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Crown v Tauelangi [2008] TOSC 16; CR 154 of 2008 (19 August 2008)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION


CR Case 154 of 2008


THE CROWN


V


VILISONI TAUELANGI


BEFORE HON JUSTICE SHUSTER (and a jury)


Mr. A. KEFU FOR THE CROWN
Mr. C. EDWARDS FOR THE ACCUSED


HEARING DATES: 18-19 AUGUST 2008


FUNCTION OF JUDGE AND JURY

Members of the jury our functions in this trial have been, and remain quite different.

Throughout this trial the law has been my area of responsibility, and I must give you directions as to the law which applies in this case. When and if I do so, you must accept those directions and follow them.

I must also remind you of the prominent features of the evidence, even though; this has been a short case with relatively few factual issues.

However, it has always been your responsibility to judge the evidence, and to decide the relevant facts of the case, and, when you come to consider your verdict, you and you alone, must do that collectively.

You do not have to decide every point which has been raised; you decide only such matters as will enable you to say whether the charges which have been laid against the defendant, have been proved or not and, whether the defendant is guilty or is not guilty.

You will do that by having regard to the whole of the evidence, and by forming your own judgement about the witnesses, and examining which evidence is reliable, and which evidence is not.

The defendant has chosen to give evidence and to call a witness in his defense.

You must judge their evidence by precisely the same fair standards as you will apply to the other evidence in this case.

You must decide this case only on the evidence which has been placed before you, by both the prosecution and the defense, there will be no more.

You are not to consider outside sources, such as any reports in the press, radio or gossip, because that is not evidence.

You are entitled to draw inferences, that is to say, to come to common sense conclusions based on the evidence which you accept, but, you may not speculate about what evidence there might have been, or; allow yourselves to be drawn into speculation.

The facts of this case are your responsibility. You will no doubt wish to take account of the arguments and points made in speeches made by Counsel; both for the Prosecution and the Defense, and which you have heard; but, you are not bound to accept them, because they are not evidence.

Equally, if in the course of my review of the evidence, I might appear to express any views concerning the facts, or if I might emphasise any particular aspect of the evidence, do not adopt those views, unless you agree with them; also If I do not mention something which you think is important, you should have regard to it, and give it such weight as you think fit.

When it comes to the facts of this case; members of the jury it is your judgement, and your judgment alone that counts, as to whether you find the defendant guilty or not guilty of the charge, or any charges against him.

THE BURDEN OF PROOF

In this case the prosecution must prove that the defendant is guilty.

THE STANDARD OF PROOF

How does the prosecution succeed in proving the defendant's guilt? The answer is - by making you sure of it, nothing less than that will do.

Here we have ONE defendant; and four separate counts in contained in this Indictment

CIRCUMSTANTIAL EVIDENCE

Sometimes a jury is asked to find some fact proved by direct evidence. For example, if there is reliable evidence from a witness who actually saw a defendant commit a crime; or if there is a video recording of the incident which plainly demonstrates his guilt; or, if there is reliable evidence of the defendant himself having admitted the offence, these would all be good examples of direct evidence against him-her.

On the other hand, it is often the case that direct evidence of a crime is not available, and the prosecution relies upon circumstantial evidence to prove guilt. That simply means that the prosecution is relying upon evidence of various circumstances relating to the crime, and of the defendant; which they say when taken together will lead you to the sure conclusion that it was the defendant who committed the crime.

It is not necessary for the evidence to provide an answer to all the questions raised in a case. You may think it would be an unusual case indeed in which a jury can say 'We now know everything there is to know about this case'.

But the evidence must lead you to the sure conclusion that the charges which the defendant faces are proved against him.

Circumstantial evidence can be powerful evidence, but it is important that you examine it with care, and consider whether the evidence upon which the prosecution relies in proof of its case is reliable and whether it does prove guilt. Furthermore, and before convicting on circumstantial evidence you should consider whether it reveals any other circumstances which are or may be of sufficient reliability and strength to weaken or destroy the prosecution case.

Finally, you should be careful to distinguish between arriving at conclusions based on reliable circumstantial evidence, and mere speculation. Speculating in a case amounts to no more than guessing, or making up theories without good evidence to support them, neither the prosecution the defense nor you, should do that.

The Defendant is charged on an Indictment filed 30th May 2008; He was arraigned on 2nd June 2008 and pleaded Not Guilty to the four counts in this indictment you have before you as is his legal right.

Can you please each confirm you each have a copy of the indictment.

Count One

POSSESSION OF AMMUNITION WITHOUT A LICENCE

An offence contrary to section 4 (2) (b of the Arms and Ammunition Act (Cap 39)

Count Two.

POSSESSION OF ARMS WITHOUT A LICENCE

An offence contrary to section 4 (2) (b) of the Arms and Ammunition Act (Cap 39)

Count Three

USE OF AMMUNITION WITHOUT A LICENCE

An offence contrary to section 4 (2) (b of the Arms and Ammunition Act (Cap 39)

Count Four

USE OF ARMS WITHOUT A LICENCE

An offence contrary to section 4 (2) (b of the Arms and Ammunition Act (Cap 39)

In this Act—the Arms and Ammunition Act-Cap 39

"AMMUNITION"

"ARM"

SECTION 4 of the Arms and Ammunition Act Cap 39 provides-

(1) No person shall possess, use or carry any arm or ammunition except under a licence in respect of each arm and such ammunition so possessed, used or carried and in accordance with the prescribed conditions of such licence.
(2) Any person who shall possess, use or carry any arm or ammunition without such licence shall be guilty of an offence and shall be liable on conviction in respect of every such arm or the total amount of ammunition so possessed, used or carried —
(3) Any person who shall possess, use or carry any arm or ammunition otherwise than in accordance with the prescribed conditions of such licence shall be guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding 2 years.
(4) The following persons shall be exempt from the operation of this section to the extent specified — the accused is not one of them
6 Licence how obtained.
(1) A license for an arm and ammunition under this Act may be obtained by application made in writing to the Minister of Police, accompanied by the prescribed fee subject to the issue thereof being expressly approved by him:

POSSESSION OF A FIREARM — AMMUNITION

I need to explain the word possession, to you in a common sense way.

Case law says in the ordinary way, a person has in his / her possession anything which is in his or her physical custody, or is under his or her control. See DPP v Brooks (1974) AC 862

The purpose of section 4 of the Arms and Ammunition Act is to regulate and licence not only those who keep firearms where they live, but also those who have them under their control;

For example- where an owner keeps his firearm at the home of a relative for safe keeping- so an owner might not have physical possession of the firearm, but, he will still possess them for the provisions of the Act. Sullivan v The Earl of Caithness (1976) QB 996

The concept of possession is far from straightforward; every case of possession seems to involve a mental element. If the prosecution prove that the defendant knowingly had in his possession, an article which was in fact a firearm as defined in the Act then the offence is committed; and, the defendant's ignorance that the article in his possession was a firearm for which a certificate or a licence was required, is immaterial

I will give you some examples of decided cases on possession. In R v Waller (1971) a conviction was upheld where a defendant was in possession of a friend's bag and he did not realise that it contained a firearm as opposed to a crowbar.

In R v Pawlick and Swindell 95 Cr. App R 246 CA

A man who leaves a shotgun at home while he proceeds to the next town to rob a bank is still in possession of the shotgun, but he does not have it with him when he commits the robbery at the bank.

Similarly men, who leave firearms in the locked trunk of their car while they are 1,250 meters away, are still in possession of the firearm.

Per Lord Justice Steyn;

For possession of a firearm, the emphasis must not be so much on exact distances between criminals and their guns, but rather on the accessibility of those guns, judged by the jury in a common sense way

I direct you as a matter of law, if you find as a fact, the shotgun recovered by the police, is in fact a 12 gauge shotgun, and the 05-12 gauge cartridges are in fact live rounds, then the firearm and ammunition come within the remit of the Arms and Ammunition Act Cap 39, and a license is required for same

PROSECUTION CASE

Members of the jury, the Crown in opening its case, told you a number of police officers carried out a search of the premises of the accused, at both his Town and Tax allotments, in Pea and Fualu; under a Police Magistrates Authority to search the premises- for arms and ammunition.

As a result of their search, the police say they found a number of spent 12 gauge cartridges at the accused's tax allotment; they also say they found a pump action 12 gauge shot-gun which was loaded, and wrapped in a mat on the same date but at a different location. The Crown says the weapon and the ammunition both belong to the accused.

The finding of the arm and ammunition by the police form the basis of the four charges in the indictment before you. The accused was arrested at the scene at Pea and taken to the police station; where he was subsequently charged, and committed to stand trial in the Supreme Court.

The court heard from a number of witnesses who carried out a police search of the accused's premises. You also heard from the accused's brother in law; and you have in evidence before you a number of police photographs and a copy of the Magistrates Search Warrant. These are all items of evidence which you as a jury are entitled to consider in addition to oral testimony. What weight you put on each of these items and on the oral evidence is entirely a matter for you. In a nutshell then your task as a jury is to decide what really happened in this case.

The first witness you heard was ACTING CHIEF INSPECTOR VAIHU. He was the head of two-police search teams, who were detailed to execute a Magistrates search warrant on 21st February 2008. He told you he obtained a warrant (no.17) on 21st February 2008 to search the premises of the accused at (a) his residence in Pea and also (b) his Tax allotment, in Fualu.

PW1's evidence was that about 15.40 he met the accused who was being carried in a police vehicle (commanded by Inspector KAFUSI) who was head of the second search team and who had been detailed to search the accused's tax allotment in FUALU.

INSP VAIHU told you he had been met by the wife of the accused outside a small house in Pea. EXHIBIT 1:- photograph no.3; PW1 testified he waited until about 16.00 hours before police officers gained entry to the accused's premises. After gaining entry through the side louvers, he told you a soldier informed him he had found an arm, the soldier had found a loaded 12 gauge pump action shot-gun wrapped in a carpet placed inside a case in the house. EXHIBIT 11 photographs 1/2//4/5

INSP VAIHU told you he waited at the front door while the soldier searched for arms. The officer described the weapon (arm) as being wrapped in a mat and tied with a piece of orange rope concealed inside a case containing clothes.

Members of the jury you also heard evidence from a police photographer; he was the second police witness PW2 Police Constable MANU he testified he photographed the weapon (the arm) and he also described to you the layout of the room in which the weapon was found. He took you through all the police photographs, one by one describing where he stood.

Now I do not intend to go through each and every photograph because this has been a short trial with relatively few issues and the facts and the evidence will be fresh in your mind. The officer PW2 also told you he photographed the spent cartridges depicted in EXHIBIT 10 at FUALU, and these photographs are also in evidence before you, by consent. Inspector Kaufusi confirmed and corroborated PW2's evidence of the search at the accused's tax allotment.

Members of the jury you also saw a 12 gauge pump action shotgun produced to you in open court, wrapped in the same Chinese mat you saw in the police photographs.

You can see the photographic evidence and you heard the oral testimony that a soldier found FIVE (5) live rounds of ammunition which were contained (or found) in the breech of the pump action shotgun, at the time the weapon was found by police in February this year. In other words it was found loaded and inside a house containing 4 quite small children.

INSP VAIHU testified, "with the accused I questioned him as to who does this belong to (the arm), he said this belongs to him. He did not have a licence

PW1 went on to say the accused was charged with four offences for which he appears in court today. Inspector VAIHU testified the soldier found the weapon (arm) and he also corroborated the weapon containing five (5) live 12 gauge cartridges.

PW1 also confirmed the accused would not sign the Magistrate's search warrant, either at the scene or at the police station.

Inspector VAIHU was cross examined at length by Mr. Edwards, counsel for the defence, particularly with regards to who owned and who lived at the residence where the police searched in Pea and where the weapon was found. Mr. Edwards also questioned where the accused lived with his de-facto wife, of 4 years standing.

Members of the jury one point I need to address I urge you as did Mr. Edwards; - is not to judge the accused or his witness on the fact; that he is living or, that he may have been living, in a de-facto relationship with his witness. You are to judge the accused only on the evidence concerning the alleged finding of an arm and-or ammunition. The accused's morals are not relevant to the facts of this case. You must act fairly and justly, and act in accordance with the oath you have taken to this Court.

Mr. Edwards honed in on the fact Inspector VAIHU, as a very senior police officer, did not record vital, evidence in a diary, or make a police statement, containing evidence which he gave in Court concerning a verbal admission by the accused, as to the ownership of the weapon police found at Pea.

PW1 maintained under lengthy cross-examination he was telling the truth, and to this effect, he was supported by the evidence of PW6 Police Officer SEMISI VUNGA who said in evidence and which is before you, he said," and then police officer VAIHU came and talked with Vilisoni and asked Vilisoni, "to whom does this arm belong to?" and Vilisoni replied that this Arm belongs to him. Vaihu asked him if he had any licence for the arm and he replied No.

Members of the jury it only evidence given on oath in your presence that counts in a criminal trial in the Supreme Court, and, it is for you to decide who is telling the truth. You will need to ask yourselves was this question asked as the two police officers testified, and was it answered. What the police allege was it said and was it the truth? That is a matter for you to decide based on the evidence and, for you to decide who you believe.

The Accused's brother-in-law PW3 INOKE TUPOU gave evidence that sometime in February (this year) he went to his brother-in-laws tax allotment and saw the accused sitting outside. He told you he was shooting coconuts. PW3 thought the accused was using a .22, but he demonstrated in a cocking motion with his hands across his chest as to how the weapon was being loaded. He testified there were two shots fired, and he heard them. He told you the gun was put on a table, and he then told you he left and went to a Kava party.

In cross-examination PW3 said he went to the accused's tax allotment with a lot of boys, he thought it was on a Friday in February but he could not remember the date. He left because he wanted to drink Kava. He described the color of the weapon, as being similar to color of the wood on the witness box. He told you the gun had been placed on a table which was outside the accused's house in the tax allotment. He said he knew the accused worked as a security officer for Tonga Timber. He denied drinking any Kava before going out to the tax allotment. You might ask yourselves why would he come to court and lie?

Both the accused and his witness DW2 HEPI TUAKALOU denied seeing INOKE TUPOU at any time, in fact you were told by DW2 that no one ever visited the tax allotment in the four years they had lived there.

Who you believe is a matter for you. Mr. Edwards pointed out PW3 was silent in answer to some of his questions; on the other hand the Crown Prosecutor Mr. Kefu put forward a possible explanation for his silence, that perhaps it was because this involved his brother in law. Members of the jury, it is for you to decide who is telling the truth.

PW4 INSPECTOR KAUFUSI confirmed leading the second police search party and to finding 8 spent cartridges at the tax allotment of the accused. PW4 confirmed bringing the accused to the house in Pea and confirmed having photographs taken as EXHIBIT 10 by PW2.

Police armourer PW7 PC TOMU gave evidence concerning the fact the 12 gauge shotgun was a firearm within the meaning of the Act. He confirmed the accused did not hold a licence for a firearm as did PW8- Police Sgt HAVEA; PW8's evidence was not challenged by the defence. You found out approximately 300 firearms are licensed in Tonga.

The defendant VILISONI TAUELANGI gave evidence in person as is his right. Members of the jury as I said to you before, you are to treat the evidence of the accused and the evidence of his witness DW2 with exactly the same fairness as courtesy as you would any other witness.

The defendant told the court he is 34 years of age and he lived in the bush. He had four children with his wife who lives in the house in Pea. He has been separated from his first wife for the past 4-5 years. He now lives with his partner of 4 years HEPI TUAKALAU. He accepted he was picked up by Inspector Kaufusi at about 15.45 when he was going to work at Tonga Timber as a security guard whilst riding his bicycle and he was taken to Pea.

DW1 told the court he worked seven days a week from 16.00 - 08.00 as a security guard at Tonga Timber. He told you he made a complaint to the police that his house had been broken into but they did not act upon it. He denied owning a weapon and denied firing same. He did not know if his partner DW2 fired a weapon. He also said in evidence his brother in law PW3 did not visit him in February.

In cross examination the accused admitted having four children, three-girls and one boy, the, youngest 3-3 and a half years old. DW1 said he did not visit the home of his wife in Pea. If the children wanted to visit him they came to the Tonga Timber to collect money. The oldest child was 12 years old. DW1 admitted he was angry with Inspector Kaufusi; he denied telling police the gun was his. DW2 HEPI TUAKALOU testified she has lived with the accused in the bush for the past 4/5 years. She says she did not know where the accused's first wife lived, and has never been there to visit the accused's former home.

DW2 said no one ever came to the tax allotment even when her partner was away. She denied PW3 INOKE TOUPU had ever visited them. She identified her partner's 3 and a half year old child, in EXHIBIT 10 from photograph number 1, as being present on the day the police officer took the photograph.

Members of the jury I do not think I can help you any further, it is now up to you to decide on the evidence you have heard over the past two days in court. You are entitled to consider the submissions made by the lawyers for the Defendant and the Crown. Consider the evidence carefully, as to whether the defendant is guilty or not guilty of the charges or a charge laid against him.

As I said to you before, you are to consider each of the four charges separately, because the evidence is different.

Your verdict must be unanimous. I caution you, you are not to speak to anyone while you deliberate. You are to contact my Associate when you have reached your verdict and before you come back into court. Thank you; you may now retire.


SHUSTER J
JUDGE OF THE SUPREME COURT

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