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R v Fa'aoa [2025] TOSC 29; CR 232 of 2024 (26 March 2025)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY
CR 232 of 2024

BETWEEN:
REX
-Prosecution

AND:
SALESI FA’AOA
-Accused

JUDGEMENT

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC via AVL
Appearances: Mr G Aleamotu’a for the Crown Prosecution
The Defendant in Person
Trial: 24 – 25 March 2025
Judgement: 26 March 2025

1. THE CHARGES

1. On 24 March 2025, the Defendant and his two co-accused was rearraigned on the indictment. The co-accused, Sione Ngaue and Steve Koloamatangi changed their pleas to guilty, and the Defendant maintained his non-guilty plea.
2. As a result, the Crown offered no evidence against the Defendant in Count 1 and the matter proceeded to trial on Count 2 for Receiving Stolen Property.
3. This Defendant is charged with receiving timber to the value of $35,572. This is a criminal trial and so the prosecution must establish, first that the timber in question was in fact stolen, that the defendant had either possession ,custody or control of it and that at the time it came to his into his possession custody control he dishonestly dealt with the property as if he had the right to do so when he knew that it was stolen.
4. It is not contested that the goods in question were in fact stolen, it is not disputed that the defendant had the requisite possession, custody or control of the timber, but it is contested that he did so dishonestly, in other words he did not know or believe that the goods in question were stolen.
   2. THE EVIDENCE
5. On 10 June 2024 Tevita Ma’u, the manager of T Construction went to the company warehouse and discovered a theft had taken place and that timber to the value of $35,772 were missing.
6. Eventually, some of the timber was retrieved making a shortfall of $20,375. So, the unchallenged evidence that there was a burglary on or about the 10 June 2024.
7. Olivia Niu owns a small shop selling clothes. The shop seems to be part of her residence. On a day in June which she cannot now recall, a white truck drove towards the store and parked outside and she was asked whether she wished to buy to timber.
8. There were two people in the van, the driver was Charlie, this defendant and the passenger was Sione Ngaue, both were wearing high viz vests.
9. They asked if she would like to buy timber and then spoke to her husband while she returned to a customer.
10. The Defendant said his name with Charlie taking it shortly after discussion with her husband, the husband decided to buy the timber.
11. Following this initial purchase there was another encounter when Sione arrived on his bike and offered more timber, but that offer was declined.
12. I heard from Sione Akengafo’ou Tonga who makes a living by advertising tractors for hire. He knows the Defendant and says that he came with a van to his property at 4pm offering to sell some timber.
13. He returned at 2 to 3am while the witness was still indoors and removed the timber to another location. At the time he was wearing a high viz vest. The vehicle he said was a three-ton white van.
14. Taking it to shortly, another sale was attempted with ‘Unaloto. The vehicle he said was also three-ton white van. He was told about timber for sale, and he arranged with Steve and Sione, the first and third Defendant to purchase a consignment brought to him in a white van.
15. He was unable to pay at the time and eventually paid $80 when they asked for money to at least get petrol.
16. I do not have any clear evidence that this Defendant was involved in this transaction, but it is undisputed that later he, calling himself Charlie, rang Unaloto asking for the money owed for the timber and an arrangement was made to meet near a bus station for the payment to be handed over.
17. By this time this witness got wind of the fact that the timber may well have been stolen and so assisted the police by arranging to meet the Defendant at the bus station where he was arrested and handled rather roughly it appears.
18. Police Constable Hefa gave evidence of arresting the Defendant and it was put to him that he subjected the Defendant with fellow officers to a serious assault which was videoed at the police station.
19. These of course are serious matters, and I will deal with it later in this judgement.
20. The Defendant declined to give evidence himself. This means that the allegations which were put to the witness, Police Officer Hefa and which he denied have not been supported by evidence from the Defendant himself.
21. In other words his decision not to give evidence which is entirely matter for him and what he is perfectly entitled to make means that there is nothing to set against the denial which have been made by the officer.
22. However, the Defendant called his co-accused Sione Ngaue who said that he was also roughly handled whilst under arrest and the video of the Defendant being beaten was shown to him as a means of inducing him to make full admissions which he did.
23. This witness has had an eventful life. He told me that he had been shot 3 times in the United States and that he had been assaulted here in Tonga by the police resulting in having to use a colostomy bag at least temporarily. That is why he says he signed the confession in which he implicated the current Defendant.
24. Now, allegations of brutality or mistreatment by the police are very serious indeed but of course can be made quite easily and it is a matter of regret that procedures here do not permit interviews to be tape recorded as is the case in the United Kingdom following the Police and Criminal Evidence Act.
25. However, I must deal with the situation as I find it. The Defendant did not give evidence, and his co accused did. As his evidence unfolded, I found it less and less convincing and by the time he had concluded, I was driven to the conclusion that here was someone trying to help a fellow inmate when he himself had already pleaded guilty.
26. The upshot is that allegations of brutality were made but the Defendant did not make any incriminating statements as a result.
27. His co-accused did in fact implicate him but without any evidence of this Defendant I ignore that entirely and put it out of mind.
    100. DISCUSSION
28. My findings are based on the totality of the evidence absent the allegations of police brutality. To convict the Defendant of receiving stolen goods I must be satisfied, first of the goods was stolen, there is no difficulty about that. Second, that the goods were in the possession custody or control of the defendant which I find they were because he assisted in unloading the timber and was complicit in seeking to obtain payment for it which he would not have been doing had he not in some way been aware or believed at the time that the goods he was dealing with was stolen.
29. I have in mind the doctrine of recent possession which enables me to draw an inference against the Defendant since he was in possession of the items in question shortly after the theft and he has not in my judgement given a satisfactory explanation or indeed any explanation for that fact.
30. However, I disregard that doctrine and ask myself the simple question, would an honest person behave as the Defendant has done here?
31. He assisted in the removal of a large quantity of timber. It was said that they came from his co accused’s sister who was renovating her property. I find that quite incredible, the amount of timber involved militates against such a finding but why was it that the timber was moved from one location to the other at the dead of night?
32. That is not the action of a legitimate undertaking. It is the action of someone who wishes to secrete what is going on and to spirit the goods away when they would be unlikely to be discovered.
33. Further the original request for $3500 quickly dropped to $2000 again suggests a desire to get rid of the merchandise as quickly as possible, in my view is indicative of a guilty mind.
34. Taking all these matters to go together, I am quite satisfied at the time in question this Defendant knew very well that the goods were stolen, and he assisted in the disposal.
35. It follows that he is guilty as charged.
    4. FINAL RESULT
36. For Count 2 of Receiving Stolen Property, I find the Defendant guilty.
37. Finally, I desire to comment on the allegations of police misconduct. At the moment, I cannot be satisfied that it happened but on the other hand I cannot entirely ignore it.
38. I therefore order that a transcript of the evidence of Sione Ngaue and Police Constable Hefa be transcribed and sent to the Police Commissioner to conduct an inquiry, and I request that the results of that inquiry be communicated to the Court in early course.
    

HON. MALCOLM BISHOP KC
LORD CHIEF JUSTICE
NUKU’ALOFA
26 March 2025