By Linny Folau

Ma’ake Kali will be re-tried at the Magistrates Court for the theft of an engine valued at $7,000 from a boat anchored on the shore of Tatakamotonga, in a successful appeal by the Crown to the Supreme Court in Nuku’alofa, after the accused had been earlier acquitted by a magistrate.

Acting Justice Langi in a written ruling on 29 May found there was merit in this appeal and ordered that it be remitted back to the lower court to be heard by a different Magistrate and not Senior Magistrate Tu’akalau, who acquitted the accused.

The complainant was Sione Taufalele (59) of Tatakamotonga. On 5 September 2023, he went out to sea and returned around 3:00pm and anchored his boat in a shore at the village on eastern Tongatapu. He removed the petrol tank from the boat and took it home. Then on the next day at around 2am, Police came across a vehicle in Fanga whose rear lights were not on. They signalled the vehicle to pull over to the side of the road but they did not comply.

The driver was Pailate Uasike and the passenger was the defendant. Police informed them that they were playing loud music and missing some lights in the car. Upon close inspection, the Police officers found a wet boat engine inside the vehicle next to the defendant who was sitting at the passenger seat of the car. When inquired about the boat engine the driver said, he did not know who it belonged and the defendant told the police that it belonged to him. The officers took the suspicious engine.

Meanwhile, on 6 September 2023, the complainant discovered at around 6:00pm that his boat engine was missing. It was a grey Yamaha Horse Power 15 valued at $7,000. The complainant went to the police on the same day to report the theft. When the boat engine found in the possession of the defendant was shown to the complainant, he immediately recognized it as his boat engine.

The Magistrate in his judgment ruled that the Crown had not proven all the elements of the charge beyond a reasonable doubt, and acquitted the accused.

Crown appeal

Meanwhile, the Crown's appeal challenged the Magistrate's findings of fact and the law. It put forth, that the Court erred in fact and law by failing to give due consideration to the complainant's statement taken by Police, which clearly mentioned the amount of stolen property. Also, the property was found in the vehicle, in which the respondent was in the passenger's seat.

The Magistrate also failed to give due consideration about his interest in this trial because he and the respondent lived together in the same village and he had mentioned it was difficult for him to conduct this trial, argued the Crown.

Acting Justice Langi stated that the Magistrate should have removed himself from hearing the trial.

"From His Worship's written judgement, it was clear that he was of the view that the Crown was required to prove that the boat engine was valued at $7000. This raised the question as to whether the value of the boat engine was part of the elements that the Prosecution was required to prove beyond a reasonable doubt.

“...This was so the Magistrate would be satisfied that he had jurisdiction to hear this case if he was required to sentence the accused. Magistrates can only hear theft cases where the value of the thing stolen is less than $10,000.

“However, I do not agree with the Learned Magistrate that Crown was required to prove the value of the boat engine as one of the elements of the offence of theft. Theft is the dishonest taking of property belonging to another, without a colour of right and without the consent of the owner. The complainant had given evidence in the trial that he had identified the boat engine as his because of certain identification marks that only he was familiar with.”

The Magistrate had also referred to the inconsistency of the evidence of the two police Officers, Police officer Fifita and PC Mafi as raising "a lot of doubt".

“In my view, the inconsistency referred to by the Learned Magistrate were not major inconsistencies that would suggest that Officer Mafi had purposely lied in court. His only problem seems to be that he forgot the exact time they had arrested the accused. The question in my mind is whether Officer Mafi intentionally misled the court and lied, when he said the accused was arrested in the evening or whether he had genuinely forgotten? While, the Learned Magistrate seemed to have taken the view that because the Officer's evidence was inconsistent, therefore the evidence of Officer Fifita was not truthful. However, his judgement did not address this point, she added.

"Overall, I believe that there is merit in the grounds of appeal and I rule that this matter is remitted to the Magistrate Court to be heard in front of another Magistrate. Due to the accused's history of non-appearance I remand him in custody but will request the assistance of the Chief Magistrate to have this matter listed for trial as soon as practicable before a different Magistrate,” Acting Justice Langi stated.