Rex v Wight [2004] TOSC 43; CR 223 2003 (25 August 2004)

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

NO. CR. 223/03

BETWEEN:

REX
Prosecution

AND:

SIONE WIGHT
Accused

BEFORE THE HON. JUSTICE FORD

Counsel: Mr Kefu for the Crown and Mr Tu'utafaiva for the accused

Dates of hearing: 18 March and 19 August 2004.
Date of judgment: 25 August 2004.

JUDGMENT

The accused is charged with one count of discharging a firearm with intent to intimidate, contrary to section 109 of the Criminal Offences Act (CAP. 18) and one count of causing bodily harm contrary to section 107 of the Criminal Offences Act. He has pleaded not guilty. The lengthy delay between hearing dates resulted from the absence of one the Crown witnesses for a period.

The particulars for the first count allege that on or about 28th & 29th December 2002 at Ha'ateiho, the accused repeatedly discharged a .22 rifle intending to intimidate Sosefo Toke and others. The particulars for the second count allege that on the same occasion he wilfully and without lawful justification caused bodily harm to Sosefo Toke by shooting him with a .22 rifle causing injury to his fingers.

The accused, a married man with four children, lives next door to the Tonga golf course. He is caretaker of the golf course and of the golf club's bar. Twenty three year-old Sosefo Toke ("Sefo", as he was called during the trial) is a neighbour and drinking companion of the accused. They are well acquainted and have been close friends since they grew up together in the same village.

Sefo told the Court that on Saturday 28 December he had played a game of rugby which concluded around 5 p.m. He then began drinking Ikale beer. Sometime later that evening (the time was not specified in evidence) he went to the accused's home and began drinking VB beer. Another person, Victor, was drinking with them. By a late stage in the evening the trio were drunk.

Sefo's father, Poli, told the Court that between 11 p.m. and midnight on the Saturday in question, he had gone looking for his son who had not by then returned home. He found him drinking at the accused's house. Poli had not been drinking prior to then but the accused handed him a beer and he joined the group. Like his son, Poli had known the accused for many years and they were also good friends.

Poli told the Court that, after he had been at the accused's home long enough to consume four beers, he noticed the accused go into his house and emerge holding a .22 rifle. He said that until that point in time everyone had been joking and having fun and the small group had been making quite a noise. Poli said that when the accused emerged with the rifle he told them to stop making noises or he'll shoot someone. Poli told him to be careful or someone will be injured. In evidence, Poli told the Court he knew the accused was only joking when he made the remark about shooting someone and his response had also been made in jest.

Poli said that the accused then exclaimed, still in a joking manner, "who wants to be the tough guy?" And Sefo had answered that he did. According to Poli, the accused then said to Sefo: "put up your hands and I'll shoot them." Continuing his evidence, Poli said that Sefo then grabbed a bottle and held it up in his left hand and the accused fired three shots at it in quick succession. The first missed, as did the second but when the accused fired the third shot Sefo fell to the ground.

Poli told the court that when he saw his son fall to the ground he thought that he was dead but the injury turned out to be a relatively minor injury to the tips of three fingers on his left hand. It was not clear from the medical evidence whether the wound was caused by a direct hit from the bullet or from the shattered bottle. The medical officer simply said in evidence that it "was caused by a blunt object, not a sharp object like a knife."

Poli said that after he checked his son's injury he turned to the accused and said, "that's what I told you; if you are not careful someone will get shot." The accused responded: "You better leave as well or I'll shoot you." Poli then left in his car and called the police who arrived on the scene some four of five minutes later.

In cross-examination, it was put to Poli that what he had said to the accused after the third shot was, "I told you to stop playing" and he agreed with that proposition. He also agreed that the accused was just having a bit of a game or playing when he fired the three shots at the bottle. In re-examination, the witness confirmed that he was not scared at any stage.

When Sefo gave evidence, he told the Court that he had heard previously that the accused was a very good shot with a rifle and he had put that proposition to him on the night in question and told him that he wanted to see how good he was so he challenged him by making a bet that he could not shoot what he was holding in his hand. Sefo said that at that point the accused went into the house and got his rifle. Poli had confirmed in his evidence that the accused and Sefo had been talking about something before the accused entered the house to fetch the rifle.

Sefo confirmed what his father had earlier told the court, namely, that they were just playing around in a drunken state. He said that he was holding the bottle upside down by the neck when the accused was trying to shoot it. He said that he recalled feeling the injury to the end of his fingers and he told the court that he had been left with a 10 millimetre mark on his fingertips. Sefo said that when he left the accused's home after the incident (he did not say how much later that was), he passed out on the side of the road at Ha'ateiho in his drunken state and remembered nothing until the next morning. When he woke up he noticed the dried blood on his fingertips and somehow he managed to get himself to Viola Hospital where the wound was checked out by a health officer.

That, essentially, is a summary of the evidence called by the Crown. The accused, as was his right, did not give or call evidence but he made a statement to the police which was produced as an exhibit along with the usual statement of charges and so-called confession forms. As with any criminal case, the onus remains on the Crown throughout to prove all the elements of each charge beyond reasonable doubt.

The defence to count one advanced by Mr Tu'utafaiva was simply that the Crown had not been able to establish that the accused discharged a firearm with an intention to "intimidate" anyone. I agree with that particular submission. I accept, on the evidence, that the accused in his drunken state was responding to a challenge put to him by an equally drunk Sefo to demonstrate that he was a good shot by shooting the bottle. The earlier comment the accused had made when he first came out of the house with the rifle telling them to stop the noise or he'll shoot someone, was completely jocular. Poli admitted that much in cross-examination.

The other comment the accused made to Poli after the shots had been fired and Poli had reminded him of what he had said earlier, was, I accept, more sinister in tone but that was made after the shooting and it was no doubt motivated by other considerations going on from what had just happened.

In his statement to the police, the accused said, "the main aim of shooting was to the bottle. I did not intend to shoot to cause injuries to Sefo." I accept that explanation and the accused is acquitted and discharged accordingly on count one.

The defence in relation to the second count centred on what Mr Tu'utafaiva referred to as the Crown's failure to prove any criminal intention or mens rea . The relevant section of the Criminal Offences Act reads as follows:

"107. (1) Every person who wilfully and without lawful justification causes harm to any person in any manner or by any means whatsoever shall be liable to imprisonment for any period not exceeding 5 years."

(emphasis added)

Mr Tu'utafaiva accepted that the actions of the two men in relation to the challenge and the shooting were "stupid" but he stressed that it was all a type of game that went wrong. The men were close friends who knew each other well and had grown up together. As counsel put it, there was no wilful intention by the accused to cause bodily harm to Sefo.

Mr Tu'utafaiva relied upon what he referred to as the ordinary meanings of "wilfully", namely "deliberately or intentionally" and he quoted from the judgment of Lord Russell in R v Senior [1898] UKLawRpKQB 205; [1899] 1 QB 283, 290:

"The term "wilfully" means that the act is done "deliberately and intentionally, not by accident, or inadvertence, but so that the mind of the person who does the act goes with that."

Mr Tu'utafaiva invited the court to adopt Lord Russell's statement as authoritative. He strongly submitted that the Crown had failed to prove the mens rea element of the offence.

I accept that submission also. There is no doubt that the acts of bravado by the two men, the accused in particular, were foolhardy and potentially extremely dangerous, given their drunken state, but I do not accept that the accused had any intention to harm Sefo. In this regard, I do not accept the father's evidence that the accused said to Sefo, "put up your hands and I'll shoot them." In his record of interview the accused told the police that he asked Sefo to hold the empty bottle up and he would shoot it three times. I accept that statement because, according to the police evidence, that remark had been overheard by Victor (who was not called as a witness). My finding that the accused had no intention to cause bodily harm to Sefo is not the end of the matter, however.

Mr Kefu relied upon the extended meaning of "wilfully" adopted by the majority in the House of Lords decision, R v Sheppard [1981] AC 394, and the commentary on that case which appears in Archbold 2003 (para 17- 47) where it is stated:

"The majority (in Sheppard), accordingly, equated "wilfully" with common law recklessness. In the absence of a specific decision on a specific statutory provision to the contrary, it is submitted that any provision containing the word "wilfully" in the definition of a crime should be construed in accordance with the approach in Sheppard."

Applying the recklessness concept to the facts of the present case, Crown counsel submitted that the accused was in such a state that he did not care whether he hit Sefo or the bottle. Mr Kefu went on to say: "He appreciated the risk he ran but he did not take any precautions to avoid that risk. He continued to take the risk." That conduct, submitted Crown counsel, amounted to recklessness and, relying upon the passage quoted from Archbold, "recklessness" in that context equates with "wilfulness".

The offence the House of Lords was concerned with in R v Sheppard was a charge of cruelty, contrary to section 1 (1) of the (UK) Children and Young Persons Act 1933. Martin Shepherd aged 16 months had died of hypothermia associated with malnutrition. If he had received timely medical attention his life might have been saved. His parents, aged in their early twenties, were poor and of low intelligence. They did not realise that their son was ill enough to require examination by a doctor.

The section of the Children and Young Persons Act the Sheppards were charged under made it an offence for a person having custody, charge, or care of any child "wilfully" to assault, ill-treat, neglect, abandon or expose the child in a manner likely to cause him unnecessary suffering or injury to health.
(emphasis added)

Lord Diplock noted that the adverb "wilfully" qualified all five verbs -- assaults, ill-treats, neglects, abandons or exposes but the verb "neglect" refers to a failure to act whereas the other four verbs refer to positive acts.

The Sheppards were charged with neglect -- a failure to act. Lord Diplock noted that, whilst the use of the word "wilfully" could readily be understood in relation to positive acts, the term was not a "wholly apt" expression when applied in relation to a negative failure to act at all. It was because of this dichotomy that Lord Diplock and the majority in Sheppard considered it appropriate to equate the term with recklessness. Lord Diplock noted that by giving section 1 of the Children and Young Persons Act this meaning, it would not encourage parents to neglect their children.

The reality, therefore, is that the majority in Sheppard found it necessary to equate wilfully with recklessness in order to properly construe the particular statutory language under consideration. Lord Diplock accepted that the construction he was giving the word was not its natural meaning. Thus, he said (p 406 line F):

"Lord Russell's brief explanation of the meaning of "wilfully" (in R v Senior) is confined to positive physical acts . . . its meaning in relation to positive acts is clear."

It follows from the foregoing analysis that in a case like the present, where the Court is concerned with the meaning of "wilfully" in relation to a positive act such as causing bodily harm to a person, it is not necessary to go beyond the primary meaning of the word which is "deliberate" or "intentional". The Court of Appeal adopted that approach in Vea v R [1998] Tonga LR 136 which was a case concerned with the more serious offence of "wilfully . . . causing grievous harm" to a person contrary to section 106 of the Criminal Offences Act. The Court of Appeal (p 139) stated:

"On the question whether the requisite criminal intent for wilful action existed the appellant's own evidence we have cited establishes, to the standard of satisfaction required, the Crown case, that the appellant actually intended to wound Latu with his bush knife."

In the present case, the Crown has failed to satisfy me to the required standard of proof that the accused intended to cause bodily harm to Sefo as alleged. I suspect that he may well have breached section 3 of the Order in Public Places Act (Cap. 37) which makes it an offence, without the permission of the Town or District Officer, to discharge a loaded firearm within the boundaries of any town but he was not charged with that offence and, under section 42 (3) of the Criminal Offences Act, this Court could find the accused guilty of a lesser such offence only if the offence fell within its jurisdiction. A charge under section 3 of the Order in Public Places Act falls within the exclusive jurisdiction of the Magistrates’ Court.

For the reasons explained above, therefore, the accused is acquitted and discharged on both counts.

NUKU'ALOFA: 25 AUGUST 2004.

JUDGE