Kamoto v R [2025] TOSC 18; AM 23 of 2024 (17 March 2025)

IN THE SUPREME COURT OF TONGA

APPELLATE JURISDICTION

NUKU’ALOFA REGISTRY

AM 23 of 2024

BETWEEN :

NESIASI KAMOTO

Appellant

AND :

REX

Respondent

__________________________________________________________________________

JUDGMENT

___________________________________________________________________________

BEFORE: JUSTICE TUPOU KC

Appearances: Mr. S ‘Etika for the Appellant

DPP, Mr. J Lutui for the Respondent

Hearing: 13 March, 2025

Judgment: 17 March, 2025

The Appeal

1. This is an appeal to set aside the conviction and sentence of the Appellant for trespass and disturbance on 13^th November 2024 and 27^th November 2024 respectively.
2. As against the conviction for trespass, it is contended that the Learned Magistrate erred in that;

a) he failed to properly apply the required standard of proof; and

2. he relied solely on the demeanour of the witness to assess credibility of witnesses.

3. As against the conviction for disturbance, the appellant contends that the Learned Magistrate erred in that;
   1. he ignored that the summons in this matter was defective; and
   2. he failed to satisfy himself that the Prosecution had discharged the burden on all of the elements of the offence.

The Facts

4. The trespass and disturbance charges relate to a registered town allotment in the name of Viliami Mani Soane situated at Tofoa, left in the care and control of Sione Vea.
5. The record of evidence in the Magistrates Court show that the complainant, Sione Vea was authorised in writing by Viliami M Soane (“Soane”)^[1], the landholder of the subject town allotment to care and look after his town allotment.
6. On 10 November, 2023 Soane’s lawyer wrote to the Appellant informing him of his arrangement with Mr Vea. Soane was also aware that the Appellant had planted trees on his allotment and made Mr Vea’s task difficult and was informed not to enter the said town allotment and to refrain from interfering with Mr. Vea’s use of the allotment in the said letter.
7. It appears that the Appellant and another did enter the town allotment subsequent to that warning, as charges for trespass on 18 November, 2024 were pressed against them. It was not disputed that the Appellant and his co-accused were convicted of trespass against the same allotment the Wednesday of the week this offending occurred. It appears that Senior Magistrate Ma’u convicted them on 18 June, 2024 and on 25 June 2024, they were fined $100 to be paid within 2 weeks or face 1 week imprisonment on default.
8. The trespass and disturbance charges in this instant occurred on 22 June, 2024, several days after the said conviction.
   

CR 426 of 2024

Grounds of Appeal on Trespass charge

A. Failure to apply proper standard of proof

9. This challenge relates to paragraphs 21 and 31 of the verdict. Paragraph 21 reads:

“It is understood that the accused entered Viliami Soane’s tax allotment being in the care and control of Sione Vea, was the entry lawful? On the evidence the clear answer is no as he had not been authorised in any manner to enter the allotment, not only that he chased Mr Vea and persons who were with him from the land and this was supported by Viliami Mani Soane’s evidence, the landholder. Accordingly, the Prosecution has proven all of the elements of trespass that the accused entered the allotment without any lawful excuse.”

10. The first challenge was that the Learned Magistrate erred by not clarifying what standard of proof he applied when he found the Prosecution had proven all the elements of trespass in this paragraph.
11. It is true that the applicable standard of proof is not specifically spelled out in paragraph 21. But as argued by the Respondent, the content of paragraph ought not be taken in isolation, as the Learned Magistrate’s judgment referred to the evidence throughout his judgment and then drew his conclusion referring to the standard of proof at paragraph 31. I agree. At paragraph 14-15 the Learned Magistrate recorded that the Crown bore the burden of proof. At paragraph 21 he recorded his view that the Crown had discharged that burden. He confirmed there was overwhelming evidence in support of the Crown’s case at paragraph 28 and at paragraph 31 concluded that the burden was discharged to the standard whereby he was left without any reasonable doubt the accused committed the act of trespass.
12. Staying on the same paragraph, the second challenge was that the Learned Magistrate posed the wrong question by asking “was the entry lawful?” and ultimately arrived at the wrong conclusion. Instead it was suggested, the more appropriate question should have been, “was there any lawful excuse for the entry?”.
13. Whether the Learned Magistrate posed the question he did or that proposed by the Appellant, he ultimately arrived at a conclusion consistent with the required element of the offence requiring proof, that is, that the accused entered the allotment “without any lawful excuse”, demonstrating, in my view, that he properly directed himself as to the elements of the charges before him. I do not accept the question asked was erroneous or that it led him to an incorrect conclusion.
14. Lastly on this point, Mr. Etika submitted that paragraph 31 was misleading because the Learned Magistrate used the words, “...the prosecution has been able to prove the charge to the standard which I have no reasonable doubt (reasonable doubt) the Defendant committed trespass...”. Instead, it was suggested that a more appropriate conclusion should have been, “the prosecution has been able to prove the charge beyond reasonable doubt that the defendant committed trespass...”. It was so misleading that arguably any “plausible construction” of the wording must mean the charge of trespass had not been proven by the prosecution to the required criminal standard.
15. In reply, the Crown referred to Manulevu v R [2024] TOCA, AC 17 of 2023, where the Court of Appeal defined “beyond reasonable doubt” to mean that the prosecution had to make the jury “sure” the crime was committed. As well as Onedera v R [1991] Tonga LR 28, where in his summing up to the jury, the presiding Judge did not specifically use the words “beyond reasonable doubt” but directed that:

“ The prosecution has to prove that she is guilty of these charges and they have to prove every element of each charge to the extent that you can be sure that she is guilty. In respect of each of these charges, if you think that she might be guilty that is not enough and you should acquit her. And even if you think she is probably guilty, that is not enough and you must acquit her. You only convict her if you are sure that she is guilty.”

16. At the outset, I struggle with the argument that by any construction of the words used at paragraph 31 it would conclusively mean that the Learned Magistrate found that the charges had not been proven. The opposite is plain.
17. The attempts to translate the existing wording and provide an alternative wording from tongan to english bring to mind the idiom, “lost in translation”. Translation is never an easy task and the use of words to do that can clarify or cloud the real meaning of what is being translated. Here, Mr. Etika’s translation is one of a variety of ways to translate those same words. For example, one possible translation is to replace the word “which” used by Mr. Etika with the word “whereby” and the finding will read”

“...“the prosecution has been able to prove the charge to the standard whereby I have no reasonable doubt (reasonable doubt) the Defendant committed trespass...”.

18. Another possible translation could be:

“...the prosecution has been able to prove the charge to the standard leaving no reasonable doubt (reasonable doubt) in my mind that the Defendant committed trespass...”.

19. The rigid view that the words “beyond reasonable doubt” must be expressed has been discredited by Manulevu and Onedera. Therefore the criticism of paragraph 31 in this context is unsustainable. The words used by the Learned Magistrate at paragraph 31 to describe his conclusion and the standard of proof, in my view, exhibit he was sure that the Crown had proven the charges to the required criminal standard.

B. Credibility of witnesses

20. The second contention was that the Learned Magistrate erred in law and in fact as he failed to provide adequate reasoning for his blanket acceptance of the Plaintiff’s evidence over the Defendant’s as in paragraph 16 where he said:

“... the Plaintiff’s witnesses demeanour and their responses to questions I believe that the Plaintiff’s witnesses are credible witness...”

21. The complaint is that it was wrong for the Learned Magistrate to solely rely on the witnesses’ demeanour to conclude on their credibility infecting his decision to prefer the evidence from the Crown over his client’s.
22. In support, Mr. Etika referred me to a number of cases. The first of those cases was R v Angilau & Ors, where demeanour was held as an unreliable measure of a witnesses’ credibility. Second, he referred to R v Manase Funaki, CR 120 of 2024 where the LCJ Bishop acknowledged the principle in Angilau and went on to describe in detail the witnesses’s demeanour that aided and/or convinced him of his conclusions on the evidence in that case. Lastly, Mr. Etika referred to Pohiva v Nuku’alofa Magistrates Court [2015] TOSC, to argue that as the Learned Magistrate relied on the witnesses’ demeanour alone to arrive at a “blanket acceptance” of the respondent’s evidence, it was his duty to give detailed reasons for it like Funaki as a requirement of due process and justice.
23. Mr. Lutui concurred with the authorities relied on by the Appellant but argued that it would be relevant only if demeanour was the sole factor relied on by the Learned Magistrate to arrive at his conclusion on their credibility.
24. He argued that the Learned Magistrate referred to the witnesses’ demeanour as one of a number of factors he considered to arrive at his ultimate conclusion on credibility. He pointed to the Learned Magistrate’s citation of all of the relevant evidence from paragraphs 3-13 of his judgment. Then, from paragraphs 16-23 he went on to set out his assessment of the evidence on the trespass charge including his observation on credibility at paragraph 16.
25. Mr. Lutui continued that this ground of appeal is taken out of context and ignores the entirety of the evidence before the court as well as other findings of the Learned Magistrate on the evidence.
26. An examination of paragraph 16 of the judgment, reveal the discussion is relevant to the issue of entry inside the town allotment. The Learned Magistrate referred to the evidence from both parties and decided he was persuaded by the Crown’s witnesses by their evidence as well as their demeanour. To support that conclusion he also referred to the marking made by the Appellant as to where he was on the map and he states that “clearly he was inside the allotment.” That finding is well supported by the evidence and by the accused own admission as below.
27. The transcript of the Appellant’s evidence on this point records the following question from the Court:

“Court: Nesiasi (accused), you understand the map? You had marked an X to indicate where you had parked your vehicle, was it on the road or inside the allotment?

Accused: inside the allotment.”

28. The second challenge was, when the Learned Magistrate stated that he “believed the Plaintiff’s witnesses are credible witnesses” it meant that he was unsure of how reliable the evidence was. The assertion is illogical. The statement is plain. To accept the assertion made on behalf of the Appellant would be to ascribe the opposite meaning and ignore the plain and ordinary meaning of those words.
29. Lastly, on this point, it was argued that the Learned Magistrate failed to take into consideration the undisputed justification that the accused “grew up on the land in question and had planted edible fruit trees on the surrounding boundaries.” This is a bold and untenable argument given it was established that the allotment was registered in Soane’s name and he had authorised the complainant to look after it. Further, Soane had stopped the accused from interfering with his land and the complainant had been convicted for trespassing on the same land four days prior to this offending.
30. For the above reasons, the grounds of appeal under this head have not been established and are therefore dismissed.

CR 426 of 2024

Grounds of Appeal on Disturbance charge

31. It is helpful to set out the provision under which the disturbance charge was brought. Section 3 (g) of the Order in Public Places Act provides:

“Any person who shall commit any of the following acts shall be liable on conviction to a fine not exceeding $1000 and in default of payment to imprisonment for any term not exceeding 12 months, that is to say, every person who-.....

(g) by shouting or beating any drum, tin or tank without just cause, blowing any horn, quarrelling or in any other manner, makes any disturbance or loud noise in any public way or within the boundaries of any town:

Provided that this paragraph shall not be deemed to apply to-

(i) the making of Government proclamations and calling “sail-ho”; or

(ii) the making of any public announcement by a town official; or

(iii) the playing or practising between the hours of 6 in the morning and 10 at night of any band of instrumentalists, or the playing by such band on special occasions outside such hours if with the written permission of the Minister of Police or his representative.”

32. The grounds of appeal as set out in the notice of appeal under this head is that the Learned Magistrate erred in law by convicting the appellant because:

a) the weight of the evidence did not support a conviction;

2. the findings were inconsistent with the offence charged under s.3(g ) of the Act and more consistent with an offence under s.3(h);

100. there was no consideration of the apellant’s submission that the summons was defective and failed to make an amendment after receiving the said submissions.

Weight of evidence

33. Mr. Etika sought to rely on the same arguments under the trespass charge where it was submitted that the Magistrate failed to provide adequate reasons for his blanket acceptance of the prosecution’s evidence but focusing on paragraph 29 of the judgment this time.
34. The Learned Magistrate at paragraph 29 described that the appellant with machete in hand challenged Mr. Vea to a fight. He rejected the appellant’s evidence that he picked up the machete in fear of it being stolen and accepted that the appellant shouted with abusive language and chased them from the allotment.
35. The Learned Magistrate was entitled to accept the prosecution’s evidence as it was not disputed by the appellant.
36. It was further argued that the appellant was not in a “public place” because he was inside Soane’s allotment or his own at the time. It is mischievous to renege and say he was inside Soane’s allotment after vigorously arguing he was on the roadside in defence of the trespass charge. It is unacceptable and dishonest. The argument is rejected.
37. In any event, section 3(g) includes the words or within the boundaries of any town and the Magistrates finding that the disturbance occurred within the boundaries of Tofoa is sound.

The findings were inconsistent with the offence charged under s.3(g ) of the Act and more consistent with an offence under s.3(h);

38. The contention is that the Magistrate’s conclusion that the appellant was threatening the complainant when he held the machete in his hand while challenging him to a fight and he shouted and ordered them out and used abusive language. Mr. Etika argued they are more consistent with the wording of s.3(h).
39. In reply, Mr. Lutui highlighted paragraph 15 of the Magistrates judgment where he set out the elements of the offence here, as:

“ i. the defendant;

2. caused in any other manner disturbance when he told Sione Vea to fight and verbally ousted them from the land and other words;

iii) within the boundaries of the town of Tofoa.”

40. He argued that the above elements are almost identical to the particulars of the summon and s.3(g) of the Act.
41. The Magistrate’s finding at paragraph 29 is in line with the elements of the offending and the particulars of the charge laid.

There was no consideration of the appellant’s submission that the summons was defective and failed to make an amendment after receiving the said submissions.

42. The submission made on behalf of the appellant below were that the summons was defective because:
    1. the alleged words used on the summons and in evidence against the appellant were said to be abusive and threatening words which fall under s.3(h) as opposed to 3(g); and
    2. the disturbance caused was not in a public place.
43. As a result, the summons is contrary to s.11 of the Constitution which provides amongst other things that indictments are to clearly state the offence charged and the grounds for the charge.
44. The argument at 30(a) above has been settled at paragraphs 26-30 above.
45. The second argument is that a public way is defined under s.2 as “any road, highway, street, market place, bridge, wharf or other way lawfully used by the public.”
46. Mr. Lutui argued the insertion of the word “or” between “public way” and “within the boundaries of any town” make clear that there are two “limbs” available under the section. In this instant the particulars of the offending was that it occurred within the boundaries of any town.
47. Clearly, the Magistrate did not accept the summons was bad and therefore did not see it fit to make any amendments. Having said that, I do note that when the Magistrate dealt with the disturbance charge in his judgment he made no mention of the submission to amend the summons but I do not find it fatal.
48. I accept the elements set out by the Magistrate did reflect the particulars of the summon and s.3(g) of the Act and within the boundaries of any town is provided for in the section and there was no need to amend the summons in this respect. In Fanua v Rex [202] TOCA 5, AC 8 of 2019 (24 March, 2020), it was held that, “The giving of reasons is a normal but not a universal incident of the judicial process. There are some cases, or kinds of cases, where they need not be given.” I believe this principle can safely apply here.
49. There were 3 other grounds of appeal not included in the notice of appeal but raised by the appellant’s submissions. No leave was sought to extend the grounds of appeal. However, I can deal with them quickly.
50. The first is an objection to the Magistrate rejecting the appellant’s evidence as to why he was holding the machete. The second is an objection to the Magistrate’s acceptance that the appellant committed a disturbance. The third is a repetition of the complaint against the Magistrates conclusion at paragraph 31.
51. I have sufficiently dealt with the complaint in respect of paragraph 31. As for the other two grounds, the Learned Magistrate is entitled to accept and/or reject evidence after giving it his full consideration and assessment.
52. For the reasons stated, the grounds of appeal have not been made out and are dismissed. The convictions and sentence in both cases stand.
    

P. Tupou KC
Nuku’alofa: 17 March, 2025 J U D G E

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^[1] Exhibit E