R v Tu'ipulotu [2023] TOSC 47; CR 7-8 of 2023 (15 August 2023)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

CR 7 and 8 of 2023

REX

-v-

VILIAMI TU’IPULOTU

HENELI MANUOFETOA

VERDICT

BEFORE:	JUSTICE TUPOU KC
Appearances:	Ms ‘E. Lui for the Prosecution The Accused in person
Date of trial: Date of verdict:	18 March, 2023 15 August 2023

1. In this matter, there are 3 Accused. Mr Siaosi ‘Ulukivaiola (“Siaosi”) was charged with one count of serious housebreaking contrary to s.173(1)(b) and (5) of the Criminal Offences Act and one count of theft contrary to s.143(a) of the Criminal Offences Act. The particulars of the charge are that on or about the 27 August 2022, at Kolofo’ou, the Accused entered the office of the Ministry of Revenue as a trespasser and committed theft of items worth a total value of $34,650.
2. On 26 January 2023, Siaosi pleaded guilty and was convicted. He awaits sentencing.
3. On the same date, Mr. Viliami Tu’ipulotu (“Viliami”) pleaded not guilty to one count of receiving stolen property contrary to s.148(1) of the Criminal Offences Act. The particulars of the charge are that on or about 29 August 2022, at ‘Anana, the Accused received 4 HP silver laptops from Heneli Manuofetoa believing those to have been stolen.
4. On the same date, Mr Heneli Manuofetoa (“Heneli”) also pleaded not guilty to two counts of receiving stolen property contrary to s.148(1) of the Criminal Offences Act. The particulars of the first charge are that on or about August, 2022, at ‘Anana, the Accused received 1 wall mounted Samsung Flat screen together with its remote control and a grey laptop bag from Siaosi ‘Ulukivaiola, believing those to have been stolen. The particulars of the second charge are that on 29 August 2022, at ‘Anana, the Accused received 5 HP laptops from Siaosi ‘Ulukivaiola, believing those to have been stolen.
5. The Crown called evidence from two witnesses.
6. Sione Tupou Vaea, was the police investigation officer. He gave evidence that on 29 August 2022, he and Sergeant Kaati Taufa were investigating another matter when they were informed that the persons involved were at Heneli’s residence at ‘Anana. Incidentally, Heneli was himself under investigation for housebreaking and theft. At around noon that day, they headed towards Heneli’s residence.
7. When they arrived at the Small Industries, they parked and waited for more officers to accompany them. While they waited, Heneli drove past in a car and spotted them. Immediately the officers decided to follow him.
8. Upon arrival at his residence, Heneli exited his vehicle. Officer Vaea approached and informed him he was arrested for housebreaking and theft. His rights were recited to him. He wanted to get a change of clothes and was allowed to do so. Heneli showed Officer Vaea to his room.
9. The property consisted of a main house at the front. Heneli’s room was separate but adjoined to the main house by a verandah. His room was open and two men were inside with a 3^rd on the verandah.
10. When Officer Vaea enquired about the men, Heneli invited him to go inside and check them out. Officer Vaea entered and observed Viliami seated facing the door. Two laptops were open facing him. He was working on one of the laptops. Siaosi was seated by the door. A sketch of the area identifying the positioning of the room and the men was exhibited as P2.
11. Inside, Officer Vaea observed that the laptops were silver in colour and looked brand new. A picture of a girl was visible on the screen of one of the open laptops. He asked who it was and Viliami deflected the question by saying that Siaosi brought the laptops. Siaosi denied it and said the laptops were already there. They started to argue and Siaosi maintained he did not bring the laptops.
12. Officer Vaea informed the men that the police had authority to seize any goods suspected to be stolen and that they had the right to remain silent and to seek advice, legal or otherwise. At that point, Heneli entered the room. He confirmed Viliami’s version that Siaosi had brought the laptops there. A record of activities was kept by Officer Vaea and was exhibited as P1.
13. Viliami participated in a record of interview conducted by Officer Vaea. Present was Officer Pua’a. Viliami said he was unemployed and had met Heneli previously in October, 2020 in prison. On the Sunday before his arrest, around noon, Heneli had picked him up and took him to his home. He was to unlock 4 laptops that were already at Heneli’s place. He said when he asked where the laptops came from, Heneli told him that they were just given to him. On Monday 29 August, 2022, he was at Heneli’s place with Siaosi. Siaosi had brought another laptop and wanted him to unlock it. He declined as Heneli was not there. He accepted he was the only one who could unlock laptops present at Heneli’s house and that at time of apprehension, he was in control of them. The record of interview was exhibited as P3.
14. Heneli also participated in a record of interview with Officer Vaea where he admitted that the officers were after him in relation to another case involving theft. He told Officer Vaea that there were 5 laptops in total. On the Sunday before their arrest, Siaosi had sold him 3 laptops for smokes. He bought the 4^th from Simione Faiva and Siaosi brought the 5^th laptop to his home on the Monday they were arrested. He claimed he asked Siaosi where he got the laptops and Siaosi told him they were his. He said he did not care where they came from, it was more important that he provided Siaosi the smokes. During his interview he admitted he should have called the police to ensure the goods were not stolen. Heneli’s record of interview was exhibited as P4. The Accused opted not to cross examine Officer Vaea.
15. The second witness was Sergeant Kaati Taufa (“Taufa”). He said he accompanied Vaea to Heneli’s residence. He mostly confirmed Officer Vaea’s evidence. He said that while they were at Heneli’s residence, the Chief Investigating Officer and other officers arrived and assisted with escorting all 3 Accused and the goods seized to the police station. Sergeant Taufa was not cross examined by either accused.
16. When the officers returned to the police station with all 3 accused, the officers learnt that the Inland Revenue Department was burgled that Sunday, i.e the day before. Staff from that office were able to identify and confirm the 5 laptops, flat screen, remote control and grey laptop bag that were stolen from their office. Photographs of Viliami providing the passwords for the laptops and the other stolen goods were exhibited as P5.
17. Following the closing of the Crown’s case, the Accused were advised of their rights and options. They elected not to give evidence.
18. Section 148(1) provides that 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.

Mr. Viliami Tu’ipulotu

19. The essential elements of the charge of Receiving that the Crown must prove beyond reasonable doubt are that:
    • (a) Viliami;
    • (b) received property;
    • (c) he knew or believed to have been stolen.
20. There is no issue that Viliami received 4 laptops from Heneli and that he was in control of them at the time they were apprehended. The issue is whether the Crown has proven beyond reasonable doubt that Viliami had an actual belief that the laptops he received from Heneli were stolen or obtained under circumstances which amount to a criminal offence.
21. Ms. Lui in her submissions referred to R v Crooks [1981] 2 NZLR 53^[1], a case that discussed the question of whether an accused will be taken to have known that property has been dishonestly obtained when he has a suspicion that that is the case and fails to make an enquiry. The position is that a mere suspicion cannot make a receiver liable except:

“...where the circumstances are so compelling in their attribution of dishonest origin to the property acquired as to create an inference that the accused was aware that the property was stolen......”

22. Ms. Lui submitted that notwithstanding his query about the origin of the laptops, Viliami ought to have known that the laptops did not belong to Heneli because he was required to unlock them. Further, she said, in the process of unlocking the laptops he would have accessed the stored information on the laptops disclosing the real owners and that these circumstances are sufficient to create an inference that Viliami was aware or ought to have been aware the property was stolen as a result. I agree.
    
23. In my opinion, the circumstances warranted diligent enquiry by Viliami as to the origin of the laptops. Instead, Viliami proceeded to unlock the laptops, deleted the owner’s information and created new passwords for access. In that process, as the Crown suggests, he would have accessed the true owner’s information. Instead of alerting the owners or the police, he proceeded to assist in enabling Heneli’s dishonest intentions.
    
24. For those reason I am satisfied that the Crown has satisfied the onus upon it to establish beyond a reasonable doubt that Viliami had an actual belief that the laptops given to him by Heneli were stolen or obtained under circumstances which amount to a criminal offence.
    
25. Accordingly, I find Viliami guilty and convict him on the one count of receiving stolen property.
    

Heneli Manuofetoa

26. As for Heneli, the essential elements of the charge of Receiving are the same as for Viliami. That:
    • (a) Heneli;
    • (b) received property;
    • (c) he knew or believed to have been stolen.
27. Heneli accepted he received the 5 laptops, 1 wall mounted Samsung Flat screen together with its remote control and a grey laptop bag from Siaosi. Again, the issue is whether the Crown has proven beyond reasonable doubt that Heneli had an actual belief that the laptops he received from Siaosi were stolen or obtained under circumstances which amount to a criminal offence.
28. The Crown relied on the surrounding circumstantial evidence, that is, that the laptops were found in Heneli’s room, his admission there were 5 laptops involved and his disregard as to the provenance of the goods. Ms. Lui argued that inferences can be safely drawn from these circumstances to prove belief or knowledge that the laptops and other goods were stolen or obtained under circumstances which amount to a criminal offence.
29. I have considered and am guided by the approach taken in Crooks and other New Zealand authorities for receiving charges where inferences were drawn from surrounding circumstances to prove knowledge. Some of those circumstances happen to be present in this case. They include:
    
    1. the defendant buying at gross undervalue^[2];
    2. a failure by the defendant to make some inquiry as to the provenance of the goods^[3];
    100. receipt at an unusual time or place, or in an unusual way^[4]; and
    4. removal of identification marks^[5].
       
30. Having considered all of the evidence, I consider the hasty sale of the 4 laptops worth $24,500 for “smokes” is unusual and a transaction of gross undervalue.
    
31. As for Heneli’s claim that he asked as to the provenance of the stolen goods, I am skeptical for the following reasons. His evidence was inconsistent. In one version the laptops were “just given” to him and a second was he bought them. He further said he had asked Siaosi about the origin of the laptops and later said he did not care about the origin of the goods. Lastly, in answer to a question from Officer Vaea, he said should have gone to the police to confirm if the goods were stolen. On this basis I consider his claim that he did enquire implausible.
    
32. Finally, Heneli’s swift action to have the laptops unlocked and all information on them deleted, indicate his dishonest intentions and belief that the goods were stolen or obtained under circumstances which amount to a criminal offence.
    
33. Having regard to all of the surrounding circumstantial evidence and the principles discussed, I am satisfied that it can be inferred that at the time he received the 5 HP silver laptops, 1 wall mounted Samsung Flat screen together with its remote control and a grey laptop bag, Heneli believed they were stolen or obtained under circumstances which amount to a criminal offence.
    
34. In further support is the reiteration of the position in law by Baron Bramwell in R v White (1859) 1F&F665;175ER endorsed in Crooks^[6] and adopted not only in England but in various Commonwealth jurisdictions including Australia and New Zealand, that;
    

“The knowledge charged in this indictment need not be such knowledge as would be acquired if the prisoner had actually seen the lead stolen; it is sufficient if you think the circumstances were such, accompanying the transaction, as to make the prisoner believe that it had been stolen.”

35. For those reasons, I am satisfied beyond reasonable doubt that the Crown has proven the elements of the charges against Heneli. Accordingly, I find Heneli Manuofetoa guilty and convict him on the two counts of receiving stolen property.
    
36. Lastly, I note that at the conclusion of the trial, the defendants indicated that they intended to file submissions on their behalf. This morning, I had not received written submissions from either accused. The opportunity to make submissions was offered this morning, they elected not to.
    

DATED: 15 August 2023

P. Tupou KC

J U D G E

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^[1] Relied on by the Crown in R v Potemani
^[2] See R v Crooks [1981] 2 NZLR 53 (CA) at 58; and Dean v Police HC Rotorua CRI-2006-463-57, 13 July 2006 at [8]
^[3] See R v Crooks ibid.
^[4] Dean v Police HC Rotorua CR1-2006-463-57, 13 July 2006 at [9].
^[5] See ibid. at [10].
^[6] Para.40 at pg.56