IN THE COURT OF APPEAL IN TONGA 
CRIMINAL JURISDICTION 
NUKU’ALOFA REGISTRY	AC 9 of 2025
[CR 209 of 2024]	

BETWEEN           THE ATTORNEY GENERAL 
                               Appellant 

AND                      TEVITA FA’UHIVA 
                               Respondent 

Hearing                  11 November 2025 

Court                      Randerson, Harrison & Dalton JJ 

Appearances           Sesilia ‘Eliesa for the Appellant 
                               No appearance by the Respondent 

Judgment                20 November 2025 

	

JUDGMENT OF THE COURT
[1]	The Attorney General submits a question of law to be determined pursuant to s 17D of the Court of Appeal Act.  The respondent was acquitted on one count of theft contrary to s 143(a) of the Criminal Offences Act after a trial heard by the Lord Chief Justice sitting without a jury. The respondent played no part in this appellate proceeding, although the papers were served on him.
[2]	The respondent was a student and friends with the complainant; they studied at the same university.  The respondent moved into the complainant’s house and made some small contributions to the finances of the household.  At some point he took several items from the house; he did not return, and did not return the items. Some items were of little value, such as a jar of coffee and bottle of washing up detergent. The trial judge found these small domestic items were used by both the complainant and the respondent in the course of their living together in the same house.  However, other items taken by the respondent were of considerable value: mats and furniture.  These items had been purchased by the complainant with money provided by her mother. The respondent told police that because he needed money, he obtained cash loans on the security of three of these valuable items at two different pawn shops.  He made no repayment of the amounts advanced by the pawn shops. The valuable goods taken by the respondent, but not pawned, included clothing owned by the complainant worth $1000.

The Indictment
[3]	The indictment contained one count only; all the goods taken were listed in a separate document as particulars of this one count.  We would comment that it would have been better to bring separate counts in relation to each item.  That way there would be no difficulty if, as here, the fact finder at trial took the view that some items (such as the coffee and dishwashing liquid) might reasonably have been thought to be for the use of both the complainant and respondent, or in the event that there were different states of mind proved in relation to the items pawned, and the valuable items which were not pawned.  Also, the prosecutor might have thought twice before adding minor items as the subject of a separate charge.  Here the trial judge commented on the seeming trivial nature of some of the items particularised as not warranting prosecution.  We agree.  
[4]	The reasons for verdict deal with the items pawned, but do not deal with the other valuable items taken from the house. Perhaps because the items were all the subject of one count, and the Lord Chief Justice found that the Crown had not proved its case in relation to the items pawned, he did not believe he had to deal with the other items particularised.
Reasons for Acquittal
[5]	Section 143(a) of the Criminal Offences Act provides:

143 Definition of theft
Theft is the dishonest taking without any colour of right of anything … with intent either —
(a) to deprive the owner permanently of such thing;…
…
and with the intention of converting such thing to the use of any other person
without the consent of the owner …; “theft” and “steal” shall be construed accordingly.
Explanations
If the article which the defendant is charged with stealing was taken by him
either by mistake or in the honest belief that he had a right to it or with the full intention of returning it to its owner the defendant cannot be convicted of
theft.
…
[6]	The Lord Chief Justice acquitted the respondent because he found that an intention to dishonestly deprive the complainant of the three items pawned had not been proved to the requisite standard by the Crown: “…I asked myself, can I exclude the possibility that he honestly believed that what he was doing was not stealing and that he intended to restore the mats and the other property in due course, and that he had the right to behave in this way because of the background with the Complainant” – [27] below.  This question was answered in the negative - [30] below.

Point of Law
[7]	In answering the question he posed for determination, the Lord Chief Justice looked only to the subjective state of mind of the respondent.  He said:
“It does not matter whether [the respondent’s belief] was realistic or not.  The important point is whether what he did was honest or dishonest.” –[21] below.  “So what I have to do is step back and ask myself, am I satisfied so that I am sure that there is no possibility that the defendant did not believe that what was doing was justified in his eyes and honest according to his lights?” – [26] below.
[8]	The question posed in this appellate proceeding is: “Was the Lord Chief Justice Bishop KC correct when he focused only on the Respondent’s state of belief in determining the issue of dishonesty?”  
[9]	In looking to find the meaning of “dishonestly” in s143(a), the Lord Chief Justice noted the similarity between s143(a) and legislation in the United Kingdom.  That comparison was criticised on appeal, but we think it was valid, and indeed it is the similarity between the two legislative provisions which opens the way for an examination and use of case law from the United Kingdom, for which the prosecution contends. 
[10]	The difficulty with the reasoning below is that the Lord Chief Justice applied R v Bernhard, a case from the United Kingdom in 1938 as to the meaning of dishonesty in the comparable UK statute.  In reliance on that case, the Lord Chief Justice interpreted the test for dishonesty as being an entirely subjective one, dependent only upon the state of mind of the respondent, whether or not the respondent’s belief was correct as a matter of law, or reasonable as a matter of societal norms.
[11]	The Attorney General submitted that the test in Bernhard had been overruled, first in R v Ghosh, and then in Ivey v Genting Casinos Uk Ltd, and that the test in Ivey should have been applied.  We accept that submission is correct.  
[12]	In Ivey the Supreme Court of the United Kingdom described the case law authorities prior to Ghosh as being “in somewhat of a tangle” - [65].  The Courts had accepted that dishonesty was a reference to a state of mind, and some cases had applied a purely subjective test, as the Lord Chief Justice did here.  The difficulty with such a test has been pointed out in the cases and the academic literature: should a defendant have idiosyncratic views about property, or indeed anti-social views, he or she will be acquitted even though the conduct is dishonest according to societal norms.  
[13]	In 1982, in the decision of Ghosh, the English Court of Appeal continued to take the view that dishonesty was a state of mind, but put forward a two-stage test which incorporated reference to society’s standards of honesty.  
[14]	In a further development in 2018, Ghosh was overruled in Ivey.  Ivey was a civil case, but the Supreme Court comprehensively reviewed the criminal authorities and decided the case on the basis of them.  The test established was:
Where dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts.  The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether or not it genuinely held.  When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary people.  There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest. 
[15]	In Barton and Booth v The Queen the Court of Appeal in the United Kingdom made it clear that the test in Ivey was to apply in criminal cases.
[16]	The Ivey test is substantially the same as that applied in New Zealand.  In National Plant and Equipment Pty Ltd v P Mundy Heavy Equipment Limited,The New Zealand High Court referred to the passage from Ivey just set out as “helpful guidance”, and as in accordance with the modern approach of the New Zealand Courts –[59].  The New Zealand High Court said:
The test for dishonesty is an objective one, judged against the background of what the defendant subjectively knew.  If the defendant’s mental state would be described as dishonest by ordinary standards, it is irrelevant that the defendant does not consider his or her conduct to be dishonest and/or does not appreciate that, by ordinary standards, it would be regarded as dishonest. – [59]
[17]	In Australia Ghosh was followed. However, before the decision in Ivey, the High Court decision in Peters v The Queen changed the test in Australia so that it became a one-step, objective test. Since Peters, Australian Courts ask whether what the accused person did was dishonest by the standards of ordinary, honest people. It is hard to think of a factual example where this test would produce a different result from that in Ivey. 
[18]	We are of the view that the test in Ivey is the correct test to be applied in considering whether a taking is dishonest within the meaning of s 143 of the Criminal Offences Act.  That provision plainly has much in common with ss 1-7 of the United Kingdom’s Theft Act 1968, having regard to the language used in each statute.  There is nothing inapposite in the modern test used in the United Kingdom in applying its analogous legislation.  To the contrary, the Ivey test avoids accused persons relying on their own idiosyncratic or antisocial beliefs to avoid conviction. A test very similar to the Ivey test is used in both New Zealand and Australia.  
[19]	 Determination
We return to the question posed by the Attorney-General, “Was the Lord Chief Justice Bishop KC correct when he focused only on the Respondent’s state of belief in determining the issue of dishonesty?”  For the above reasons, the question must be answered “No”.  For completeness, we note that determination has no effect on the verdict of acquittal below – s17D (5) of the Court of Appeal Act.

_________________
   Randerson J

_________________
 Harrison J

__________________
Dalton J