Police v Tatui [2019] NUHC 7; CR 25, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40 of 2018 (14 March 2019)

IN THE HIGH COURT OF NIUE
(CRIMINAL DIVISION)

CR25,31,32,33,34,35,36,37,38,39,40/2018

In the matter of: Present a loaded firearm at another person namely Rhys Tatui
Section 12(1)(2) Niue Arms Act 1975

Drive a motor vehicle namely a white colour Toyota Camry plate number 6720 in a public place being at Alofi to Tuapa main road without having a valid annual licence for that motor vehicle

Section 4(b) & 5(1) Niue Transport Act 1965

In possession of any firearm a Marlin Goose 3 Inch Magnum 12 Gauge, Bolt Action single barrel, Serial No: 19783573 for a period longer than 28 days without having an annual registration certificate

Section 6(1) Arms Act 1975

In possession of any firearm for some unlawful purpose

Section 10(1) Arms Act 1975

At Matagauta, Tuapa you did cause bodily injury to any person namely Stuy Mautama by carelessly using a firearm

Section 13(1) Niue Arms Act 1975

At Matagauta, Tuapa you did cause bodily injury to any person namely Rhys Tatui by carelessly using a firearm

Section 13(1) Niue Arms Act 1975

At Matagauta, Tuapa you did discharge a firearm within 100meters of a building being used as a residence by namely

1. Reverend Faitala & Mrs. Ainu’u residence (4x Occupants)
2. Leipata Sionetuato residence (2x Occupants)
3. Viliami Tuipulotu residence (4x Occupants)

Section 13A(1) Niue Arms Act 1975

Drive a motor vehicle namely a white colour Toyota Camry plate number 6720 in a public place being at Alofi to Tuapa main road without having a valid warrant of fitness carried on or affixed to that motor vehicle

Section 70(1) Niue Transport Act 1966

At Matagauta, Tuapa an act or Omission causes bodily harm to any person namely Stuy Mautama under such circumstances that if death had been guilty of manslaughter.

Section 153 Niue Act 1966

At Matagauta, Tuapa an act or Omission causes bodily harm to any person namely Rhys Tatui under such circumstances that if death had been guilty of manslaughter.

Section 153 Niue Act 1966

At Matagauta – Tuapa you did wilfully damage a white colour Nissan March registration plate:6547 the property of Rhys Tatui

Section 213(1) Niue Act 1966

BETWEEN: Niue Police

Applicant

AND Rudolf Ainu’u

Accused

DECISION OF CHIEF JUDGE CRAIG T COXHEAD

These decisions should be read in conjunction with the decisions relating to Mr Rhys Tatui.

Decision on criminal charges

1. Mr Ainu’u has raised self-defence. The issue here is whether the force used in defending himself in the circumstances was reasonable. Was it reasonable for him to shoot the gun in defence of himself? Reasonable force is an objective test permitting actions that are necessary to avert the threat in the circumstances that the defendant believes to exist.
   
2. In considering reasonable force used, while the test is ultimately an objective one, any assessment must take into account of the facts, that in most cases the defendant must “act on the instant,” with no opportunity for the kind of hindsight or debate which can take place months afterwards in Court.
   
3. Mr Ainu’u was clearly scared not only for himself but for his family. He had been stopped and then been chased to his home. He had a car crash into his car and then had that same car drive at him.
   
4. Then Mr Tatui drove a short way from the house and stopped. He did not drive away, but waited a short time and then drove back towards the house.
   
5. The threat in my view was imminent and given the lead up events of the night, the events right on his doorstep, the doorstep of Mr Ainu’u the threat was serious.
   
6. At that moment when events were clearly now escalated to more than just an argument which seems to have been the origin of all these matters earlier in the night and given the circumstances as I have outlined, at that instant, the alternatives to defending himself were few, and in fact in my view were none.
   
7. The context was that Mr Ainu’u had no reasonable alternatives. Being attacked he did what he thought was necessary. In my view given the circumstances which were not pretty and had escalated from an exchange at the Alofi Club, a road block, a bat being swung at a car, a car chase, a further collision, a car being driven at a person, a knife being smashed into a windscreen, then a car in waiting.
   
8. In my view Mr Ainu’u getting a gun to defend himself in these circumstances was reasonable.
   
9. I therefore find Mr Ainu’u on the charges that he faces Not Guilty.
   

Sentencing decision

The Court: Sergeant Bland - did you wish to make some - regards to sentencing?

Police: For Mr Tatui, Police are seeking to make submissions on him (inaudible).

The Court: What about in terms of Mr Ainu’u?

Police: They are just (inaudible) defences and they probably don’t require any submissions from the Police (inaudible)

The Court: Mr McCoy?

Mr McCoy: Very short Your Honour. All I would say is in relation to the unregistered shot gun, it was registered until 2014. The gun actually belonged to the wife’s great grandfather who served in World War I. It is a vintage weapon. It is many many years old. It is used extremely infrequently and only up at the plantation. In respect of the two traffic matters. The vehicle is actually owned by the defendant’s mother-in-law. She is sick, hospitalised and off the Island at the moment and paying the registration and the warrant of fitness had simply slipped through the cracks. That is all I wish to say Your Honour. If you are intending to oppose a fine depending on its overall size, there may be a requirement for time to pay.

The Court: I was intending on imposing a fine.

Mr McCoy: I see.

The Court: Because I think that is where we are at with this. Sorry and there was the list of previous of related, in terms of weapons and given the circumstances the Court will impose a fine of $250.

Mr McCoy: If Your Honour pleases. Could I ask for two (2) months to pay please?

The Court: I ask, what is the normal process in terms, with regards to time payment?

Mr McCoy: That sounds fine, thank you.

The Court: Sergeant?

Sergeant Bland: No the Police don’t have anything further to add.

Date of hearing 14 March 2019.

___________________
C T Coxhead, CJ