R v Vaka [2024] TOSC 41; CR 126-128 of 2022 (23 May 2024)

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

CR 126-128/22, CR 19-20/23

BETWEEN
REX
(Prosecution)

AND
SAIMONE VAKA
ANDY LAVELUA
‘OFALOTO TAUKI’UVEA POUSINI
VILIAMI POMALE BLAKE
CHARLIE PAHULU
(Defendants)

VERDICT

1. The Charges
   

1. On 20^th May 2024 I had given an extemporaneous judgment and informed parties that I will provide the written judgement at a later date. I do so now.
2. Mr. Saimone Vaka and Mr. Andy Lavelua are both charged with:
   1. Theft, contrary to section 143(a) and 145(b) of the Criminal Offences Act;Mr
3. Mr. ‘Ofaloto Pousini is charged with:
   1. Abetment to Theft, contrary to section 8(a), 143(a) and 145(b) of the Criminal Offences Act;
4. Mr. Viliami Pomale Blake and Mr. Charlie Levin Pahulu are both charged with;
   1. Receiving stolen property contrary to section 148 (1) of the Criminal Offences Act;
5. All Accused persons denied the charges and put the Prosecution to proof;
   
   2. Burden and Standard of Proof
      
6. The onus of proof lies on the Prosecution at all times, and it is to the standard of proof beyond reasonable doubt in relation to the charge and every constituent element of the charge;
7. I remind myself that I must base my decision on the evidence which I have heard in this Court. On the basis of the burden and standard of proof, the Prosecution case must stand or fall on the evidence that the parties choose to call before me.
   
   100. The Elements
8. The elements of theft contrary to sections 143 & 145 (a) of the Criminal Offences Act states:

“Theft is the dishonest taking without any colour of right with intent to deprive the owner permanently of such thing...with the intention of converting such thing to the use of any other person without the consent of the owner...”

9. Before I can convict Mr. Vaka and Mr. Lavelua for a charge of Theft, the Prosecution must prove the following elements beyond a reasonable doubt:
   1. That between the months of July – August 2022;
   2. The Accused’s Mr Vaka/Mr Lavelua;
   100. Dishonestly took without any colour of right;
   4. Cartons of chicken and mutton belonging to Raymond Yu;
   5. They intended to permanently deprive Mr. Yu of those goods;
   6. For their own use and benefit and for the benefit of others;
   7. Without the consent of Mr. Yu.
10. Before I can convict Mr. ‘Ofaloto Pousini of the charge of Abetment to Theft, the Prosecution must prove the following elements beyond a reasonable doubt:
    1. Between the months of July – August 2022;
    2. The accused Mr. Pousini;
    100. Indirectly encouraged Mr. Vaka and Mr. Lavelua to commit theft;
    4. By failing to stop them from removing cartons of chicken and mutton from a container belonging to Mr. Yu;
11. Before I can convict Mr. Viliami Pomale Blake of the charge of Receiving stolen property, the Prosecution must prove the following elements beyond a reasonable doubt:
    1. Between the months of July – August 2022;
    2. The accused Mr. Viliami Blake;
    100. Received 20 cartons of meat from Mr. Vaka;
    4. Knowing or believing those goods to have been stolen;
12. Before I can convict Mr. Charlie Levin Pahulu of the charge of Receiving stolen property, the Prosecution must prove the following elements beyond a reasonable doubt:
    1. Between the months of July – August 2022;
    2. The Accused Mr. Pahulu;
    100. Received 60 cartons of meat from Viliami Pomale Blake;
    4. Knowing or believing those goods to have been stolen;
       

4. The Exhibits

13. The following exhibits were tendered by consent:
    1. Exhibit 1A – Diary of Action Entry 1-73;
    2. Exhibit 1B – Diary of Action Entry 1-20
    100. Exhibit 2 – Record of interview of Saimone Vaka;
    4. Exhibit 2A – Charge Form of Saimone Vaka;
    5. Exhibit 2B – Voluntary confession of Saimone Vaka;
    6. Exhibit 3 – Record of interview of Andy Lavelua;
    7. Exhibit 4 – Record of interview of ‘Ofaloto Pousini;
    8. Exhibit 5 – Record of interview of Viliami Blake;
    9. Exhibit 6 – Record of interview of Charlie Pahulu;
    10. Exhibit 7 – Photographs of directions by Saimone Vaka;
    11. Exhibit 8 – Photographs of directions given by Andy Lavelua;
    50. Exhibit 9 – Photographs of directions given by ‘Ofaloto Pousini;
    13. Exhibit 10 – Records of directions made by the accused persons’;
    14. Exhibit 11 – Photographs of the money that was paid by Viliami Blake to the Complainant ($13000);
    15. Exhibit 12 – Goods found at the residence of Taniela Lutui;
    16. Exhibit 13 – Goods found at the Lucky Store at Kolomotu’a;
    17. Exhibit 14 – Goods confiscated from a Chinese store at Havel facing the Liahona Middle School;
    18. Exhibit 15 – Goods confiscated from a Chinese store at Tofoa;
        

5. Summary of the facts
   

14. The complainant Raymond Yu is the owner of Star Fish company at Ma’ufanga. He owned a container of meat which was left at his warehouse at Ma’ufanga;
15. The First Accused Mr. Vaka lived in a house situated only a few meters away from the complainant’s container of meat;
16. The Second and Third accused were both employed by the complainant to work for him;
17. Between the months of July – August 2022, Mr. Lavelua had the key to the container of meat;
18. Inside the container of meat were boxes of 20kg mutton and boxes of chicken;
19. Mr. Lavelua found a key to the container of meat and told Mr. Vaka about it. Together they planned to steal cartons of meat from the container;
20. On several occasions between the months of July – August 2022, Mr. Vaka and Mr. Lavelua stole over 200 cartons of mutton and over 100 cartons of chicken from the container;
21. On some occasions, Mr. Pousini was present at the compound as the security guard charged with making sure the container was safe. However, he failed to stop Mr. Vaka and Mr. Lavelua from taking the boxes of meat from the container and in exchange he received approximately $300;
22. On several occasions, Mr. Vaka took cartons of meat and sold them to Mr. Blake who in turn sold the cartons to other persons including Mr. Pahulu.
23. Mr. Pahulu therefore ended up buying over 60 boxes of meat from Mr. Vaka and he went around and sold them at Houma and Matahau;
24. On or about the first week of August 2022, the complainant discovered the missing cartons of meat from the container and lodged a complaint with the Police.
25. The complainant alleged that he had lost over 743 cartons of mutton valued at $222,900 and over 765 cartons of whole chicken valued at $84,150;
    
    6. The Prosecution evidence

PW1: Kaati Taufa

26. He was the investigating officer assigned to this case. He has been a Police Officer for 21 years and an investigation officer for 14 years;
27. He was tasked with entering the actions of police during the investigation in the Diary of Action;
28. Entry number 8 was when the Accused Viliami Pomale Blake was arrested;
29. Entries number 9-11 were in relation to the various shops they had confiscated some of the stolen boxes of meat;
30. Entry number 10 is in relation to goods confiscated from a Chinese store at Tofoa (Exhibit 15);
31. Entry number 11 is in relation to goods confiscated from a Chinese store at Havelu facing the Liahona Middle School (Exhibit 14);
32. Entry number 12 is in relation to goods confiscated from a Chinese store at Kolomotu’a (Exhibit 13);
33. Entry number 13 and 14 is in relation to goods confiscated from Vaini;
34. Entry number 16 is in relation to work carried out at Holonga where Mr. Vaka stated he had sold 35 boxes of meat;
35. Entry number 17 is a summary of the work carried out on this day and the number of boxes of meat (8 boxes of mutton and 12 boxes of chicken) that they confiscated and returned to the complainant’s container of meat;
36. Entry number 18 refers to a conversation with Mr. Saimone Vaka in relation to how they were able to open the container of meat and he stated that Andy had given him one key and they had first used that key to open the container and take the goods. This entry was made on 5 August 2022 when Mr. Vaka had not yet been arrested and charged and his interview conducted;
37. Entry number 19 is in relation to all the goods that they confiscated on 5 August which included 20 boxes of mutton and 71 boxes of chicken;
38. Entry 20-22 is a description of boxes of meat that were confiscated from various places that Mr. Vaka had told them he had sold them to;
39. Entry 23 is in relation to the arrest of Mr. Andy Lavelua;
40. Entry 36 is the admission by Mr. Vaka and his description of how the theft was carried out and the month it happened;
41. Entry 40 is in relation to the lawful work carried out on Mr. Vaka;
42. Entry 42 is a record of when the complainant contacted the police to inform them that there was an agreement between the complainant and Mr. Pomale that he (Mr. Pomale) will pay back to the complainant the amount of the goods that he had sold;
43. Entry 60 is a record of the photographs taken of the accused Mr. Vaka pointing to various places to demonstrate what had happened (Exhibit 7):
    1. Photo 1 is a photograph of the place that Mr. Vaka told them he had hidden the key to the container. Present during the demonstration was himself, Mr. Vaka, Officer Tu’itavuki, the second Accused Mr. Andy Lavelua and the complainant;
    2. Photos 2-5 is a demonstration by Mr. Vaka of where he had hidden the spare key;
    100. Photo 6 is of the place where Mr. Vaka lived which is about 15-20 meters from where the container of meat was located;
    4. Photo 7 is a clearer picture of the distance from where Mr. Vaka lived and where the container was located;
44. Exhibit number 8 contains photographs of Mr. Andy Lavelua demonstrating the following:
    1. Photo 1 is where the accused claims they hid the boxes of meat before taking them to be sold;
    2. Photo 2 – 3 is the lock Mr. Lavelua had opened using the keys he found;
45. Exhibit number 9 is the demonstration by Mr. ‘Ofaloto Tauki’uvea Pousini of the container of meat he was tasked with guarding;
    
    7. The Defence Evidence
46. Despite having no obligation to prove that they were innocent, some of the accused persons chose to give evidence under oath as follows:
47. ‘Ofaloto Pousini:
    1. He is 21 years old and lives at Ha’amoko;
    2. At the time of the offending he was employed by the complainant as a security guard. He is still currently working for the complainant Raymond Yu;
    100. He did not indirectly assist Mr. Vaka and Mr. Lavelua to commit theft because he did not see them taking the goods and he was not around when the theft took place;
    4. Even though he had told the police in his record of interview (question and answer 21) that he had known the time Mr. Vaka and Mr. Lavelua stole the boxes of meat but he did not see anything even though he was working;
    5. He does not know anything about any money being given to him;
    6. In cross-examination he accepted that he was working that night but that he did not see how many boxes of meat were taken by Mr. Vaka and Mr. Lavelua;
    7. He accepted that he was given $250 by Mr. Lavelua and another $50 the following day;
    8. He accepted that the money was given to him so that he would keep quiet and not tell the complainant about the stolen boxes of meat;
    9. He accepted that Mr. Vaka and Mr. Lavelua would not have been able to take so many of the boxes of meat if he had informed the complainant;
48. Viliami Pomale Blake:
    1. He is the manager of Ding Dong store at Ma’ufanga;
    2. He later found out that the boxes of meat that were sold to him were actually stolen;
    100. He contacted the complainant and informed him that he had bought some of the boxes of meat but that he did not know that they had been stolen;
    4. He found out the boxes of meat were stolen when his boss told him that it was on the internet that Raymond’s boxes of meat had been stolen;
    5. Mr. Vaka brought the boxes of meat to him and this was the first time for him to meet Mr. Vaka. He bought the boxes of mutton and chicken because they were being sold at a very cheap price.
    6. He accepted that in question 29 of his record of interview he had told police that Mr. Vaka had constantly ‘warned’ him not to let anyone else know. But this was because they had asked the questions in Tongan and he was not aware of it;
    7. In cross-examination he accepted he understands and speaks the Tongan language.
    8. He accepted that the normal price of a box of mutton is $290 and that he had bought the boxes of mutton from Mr. Vaka for $100 per box;
49. Saimone Vaka:
    1. What happened was that one evening they noticed that the container of meat was open and so they contacted the complainant to come and see. This was the same container they are accused of;
    2. Three day later they again noticed the container was open and there were boxes of meat outside the container. They put the meat back into the container and Andy told him that the mutton boxes were too fatty;
    100. One evening Andy called out to him if he could come and deliver the boxes of meat and also told him that he had found the boxes of meat outside the container. He asked Andy whether he had reported them to the complainant and Andy told him that the complainant is drunk and so not to disturb him;
    4. He took the boxes of meat and delivered them and when he returned he asked Andy how it happened. Andy told him that he found the container open and that when he pressed the lock it was open. Then after a few days he found a key next to the delivery van and he tried it on the lock and it opened;
    5. There was one time when ‘Ofaloto was there and he was playing games on his phone while he and Andy took the boxes of meat and put them in his vehicle for delivery.
    6. Sometimes they would give money to ‘Ofaloto in case he had seen the vehicles going back and forth from the container.
    7. Some of the deliveries were to Mr. Pomale who he is not acquainted with. However, he always sees Mr. Pomale in front of the Chinese Shop where he works and so he went and asked if he wanted to buy boxes of mutton and chicken.
    8. They took about 200-250 boxes of mutton;
    9. The only reason they plead not guilty was because the number of boxes of meat they are charged with taking is too much;
       

8. Closing submissions by the Crown:

50. The Crown relies on the following evidence to prove their case against the accused Saimone Vaka:

1. Exhibits 1-15;
2. Evidence of investigating officer;

100. Police station diary;

4. Case of Manchent v Quinn [1970] 2 ALL ER – where it was held that it was unnecessary that the prosecution should prove all the articles mentioned in the information (or in the case of an indictment, in the indictment) had been stolen;

51. The Crown relies on the following evidence to prove their case against Mr. Lavelua:

1. Record of interview and Voluntary confession statement;
2. Demonstrations to police;

52. The Crown relies on the following evidence to prove their case against Mr. Pousini:

1. Record of interview and voluntary confession statement;
2. Admission during cross-examination that he knew Mr. Vaka and Mr. Lavelua were stealing boxes of meat and that they would have been unable to take the products if he had stopped them;

53. The Crown relies on the following evidence to prove their case against Mr. Blake:

1. Record of interview and voluntary confession statement;
2. The case of R v Tu’ipulotu & Manuefetoa CR 7-8/2023 where Justice Tupou KC listed the circumstances where an inference can be made that an accused knew or should have known that goods were stolen:
   1. Buying a product at gross undervalue;
   2. Failure to enquire about where the goods were from;
   3. Received goods at an unusual place or time;
   4. Removal of identification marks on the goods;

100. Firstly, the price the accused paid for the boxes of mutton from Mr. Vaka was grossly under value compared to the true price sold in the stores;

4. The accused had stated that the complainant’s price for a box of mutton is approximately $300+ but that at his shop they sell it for $280. Therefore buying if for $100 only was very much under value. Even though he stated that it was because the mutton was full of fat there was no evidence of that in this court.

54. The Crown relies on the following evidence to prove their case against Mr. Charlie Levini Pahulu:

1. Record of interview and voluntary confession statement;
2. The case of R v Tu’ipulotu & Manuefetoa above;
   

I. Defence Closing submissions

55. Ms. Kafoa for ‘Ofaloto Pousini submitted as follows:
    1. The Crown has failed to prove the charges against her clients, beyond a reasonable doubt. The fact that the accused Mr. Pousini was present during the theft does not indicate that he knew a crime was being committed;
    2. Additionally, in comparing the size of Mr. Pousini to that of Mr. Vaka and Mr. Lavelua, there is nothing her client could have done to stop them;
56. In relation to the accused Mr. Viliami Pomale Blake, counsel submitted as follows:
    1. Mr. Blake did not know that the goods being sold to him by Mr. Vaka were in fact stolen. Mr. Blake had given evidence that this was the first time for him to meet Mr. Vaka. Mr. Pomale had also stated in his evidence that as soon as he found out that the goods were stolen, he contacted the complainant to let him know. Even though Mr. Vaka had come to him several times, he did not know that the goods were stolen;
    2. It was put to Mr. Blake by the Crown that he had known the goods were stolen because he would have sold it to his employer who was the owner of the shop he worked in. But Mr. Pomale had stated that the reason he had not sold the boxes of meat to his boss was because his boss had already told him that he never buys any products from outside. Crown cannot therefore prove that he knew the goods were stolen.
57. In relation to Mr. Charlie Pahulu, counsel submitted as follows:
    1. The accused Mr. Pahulu disputes the amount of boxes of meat he received from Mr. Pomale. Firstly, Mr. Pahulu is alleged to have received 60 boxes of meat from Mr. Pomale. However, Mr. Pomale is only being charged with 20 boxes of meat that he received from Mr. Vaka. He cannot therefore be said to have received 60 boxes of meat from Mr. Pomale when Mr. Pomale is only charged with receiving 20 boxes from Mr. Vaka;
    2. Additionally, Mr. Pahulu did not know that the goods had been stolen. The fact that he received the goods in the early morning hours on a Sunday and Tuesday morning is not enough to prove that he knew the goods were stolen. In Tonga, it is not uncommon to purchase things even on Sunday morning. This should therefore not be taken to mean that the goods were received under suspicious circumstances;
58. Ms. Kafoa submitted that overall, the Crown has failed to prove the charges against her clients beyond a reasonable doubt;
59. Mr. Saimone Vaka in closing submissions said the following:
    1. The Crown allege that he had opened the container and taken the goods out but Andy had given evidence that he had found the container open and had contacted the complainant after the second time. Andy had given evidence that he saw the boxes of meat already outside of the container. That was when Andy had approached him to take the boxes of meat and sell them.
    2. The amount of boxes they are being charged with is incorrect. They did not take that many boxes of meat;
    100. He is also concerned with the fact that the complainant have money to the police and that could be why the complainant is getting away with the high amount they are alleged to have stolen. The complainant had not informed the Police that his container had been broken into two times prior to this;
    4. He had also voluntarily informed the police and had shown them the area they had taken the boxes from. He had also told the police the number of boxes he received from Mr. Lavelua and he did not hide anything;
60. Mr. Andy Lavelua submitted as follows:
    1. He is only concerned with the fact that there is no direct evidence of the charge against him. The amount of boxes of meat they are charged with is wrong as they did not take 700 boxes of meat;
61. At the end of closing submissions, the Crown made an application to amend the particulars of the indictment of Mr. Viliami Pomale to say ‘in relation to the amount that you received from Saimone Vaka’.
62. The next amendment to Mr. Pomale’s indictment is to take out 20 and replace it with 85 to reflect the correct number of boxes of mutton (83) and two boxes of chicken which he believed to have been stolen. The amendments were so the particulars would align with the evidence called by the Crown and also entry number 42 of the Diary of Action;
63. Mr. Pomale had paid the complainant for the amount of 83 boxes of mutton and 2 boxes of chicken;
64. There was no objection by all accused persons and the application for amendment was allowed;
    
    10. Analysis
65. At the outset, I do not believe any of the accused persons version of events and reject all of their evidence in their entirety;
66. All accused persons had voluntarily admitted to the charges against them in their record of interview. It is trite law that a confession alone is sufficient to convict an accused unless such confession is shown to have been made under duress;
67. I do not believe Mr. Vaka’s version of what happened. His description of what happened was unreliable and his nonchalant demeanour in court gave me an impression of someone who knew he was guilty but just wanted his day in court. His evidence contradicted what he had told the police when he was interviewed. He had freely admitted in court to taking boxes of meat and selling them. He stated in his record of interview that Mr. Lavelua had told him he found a key to the container and that is when they began taking boxes of meat from the container. In court he claimed that they found the boxes of meat outside the container and they had tried to inform the complainant. Overall, I reject his evidence of what happened.
68. Mr. Vaka also disputes the amount he is being charged with. I do not believe he only received the goods from Mr. Lavelua who claims to have found the container open. The accused seems to have forgotten that there are photographs of him pointing to an area where he had hidden the keys to the container.
69. I have no doubt that this offence was planned by Mr. Vaka and Mr. Lavelua who had access to the keys of the container. As stated in Manchent v Quinn, it is not necessary for the Crown to prove all the items in the indictment have been stolen. It is sufficient that the Crown can prove any one of those items have been stolen;
70. Mr. Lavelua was also not a credible witness and I reject his evidence. As I said above, this crime was organized by him and Mr. Vaka. He had access to the keys of the container and he sought the assistance of Mr. Vaka to help him steal the boxes of mutton and chicken and to sell them for their benefits and the benefit of others;
71. In relation to the third accused Mr. Pousini, I have no doubt that he had assisted Mr. Vaka and Mr. Lavelua to commit the theft of the boxes of meat. Not only did he admit to this in his record of interview, he had admitted this in court despite first stating that he had not known about the theft. He later admitted to having looked the other way and receiving around $300 from the first and second accused. I have no doubt that he knew exactly what Mr. Vaka and Mr. Lavelua were doing and he had purposely allowed them to take the products by not stopping them or calling the complainant to inform him. The fact that he knew what was going on and failing to stop them and failing to inform his boss makes him guilty of abetting or assisting the first and second defendants to commit the theft of the meat boxes. I do not accept counsel’s submission that he was much smaller in size and would not have been able to stop Mr. Vaka and Mr. Lavelua. Mr. Vaka admits to have given him $300 for his part in looking the other way and the accused himself admitted to having received $300 from them;
72. In relation to the fourth accused Mr. Charlie Pahulu, I have no doubt that he too is guilty of receiving the boxes of meat knowing them to have been stolen. He has voluntarily confessed to the police. The circumstances of the time he received them in the early mornings house does raise a reasonable inference that he knew the goods were stolen;
73. Lastly, based on the evidence I have no doubt that Mr. Blake is guilty of receiving stolen property. The circumstances under which he received them are suspicious and he should have known that they were stolen;
74. Overall, the evidence against all accused persons were overwhelming and I am satisfied that the Prosecution has proven all the elements of the charge against all of them beyond any reasonable doubt.
75. They are accordingly convicted.
    

NUKU’ALOFA: 23 May 2024

‘E. M. Langi
ACTING J U D G E