Taufahema v R [2024] TOCA 8; AC 18 of 2023 (28 May 2024)

IN THE COURT OF APPEAL OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

AC 18 of 2023
[CR 46/2022]

BETWEEN
NEIL TAUFAHEMA

- Appellant

AND
REX

- Respondent

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JUDGMENT OF THE COURT
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Court: Randerson J
Harrison J,
de Jersey J

Counsel: Mr D Corbett for Appellant
Mrs E Lui for Respondent

Hearing: 23 May 2024
Judgment: 28 May 2024

[1] The appellant was convicted after jury trial before the former Lord Chief Justice Michael Whitten KC on 15 August 2023 on one count of discharging a firearm with intent to intimidate, contrary to s 109 of the Criminal Offences Act. He was sentenced to two years imprisonment, fully suspended on conditions to include 80 hours community service. He now appeals against conviction on two grounds:

• (a) The Judge misdirected the jury on the topic of intent to intimidate;
• (b) A copy of the registration of the title to the allotment on which the incident occurred was wrongly admitted.

[2] Section 109 has two alternative limbs. The particulars of the charge clarified that it related only to the first limb charging the appellant with discharging a firearm “near’ any person with intent to intimidate. The second limb relates to presenting a loaded firearm at a person “within range” but was not relied on.

[3] It is not in dispute that the prosecution was required to prove that:

1. The appellant discharged the firearm.
2. With intent to intimidate.

100. Near the complainant.

[4] The facts may be briefly stated. The complainant, Paula Taufahema, is the older brother of the appellant, Neil Taufahema. The allotment on which the incident occurred had been owned by their older brother, Viliami, who wished to surrender it. There had been a longstanding dispute between Paula and Neil about ownership of the allotment and a house erected on the land. On the day in question Paula, his wife and others went to the property with the intention of cleaning the house. Paula had a machete with him which he intended to use to smash the lock on the gate. However, he climbed over the gate and entered the residence noting that Neil was at the back of the house and his son had just left the residence. After Paula returned to the vehicle in which the group had arrived, he returned to the residence and went inside.

[5] A video was played to the jury which showed Neil yelling to Paula telling him to leave. The video also showed that Neil was carrying a .22 rifle and pointed it at the louvres of the house before firing it. This resulted in damage to the louvres. We were told there was a distance of only 3-5 metres between the place where Neil fired the shot and the place where Paula was located in the house. After the shot was fired, Paula left the property and contacted the Police.

[6] When questioned by the Police four days later, Neil admitted discharging the firearm in Paula’s direction and yelling at him to leave. Neil said he did this with the intention to warn the complainant to leave the property.

[7] At trial, the essential issue was whether the Crown had proved beyond reasonable doubt that Neil had fired the shot near Paula with intent to intimidate. The trial Judge directed the jury on this topic. On the issue of proximity when the shot was fired, the jury was directed that the undisputed evidence was that Neil shot into the house across the corner when he knew Paula was inside the house. The Judge noted that Neil had tried to explain that he shot into one direction basically because he believed Paula was walking in the other direction inside the house, but he could not see. The jury was directed that this was something for them to weigh up on the issue of proximity.

[8] The Judge then canvassed analogies designed to assist the jury in its assessment of the issue of intent to intimidate. He referred by way of illustration to A and B being in a field 100 metres apart. If A fired a shot into the ground, it would be less likely to amount to an intention to intimidate than it would if it was fired in the direction of B. The Judge also mentioned another example of A warning a trespasser to an allotment and then firing a warning shot into the ground.

[9] The Judge went on to draw the jury’s attention to the video evidence and Paula’s statement to the Police. The jury also had before it Neil’s own evidence at trial and that of his son.

[10] The trial Judge also directed the jury about a defence raised on Neil’s behalf that his actions were taken in defence of his property or in the defence of himself or his son. The Judge canvassed the elements of this defence but pointed out that Neil had made no mention of defending his property or himself and his son when interviewed by the Police soon after the event. He also directed the jury that Neil could not claim to be defending the house on the allotment because, as a matter of law, the house belonged to Paula. The Judge referred to a Land Court decision in December 2020 ordering that Neil’s registration as owner of the allotment be cancelled. We refer to this in more detail below but note here that the Judge directed the jury that it was a matter for them whether they accepted that Neil still believed he was the owner of the allotment and whether there were reasonable grounds for that belief and for discharging the rifle. It was also a matter for the jury to decide whether Neil’s action constituted the use of reasonable force and whether Paula was ever a trespasser. There is no complaint made about the Judge’s direction on this defence. We observe that leaving this defence to the jury might be regarded as generous to Neil in the circumstances.

Jury misdirection

[11] We are not at all persuaded by Mr Corbett’s submission that the Judge misdirected the jury on the question of intent to intimidate. He directed the jury both on the question of proximity and intention, drawing the jury’s attention to all of the relevant evidence and leaving it to the jury’s assessment. The illustrations he provided were designed to illustrate for the jury the distinction between a warning shot fired into the ground and a shot fired in the direction of the complainant which was more likely to enable the jury to infer an intention to intimidate. The issue of proximity was dealt with as part of this topic since the issues are closely intertwined. We see no issue with this. Mr Corbett also submitted that the jury might have been confused when the Judge used the term “range” as well as “near” but we do not discern any realistic prospect that the jury might have misunderstood the simple task before them.

[12] Here, the undisputed facts were that Neil fired the shot into the house occupied by Paula with the knowledge that Paula was there. Whether Neil could see Paula at that point is immaterial. There was ample evidence for the jury to infer an intention to intimidate. We see no risk of a miscarriage of justice arising in this respect.

The admission of evidence of the cancellation of Neil’s title to the allotment

[13] During the trial, an issue arose about ownership of the allotment. After consultation with counsel in the absence of the jury the trial Judge directed the jury on this issue. This is best explained in the following brief chronology.

2017. Chief Justice Paulsen declared Paula to be the owner of the front house on the property.

December 2020 The Land Court ordered Neil’s registration as the owner of the allotment in question to be cancelled due to errors made by the Minister of Lands in relation to Viliami’s surrender of title. A copy of the title with the word “cancelled” on it was eventually sent to Neil by the Ministry of Lands but not for some months later. He says he knew of the Court order but did not see the copy of the title until it was produced at his trial.

October 2022 Neil filed a third application to this Court to rely on new evidence in support of his bid to obtain registration to the title of the allotment.

9 December 2022 The date of the incident the subject of the charge.

April 2023 This Court set aside the decision in December 2020 of the Land Court but did not reinstate Neil’s registration as owner. Rather, it directed a rehearing in the Land Court.

August 2023 The trial at issue in this appeal was conducted.

[14] The Judge directed the jury that at the date of the alleged offence in December 2022, the legal position was that Neil’s registration had been cancelled; Paula owned the front house and Neil was living at a smaller house behind.

[15] The Judge also noted that there had been no objection at the time to the production of the copy of the title with the word “cancelled” on it but also recorded that Neil claimed not to have been informed about the cancellation.

[16] Mr Corbett submitted that the copy of the certificate of title should not have been admitted and that it was material to the appellant’s claim to have been defending his property at the time. We are not persuaded there is any substance in this argument. First, counsel accepted there was no objection at the time to the admission of the copy of the title. Second, Neil was well aware of the Court order cancelling his title and, at the time of the alleged offence, he was appealing against the cancellation. Third, the trial Judge properly and fairly left the issue of defence of property to the jury. Again, we do not detect any risk of a miscarriage of justice on this ground.

Result

[17] For the reasons stated, the appeal against conviction is dismissed.

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Randerson J

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Harrison J

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de Jersey J