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R v Tu'i'ile'ila [2026] TOSC 13; CR 220 of 2024 (11 March 2026)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY
CR 220 of 2024

REX
-v-
TALI MEÁLAHI TUÍÍLEÍLA

JUDGMENT

BEFORE: HON. JUSTICE TUPOU KC
To: Mr K Tamo’ua for Prosecution
The Accused in person
Trial: 13-16 October, 2025
Judgment: 11 March 2026

The proceedings

1. On 29 January 2025, the Defendant pleaded not guilty to:
   1. Count 1 – serious housebreaking, contrary to s.173 (1) (b) and (5) of the Criminal Offences Act; and

b) Count 2 – theft, contrary to s.143 and 145(b) of the said Act.

2. The Defendant elected to be tried by Judge alone. He indicated his intention to engage legal counsel. A trial date was fixed for 21 July, 2025 with a pre-trial conference to be held on 7 July. A management date was fixed for 26 February to confirm representation for the Defendant.
3. On 26 February, the Defendant had not engaged counsel and the matter were adjourned to 26 March where the Defendant was to appear with counsel.
4. On 26 March, the Defendant requested more time to engage counsel. The Prosecution did not oppose his request and the court encouraged him to obtain representation. The Defendant confirmed he would represent himself. The pre-trial conference and trial date was confirmed.
5. On 27 June, 2025, the trial date was moved and the matter proceeded to trial on 13-16 of October, 2025.
6. At the commencement of the trial, the Defendant was asked if he was prepared to proceed with the trial unrepresented. He confirmed he was ready to proceed and I took time to explain to him the procedures that will be observed during the trial. He confirmed he understood and wished to continue.
7. On the second day of trial, the Accused enquired about legal aid and expressed his desire to obtain legal counsel. The request was opposed by Prosecution.
8. In consideration of the seriousness of the charges against the Accused and the fact that the matter has been set down for 4 days and an indication from Prosecution that its last witness was unlikely to employ more than half an hour, I granted time for the Accused to obtain legal counsel. I ordered the transcript of the evidence of the four witnesses called to be provided to the parties as soon as it was available and for the court to provide the Accused with a list of lawyers and their phone numbers.
9. The hearing was adjourned and resumed at 2pm on 15 October, 2025. On the morning of 15 October, 2025 Mr Taufu’i Naufahu’ appeared for the Defendant. The court is grateful for his attendance.
   

Particulars

10. The particulars of the offending for count 1 are that:

Tail Me’alahi Tu’i’ile’ila of Sopu, on or about 15 December, 2023, at Sopu, you did enter the residence of Robina Nakao as a trespasser and you committed a crime therein.

11. Section 173(1)(b) and (5) of the Criminal Offences Act, provide:

(1) A person is guilty of an offence under this section if —

(a) .......

(b) having entered any building or part of a building as a trespasser he committed or attempted to commit any crime in the building or that part of it.....

(5) The offence of serious housebreaking —

(a) is punishable by a term of imprisonment for any period not exceeding 10 years;

12. In view of the particulars and section s.173(1)(b) and (5) of the Criminal Offences Act, the main elements to be proved for Count 1 are that:
    1. the Accused;
    2. on or about the 15 December, 2023;
    100. entered the complainant’s house;
    4. as a trespasser; and
    5. committed theft therein.

13. The particulars for the offending under count 2 are that:

Tali Me’alahi Tu’i’ile’ila of Sopu, on or about 15 December, 2023, at

Sopu, you dishonestly took without any colour of right from the residence of Robina Nakao: $4,511 in cash, a Samsung A51 phone and a leather slip on sandals, and Garmin watch with the total value of $5,841, and you took those goods with the intention to deprive Robina Nakao permanently of those goods, and you intended to convert those goods for the use of others without the consent of Robina Nakao.
14. Section 143 and 145 (b) of the said Act provide:

“143. Theft is the dishonest taking without any colour of right of anything (which by section 144 is declared capable of being stolen) with intent either — (a) to deprive the owner permanently of such thing; or (b) to deprive any other person permanently of any lawful interest possessed by him in such thing, and with the intention of converting such thing to the use of any other person without the consent of the owner or person possessing such interest therein as aforesaid; “theft” and “steal” shall be construed accordingly.....

145. Every person who commits theft is liable —

............

(b) if the value of the thing stolen exceeds $10,000, to imprisonment for any period not exceeding 7 years.”

15. In view of the particulars and section 143 and 145 (b) of the Criminal Offences Act, the main elements to be proved for Count 1 are that

a) the Accused;
b) on 15 December, 2023
c) dishonestly took without any colour of right;

4. cash in the sum of $4,511, a Samsung mobile phone, leather slip ons and Garmin watch;
4. with the intentions to permanently deprive the complainant of those goods; and
5. to convert those goods to the use of another without the complainant’s consent.
   

The Standard and Burden of Proof

16. The required standard of proof is proof beyond a reasonable doubt and the Prosecution bears that burden of proof at all times in this proceeding. In other words, the Prosecution must prove each constituent element of the charge to the mentioned standard before the Accused may be convicted.
17. Similarly, there is no obligation on the Accused to prove his innocence or disprove the Prosecution’s case.
    

The Prosecution’s Case

18. The Prosecution allege that on or about 15 December 2023, the Defendant entered Ms. Nakao’s home as a trespasser and stole cash in the sum of $4,511, a Samsung phone valued at $1,000 and a pair of leather slip ons valued at $300 and a Garmin watch valued at $200. The total value of those goods is 6,011.
    

The Defence

19. The Defendant denies committing the offences and says it was someone else. He further raised an alibi and claims that he was with his girlfriend Ma’ata Ngaue from 14 – 16 December, 2023 at the time of the offending.
    

The Evidence

20. The Prosecution called five witnesses. The complainant, Ms. Robina Eiko Elina Nakao, her son Musashi Nakao, Sione Tupou Vaea, the investigating officer, Áisake Ánanaiasa and his wife, Fakalelu ‘Ananaiasa.
21. Ms. Nakao is the Chief Executive Officer for Fexco Western Union, property manager for Fund Management Ltd, manager of Escape Café and Honorary Consul for the Czech Republic.
22. On the night of 15 December, 2023 the court heard Ms. Nakao was at home, at Nukuma’anu at Sopu with her son, Musashi and domestic helper, Eceli. Ms. Nakao had fallen asleep in their living room downstairs after watching Netflix. Her bedroom was upstairs in the house.
23. At around 1am she was woken to noise from her bedroom and called out. There was no response. On the same floor as the living room is her son’s bedroom. Ms. Nakao got up, took something into her son’s bedroom, and returned to the living room.
24. Then, she heard rummaging through her bedroom and called out again, “who’s there?” When she looked up, she saw legs coming down the stairs; it was a man who said, “it’s me I’m the one who’s up here”. The kitchen lights were on and the intruder came down the stairs and paused at the bottom.
25. The intruder moved behind another kitchen counter and stood from there. She could see he held a knife at that point and was waving the knife at her to move towards him and sit on the couch. The intruder had his back to Musashi’s bedroom then and Ms. Nakao yelled out “Musashi, wake up, there is a man in the house.” Musashi opened his bedroom door and the intruder turned towards him with the knife.
26. Ms. Nakao yelled out for Musashi to shut and lock his door. Musashi did so. She heard Musashi call out “please don’t hurt my mum”. At this point, the intruder repeatedly said that he was going to kill Ms. Nakao that night.
27. The intruder pointed for her to move towards him and sit on the couch in the TV room. Ms. Nakao said there were about six fluorescent lights in the kitchen and she could see his face clearly.
28. Ms. Nakao described the intruder as short and stocky. He wore a cream coloured hoodie (without the hood on) with darker long shorts. His hair was styled in a short afro style.
29. He spoke only in English. His demeanour was aggressive as if there was nothing he could not do. She thought he was on something. As for the knife, Ms Nakao did not see it on the intruder until after he came out of the kitchen area of the house.
30. Miss Nakao, again, yelled out to Eceli to “wake up the boys and tell them to come in here, there is a man in the house”. Miss Nakao explained there were no boys on the premises but she wanted the intruder to think there were boys there.
31. Upon hearing that, the intruder turned towards the door to walk out. He paused and bent over at the doorway where Musashi’s slip-on shoes were placed. Then the Defendant opened the door and walked out without a rush. She observed him walking pass slowly in a rather bold manner.
32. After he had left, Ms. Nakao found a bottle of Corona on the table just outside the door and a pair of slippers. The slippers were black and had white creamy specks of paint on it.
33. Ms. Nakao called the police before checking on her son and her bedroom. She found her bedroom ransacked with $4,500 and phone missing from her bag. They found Musashi’ s slip ons left at the door missing as well as his electronic Garmin watch that was in the kitchen area.
34. The witness was shown P1 and P2 and she confirmed that those were the slippers she saw that night.
35. The police came and took photos that night and a public invitation for anyone with any information on the robbery was broadcasted on the radio by Ms. Nakao.
36. Moana Hafoka came forward in response to the notice. He believed the intruder was his grandson described as tall and dark. Ms. Nakao informed him the intruder was short and stocky, brown and only spoke English. The man then suggested it must be his grandson’s best friend who was deported from Australia.
37. Ms. Nakao told him they found slippers left behind at the house with specks of white paint on them. Moana said his grandson and his friend were helping to paint at Petani with white paint. That information was conveyed to the police by Ms. Nakao.
38. 38. Ms. Nakao was asked if the intruder was in court. She identified the Defendant in court but recognised his hair was now short.
39. The Defendant did not to cross-examine Ms Nakao.
40. The next witness was Musashi Nakao. He is 21 years old and is studying at the university in New Zealand. He was living with his mother at the time of the incident and was asleep in his bedroom.
41. Musashi largely confirmed Ms Nakao’s evidence and also described the intruder as short and stocky. He did not recall what clothes the intruder had on or his face. He recognised the slippers shown on P1 and P2 as the slippers left behind at their home.
42. The Defendant did not cross-examine Musashi.
43. The next witness was the investigating officer, Sione Tupou Vaea. Vaea has been in the police force for 15 years. This case was transferred to him on 6 March 2024 due to a complaint from Ms Nakao.
44. Vaea took “re-statements” for the purposes of confirming the lighting at the crime scene and the distance between the intruder and Ms Nakao. It was his view that identification was easy because of the lighting present and the distance of approximately 10 meters was a small area.
45. He took statements from Musashi, Moana Hafoka, ‘Aisake ‘Ananaiasa and his wife Fakalelu ‘Ananaiasa.
46. The fourth witness was ‘Aisake Ananaiasa (referred to hereafter as “’Aisake”). He is 26, lives at Sopu and works for a seaweed company known as Mosuku. His grandfather is Moana Hafoka aka Makamapu Haá Havealahi (matapule of Houma).
47. In summary, the court heard from ‘Aisake that on 15 December, 2023, at around 8-9pm he was at his home at Sopu when the Defendant arrived with a light blue bucket of paint for him to buy. Asiake had no money and the Defendant left only to return at around 11pm intoxicated. The Defendant came with a bottle of Heineken and a $50 packet of ice and said he had been drinking because it was his birthday. He asked Aisake for $60 but ‘Aisake did not have any money. They ended with the Defendant stirring the bucket of paint while ‘Aisake painted. At around 12 midnight, the Defendant left again.
48. In terms of the Defendant’s clothing, ‘Aisake said he wore shorts and a maroon hoodie he gave him that night. On his feet, he wore slippers but could not recall what colour they were. He wore his hair in an afro.
49. When he returned the next morning at around 11am, the afro was gone. The Defendant told Aisake Veni at Tana’s house at Hofoa cut his hair.
50. ‘Aisake told the court that the Defendant had lived with them for about a month and he was familiar with him. When the Defendant smoked “ice” he would speak only in English and on the relevant night the Defendant was high and just spoke in English. The Defendant also becomes aggressive and steals to buy more “ice” to smoke.
51. The Defendant cross examined ‘Aisake. Amongst the questions were the following:

Defendant: Let us go back to the night we painted........do you recall what colour the bucket of paint was?
Aisake: light blue.......

Defendant: Turn your thoughts back to the day. Do you remember what day it was?

Aisake: Thursday night

Defendant: and you saw me painting?
Aisake: yes
Defendant: Did we paint? You saw me paint.

Aisake: yes we painted together and while we were doing that you said you were going somewhere and you left.....

52. The fifth witness was Fakalelu Ánanaiasa (referred to hereafter as “Fakalelu”), 30. She is married to Aisake and they have two girls.
53. The court heard that on the 15 December, 2023, Fakalelu was at home with Aisake, his grandfather and their 2 girls. She was tidying up the house and Aisake was watching movies with their girls in their bedroom when the Defendant arrived with a bucket of white paint.
54. ‘Aisake came and talked with the Defendant and then left. Later on the Defendant returned and he and Aisake painted their bathroom. Fakalelu observed the Defendant was intoxicated and was holding a liquor bottle. The Defendant mixed the paint and Aisake did the painting.
55. She said that the Defendant wore shorts, a hoodie, a red crib and black slippers. She could not recall the colour of the Defendant’s shorts or hoodie. His hair was styled in a short afro.
56. In terms of timing, Fakalelu said when the Defendant came back the second time, it was around 11pm and he left around 12am.

57. The Defendant was at their house almost every day to smoke “ice”. At times she would lie to him that Aisake was not home to send him away. She told the court that when the Defendant is high he would steal.

58. She knew the Defendant and ‘Aisake were friends and often told her husband she was afraid when he came around the house.

Cross-examination

59. Mr Naufahu asked Fakalelu about her police statement and made her read it out. In the statement she said they lived at Petani, Sopu. On the relevant night the Defendant came with the bucket of white paint and asked for Aisake. She told him he was not there and he left with his bucket of paint.
60. The Defendant returned at around 10 or 11pm while Aisake was in their kitchen. They talked for a while and the Defendant wanted Aisake to go with him but because she was there, Aisake could not leave. They then moved to the bathroom where the Defendant stirred the paint and Aisake painted. The Defendant entered the house because her mother in law was still working and his grandfather was laying down.
61. The Defendant left as Aisake’s grandfather came out and scolded Aisake for painting at night. When the grandfather went away, the Defendant returned and talked with Aisake again. They were still talking when Fakalelu went to bed.
62. Fakalelu stated the Defendant wore shorts a white t-shirt, a hoodie and black slippers. She said when the Defendant came back the second time he had removed his crib.
63. The Prosecution sought to amend the particular of count 2 to insert the Garmin watch worth $200. Mr Naufahu did not oppose and it was allowed as it arising from the evidence before the court.

Defence Evidence

64. In summary, the Defendant told the court that he is 42 years of age and from Sopu. His wife and kids live in Australia. The Defendant was surprised when told he is charged with theft in this proceeding despite pleading not guilty to it on 29 January, 2025.
65. The gist of his evidence was on 14 December, 2023, he was residing at Hofoa with a male friend named Tana. That day was his birthday so he told Tana that he was spending the day with a female friend, Ma’ata Ngaue at Sopu.
66. As he was getting ready to go, another friend, Paea turned up with a bottle of whisky for his birthday. The Defendant and Paea left for Ma’ata’s home. After they drank Paea went back to Hofoa and the Defendant spent the rest of his birthday with Ma’ata up to 16 December, 2023.
67. The Defendant said the bottle of whisky Paea brought was “Jim” and the liquor was clear blue with the name “Bombay” on the bottle.
68. On the evening of 16 December Tana came by and went with the Defendant to Hofoa.
    

Cross examination

69. Under cross examination the Defendant did not deny ‘Aisake and Fakalelu’s evidence. He told the court that the events they described had occurred 2 weeks prior to the night of 15 December. He further denied taking the bucket to Aisake’s house. Instead, ‘Aisake took the bucket of paint from his house.
70. When asked why he did not put that to Aisake and Fakalelu, the Defendant said, “he did not think it was part of the case.” He disputed what Fakalelu and Aisake said about the colour of the paint and said it was yellow.

71. About the time he lived with Aisake, he said he was angry with his parents and he moved out to live with Aisake for a couple of weeks.

72. Next, the Defendant called Ma’ata Ngaue from Sopu, his alibi. She was serving time in prison at the time of this trial and was able to speak with the Defendant before the matter was called.

73. Ma’ata recalled the 14 December, 2023. Her evidence was that the Defendant was living with her at her home at Sopu on 14 December, 2023. They lived together for a year and 3-4 months before the Defendant went to jail.

74. On the 14 December it was the Defendant’s birthday. He had gone to do some work at Hofoa and returned with his mate Paea. They brought a bottle of rum and 5 litres punch.
75. They started drinking at around 5 – 6pm and when the first bottle finished Paea left. They kept drinking until they passed out together. They woke up on the Friday morning, 15 December cooked food and then started drinking again. They spent the whole day together. No one else came by the house that day.
76. At around 3 -4pm on the Saturday, the Defendant’s friend Tana came and picked him up to help pick coconuts.

77. The Defence closed his case.

78. The Crown filed their submissions on 29 October, 2023. Due to the counsel for the Defendant’s withdrawal and non-appearances by the Defendant, the court did not hear oral submissions from him until 19 February, 2026.
    

Discussion

79. I have considered the Prosecution submissions and heard from the Defendant on 19 February, 2026. A lot of the Defendants submissions pointed to inconsistencies in ‘Aisake and Fakalelu’s evidence about the slippers he wore and colour of the paint he took to them.
80. He argued that their evidence on his clothing, in particular his shorts was inconsistent and their evidence is all fabricated because they both do drugs. He submitted he was not a sloppy dresser and would not dress himself how the Prosecution witnesses have described the intruder.
81. He criticised Ms Nakao’s evidence on the basis that she had not seen or known him prior to the incident and she was mistaken.
82. Identification of the intruder is the central issue in this case. The courts’ approach to identification is laid down in the English court of appeal case R v Turnbull [1977] QB 224. They are, relevantly:

(a) the need to examine closely the circumstances in which the identification came to be made;

(b) how long the witness had the accused under observation;

(c) the distance and the light conditions;

(d) was the observation impeded in any way?

83. These principles go to the quality of identification evidence. If the quality is good and remains good at the close of the accused’s case, then the danger of mistaken identification is lessened and the poorer the quality, the greater the danger^[1].
84. I caution myself that a mistaken witness can be a convincing one.
85. After listening to Ms Nakao’s description of the Defendant and considering the length of time she had the intruder under observation. From when he was coming down the stairs, standing face to face with her in the kitchen where 6 fluorescent lights were on, while he was summoning her to the couch with the knife, while she shouted out to Musashi and then to Eceli and then as he walked slowly out the door as well as outside as he was leaving, I am left in no doubt that she had a clear view of him in very good light without impediments since he descended the stairs. She was asked:

Prosecution: Did you have a clear look at this person?

Ms Nakao: Yes

Prosecution: At this time how was the lighting in you room? You said it was night time

Ms Nakao: Right it was night time but the lights in the kitchen were on there must be about six fluorescent lights in the kitchen...

............................................

Prosecutor:..........Do you recall his built how tall was he?

Ms Nakao: He was not tall. I would say probably I do not know 5’5 or 5’6 a kind of a little stocky...............

.............................................

Prosecutor: The perpetrator you say you saw clearly on the night of the incident could you identify to the court?

Ms Nakao: yes

Prosecutor: If you were to look around the court would you be able to identify in the court room that that person is?

Ms Nakao: yes

Prosecutor: How are you able to do that?

Ms Nakao: Just looking at him, his built, his face, I mean he has cut off all his hair but yes.

86. Ms Nakao was particular about the intruder’s hood not covering his head and she was able to observe his hairstyle as an “afro”; she said he spoke in English only; seemed aggressive and walked around slowly as if there was nothing he could not do, which was strongly corroborated by ‘Aisake and Fakalelu’s evidence.
87. Ms Nakao identified the Defendant in court as the intruder she saw on the morning in question without hesitating and recognised that his hair is short now.
88. Failure to cross-examine a witness implies acceptance of their evidence as truthful and the court may treat such testimony as undisputed. Accordingly, I accept Ms Nakao, Musashi and Vasa’s evidence as such.
89. Next, I prefer the evidence of ‘Aisake and Fakalelu over that of the Defendant and his witness. Where ‘Aisake and Fakalelu’s evidence clashed, I prefer Fakalelu’s evidence for these reasons. The Defendant is 'Aisake’s smoking ally and was likely high on ice on the night (from the $50 pack the Defendant brought when he came back the second time). There is also the allegation that ‘Aisake owed him money placing undue pressure on Aisake.
90. Fakalelu’s evidence was clear and mostly unshaken under cross examination. She owed the Defendant nothing and I was impressed with her as a truthful and reliable witness.
91. Moving on to the Defendant’s alibi defence. An alibi defence seeks to assert that the Defendant cannot be guilty of the allegations and/or crime charged because he was somewhere else at the time.
92. The onus remains on the Prosecution to prove beyond reasonable doubt the accused committed the crime and if there is a reasonable doubt that the accused committed the crime and if there is a reasonable doubt about whether he was at the relevant place at the relevant time then the Crown will not have proved its case beyond a reasonable doubt.^[2]
93. There are difficulties with the alibi defence in this instant. Firstly, the Prosecution drew the courts attention to s.108 (2) of the Evidence Act which state:

“In any criminal proceedings in which the accused person wishes to produce evidence of a special defence such as insanity or alibi, no such evidence shall be admissible without the leave of the Court unless the accused person has given written notice of such defence to the prosecution within 7 days of the accused’s committal for trial. Such written notice shall contain (in the case of a defence or alibi) details of the place in which the accused states he was at the relevant time and the names and addresses of the witnesses he intends to call.”

94. No notice was served pursuant to this provision and the defence should be disregarded. However, as the Defendant is unrepresented and unlikely to have known about the requirement for a notice, I will address the defence.
95. Secondly, the Prosecution witnesses were not challenged in view of the alibi defence nor was it put to them.
96. Thirdly, the Defendant’s own evidence was that he was living at Hofoa with Tana at the time of the offending, contradicting the alibi’s evidence that he was living with her and had only gone to Hofoa for work.
97. Fourthly, the Defendant told the court that his friend Paea gave him a bottle of “Jim” labelled “Bombay” versus Ma’ata’s evidence that they brought a bottle of rum and punch.
98. Even when counsel Naufahu cross examined Fakalelu, nothing was put to her in respect of the alibi defence.
99. Therefore, I am satisfied that the Defendant was not with Maata Ngaue on 14-16 of December, 2023. He was with Aisake on the night of 15 December,2023 at around 8-9pm and then 11pm and left at around midnight whereby around 1am the next morning he entered Ms Nakao’s house without her consent. On that basis, I reject the alibi defence completely.
100. As for the evidence on the theft charge, I find that I can safely draw inferences from Ms Nakao’s direct evidence of hearing someone rummaging through her bedroom and then witnessing him in her kitchen and then bent over where Musashi’s slip-ons left by the door, that the missing items were taken by him.
101. In R v Funaki [2005] TOSC 13, the court adopted the view in Machent v Quinn [1970] All ER 255 where it was held that:

“To establish a theft charge, it is not necessary for the Crown to prove that all the articles mentioned in the indictment had been stolen. If it is proved that the accused stole one of the items then that is sufficient.”

102. In view of the above, I am satisfied that the Prosecution has proven the theft charge to the required standard in terms of $4,500 cash, a phone valued at $1,000, slip-ons valued at $300 and a Garmin watch valued at $200.
     

RESULT

103. In conclusion, I am satisfied beyond any reasonable doubt, that the prosecution has made out all the necessary elements of both counts and the Defendant is convicted accordingly.
     

P. Tupou KC

NUKU’ALOFA: 11 March, 2026 JUDGE

^[1] Archbold 2022, para.14-2 – 14-3
^[2] Ibid. para. 17