The Lord Chief Justice quashed a Senior Magistrate’s decision and reinstated the guilty plea of man accused of theft. He returned the case for sentencing at the lower court in Nuku’alofa.

This was an appeal case by the Police vs Setili Talisa (respondent) who was charged with theft of $1360 worth of goods.

Lord Chief Justice Whitten in a judgment on July 23, said the appeal was against the decision by Senior Magistrate Pahulu Kuli on February 7, 2020 when she ruled that the respondent was to change his plea from guilty to not guilty and that he be acquitted of the charge of theft.

Talisa was charged with theft of a Samsung phone, a driver's license, Westpac card, ANZ card and a Kiwi bank card valued at $1360, belonging to Tevita 
Maile.

The offence occurred on the night of January 4, 2020 when the complainant went to a store with a lot of shopping. He did not notice that the items fell down and were left behind, outside the store.

The respondent who noticed this walked over and threw his t-shirt on top. He took the items with him.

The Court heard, once the complainant noticed the items missing, he reported it to the Police. The Police went to the store and identified from a security camera footage that the respondent had taken the items.

Magistrate's error

The appeal included grounds that Magistrate Kuli erred in law when finding that the respondent should have been charged under s.151 of the Criminal Offences Act for failing to deliver lost property instead of theft; erred in law by failing to take into consideration the provisions of s.152 of the Criminal Offences Act and erred in setting aside the respondent's guilty plea during the sentencing.

The Chief Justice said, there can be no doubt that once the learned Magistrate here directed the respondent to change his plea to not guilty, even if she was correct in doing so, she should have afforded the Crown a reasonable opportunity to present its case at trial.

"It is bewildering that the transcript below contains no explanation for why she took that course. To have denied the Crown an opportunity to present its case at trial constituted an error of law, and on that ground alone, the appeal succeeds."

He said on the first two grounds of the appeal, the Magistrate also erred in her decision to direct the respondent to change his plea.

The key facts submitted by the Police Prosecutor was that the respondent saw the items fall from the complainant, he put a t-shirt over it, entered the store then came back out and took the items with him.

Several days later, after the Police investigated the matter and approached the respondent, he had still not made any attempts to return the goods to either the store or the complainant.

The respondent knew that the items belonged to the complainant because his name appeared on them including the cover of his mobile phone and bank cards.

"Those factual observations alone supported the charge of theft as defined by s.143. In my view, the respondent's original guilty plea was appropriately entered.”

Further, this was a case where the respondent knew that the items in question belonged to the complainant and it wis not a case under s.151(1) where those items could have been regarded as having been lost, said the Chief Justice.

"In light of my findings about the theft charge and the fact that the original guilty plea was appropriately entered, I do not consider it appropriate or indeed necessary to remit the matter back to the Magistrate's Court for any trial based on the not guilty."

The Chief Justice then quashed the Magistrate's decision, set aside the respondent's not guilty plea, reinstated his guilty plea to the theft charge and remitted the matter back to the Magistrate's Court for sentencing on August 7.