each folder so that the positions of the photos in each folder was different from the other. He said Walter picked out the accused photo from each folder.
   
8. Police officer Sione Loata Satini (“Satini”) was the leading investigation officer in this case and gave the instructions for the photos to be included in the montage. He had served in the police force for 25 years and was in charge of the property theft unit. He was present when Walter was brought in for the identification process. He said that photo montages are used to test the recollection of the witnesses for the purposes of trials. In this case they used the description given by the eye-witness of a male person with black skin, of short but strong stature with an army style haircut. He was asked during cross examination if when preparing the photo montage, he had seen Walter’s statement that he only got a side view of the accused. He said he did not.

At the conclusion of the Prosecution’s case, the accused elected not to give evidence.

Submissions

9. In summary the Prosecution submitted that the main issue is identification and that its case hinged on Mr. Walter ‘Uhamaka’s evidence who saw the accused take the first complainant’s small blue car from the Chinese Embassy and was later used to steal the second complainants’ purse at the Petrol Station on Hihifo Road. She relied and set out the principles applied by Cato J in Rex v Hala’ufia [2014] TOSC, 23 as below:
   

“[23] All counsel emphasized the importance of identification in this case. In each case, a common theme was the at the accused had not carried out the crimes he was alleged to have committed, if indeed those crimes occurred at all. Plainly central to the determination of the issues, I have to deal with is identification, I remind myself of the warning given by Lord Widgery CJ in Turnbull v DPP [1977] 1QB 225, and in particular these;

(1) I must remind myself of the special need for caution before convicting the accused in reliance on the correctness of an identification or identifications;
(2) I remind myself a mistaken witness may be a convincing witness and that a number of witnesses can be mistaken where there is more than one witness.

[24] Factors which are important to consider also are whether the witness knew

the accused (land if so, for how long), the opportunity for observation, the distance, the light available in the area, whether there was any impediment to observation, the period of observation, the time lapse between the original observation and y any subsequent description given to the police, and any material discrepancies in the statements given to the police of the offender and any other specific weakness.

[25] Whether the evidence is in the nature of a fleeting glimpse, it should not be relied upon as identification unless there is supporting evidence. In this regard, I should remind myself that, even in cases of recognition, mistake can be made of even close relatives or friends.”

11. The Prosecutor accepted that Walter, had seen only a side of the accused’s face but submitted he chose him from the photos because “he had registered the person he saw from a side view, similar features to those of Hateni Kaufusi.”. She agreed that Walter had not seen the accused before and he viewed him for less than 2 minutes. She maintained that the Prosecutions witnesses were reliable and coincide with what happened but that if the Court should find a reasonable doubt, that the accused should be acquitted.
12. Counsel for the accused concurred that the Prosecutions’ case depended entirely on the identification of the accused. He submitted the evidence produced is insufficient to prove that it was the accused who took Fifita Manu’s car and used it to rob Ashley Tupou. He submitted that the accused should not have been selected as a suspect from description that amounted to “a man with dark skin, short/not tall and slim.” He submitted that was not a proper way to select a suspect. Walter did not give specifics to describe the shape of the man’s face and did not mention he had a beard. He said he saw him from the side and not from the front and the photos on the photo montage were not from the side but from the front. It was 9 days after the offence that Walter was called in to be shown the photo montage. The observation was from a distance of 10 metres and Walter had not seen this man before. Lastly, Walter had honestly admitted that he could be wrong about the person he pointed out in the photo montage. Counsel pointed out that there was no evidence that the person who took Mr. Manu’s car on 5 September, 2021 is the same person who robbed Ms Ashley Tupou on 7 September, 2021 or that it was the same car that was used.

Considerations

13. The onus of proof lay with the Prosecution to prove beyond reasonable doubt that the accused is guilty. That burden remains on the Prosecution throughout the trial. An accused does not have to prove his innocence.
    
14. Under count 1 the accused is charged for theft of a car with license plate C24500 valued at $7000, 1 mobile phone valued at $120, 1 iPad valued at $1440, 1 apple phone valued at $1440 with intention to deprive Fifita Manu of those items and to convert those good for his own use without the Mr. Manu’s consent.
    
15. Walter’s evidence, in relation to the identification of the man he saw take Mr. Manu’s car, in my view was honest but unhelpful to the Prosecution’s case. He said that he had not seen this man before, he only saw the side of his face, their interaction was for less than 2 minutes and he thought the man and Mr. Manu had a prior understanding about him taking the car and that they were about 10metres apart. I consider that arising from that assumption, Walter had no reason to study the man’s face seriously. He openly and honestly agreed without hesitation when Mr. Tu’utafaiva put to him that he could be wrong about his identifying the accused in the photo montage. I agree with the accused submission that Walter’s evidence that he saw the shape of the man’s face from the side fell short on describing specific details of what the shape was, leaving an unclear guidance on how he came about identifying the accused’s photo on the photo montage. Counsel for the accused pointed out that the accused has a beard on the photo and Walter’s evidence did not match that fact. I find this problematic for two reasons. Firstly, because this court requested a copy of the photo montage that was tendered as evidence to be filed after the trial for the purposes of this verdict because there was no copy provided for the court at the trial. It was not done. Secondly, there was no evidence as to when the photo of the accused used on the photo montage was taken to ascertain how much time had lapsed from that time to the time of the offence when Walter saw him. Based on the quality of Walter’s evidence on identification, I do not consider it appropriate for me to consider the photo montage here.
    
16. As for the evidence in relation to the car and the properties in the car, Walter described the car as a small blue car. Mr. Manu also described his car as a small blue car that he had only for 7 months’ prior the offence. The indictment does not state colour or size of the car but gives a plate number that none of the witnesses mentioned in their evidence. Mr. Manu said that the property in his car were clothes, 2 jackets and an alcatel TCC phone. He did not identify any of the items listed in the indictment.
    
17. The evidence has fallen short of establishing that the property in the indictment was in Walter’s car and/or were taken by the man that took the car. I do not accept that the mobile phone on the indictment refers to the alcatel TCC phone described by Mr. Manu as to do so would be speculation on my part.
    
18. Therefore, in relation to count 1, I find that Walter’s encounter with the man who took Mr. Manu’s car was less than 2 minutes and his observation of his face would have been for a lesser period of time. In my view that falls within the category of a “fleeting glimpse” as referred to in Hala’ufia. Together with the fact that he had not seen this man before, only saw the side of his face, 9 days had lapsed after the offence before he was called to identify the man he saw and his open admission that his identification of the accused in the photo montage could be wrong, creates a strong doubt in my mind that this man that Walter saw take Mr. Manu’s car on the 5 September, 2021 was the accused in this case.
    
19. For count 2, the accused was charged with taking 1 purse and cash valued at $584 by using violence on Ashley Tupou so as to put her in fear and thereby overcome her opposition to the taking of the said property.
    
20. Ms. Tupou said that the man who robbed her of her bag on 7 September, 2021 travelled to the Luna’eva Petrol Station at Hihifo Road in a small blue car. She was clear in her evidence that she could not see his face and that when he confronted her she could only see two eyes as the rest of his face was covered. He had a black hood on and long black trousers. That was the extend of her identification and I believe that she honestly described what she saw and what happened. There was nothing unique in the evidence here to satisfy me that this was Mr. Manus’ small blue car or that it was the accused that drove the blue car to Luna’eva Petrol station at Hihifo Road and robbed Ms. Tupou of her purse and $584.
22. For those reasons, I am satisfied that the Prosecution has not proven the charge beyond reasonable doubt and I find the accused not guilty on both counts on his indictment and discharge him.
    

P. Tupou KC
Nuku’alofa: 14 September, 2022 J U D G E