Coffee and Soap Jar Theft Case Leads to Major Legal Shift, But Acquittal Stands
An unusual theft case involving a student accused of taking items ranging from a jar of coffee and a bottle of detergent to valuable household goods, has resulted in a landmark Court of Appeal ruling that modernizes the definition of “dishonesty” in Tongan law, even though the original acquittal was ultimately upheld.
The case, Attorney General v Tevita Fa’uhiva, centred on the respondent, a student and former housemate of the complainant, who was charged with a single count of theft. The list of stolen particulars was highly unusual, featuring small domestic items like a jar of coffee and the aforementioned bottle of detergent, alongside valuable assets, including fine mats, furniture, and clothing worth $1000. The respondent had pawned several of the high-value items for cash.
It is understood by Tonga Independent that, although it wasn’t raised in the trial, Fa’uhiva was apprehended by authorities and kept in custody without bail for over six months, which seems quite excessive and unnecessary for the kind of petty crime involved.
At the initial trial, the Lord Chief Justice acquitted the respondent, finding the prosecution had not proven intent to dishonestly deprive the complainant. Critically, the trial judge relied on an outdated legal test from 1938, which focused solely on the respondent’s subjective state of mind—essentially asking if the defendant “honestly believed” they had a right to the items, regardless of whether that belief was realistic or rational.
The Attorney General submitted a question of law to the Court of Appeal, arguing this purely subjective standard was incorrect. The Court of Appeal agreed, confirming that the proper test for dishonesty in Tonga is the two-stage Ivey v Genting Casinos test. This modern test requires the court to first ascertain the defendant’s actual state of knowledge or belief, and then determine if their conduct was dishonest by the objective standards of ordinary, honest people. The Court warned that the old, subjective test allowed individuals to avoid conviction by relying on “idiosyncratic or antisocial beliefs”.
While the Court of Appeal ruled that the law applied by the trial judge was wrong, the determination, under s17D(5) of the Court of Appeal Act, has no effect on the verdict of acquittal for Fa’uhiva. The respondent remains acquitted, but the case establishes a binding precedent that ensures a higher, objective standard is now applied to all future theft prosecutions in Tonga.
