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R v Vete [2004] TOLawRp 41; [2004] Tonga LR 263 (19 August 2004)

IN THE SUPREME COURT OF TONGA

R

v

Vete anor

Supreme Court, Nuku'alofa
McElrea J
CR 112-3/2001

16-19 August 2004; 19 August 2004

Criminal law – assault with intent to rob and possession of arms without a licence – guilty

The Crown contended that on 9 May 2001 the two accused, Vete and Latu, and their former co-accused Latu Inu Paseka (now deceased) decided to rob the complainant, a Chinese businessman (Ming Seng Tsay), using a gun provided by the first accused Vete, and when they found he had no money on him they assaulted him to try and get him into their car, still with the intent to rob him. The gun used was not licensed. The two accused were each charged with assault with intent to rob (count 2) and with possession of arms without a licence (count 3). Vete's defence was that while he was there at the time, the Crown did not prove that he provided the gun, or had any intent to rob, or assault Tsay other than by possibly holding his hand. Latu's defence focussed on the reliability of the only witness who identified him (Molonai Holeva), based on alleged discrepancies.

Held:

1. Although the Crown did not have to prove particular items of evidence beyond reasonable doubt but only the components of the offence, the gun was so relevant to both charges that it was only safe to apply the criminal standard of proof to the dealings with this gun. The Court was satisfied beyond reasonable doubt that Vete got the gun from his home and put it in the car for a purpose he had discussed with at least Paseka, namely the incident that was about to occur, or possibly some other incident if a more convenient target appeared in sight. While acknowledging the accuseds' right to silence, there was no denial from Vete which had to be balanced against the evidence so strongly stacked against him by the Crown.

2. The definition of assault includes wilfully and without lawful justification applying or attempting to apply force to another person, directly or indirectly. It need not be a violent act, and intentionally taking hold of the victim's hand or arm without his consent would be an assault, as would the pushing of the victim towards the car.

3. Intention to rob was proved beyond reasonable doubt for each accused by a process of inference from a number of proved facts, and it was the only reasonable conclusion on the evidence.

4. The remaining elements of count 2 - identity of accused, identity of the complainant, and time and place of offending - were all proved beyond reasonable doubt. As all components of the charge were proved beyond reasonable doubt, the court entered a guilty verdict against each accused.

5. The elements of the charge in count 3 were the identity of the accused, the date and place of the offence, the possession of the arm and the lack of a licence.

6. An accused did not have to be the owner of a gun to commit the offence. All elements of the charge against the accused Vete were proved beyond reasonable doubt.

7. The Court inferred joint possession of the firearm because of the common plan on the part of Vete and Paseka to use the gun for robbery. Vete put the gun in the car for the purpose of it being available for robbery. However, whether Latu was part of an agreement to use the gun in a robbery was more speculative, and the Court found that the Crown did not prove "possession" of the gun beyond reasonable doubt as far as Latu was concerned.

8. On count 3, the Court entered a verdict of not guilty as far as Latu was concerned and guilty as far as Vete was concerned.

Statutes considered:

Arms and Ammunition Act (Cap 39)

Criminal Offences Act (Cap 18)

Counsel for prosecution: Mr Kefu
Counsel for first accused: Mr Niu
Second accused, Latu, appeared in person

Judgment

Preliminary matters

The two accused Vete and Latu are each charged under count 2 of the indictment with assault with intent to rob, contrary to s 155 of the Criminal Offences Act (Cap 18), and under count 3 with possession of arms without a licence contrary to s 4(1) and (2)(b) of the Arms and Ammunition Act (Cap 39).

The particulars of count 3 are the same for the two accused, in that each accused is said to have had in his possession on or about 9 May 2001 a .22 rifle which was not licenced. The particulars given in respect of count 2 are different however as between the two accused. In respect of the accused Vete it is alleged that on or about 9 May 2001 he assaulted Ming Seng Tsay with the intent to commit robbery. In respect of Latu the allegation is that on or about the same day he assaulted Tsay by holding his hand and pointing a .22 rifle at his mouth with the intention to commit robbery. The Crown conceded that there was no evidence of Latu pointing the gun at the complainant, and so the Crown relies only on the allegation that Latu held the complainant's hand while he was punched.

The other counts were not subject of any evidence from the Crown and the accused are accordingly discharged now on all counts except counts 2 and 3.

Both accused elected to be tried by Judge alone. At trial the accused Veto was represented by Counsel, Mr Niu while the accused Latu was not legally represented. He applied at the commencement of the trial on Monday for an adjournment and an order releasing him from prison so that he could earn money to engage a lawyer to defend him. That application was declined on two grounds. First of all, Latu has had more than three years to organize legal representation for this trial; and secondly, any delay of this trial beyond the present time would, in my view, create an injustice by virtue of the difficulty for witnesses in recalling matters from so long ago.

Latu cross-examined witnesses but did not make any submissions when given the opportunity to do so. Neither accused elected to give evidence. That is their absolute right, but the consequence is that the Court will draw any proper inferences from the Crown's evidence alone.

The Crown and defence positions

The broad allegation is that on 9 May 2001 these two accused and their former co-accused Latu Inu Paseka (now deceased) decided to rob the complainant, a Chinese businessman (Ming Seng Tsay), using a gun provided by the accused Vete, and when they found he had no money on him they assaulted him to try and get him into their car, still with the intent to rob him. There was different evidence from two Crown witnesses as to who punched Tsay, but the Crown says that on either version both accused are guilty. Finally, the Crown says that the gun used was not licensed, and that each of the accused was in possession of the gun.

Broadly speaking the defence for Vete is that while he was there at the time, the Crown has not proved that he provided the gun, or had any intent to rob, or assaulted Tsay other than by possibly holding his hand.

The defence for Latu is more difficult to discern as he did not advance any submissions. However his cross-examination attacked the reliability of the only witness who identified him (Molonai Holeva), based on alleged discrepancies, in his evidence about Lalu's clothing, whether he was in the car or not when the Chinese man was spotted, the distance between Latu's house and Tsay's house, and whether he was in a position to see what he alleged he could see.

However, in respect of each accused the Crown must of course prove the essential elements of the charges beyond reasonable doubt.

Apart from the two accused and Paseka, there were two other people in the car in question - Holeva (above) and Falakiko Moala, who was to be a witness but has now moved to New Zealand and was not available. Because Mr Niu sought to show that witness Holeva was an accomplice, so that under Tongan law corroboration of his evidence was necessary, I reject that notion at the outset and find that Holeva (and probably also Moala, but he was not here to be examined) was in no way an accomplice of the other three. I formed a most favourable impression of the honesty of Holeva's account of matters, even though in some respects he must have been mistaken. I accept that he was invited to join the group as a driver while they went for some drinks, and knew nothing of any plan to rob anybody. He remained in the car at all times and only took over the driving when threatened with the gun by Paseka. He extricated himself from the group as soon as he felt safe in doing so, and he went himself to the police.

The crown witnesses

In order, these were:

1. Molonai Holeva, aged 21, engineer (or car mechanic). As noted, he was in the car used in the incident but was not an accomplice of the accused.

2. Ming Seng Tsay, aged 51, businessman - the complainant.

3. Lata Motulalo, aged 43, housekeeper to Vete's parents. She found a gun wrapped in a cloth under a bed in an unoccupied bedroom at that residence five days after the incident, and advised Una Tupou.

4. Una Tupou, aged 58, manageress of Lagoon Lodge, and the accused Vete's aunt. She received the gun from the previous witness and handed it to the police. I record that in so doing she acted with wisdom and honour and in the best interests of her family.

5. Sgt 'Aminiasi Po'uli, aged 37, police armourer, who identified the gun produced as exhibit "2' as an American semi-automatic .22 rifle with an unusual loading arrangement.

6. Semisi Fifita aged 58, retired Officer in charge of Hihifo Police District, who received from Una Tupou the gun she received from the housekeeper Lata Motulalo.

Movements of the gun

I propose to deal now with the movements of the gun, as it was an important item of evidence although it does not feature as an element in any of the charges.

First I deal with the fact that the police armourer who described the gun which was exhibit "2" and gave its serial number as the one he examined, did not himself receive it from Semisi Fifita, but from an unidentified member of the police probably on 5 June 2001. Mr Fifita's record of the serial number of the gun he received is apparently no longer available although that number was (he said) given in evidence in the preliminary hearing.

However, Mr Fifita said the gun he received was of the same type as the one in court, that it was not a common type of .22 rifle in Tonga, and that he cannot remember seeing any .22 of the same colour as the one in court. (The gun has a distinctive silvery-fawn wooden stock, and a silver coloured barrel and loading device.) He mentioned that the loading mechanism was not the usual arrangement where the magazine is inserted near the trigger; instead the rounds are dropped down a tube running parallel with and underneath the barrel, and directed towards the breach by a spring device which he demonstrated in court. I gathered that the weapon was also unusual in being a semi-automatic, in that the firing of a cartridge forces the bolt back ready for loading the next round.

In my view there is a high degree of probability (and I so find) that the two police officers handled the same gun - especially in the absence of any evidence, or even suggestion, that the police had possession around that time of any other .22 guns similar in colour, automatic action, or in having this tubular magazine.

Both of the Crown's eye witnesses identified the gun in court as the one used in the incident, and were not challenged in that identification. The gun in court undoubtedly has the same serial number as the one examined by the police armourer after Una Tupou handed in the gun found under the bed at the Vete residence in 'Anana.

The gun used in the incident was taken from the car, outside Tsay's residence by Paseka. It was in. the boot of the car and was taken from there by Paseka reaching in and lifting the arm rest in the middle of the back scat, thereby gaining access to the boot of the vehicle. Holeva saw him take it out and remove the cloth wrapping around it.

The sole remaining question is whether the gun had been put there earlier that evening by Vete, or Vete and Paseka, as alleged by the Crown. My finding is that it was. The uncontested evidence of Holeva was that after he got into the car (Vete, Paseka and Moala already being in the car), and after Latu was picked up, Paseka said that they would go to Vete's place. (Vete was at the time living at his parents' place where the gun was later found under the bed, but his parents were away for a month. He was living there just with his younger sister - and the housekeeper except on the nights when she stayed at her home.)

After Paseka said this, they drove to Vete's place and Vete got out and went inside the house. Holeva did not claim to see a gun but he heard Vete call out to Paseka to open the boot when Vete was coming from the back towards the boot. The only reasonable inference is that Paseka did open the boot and that Vete then put something in the boot – for why else would have wanted the boot to be opened? I think it likely though not essential that Paseka got out of the car and opened the boot in that way, or else got out so that he could supervise where the object was placed in the boot. There is no evidence of anything else being in the boot, or being put in the boot, and there is clear evidence that what was put in the boot by opening the boot, could be taken out via the armrest cushion in the back seat, if it was thin enough to pass through such a space.

It is also clear that the visit to Vete's residence where something was put in the boot occurred immediately before the incident in question. The narrative of the witness Holeva was that after Vete got back in the car they drove from his residence at 'Anana straight on the main road to Halaleva, which is where Tsay lived. A street map provided to the Court shows that the two villages or areas are very close to each other, and judging from the scale on the reverse side of he map the distance between the two places would be about a kilometre, or less. The time to drive there would be only a couple of minutes. There is no evidence that they detoured or delayed in their trip.

Given the whole of the evidence in this case, including the evidence that the gun used in the incident came from the boot via the arm-rest and ended up back at Vete's residence after the incident, the only proper inference is that what Vete brought from his house to put in the boot was the same item as was taken from the car by Paseka a short time afterwards, namely the gun, exhibit "2". Not only is the gun linked with Vete by being later found in his residence but there is no evidence of any other item being in the boot of the car, and the timing of the visit to his residence that night consistent with a weapon being collected for a purpose connected with the attempted robbery that followed immediately afterward.

In my view the only sensible view of the evidence as a whole is that Vete got the gun from his house, and that he put it in the boot, or gave it to Paseka to put in the boot, immediately prior to the incident.

Although the Crown does not have to prove particular items of evidence beyond reasonable doubt but only the components of the offence, the gun is so relevant to both charges that it is only safe to apply the criminal standard of proof to the dealings with this gun. I record that I am satisfied beyond reasonable doubt that Vete got the gun from his home and put it in the car for a purpose he had discussed with at least Paseka, namely the incident that was about to occur, or possibly some other incident if a more convenient target appeared in sight. While acknowledging again the accuseds' right to silence, there is no denial from Vete which has to be balanced against the evidence so strongly stacked against him by the Crown.

The incident itself

While there are discrepancies between the accounts given by Tsay and Holeva, I am quite satisfied that both were honest people doing their best to recall events of more than three years ago - the delay being no fault of the Crown - and where both can be expected to have suffered a certain amount of shock at what unfolded. Nevertheless there are strongly consistent aspects to their evidence:

• When Tsay was outside his house or very close to it, three people got out of the car, and one had a gun - exhibit "2". Tsay did not identify either of the accused in court as having the gun so there is no conflict with Holeva's evidence that it was Paseka who had the gun. Tsay did not say that the three got out at the same time, so there is no conflict with Holeva's evidence that Paseka told Latu and Vete to get out, and for Latu to stop "the Chinese" (as he was called in evidence), and that Paseka reached for the gun and got out last.

• The person with the gun demanded money, according to Tsay, and was told he had none on him but there was some in the house, so they moved toward the house. This move stopped when other people were seen or heard to be in the house. (Holeva said that Paseka was asking the Chinese where is the money; he may not have heard the rest of the conversation.)

• At some point Tsay was punched - according to him, by Vete whom he saw face to face while two people behind him tried to force him into the car, but according to Holeva by Paseka while the two accused held his arms or hands. There is a similarity there, in that both witnesses refer to one person punching while two others were manhandling Tsay in some way.

• The three only gave up when Tsay struggled free and ran into a neighbour's property shouting loudly. The undisputed evidence of Holeva is that Paseka ordered him into the driver's seat by motioning with the gun, and Paseka got into the front passenger's seat still holding the gun. Vete and Latu got into the back seat where Moala had remained throughout. They then drove off, and some time later Paseka shot at a street light and missed it.

COUNT 2 - ASSAULT WITH INTENT TO ROB

The definition of assault in s 112 of the Criminal Offences Act includes wilfully and without lawful justification - such as having consent - applying or attempting to apply force to another person, directly or indirectly. It need not be a violent act, and Mr Niu concedes quite properly that intentionally taking hold of Tsay's hand or arm without his consent would be an assault. So, of course, would be the pushing of Tsay towards the car.

In view of the conflict between of evidence between Tsay and Holeva on this important point I am not satisfied that it was Vete who punched Tsay in the face, causing a cut to his eyebrow that had to be stitched. It may have been Vete, but more probably it was Paseka. It was certainly one of those two, and if it was Paseka then both Vete and Latu played their part by holding Tsay's arms, one on each side. That is the more likely scenario, and it is what the Crown alleges for Latu in the particulars of offence for count 2.

Returning for the moment to Latu's cross-examination of Holeva, I find that Holeva was indeed confused about some aspects of direction and distance and possibly also clothing. However I considered him to be an honest witness in all respects and a reliable one in all important respects.

Intent to rob

Robbery has its common meaning – as defined in s 154(1) of the Criminal Offences Act.

"Robbery is the taking of anything capable of being stolen by using violence or threats of injury to the owner or person in lawful possession ... so as to put him in fear and thereby overcome his opposition to the taking."

There can be no doubt that Tsay would not be voluntarily giving money to this group of men and it would have to be taken from him by force or fear of force. That was clearly the object of the exercise. I do not accept Mr Niu's submission that it was all Paseka's doing. He may have been the leader during the incident, but I do not accept that the others knew nothing, of any intention to rob Tsay. That intention to rob is proved beyond reasonable doubt for each accused by a process of inference from a number of proved facts, and it is the only reasonable conclusion on the evidence before this court. These facts include the following five:

1. Tsay was recognized as someone they were interested in as soon as he was seen. – "That is the Chinese walking on the other side of the road", said Latu to Paseka. Paseka told Latu to get out and follow him, and to hurry or he would not get to him before he got to the corner. He also told Vete to get out and follow him.

2. As a businessman Tsay was obviously expected by the accused to have money.

3. The gun had been put in the car only minutes beforehand by Vete, after making a special visit to his residence.

4. Money was demanded as soon as the gun arrived on the scene, and this was before any punching or pushing occurred. So both accused knew then that Tsay was being threatened for his money, even if they did not know before hand (which I doubt).

5. When no money was obtained the punching occurred and an attempt was made to get Tsay into the car. Holeva did not refer to any attempt to get Tsay into the car, but I accept Tsay's evidence on this point - he would have been acutely aware of what was being done to him at that time. This attempt to get him into the car can only be interpreted as another coercive step in the attempt to obtain money from Tsay. They obviously did not want to have a drink with him, or go for a joy ride - there is no explanation other than the sinister one, and none was even suggested by the accused in cross-examination.

Adequacy of the indictment

I turn to the question of the adequacy of the indictment. Mr Niu argued at one point that if Vete did not punch Tsay then he could not be guilty as charged because there is no allegation that he was guilty as a party under s 8 of the Criminal Offences Act - by which I assume is meant a secondary party, or a party as distinct from as a principal. However it is my finding that Paseka's instruction to Latu to hold Tsay so that he could punch him, would have been heard by both accused, and their assistance by holding Tsay's arms or hands made all three principals in the ensuing assault by punching. The one who punched and the two who held the victim's arms were all jointly involved in the one act of violence. In any event, the holding of Tsay by the arms was itself an assault in the circumstances, and being done with the intent to rob it comes squarely within the indictment as worded.

Other elements of count 2

The remaining elements of count 2 - identity of accused, identity of the complainant, and time and place of offending - were all proved beyond reasonable doubt. All components of the charge having been proved beyond reasonable doubt. I enter a Guilty verdict against each accused.

COUNT 3 – POSSESSION OF UNLlCENCED ARMS

Section 4(1) of the Arms and Ammunitions Act (Cap 39) provides: in subsection (1) that "No person shall possess, use or carry any arm or ammunition except under a licence in respect of each arm and such ammunition so possessed, used or carried and in accordance with the prescribed conditions of such licence."

The term "arm" is defined in section 2 in a way it clearly would include this rifle. For some reason the Crown sought to amend count 3, so as to delete the words "and ammunition" after "possession of arms". It was said by Mr Kefu that the offence was the possession of "any arm or ammunition" and so he seemed to think that the Crown could not allege both. For the record I suggest that is wrong. Possession of arms and ammunition are separate offences under the section and either or both can be alleged in the charge. But leave was granted to amend the indictment and so we are dealing only with the rifle. Nevertheless, the presence of ammunition as well as the firearm is an aggravating fact that is proved by Paseka firing the rifle at a street light immediately after the incident.

The elements of the charge in count 3 are the identity of the accused, the date and place of the offence, the possession of the arm and the lack of a licence.

The lack of a licence for this Firearm was proved by the Police armourer who examined exhibit 2. He said that exhibit 2 was not a licenced weapon. Other witnesses established that exhibit 2 was the weapon used in the incident and later found at Vete's residence.

There is no doubt exhibit 2 was an arm as defined. It was certified by the Police armourer to be a real firearm and not an imitation. It was also capable of being fired, as was demonstrated shortly afterwards in the street light incident.

Next, there can be no doubt from the facts found so far that Vete was in possession of the firearm when he got it from his house on 9 May 2001, and also when he returned it there at some time in the next five days. I do not accept there was a reasonable possibility that it was Paseka who returned it.

It is accepted that an accused does not have to be the owner of a gun to commit this type of offence. All elements of the charge against the accused Vete are proved beyond reasonable doubt.

Possession by the accused Latu is less clear. There was no evidence of his handling the gun at any stage, except momentarily while Paseka punched Tsay. In my view that is too short or fleeting an event to constitute possession of the weapon.

However the Crown says that the Court can infer a joint possession of the firearm by all three who got out of the car because of a common plan to use the gun for robbery. I have no difficulty with that proposition as far as Vete, is concerned because he put the gun there for the purpose of it being available for such an event. But whether Latu was part of an agreement to use the gun in a robbery is more speculative, and I do not consider that the Crown has proved "possession" of the gun beyond reasonable doubt as far as Latu is concerned.

As a result then, on count 3, I enter a verdict of Not Guilty as far as Latu is concerned and Guilty as far as Vete is concerned.