By Linny Folau

A fraudulent online car dealer, Filimone To‘aho who was found guilty of eight charges of receiving a total of $243,486 by false pretences in a scam on Facebook had his appeal against his conviction dismissed by the Appeal Court.

In this case, he advertised on Facebook, which falsely led his victims to believe they were purchasing imported vehicles and boat engines.

Appeal judges Randerson, Harrison and Morrison in a judgment on 16 May stated the appellant was found guilty and convicted in a trial by judge and jury, and was sentenced to eight years imprisonment in the Supreme Court. 

Mr David Corbett represented him as counsel at trial and was instructed to file his notice of appeal against conviction but withdrew when the appeal was called. The appellant then represented himself on the same two grounds of alleged errors by the trial judge as identified by his former counsel.

The Appeal Court stated that Mr To'aho's alleged offending followed a similar pattern for eight separate transactions entered into over a one-year period. In each case the eight complainants answered advertisements placed by Mr To'aho for the sale of valuable vehicles and on one occasion boat engines.

The complainants subsequently entered into agreements with him or entities controlled by him to purchase the advertised property. Payment was on terms requiring a deposit with the balance over time pending delivery of the vehicles and engines from overseas suppliers, normally from Japan. The complainants each paid most, if not all, of the purchase price in advance of the promised delivery of the vehicles and engines. But the vehicles and engines were never delivered.

Mr To'aho never repaid the vehicle buyers, one of whom had paid a total of $116,000 for three vehicles. The eighth complainant, a member of the Tongan nobility, agreed to buy four boat engines from Mr To' aho for $41,600. He paid a 30% deposit in advance of delivery. Again, the engines never arrived. The noble was able to recover most of the $9,800 paid as a deposit.

Furthermore, he obtained $243,486 from these transactions. A balance of $232,186 remains unpaid to the vehicle buyers, stated the Appeal Court,

At trial, Mr To'aho gave evidence in his own defence and called witnesses as well. The thrust of his defence was that he was himself was scammed by foreign suppliers. He said that when he found out about these repeated deceptions he attempted unsuccessfully to replace the vehicle orders. As Mrs Vainikolo observed, he also blamed other factors for his non delivery of vehicles including the advent of Covid 19 and a tropical tempest, stated the Appeal Court.

Meanwhile, on the first ground of his appeal was that the trial judge allowed the admission of hearsay evidence, which negatively affected the minds of the jury.

This grounds related to only one charge. In evidence in chief, one of the complainants, Helen Toli, referred to what Mr Corbett said was an email, which was not produced in Court. The gist of the email was said to be that a Mr Fili, a Tongan lawyer, who was not called as a witness to advance the Crown case, had not purchased a vehicle from Mr To'aho, stated the Appeal Court.

"This is a confusing and misleading submission. The document was not an email and nor was it of a hearsay nature. It was created by Mr To'aho. It was a screenshot of his Facebook post, thanking a well-known lawyer, Mr Fili, for buying a Toyota Hilux at a promotion price advertised by Mr To'aho. It is also incorrect to claim that the document was not produced in Court.

“Mr To'aho said that after listening to an audio recording of the evidence he was satisfied that Ms Toli said words to the effect that she had contacted Mr Fili to inquire whether he had purchased a vehicle from a named company, and that Mr Fili replied in the negative. If that evidence was given, we accept that it was hearsay. But it was so insignificant in the overall evidential context that it could have had no bearing on the jury's verdict on this discrete charge.

“We cannot see any merit in this ground. It is unsurprising that Mr Corbett did not raise any objection to the document's admission at trial, or that the trial judge did not refer to it in summing up. We note also that Mr Corbett did not respond to Her Honour's express invitation to raise any errors or concerns at the end of her summing up."

The second ground of his appeal argued that the trial judge erred in law by allowing the Crown to cross examine Mr To'aho about his involvement with a company called Super Cheap.

Mr Corbett submitted in written submissions filed on appeal that Super Cheap is well known to the Tongan public as a scam business, leading to Mr To'aho previous conviction relating to the sale of motor vehicles under that company's name. He submitted that by association this line of questioning negatively affected Mr To'aho right to a fair trial.

He further argued that during closing the Crown referred to the Super Cheap name, asserting to the jury that Mr To'aho was attempting to hide or conceal this information from the jury. He submitted that the judge erred in law in her summing up by not reminding the jury that Super Cheap was unrelated to this case, stated the Appeal Court.

“We do not see any merit in this ground either. In cross examination at trial Mrs Vainikolo challenged Mr To'aho's evidence in chief that he did not start selling cars until 2020. In answer, Mr To'aho admitted that his assertion was untrue; he had been in the business under various corporate guises since 2014. He volunteered that he was in fact involved in selling cars for Super Cheap in 2017. He gave an explanation of the reason why he had stopped this practice."

The Appeal Court added that the Crown's case against Mr To'aho was very strong if not overwhelming and the facts spoke for themselves in exposing his repeated deceptions.

"Findings of guilt were inevitable unless he was able to raise a doubt based on his own evidence and that of his witnesses. His explanation that he was himself the victim of scams would have faced obvious credibility problems given the multiplicity of the transactions, the duration of their occurrence, and his failure to repay his victims."

The Appeal Court therefore ruled that the verdicts must stand and dismissed the appeal.