Police v Kali [2024] TOSC 34; AM 9 of 2023 (29 May 2024)

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

AM 9 of 2023

POLICE
-v-
MA’AKE KALI

RULING

BEFORE: ACTING JUSTICE LANGI

Appearances: DPP for the Prosecution
The Accused in Person

Hearing: 6 May 2024
Extemporaneous Ruling: 24 May 2024
Written Ruling: 29 May 2024

1. History of Proceedings

1. This is an appeal by the Crown on a decision by Senior Magistrate Similoni Tu’akalau to acquit the respondent after a contested trial on a charge of theft contrary to section 143 (a), 144 (2) and 145 (a) of the Criminal Offences Act;
2. On Friday 24 May 2024 I gave an extemporaneous judgement and informed the parties that a written ruling setting out the reasons for my decision will be provided as soon as possible. I do so now.
   

2. Summary of facts in the trial below

3. The Complainant is Sione Silivou Taufalele, age 59 from Tatakamotonga.
4. On 5 September 2023 the Complainant went out to sea and returned around 3pm on a Tuesday and anchored his boat in a shore at Tatakamotonga. He removed the petrol tank from the boat and took it home;
5. On 6 September 2023, around 2am Police came across a vehicle in Fanga whose rear lights were not on. They signaled the vehicle to pull over to the side of the road but they did not comply. The driver was Pailate Uasike and the passenger was the Defendant.
6. They were eventually stopped and the Police went to the car and informed them that they were playing loud music and missing some lights in the car;
7. Upon close inspection, the Police found a wet boat engine inside the vehicle next to the defendant who was sitting at the passenger seat of the car. When inquired about the boat engine the driver said he did not know who it belonged and the defendant told the police that it belonged to him;
8. The Officers then contacted Detective Vaea at the Central Police station to inform him they had stopped a vehicle that may be in possession of stolen property;
9. Detective Vaea arrived on scene and informed the officers they would be taking the boat engine for suspicion to be stolen property.
10. On 6 September 2023, the Complainant discovered at around 6pm that his boat engine was missing. It was a grey Yamaha Horse Power 15 valued at $7,000.
11. The Complainant went to the police on the same day to report the theft and they began to conduct their investigation. When the boat engine found in the possession of the defendant was shown to the complainant, he immediately recognized it as his boat engine;
    

100. Grounds in which judgement was given

The Magistrate in his judgement ruled that the Crown had not proven all the elements of the charge beyond a reasonable doubt. His Worship’s judgement is summarized as follows:

12. In relation to the element determining the value of the boat engine: There was no evidence given that verifies the value of the boat engine at $7,000. This would especially needed to determine a sentence if the Defendant was to be found guilty.
13. In relation to the element of the Defendant taking the Complainant’s boat engine: No evidence proving or witnessing the Defendant taking the boat engine from the Complainant’s boat was put forward in court.
    1. Even though the boat engine itself was found in the vehicle the Defendant was in, he was not the one driving, he was the passenger. No evidence was submitted proving that the vehicle in which the boat engine was found in belonged to the defendant.
    2. The Court also does not believe that statement given by Officer Mafi that he asked the Defendant whose boat engine it belongs to. Officer Mafi further testified in Court that parts of his testimony was wrong putting doubt to his whole testimony given. He insists that his statement is the truth.
    3. Statements given by Officer Fifita and Mafi differ in their statements and account of events therefore is not found to be credible by the court.
       

4. Grounds for Appeal

14. The Court erred in fact and law by failing to give due consideration to the Complainant’s statement taken by Police which clearly mentioned the amount of stolen property.
    1. Word of Summon clearly stated the value of the Yamaha Boat Engine is $7,000
    2. Statement by the Complainant
    3. Failure to give due consideration on element of the offence in relation to the evidence that was undisputed by the Defendant in court.

The amount notified by the Complainant is the real amount of the property stolen

15. Failure to give due consideration and interpretation about the element of the offence shown s143(a) of the Criminal Act in relation to the evidence provided by the Prosecution that included s40 of the Evidence Act submitted before Court.

1. The Complainant identified the property found as his and the Respondent did not dispute it.
2. The property was found in a vehicle in which the Respondent was in the passenger’s seat.
3. The Respondent answered all questions about the property claiming it as his own.
4. The Learned Magistrate failed to consider the purpose of s4 of the Evidence Act in relation to the matter.
5. Failing to give due consideration about the Judge’s interest in this trial (s87 of the Magistrate Court Act): the judge and Respondent lived together in the same village and the judge had mentioned it was difficult for him to conduct this trial.
   

5. Analysis

16. There is a general right of appeal from a judgement of the Magistrate’s Court in both civil and criminal matters under section 74 (1) Magistrates Courts Act;
17. It is evident from the grounds of appeal that the appellant challenges the Learned Magistrate’s findings of fact and the law. I caution myself that an appellate court should be slow to differ from a finding of fact which was made by the judge of first instance who had the opportunity to see and hear the witnesses;
18. From His Worships written judgement, it is clear that he was of the view that the Crown was required to prove that the boat engine was valued at $7000. This raises the question as to whether the value of the boat engine was part of the elements that the Prosecution was required to prove beyond a reasonable doubt;
19. In page 4 of the Magistrate’s written judgement, he outlines the elements that the Crown were required to prove and he listed 7 elements. The last element was that “the value of the boat engine is $7000”;
20. I can understand the reason of the Learned Magistrate in requiring the Prosecution to prove the value of the boat engine. This was so the Magistrate would be satisfied that he had jurisdiction to hear this case if he was required to sentence the accused. Magistrate can only hear theft cases where the value of the thing stolen is less than $10,000;
21. However, I do not agree with the Learned Magistrate that Crown was required to prove the value of the boat engine as one of the elements of the offence of theft;
22. Theft is the dishonest taking of property belonging to another, without a colour of right and without the consent of the owner.
23. The complainant had given evidence in the trial that he had identified the boat engine as his because of certain identification marks that only he was familiar with;
24. In this case, the Prosecution also relied on section 40 of the Evidence Act which states:
    1. Section 40 Possession of stolen property: Where a person is found in the possession of property proved to have been recently stolen he shall be presumed to have stolen it or to have received it knowing it to have been stolen unless he shall give some satisfactory explanation of the manner in which it came into his possession;
25. No mention was made by the Learned Magistrate of that part of the Prosecutions submissions on section 40;
26. The respondent’s reason for why he had the engine in his possession was that the boat engine belonged to him. This was obviously not true because the complainant had identified the engine has his by unique markings on the engine that only he would’ve known about. However, the Learned Magistrate did not address this part of the complainant’s evidence and whether he accepted the evidence of the complainant that the boat engine found in the possession of the respondent belonged to him;
27. Moreover, it is clear from the transcripts below that the respondent did not challenge the complainant’s evidence that the boat engine belonged to him.
28. The second reason that the Magistrate mentions in his judgement for acquitting the respondent was because the evidence of one of the Crown witnesses was inconsistent and was therefore not credible;
29. From the transcripts, the Police officer in question (Officer Mafi) had first stated that they had arrested the accused and another person in the evening hours. However, he later changed that explanation and said that his first evidence ‘was a lie’ and that his written statement was the correct evidence. His statement written on 12 September 2023 stated that they had arrested the accused in the morning hours of 6 September 2023 and not in the evening;
30. In his judgement, the Learned Magistrate refers to the inconsistency of the evidence of the two police Officers, Police officer Fifita and PC Mafi as raising “a lot of doubt”. This was because Officer Fifita had given evidence and stated that they stopped the accused and the driver of the vehicle in the early morning hours. However, Officer Mafi said they stopped them in the evening. That was the only inconsistency in their statements;
31. No mention was made by the Learned Magistrate of the evidence of Officer Fifita and whether or not he accepted his evidence. He only refers to the evidence of Officer Mafi being inconsistent with the evidence of Officer Fifita.
32. In my view, the inconsistency referred to by the Learned Magistrate were not major inconsistencies that would suggest that Officer Mafi had purposely lied in court. His only problem seems to be that he forgot the exact time they had arrested the accused. The question in my mind is whether Officer Mafi intentionally misled the court and lied when he said the accused was arrested in the evening or whether he had genuinely forgotten? The Learned Magistrate seems to have taken the view that because the Officer’s evidence was inconsistent, therefore the evidence of Officer Fifita was not truthful. However, his judgement did not address this point;
33. Section 81 of the Magistrates Courts state that any appeal of a decision of the Magistrate shall be decided only on its merits. There is a plethora of authorities which emphasize the need for an appellate court not to interfere with the findings of a trial judge on facts. After analyzing the transcripts and judgment of the Learned Magistrate in this case, I am of the view that the decision of the Learned Magistrate was inconsistent with the evidence before him;
34. Another issued raised by the Prosecution and which, in my view, clouds the judgement of the Learned Magistrate is the fact that he is closely acquainted with the accused and his family. His Worship had clearly informed the Prosecution that he is very good friends with the accused’s older brother and that he finds it difficult to judge this case.
35. However, the Prosecution had agreed for the Learned Magistrate to hear the trial because the case had been around for too long. In my view, His Worship should have removed himself from hearing this case as there was a real likelihood of bias. Although the Prosecution agreed for him to hear the case, the Learned Magistrate should have removed himself as he had confessed to finding it difficult for him to judge this case.
36. In the case of Metropolitan Properties Co. (FGC) Ltd Vs. Lannon (1966) 1 QB, Lord Denning MR stated at page 599:

“In considering whether there was a real likelihood of bias the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there

was a real likelihood that he would, or did, in fact favour one side at the expenses of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded person would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand”.

37. In my view, the Learned Magistrate should have removed himself from hearing the trial. There was also no urgency for this matter to be heard as suggested by the Prosecution because the accused had only been arrested on 6 September 2023 and the trial commenced on 18 October 2023, approximately one month after he was arrested. It had not been around for too long as submitted by the Prosecution;
38. Overall, I believe that there is merit in the grounds of appeal and I rule that this matter is remitted to the Magistrate court to be heard in front of another Magistrate;
39. Due to the accused’s history of non-appearance I remand him in custody but will request the assistance of the Chief Magistrate to have this matter listed for trial as soon as practicable before a different Magistrate;
    

NUKU’ALOFA: 29 May 2024

‘E. M. Langi
J U D G E