A decision by a Magistrate to acquit a police officer on a theft charge, due to insufficient evidence, was upheld by the Lord Chief Justice, on June 25 at the Nuku'alofa Supreme Court. However, the Chief Justice suggested the case was an example in favour of amending the Criminal Offences Act, so that cases of unauthorised borrowing or temporary use fall within the definition of theft.

Viliami Lalakai Mohenoa Tonga (respondent) was charged with theft under the Criminal Offences Act.

This was an appeal by the Police to have the ruling of the Magistrate on March 13 quashed. It asked that the Supreme Court enter a conviction and sentence the respondent.

Lord Chief Justice Whitten in his judgment, said the respondent stood trial on theft at the Magistrate's Court. The particulars of his offence was that as a serving police officer in the Tonga Police, he stole $1,700 from a complainant in 2019.

The complainant's evidence was that on February 26, 2019 he was arrested and taken into police custody. The respondent and a female police officer conducted the search on him.

The respondent found cash on him totaling $1,700, taken from the back pocket of his trousers.

The complainant said when his other valuables were taken, the female officer recorded them, but said the money was not recorded in the list of valuables that were confiscated during the search. 

In addition, he told the respondent to take the money and put it together with his other valuables and that the respondent said he took the money.

He then said that two-days later, he recalled having a conversation with the respondent outside about the money. The respondent told him to pick up the money from his residence, and that if the police asked him if (he) respondent had his money, that he was to say 'no' and just go to his home and pick it up.

After the complainant was released, the respondent went to his home and he gave him $500 and said that he would bring the rest later.

On the next day, the respondent went again to the complainant's home and gave him the balance of $1,200 and thanked him. The complainant’s sister was present at that time.

Appeal

The Crown contended, that the Magistrate erred in law when she found that the Prosecution failed to prove beyond reasonable doubt that the accused did not intend to deprive the $1,700 permanently from the complainant and that the accused had intended to convert the cash to the use of another person, without the complainant's consent.

The Chief Justice said, what was before the Court below and what has been referred to on this appeal, that the only evidence was that the respondent did not follow the usual police procedure of having the money placed and recorded with the complainant's other valuables, at the time of his search. 

There was no other evidence to indicate whether at that point in time the respondent intended to permanently deprive the complainant of the cash. Further, the evidence of the conversation some two-days later weighed against the inference the Crown sought to draw, he said.

The Chief Justice said having regard to observations on the state of the legislation and relevant common law principles concerning this particular element of the offence of theft, he was of the view that the Magistrate was correct in her conclusion that the element had not been proven beyond reasonable doubt.

"In my view, the evidence overall from the time the cash was originally taken, not placed in accordance with correct police procedure, the conversation two-days later when the complainant told the complainant that the money would be returned to him upon the complainant's release from custody and the actual return of the money to the complainant after he was released from custody, characterizes this case as one of unauthorized borrowing or temporary use."

By the current terms of section 143 of the Act, it is therefore not theft, he said.

in addition, the evidence was not sufficient for the Magistrate to have been satisfied beyond reasonable doubt of an inference, that at the time the money was taken the respondent intended to convert it for his own use or the use of any other person.

The Chief Justice said, the important focus was the respondent's intention when he took the money, not what in fact was subsequently done with it. 

In that latter regard, there was no evidence that the respondent did anything with the money during the period that he held it apart from holding it.

“The evidence that the respondent thanked the complainant when he returned the money could be suggestive of the respondent having gained some sort of benefit during the time he held the complainant's money but, in my view, without more, that evidence was so equivocal that any inference based on it could not satisfy the criminal standard of proof for this particular element,” he said.

He then concluded that the Magistrate was correct in her ultimate findings on the two elements, which have been considered on this appeal, and that the acquittal was rightly entered.

The appeal was then dismissed.

Criminal Offences Act