Rex v Fonohema [2003] TOSC 48; CR 101 2002 (5 December 2003)

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

NO. CR.101/2002.

REX

-V-

VILIAMI MA’ILEI FONOHEMA

BEFORE THE HON. MR. JUSTICE FORD

Counsel: Mr Pouono for the Crown and Mr Niu for the accused.

Dates of hearing: 18 and 19 November 2003.
Date of written submissions: 26 November and 3 December 2003.
Date of judgment: 5 December 2003.

JUDGMENT

While carrying out a search, pursuant to a warrant, of the accused's home at Ha'ateiho in May 2002, a police officer found a small bright blue "Sesame Street" carry bag under the bed in the main bedroom. The bag contained several boxes of .22 rifle ammunition. The accused told the police that they belonged to his wife and he did not know they were in the house. The police, nevertheless, charged him with one count of possessing ammunition without a licence contrary to section 4(1)(2) of the Arms and Ammunition Act (CAP. 39).

The 48-year-old accused defended the charge and elected to give and call evidence. He told the court that he had been born and grew up in the village of Ha'akame but he had lived in the United States for many years. In June 2000 he and his family came to Tonga for a holiday but they decided to move here permanently. Initially, the family resided with a Mr Fotofili Havea at Ha'akame. Fotofili did not charge any rent during the several months the family lived with him before they moved into the house the accused had purchased at Ha'ateiho.

Around the end of August or early September 2000, the accused's American-born wife, Sharon, had moved back to America to terminate the lease on their home in the States and to oversee the sale of her business. She returned to Tonga at the beginning of November 2000 and the family moved into the Ha'ateiho property on 1 December 2000.

It so happens that significant problems arose in connection with the purchase of the Ha'ateiho property and Mr Fonohema ended up taking legal proceedings against the vendor who was a local law practitioner. The case came before me in August 2001 and, after a nine-day hearing in the Land Court, I found for Mr Fonohema. A subsequent appeal to the Court of Appeal was unsuccessful. I recall on that occasion forming a favourable impression of Mr Fonohema’s credibility and I made an observation to that effect in my judgment. Some of the details above are actually taken from my earlier judgment. In the present case, I again found Mr Fonohema to be a credible and honest witness.

The accused told the court that when his wife went back to the States to deal with her business matters, Fotofili Havea had asked her to buy him a rifle. The accused said that he was not aware at the time that Fotofili had made the request. After his wife had returned from the States and they were unpacking their possessions at the Ha'ateiho property, the accused noticed in one of the crates something wrapped up in the shape of a rifle. He asked his wife what it was and she then told him that it was a gun and some ammunition which she had brought back from America for Fotofili. The accused told his wife to take them around to Fotofili straightaway and he said that she took the gun and the blue bag over to the car and drove off.

The accused recalled some weeks later asking his wife, in passing, about the gun and the ammunition and she had told him that she had given them to Fotofili. He then thought no more about the items after that until he was confronted with the blue bag again on the day of the police search.

Unfortunately, problems later developed in the couple's marriage and in November 2001 they separated. Sharon and the five children went back to live in America. She obtained a divorce and the accused remarried on 5 June 2003.

Recalling the police search on 10 May 2002, the accused said that he was sitting on the verandah of his home talking to one of his friends while the search was being carried out. He said that one of the police officers came out of the house and asked him to go with him and he was then taken into the main bedroom. The accused noticed that his kingsize bed had been moved out from against the wall and he could see the blue carry-bag on the floor with the boxes of ammunition inside. He said that the police asked him who the bag belonged to and he replied: "The last time I saw that bag was when I told my wife to take it to Fotofili's."

The police witnesses confirmed that the accused had given a response along the lines that the bag was his wife's and he had no idea that it was in the house. The Inspector in charge of the case also confirmed that the accused had been totally co-operative with the police during the search.

When he was later in police custody, the accused continued to be co-operative. He voluntarily gave statements to the police in which he again asserted that he had no knowledge whatsoever that the bag of ammunition was in his house. He said that he thought his wife had given the ammunition, with the rifle, to Fotofili Havea. The police Inspector who took the statement from the accused was asked in cross-examination whether he had interviewed Fotofili Havea. He answered: "No, I was told that he is currently in New Zealand."

I should add that when the blue bag was found it contained two large packets. One was full, holding 10 small boxes containing 50 cartridges, but the other contained only eight full boxes. There were also three lose full boxes, making a total of 21 boxes or 1050 bullets.

Evidence was led and there was cross-examination as to whether there was dust under the bag as well as on the floor under the bed. Presumably that evidence was intended to assist the court in determining how long the bag had been stored under the bed but I found it inconclusive and I, therefore, put it all to one side. In cross-examination, Crown counsel put it to the accused that he must have known that the bag containing the ammunition was under his bed. The accused, however, strongly denied the assertion. He said that his wife had been the one who cleaned up the rooms and he had "more important things to do in the bush."

As his last witness, Mr Niu called 67-year-old Fotofili Havea. He was something of a surprise witness because the prosecution evidence suggested that he was now living in New Zealand. Fotofili told the court that he had gone to New Zealand in April 2002 but he had returned to Tonga in July of that same year.

Fotofili had known the accused as a young man before he went to live in America. He confirmed that when the accused then returned to Tonga with his family in June 2000 he had offered him the use of his house at Ha'akame. He said that the accused had asked him about rental payments but Fotofili had told him that he did not want them paying any money.

Fotofili recalled that when the accused's wife, Sharon, went back to the States he had asked her to buy him a .22 rifle. He said that he had made his request only to Sharon and the accused was not present at the time they had the conversation.

The witness then confirmed that after Sharon had returned from the States she had driven around to his house one evening and had given him the rifle. He explained that on that occasion Sharon had not got out of her car. She had her daughter with her and as she handed Fotofili the rifle she told him that she also had ammunition for it. Fotofili said he told Sharon that he only wanted the rifle not the ammunition and so she took the ammunition away with her. He said that he wanted to obtain a licence for the rifle before he acquired any ammunition.

Fotofili said that he duly obtained his licence from the police armourer and the licence had specified that he was restricted to the use of 50 bullets per month. He explained that normally he purchased his bullets from a local hardware merchant but on two occasions when the dealer had no .22 ammunition in stock he had gone around to see Sharon and on each occasion she had given him one full box of ammunition. That might explain why two boxes had been taken out of one of the large packets of ammunition. In all events, Fotofili confirmed that on neither occasion had the accused been present when he borrowed the ammunition from Sharon but on a subsequent occasion when he had again gone around to ask Sharon for a box of bullets the accused was present and he told the witness that Sharon had returned to America. Fotofili said that he had not bothered telling the accused why he had called around to see Sharon.

I found Fotofili to be a totally credible witness and I suspect that Crown counsel may have made a similar assessment because the only question he asked in cross-examination was whether, when Sharon had given him the rifle, she had actually shown him the ammunition. He replied, "no". It is perhaps unfortunate that the police did not make inquiries about Fotofili's anticipated return date from New Zealand. I suspect that had they interviewed him before the preliminary inquiry on 31 July 2002, they may well have decided not to proceed with the prosecution.

My conclusion, therefore, is that the accused had no knowledge, whatsoever, that either the ammunition or the bag containing the ammunition were anywhere on his property, let alone under his bed.

The English Court of Appeal has held that section 1 of the (UK) Firearms Act 1968 (the equivalent to section 4 of the Arms and Ammunition Act (CAP. 39)) creates an offence of strict liability and once the prosecution has proved that the defendant had a firearm or ammunition in his possession then the offence is committed even though the accused may be unaware that the article in his possession is, in fact, a firearm or ammunition - see R v Hussein, 72 Cr App R. 143 and R v Waller [1991] Crim L R 381. In Waller a conviction was upheld even though the finding was that the defendant, who was in possession of a friend's bag, did not realise that it contained a firearm.

The "Commentary" on R v Waller in the report on the case states:

"The court seems, in substance, to have taken the same line as McNamara [1988] Crim LR 440 - ‘Once the prosecution had proved that the appellant had control of the (bag) and knew that the (bag) contained something which was in fact the (ammunition) alleged’ - the necessary possession was established." The commentator described the result as "harsh".

Even accepting these authorities, however, they are clearly distinguishable from the facts of the present case. It is still an essential element of the offence for the prosecution to prove that the accused knowingly had possession of the particular container holding the ammunition or firearm. Whether a person is in possession of something is always a question to be decided on the facts. In Waller, there was no dispute that the defendant had possession of the bag. He wrongly believed that it contained a crowbar for use in a burglary instead of a firearm.

In the present case, I have found that the accused had no knowledge whatsoever that the bag containing the ammunition was anywhere in his house. A person cannot possess something of which he is completely unaware.

For these reasons, the prosecution fails and the accused is acquitted and discharged.

NUKU'ALOFA: 5 December, 2003.

JUDGE