R v Fa'aoa [2024] TOSC 101; CR 153 of 2024 (26 November 2024)

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

CR 153 of 2024

BETWEEN:
R E X
-Prosecution

AND:
SALESI FA’AOA
-Accused

JUDGEMENT

BEFORE: LORD CHIEF JUSTICE MALCOLM BISHOP KC

Appearances: Mr G Aleamotu’a for the Crown Prosecution
The Accused in Person
Date: 26 November 2024

1. THE CHARGE

1. On 21 November 2024, the Crown amended the indictment to reflect the following charge in which the Accused maintained his plea of not guilty:
   1. Count 1: Receiving Stolen Property, contrary to section 148(1) of the Criminal Offences Act.
2. Section 148 provides that,“Any person who receives any property knowing or believing it to have been stolen or obtained anyway whatsoever under the circumstances which amount to a criminal offence is guilty of an offence and his liable to the same punishment as if he had committed theft.”
3. Trial for this proceeding commenced on the same day after being brought forward due to the amount of time the Accused has been in custody.
4. I heard closing submissions from the Prosecution and counsel for the Defendant this morning and I now proceed to Judgement of this matter.

2. DISCUSSION

5. Here, the issue is whether at the time the Accused obtained possession of goods in question and did so knowing or believing that they had been stolen it is therefore a straightforward case of receiving stolen property.
6. The Accused accepts that he obtained possession of the goods in question and that almost all of them were in fact stolen. The question for this trial is whether when he did so, when he obtained possession of the items he knew or believe that they had been stolen in other words? What was the state of mind at that time?
7. This is a criminal trial. The allegation must be proved to the criminal standard in other words so that beyond reasonable doubt or so that I am sure nothing less than that will suffice.
8. It is of course impossible, absent a confession to know what went on in the Defendant’s mind. I have to take into consideration all the circumstances in deciding whether the requisite mental element has been established.
9. I heard from the loser, Noleen Blake. She runs a construction or is associated with a general construction company. The company has a warehouse and keeps a large number of items which they use in their business as well as some personal items.
10. She indicated that the warehouse had been burgled several times and that a large burglary had occurred and a large number of goods had gone missing. She told me that she saw an advert on Facebook for some doors or windows which were for sale with no details about the advertiser except a telephone number.
11. She recognised the products as having come from her own warehouse and rang the number and was given the location of the advertiser and visited having been given directions by the Accused’s brother.
12. She went to the premises and saw a large number of the stolen items in a trailer or skip behind the property. She said that the property was hers and she says left in a hurry because she was frightened. She told me that the Accused followed her, she felt in a threatening way and got into a car just in time because he had bent down to pick up what she thought was a rock or other heavy object.
13. I’m quite satisfied that that is what she thought but I’m equally satisfied that the Defendant did not intentionally threaten her in the way she believed, I accept his evidence that he was simply trying to calm matters down and come to some accommodation.
14. She returned with the police and a full search of the premises was carried out and a large number of items identified in the evidence were retrieved and taken to the police station. However, the doors and windows had by that stage disappeared.
15. On this basis, the Court is invited to conclude that the Defendant must have known or at least believe that he was handling stolen property. I found the complainant’s evidence entirely credible. She went through the items carefully and identified the few items such as the television and the contents of a large wooden box, which she said did not belong to her. There could be no doubt therefore that most of them were in fact stolen property.
16. The Defendant gave evidence, and I have given careful consideration to what he had to say.
17. He disputed two items in the police log entry. The first in entry 8 says this all these items he brought from the home of the complainant which of course is untrue as he now accepts.
18. The second entry number 22 states “the ticket shows that the theft was in December but I remember it was on the beginning of November.”
19. And so, it is put that only a person involved in the theft or receiving of the goods would’ve known that this occurred in November and not in December as was set out in the ticket which he was shown.
20. I’m not persuaded by that submission, it may well be that at the time he was asked this question which was on the 11 February 2024, he had spoken to the complainant when she first encountered him at his home and the information could’ve been obtained in that way.
21. The Defendant’s case was, he bought and sold second-hand items at market stalls and at one occasion he was selling some doors when somebody who he did not know offered to sell him goods which he said he was selling because he was immigrating and they exchange numbers.
22. The seller came to his village with a big lorry in which was a collection of materials including doors, but no Harley Davidson bicycles motorbikes and they and he said the price was $2000 for the doors. At the prompting of his partner, he told me, a further $1000 for the remainder of the items was also bought from the same person.
23. All the Defendant can help me about the identity of the seller was that he claimed he had given the Defendant his number which was on his girlfriend’s telephone which he was not able to produce because the girlfriend was abroad.
24. I asked whether any attempt had been made to obtain that number from his girlfriend so that the police could be alerted to it, but that had not in fact been done.
25. I am persuaded so that I am sure that there is an inconsistency between the entry in the police log entry 8 where which the defendant says as I accept he did that he brought the goods from the complainant and what he now says with the case namely that he did so via an unknown seller, which he who whom he met at a fair.
26. I remind myself that the amount that the goods in question were extremely valuable and diverse and commodious. With his knowledge and experience, the Accused in my judgement, if he was telling the truth would be bound to make further inquiry is to ensure that the goods were in fact legitimately obtained by the seller or at the very least he would have taken steps to ensure for his own protection that independent evidence at least of the identity of the seller was obtained and retained. But not even the registration number of the lorry which brought the items were kept.

100. RESULT

27. I conclude that these are not the actions of a honest man with the knowledge and experience of this Accused. The truth I find is that he was offered a large amount of goods at a bargain price, it is true he advertised some of the items on Facebook but as he explained that is an economical way of trading and although I accept there’s nothing sinister about only giving the telephone number in question, I conclude he took the risk that no one would find out that the items were in fact stolen having seen the advert on Facebook, least of all the loser in this case.
28. Be that as it may I’m entirely satisfied that the Defendant must’ve known that he was getting a bargain. I am satisfied to the criminal standard first, that the items in question belonged to the complainant, second that the Defendant must’ve known and did know when he obtained the goods that they were stolen.
29. Accordingly, I find the Accused guilty of the charge being, Receiving Stolen Property, contrary to section 148(1) of the Criminal Offences Act.

NUKU’ALOFA
HON. MALCOLM BISHOP KC
LORD CHIEF JUSTICE
26 November 2024