Armed robbery charges dismissed against Heamani Lopeti [1]
Wednesday, May 10, 2017 - 15:56. Updated on Wednesday, May 10, 2017 - 15:58.
Heamani Lopeti who was charged with armed robbery using a pistol at a Chinese store in Longlongo on March 25, 2016 got off the charges after identification evidence was rejected in the courts. The Judge expressed concern over Tonga Police's failure to adopt proper identification procedure.
Hon Mr Justice Cato made a written ruling after Voir Dire at the Nuku’alofa Supreme Court on 3 May that a prima facie case had not been established. He ruled the identification evidence inadmissible after it was revealed during trial that a police officer had shown a witness a photograph of the accused prior to the proper montage procedure.
The incident took place at a Chinese store in Longolongo, where the proprietor, Ms Ying Lu was confronted by a man who was masked and demanded money, which she gave to him, contained in a couple of boxes that were removed from the shop.
During the robbery, the robber fired a pistol into the wall behind her and made off in a motor vehicle.
The court heard that In the store, a video security camera operated and was focused on the counter picturing the shopkeeper and the robber with the pistol. The camera did not, however assist in identification.
There was no forensic or other evidence produced by the prosecution in the case. It seems as though the police focus was directed on the accused from information from an informant who was not called as witness in the case. Mrs Lu also could not advance any evidence that identified him as the robber, said the judge.
Incriminating evidence
The accused was interviewed concerning the robbery and declined under caution to make any statement on April 3 and again on May 19, last year. On 25 May, he was charged with the offence.
"At this stage it would appear other than the informant’s information there was little evidence that Lopeti was the robber", the court heard.
The judge said the accused was said to have made incriminating verbal statement on 3 April, in which it alleged he told officers that he only had a few more targets left and when he was released he would continue committing armed robberies of Chinese shops, until he had completed his target list.
"This statement had been recorded by Detective Lolomana’ia in the presence of Detective Heimuli, the officer in charge in the station diary, but neither officer had made any entry in his notebook and the accused was never given an opportunity to authenticate the station diary entry."
In addition, a witness to this incident Loko Manavahetu aka Loko Latu, was an employee, who shortly before the robbery was outside near the front of the building when the robber appeared. She saw the accused for a very short time before he pulled his mask down as he entered the store.
Hon Mr Justice Cato said he was satisfied that the lighting outside was good. She was able to see his face for a short time before he entered the shop and pulled the mask down over his face, as she about eight or nine metres away.
The witness was said to have gone closer to the entrance and saw the gunman approach the counter and heard a shot fired. As he went out, he saw her, told her not to run and pointed the gun at her before taking off in a Pajero motor vehicle.
Photo evidence
The court then heard that evidence had been given that the two officers had shown Ms Latu a number of 10 of photographs as a montage shortly before trial in late April 2017, and one of those was of the accused who she identified as the robber.
However, the nature of the evidence changed after the accused who represented himself during the trial, asked Ms Latu if she had been shown a photo of him on a phone taken of him by Detective Lolomanaia.
She agreed that she had been shown such a photograph.
The judge said the Crown counsel Mr ‘Aho, very understandably and almost immediately, expressed his surprise at this and said he had not been told anything about this before he had instructed the police to engage in the photo montage show of photographs to this witness shortly before trial.
“At this point, I ordered a voir dire and sent the jury away for what was to be a long adjournment.”
Ms Latu, on the voir dire, said that she had asked Detective Lolomanaia if he had a photograph of this person so she could look at it.
She said he had showed her a photograph in his phone and it was a close up of the accused's shoulder and face. She told him that was the man.
In addition, Ms Latu said she told Detective Lolomana'ia that she was certain that this was the man she had seen, and confirmed that Lolomana'ia had said, when she asked whether he had a photo, that he had and that she should tell him whether that was the man or not.
The accused then asked the witness why did she tell Lolomana'ia if there was a photo of him to see. She said that she did not ask for a photo of him but had asked if Lolomanaia had any photo of him.
“I did not find satisfactory at all that he made no mention of this to Mr 'Aho or to either of the independent officers at the montage procedure before to his knowledge that had taken place. “
He seemed to say he had not made any mention of it to Detective Heimuli, the officer in charge, either although the latter confirmed he had in his evidence on the voir dire. Nor had it been mentioned in the supplementary statement taken from the witness on the same day.
As I pointed out to Lolomana'ia, had the accused not raised this issue, the case would have gone to the jury without anybody knowing that Ms Latu had been shown a photograph of the accused alone prior to the montage procedure. This omission had the potential to cause a serious miscarriage of justice, he said.
Police failure
“In several occasions, I have indicated that I have been very concerned about the Tonga police's failure to adopt proper identification procedures, namely parades or photo montages, and it seems their reliance on dock identifications which I had been reluctant to accept.“
The judge considered that that the detectives were not acting dishonestly, but both lacked adequate education and training about proper police practice and procedure, which was concerning.
Both were senior police officers and Detective Lomomana'ia should not have allowed the witness to see a single photograph of the accused, and both should have advised the Crown counsel what had happened so that a true picture of the evidence could be placed before the jury, he said.
The judge said procedure adopted in this case was unfair. At best, the approach of the police officers to the seriousness of the issue of identification was careless, he said.
"I was dissatisfied with the procedure adopted to such an extent that I consider there was much more than a real risk in this case that showing Ms Latu the single photograph of the accused which she said she recognized as the same photograph in the photo montage would contaminate the integrity of the photo montage identification."
The judge said he had not overlooked the alleged verbal statement of the accused about doing other armed robberies when he is released, but Mr Aho advanced this only as supporting evidence of odd coincidence.
"The Crown counsel conceded again, rightly in my view, that should I rule that the identification evidence inadmissible, the prosecution could not succeed.
"I do so rule, and I also rule that a prima facie case has not been established and the charge of armed robbery is dismissed."