R v Vaka'uta [2024] TOSC 79; CR 156 of 2024 (11 October 2024)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY
CR 156 of 2024

BETWEEN:
R E X
-Prosecution

AND:
MAKA KELILOPA VAKAUTA
-Accused

VERDICT

BEFORE: LORD CHIEF JUSTICE MALCOLM BISHOP KC

Appearances: Mr G. Aleamotu’a for the Crown Prosecution
Ms H. Aleamotu’a for the Defendant
Date: 11 October 2024

1. THE CHARGE

1. On 10 September 2024, the Defendant was arraigned where he pleaded not guilty on count of theft.
   1. Count 1: Theft, contrary to section 143(a) and 145(b) of the Criminal Offences Act.
2. On the 10 October 2024, trial for this matter commenced. Evidence from both parties concluded today with no further submissions.
   

2. THE ELEMENTS OF THE OFFENCE

3. Before I can convict the Defendant on the offence charged, I must be satisfied beyond a reasonable doubt that on or about 18 March 2024:
   1. The Accused, Did dishonestly take the tractor and other items; Without any colour of right; To permanently deprive Mosese Uele, Without Mosese’s consent, With the intention of converting it for the use of others without Mosese’s consent.
      

100. THE EXHIBITS

4. The Crown in this proceeding tendered in one exhibit. No further exhibits were tendered in by the Defendant.
   1. Exhibit 1: Photos of the Tractor
      

4. DISCUSSION

5. In this case, which has been well argued on both sides, I am left with the position that the sole case against this Defendant is the contents of a conversation with a relative of the person who lost their tractor.
6. On of the matters that was not clear to me at the time is that it was suggested that the Defendant has apologised for what happened, the inference sought to be, that in some way implicated him in the theft.
7. However, the word which counsel accepts he used was “kataki” which I’m told is Tongan that can either mean “sorry” or “please.” In that event, there’s no way that I could be satisfied so that I am sure, or a jury properly directed taken at its highest could safely conclude that the Defendant was admitting involvement in the theft.
8. But even if the words used meant “sorry”, and even if he was apologising, it does seem to me a properly directed jury taking the prosecution’s case at its highest could amount to an admission of guilt because it’s equally possible that the Defendant was apologising for the fact of the theft, the fact that the Complainant lost his tractor albeit temporarily, or that the tractor was found in circumstances which might cause the Complainant to be suspicious of him.
   

5. RESULT

9. Taking those matters together, I do not think that any jury properly directed could possibly convict the Defendant, it follows therefore that the case cannot go any further and a not guilty verdict must be entered.
10. The Defendant is acquitted on the first and only count of the indictment for the charge of theft.
    

NUKU’ALOFA HON. MALCOLM BISHOP KC
11 October 2024 LORD CHIEF JUSTICE