R v Kamoto [2022] TOSC 82; CR 16 of 2022 (9 September 2022)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

CR 16 of 2022

BETWEEN : REX Prosecution

AND : NESIASI KAMOTO Accused

VERDICT

Before: Justice P. Tupou KC
Appearances: Mrs. S. ‘Eliesa for the Prosecution
Mr. Tu’utafaiva for the Accused
Trial 10 August, 2022
Date: 9 September, 2022

The Charge

1. The accused is charged with possession of arms without a licence (count 1), contrary to section 4(1), (2) ((b) and 47 of the Arms and Ammunition Act and discharging a firearm with intent to intimidate (count 2), contrary to section 109 of the Criminal Offences Act.
   
2. On 5 April, 2022, the accused pleaded guilty to count 1 and not guilty to count 2.
   
3. Count 2 alleges that the accused on 8 October, 2021 at Tofoa, with intent to intimidate, discharged a .22 rifle near Tevita Silivamaile and others.
   
4. Section 109 of the Criminal Offences Act states;
   

“Every person who with intent to intimidate or annoy discharges a firearm near any other person or presents a loaded firearm at a person or persons within range shall be liable to imprisonment not exceeding 5 years.”

5. Prosecution in opening submitted that in order to find the accused guilty of this charge, the onus was on them to prove beyond reasonable doubt the elements of the charge as below;
   1. that the accused;
   2. intended to intimidate;
   100. discharged a firearm;
   4. near Tevita Siliva and others^[1].
6. In opening for the accused, his counsel stated that the dispute raised by the accused relates to elements (b) and (d) only.
   

Prosecution’s evidence

Police Officer Sione Tupou Vaea

7. Officer Vaea interviewed the accused on 11 October, 2021. He produced the record of interview as P1 along with photographs of the .22 rifle that he took at the police station and produced them as P2 and P3 – with P2 being the photograph with a note in red writing by consent.
   
8. During cross-examination he said that he saw the accused for the first time on the day he was brought into the police station. He was asked about an investigation diary and whether he was the one who recorded the events of 8 October and he said “yes”. I note that this investigation diary was not tendered into evidence.
   
9. He was asked if the accused had asked to be taken to the hospital because he was having difficulties with his teeth. Vaea recalled the accused saying he was drunk and needed to rest.
   
10. He was asked if he should have recorded what the accused had said to him and he said ‘“yes’ he should have but he did not. He said the accused did say that he was attacked.
    
11. In the record of interview the accused explained that he had gotten drunk with an officer from the Ministry of Lands and Survey the night before the incident. They parted around 11pm and he went to bed. He was woken up at around 7:30am by his wife, as there were people interested in buying a pig from them and so he went and shot the pig for these folk with Vaisima’s firearm and then returned it.
    
12. When he returns home, his wife asked if he knew about the cutting down of the coconut trees near his aunt’s place and he went there. He denied swearing at the complainants’ mother, slapping and hitting Tevita with the rifle, fighting with him or saying that he was close to extinguishing them by shooting them. He told the officer he discharged the rifle upwards, twice to empty out the ammunition.
    
13. Pauline Luka, Tevita Silivamaile and Semisi Taunaholo were all present at the scene and all gave evidence.
    
14. Pauline is 72 years old and is a blood relative of the accused. She and the accused’s father are first cousins. She said that she lived on the accused’s tax allotment at Tofoa. Tevita and Semisi are her sons and live with her on the property.
    
15. Their evidence where consistent may be summarised as;
    
    1. that the day of the incident was 8 October, 2021 and they were at their home at an outside patio tying up brooms and removing the green from the coconut leaf to expose the sticks for the broom (ha’alo);
       
    2. around 8am the accused and his wife arrived with the accused carrying a firearm;
       
    100. the accused was drunk and Pauline said that she could smell the alcohol on him when he came to Tevita who was seated beside her;
    4. Pauline expressed her concern about the firearm and damage to Tevita’s crops by saying to the accused – “Why are you here with a firearm, is there a war? You have cut down the trees causing them to fall on Tevita’s crops”;
       
    5. the accused responded by approaching Tevita saying “you were told to cut down the trees, aye Tevita” and kept repeating “aye Tevita” while slapping him on the face;
       
    6. when the accused poked Tevita’s mouth with the butt of the rifle, Tevita got up saying words to the effect that they were fed up with his controlling attitude and lunged at him and they fought;
       
    7. at some point the accused fell to the ground;
       
    8. Semisi, Kalafitoni, Semisi’s wife Mele and the accused’s wife got involved to break up the fight. When the fighting stopped the accused was helped up by his wife, he got the gun loaded it and said words to Tevita and the others, to the effect of, “I am close to extinguishing you by shooting you^[2] and he discharged the rifle upwards four times;
       
    9. they agreed that they were on the accused’s tax allotment with his permission;
       
    10. they did not deny that coconut trees had been cut down by them for their brooms at various times and several had said that the accused had permitted it.
        
16. In terms of the distance where the accused discharged the firearm from them, Pauline and Tevita estimated 3 – 4 metres. Semisi said it was about 1.5metres. Semisi had said he said that he was standing beside the accused at the time of the fight and he was the one holding off the accused during the altercation.
    
17. They all admitted that they were scared when the accused discharged the firearm. Tevita ran and hid behind their house and did not come out until the accused had left. They moved from the accused’s town allotment after the incident and had not seen the accused until the day of this hearing.

Accused’s Evidence

18. At the conclusion of the Prosecution’s case, the accused gave evidence and also called his wife, Tatali Ki Moana Kamoto.
    
19. The accused is 49 years of age. He said that around June 2021 Pauline had asked him for a place to live and he told them they could come and live on his tax allotment at Tofoa. He told them to clear the place and keep it clean and to grow crops for their food. He admitted that he had given permission for them to use the coconut leaves for their brooms but that at this particular incident the trees had been cut in a fashion that would destroy the tree.
    
20. His evidence largely confirmed the record of interview at P1. In addition, he said that he had consumed 8 cans of beer the night before. His wife woke him up around 7:30 am the next morning because there were people there wanting to buy pigs. He went to Vaisima’s “‘umu” house and took the firearm from there. He said that he did not ask Vaisima as there was no one at his house. He said he used one bullet for the pig, returned the firearm and returned home.
    
21. He then told his wife to join him in checking the fence and whether there are pigs on the land. He said he went and got the firearm again and they followed the fence down to the seaside and then came up through Pauline’s place. He saw the coconut trees that were cut lying on the ground. He told the court that he was hurt and angry when he saw the coconut trees like that.
    
22. When they approached Pauline’s home, he saw Pauline, Semisi, Tevita and Kalafitoni tying up brooms. He said to them, “I have told you what to do, yet you go and do something different” He said they were silent and then Pauline said, “Tevita is angry because you cut the trees down on his crops.” The next thing he knew, he had been felled to the ground. He said he was hit from behind.
    
23. While he was sitting on the ground both Tevita and Semisi were hitting him. During the altercation he held onto the firearm and did not let it go because he knew it was loaded. He said he had 6 -7 broken teeth and blood coming from his mouth from the fight.
    
24. He said his wife led him away and they were about 30 metres away when he discharged the firearm twice to empty out the ammunition.
    
25. During cross examination, he accepted that he had gone to Pauline and her sons outside of court that morning and apologised to them about what happened. He also proceeded to apologise to the court and got quite emotional in asking for mercy.
    

Tatali Ki Moana Kamoto

26. She has been married to the accused for 18 years and they have 4 children. She confirmed the accused evidence that he was at home drinking beer with an officer from the Ministry of Lands and Survey. She said she woke him up the next morning to shoot a pig which he did.
    
27. She said when he returned home afterwards, she told him that the coconut trees at the tax allotment had been cut down. She said that the main reason for their visit was to see Pauline and her children, Tevita, Semisi and Kalafitoni about cutting down the trees.
    
28. On their arrival, her husband said to them, “why have you cut down the coconut trees when I have told you to grow crops and to cut and clear the trees for the crops?”
    
29. Then Pauline said, “Tevita is upset because Kamoto cut down the trees on his manioke crops damaging them.” While Pauline was speaking, Semisi hit the accused from the back of his neck and he fell down. She was hitting Tevita on the face to stop him from hitting the accused.
    
30. When they stopped she pulled her husband up and told him to go home and as they were walking away not too far from the others when the accused discharged the firearm twice. She estimated a distance of about 10 metres from where Pauline and her boys were to where the firearm was discharged. Then a neighbour came and took the firearm off him.
    
31. During cross examination she confirmed the reason they went to the tax allotment was to see Pauline and her children. She was asked;

Prosecution: I put to you that the reason the firearm was obtained was so you could take it to Pauline’s home?

Witness: Yes

Prosecution: The reason you went with the firearm was the cutting down of the coconut trees?

Witness: Yes

32. On re-examination, Mr. Tu’utafaiva asked;
    

Mr. Tu’utafaiva: Prosecution proposed to you that the reason you went with the firearm was because you were both angry about the cutting down of the coconut trees?

Witness: That’s right

Mr. Tu’utafaiva: What was the intention of obtaining the firearm?

Witness: I don’t know – I did not understand him when he got the firearm- I was surprised when he got the firearm.

33. She confirmed that the firearm was discharged in the area of Pauline’s home.

Submissions

34. The accused submitted that there were 3 separate offences under s.109 of the Criminal Offences Act;
    1. Discharging a firearm near any person with intent to intimidate;
    2. Discharging a firearm near any person with intent to annoy; and
    3. Presenting a loaded firearm at any persons within range.

It raised the point that notwithstanding the evidence by some of the witnesses that they were afraid, section 109 did not create an offence of discharging a firearm with intend to frighten or threaten.

35. That the Prosecution has not proven beyond reasonable doubt that the defendant discharged the firearm near and with intent to intimidate Tevita Silivamaile and others.

It reiterated these aspects of the evidence;

1. The Defendant was not drunk;
2. It was the defendant who allowed Pauline and her children to come and live on his tax allotment;

100. There was no problem between the Defendant and Pauline and her children before the day of the alleged offending;

4. This was not the first time that the defendant was at Pauline’s place with the firearm;
5. The defendant used the firearm to catch stray or wild pigs at his tax allotment and Pauline confirmed in cross-examination that there are stray pigs at the allotment,
6. The defendant does not have any ill feelings towards Pauline and her family; and
7. He did not complain to the police about the injuries to his teeth.;
8. given the sharp conflict between his and his wife’s evidence and those of the Prosecution witnesses, their evidence should be accepted over those of the Prosecution witnesses.

36. I have read and considered the accused submissions on what occurred before the firearm was discharged and the conclusion and will not repeat them here.
37. In summary, the Prosecution submitted that putting the following evidence show the intention to intimidate;
    1. the accused had returned the firearm after he shot the pig;
    2. his wife told him about the cutting down of the coconut trees and they were angry;
    100. the accused got the firearm which he knew was loaded,
    4. they went to Pauline’s house with the firearm and he and Tevita lunged at each other
    5. after the fight the accused said, “so close and I will shoot you all so that you are destroyed”.
    6. And he discharged the firearm.
       
38. In respect of the element of discharging a firearm near Tevita Silivamaile and others, the Prosecution points to its own witnesses’ evidence who gave a distance of 3-4metres and 1.5 metres and say that this element too has been proven.
    

Considerations

39. It is trite law that in every criminal case, the Prosecution must prove beyond reasonable doubt that the accused is guilty. And that burden always remains on the Prosecution throughout the trial. Secondly, an accused does not have to prove his innocence.
40. Here the two elements Prosecution must prove are;
    1. firstly, whether the accused discharged the firearm near Tevita Silivamaile and others?
    2. secondly, whether it was with intent to intimidate.
41. The particulars of the offence in the indictment are clear that the charge is that the accused, on 8 October, 2021, at Tofoa, with intent to intimidate, discharged a .22 rifle near Tevita Silivamaile and others. The other offences in the section described in the accused submissions are not relevant.
42. Here, the focus is on the evidence around the 2 disputed elements. Was the firearm discharged near Tevita and the others and was it with intent to intimidate.
43. The word “near” in this section is not defined by the Act nor have I found any legal definition for it, in the local context. Accordingly, I consider that the circumstances of each case will determine what is to be considered near.
44. I have listened to and observed the witnesses. On the issue of the distance between the accused from Tevita and the others, when the firearm was discharged, I prefer the evidence of Pauline, Tevita and Semisi. Tevita and Pauline were seated next to each other and their evidence in this aspect was clear and consistent. I accept the variation in Semisi’s evidence to be due to the fact that he had said he was standing next to the accused while he was slapping Tevita and he was the one who held back the accused during the altercation. In that setting, I consider that he would have been closer or closest to the accused when he discharged the firearm. I am satisfied they were telling the truth from their individual location at the time.
45. On the other hand, I do not accept the accused’s evidence that he was 30 metres away, because it in direct contradiction to his own wife’s evidence by some 20 metres. Their evidence was that his wife pulled him up and led him away. They were walking together when the accused discharged the firearm. In that context, it is unreliable that they give a range of 20 metres difference in their estimation of the distance. The wife estimated the distance to be 10 metres. Even if I were to accept that the distance was 10 metres, I would have still found that the firearm was discharged near Tevita and the others, on the principle that it was in their presence, within their sight and within the compound of their home.
46. Logically, the accused would prefer a wider distance and likewise, his wife’s position. She well understood that her husband could be in trouble. When she was asked the question, why she thought the complainants were bringing this action, she said, “ke fihia hoku mali” meaning to entrap my husband.
47. Discharging of a firearm is a serious matter because of the potential fatal risk and harm it can inflict on humans and that risk become extreme if it’s done in the presence of or near any person as in this case. Parliament has made this clear by deeming such activity unlawful under section 109 of the said Act.
48. Turning to the second disputed element of whether there was an intention to intimidate. I refer to the accused’s wife’s evidence and paragraphs 31 and 32 above where she candidly stated that her husband was angry after she told him about the coconut trees and that was the reason they went to see Pauline and her children. She said she was surprised when the accused got the firearm and agreed under cross examination they were to take it with them to see Pauline and her children. On this point I prefer her evidence over her husband’s evidence where it is inconsistent with hers. Therefore, I find that the accused on hearing from his wife that the coconut trees had been cut down was angry, told his wife to go with him, retrieved the firearm from Vaisima’s place and went to Pauline’s home. I do not consider the route they took material.^[3] Under the above circumstances, mere possession and carrying of the firearm into the presence of Pauline, Tevita and the others would in and of itself be intimidating. But that is not the charge here.
49. They arrived at Pauline’s home where he confronted Tevita which resulted in an altercation, he was hit and fell to the ground. The fight was broken up by Semisi, Kalafitoni, Mele (Semisi’s wife) and the accused’s wife. The accused was helped up off the ground by his wife. He was angry about the coconut trees and the fight^[4] and what he saw as being attacked and discharged the firearm near Tevita and the others to intimidate them.
50. Against the background of what is described above, the accused’s explanation that he discharged the firearm to empty the ammunition make no sense. There was no need to do that so near Tevita and the others, in their presence, within their sight and at their home and that point in time. Furthermore, the firearm was not his and there was no evidence that the ammunition belonged to him or that that he was free to dispose of it.
51. For those reasons, I am satisfied that the Prosecution has proven the charge beyond reasonable doubt and I find the accused guilty of discharging a firearm near Tevita Silivamaile and others with the intent to intimidate on 8 October, 2021 at Tofoa.
52. In recent days we have had a 7-year-old lose his life from the use of a firearm not in safe storage. Fortunately, this case has not ended tragically but the risk was present. Had the owner of the firearm provided safe and secure storage for his firearm, what has happened here would not have occurred. This should be a salient reminder to owners and licensed holders how important it is to ensure safe and secure storage of firearms.

Nuku’alofa: 9 September, 2022
P. Tupou KC
J U D G E

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^[1] Also set out in R v ‘Iongi [2009] TOLR 58
^[2] My paraphrasing
^[3] but in any event the timing between the accused being woken up at 7:30am, shooting a pig, going home, returning to the allotment, retrieving the firearm, making a round via the boundary fence of the allotment fence and arriving at Pauline’s home at 8am is highly unlikely.
^[4] In his evidence he had said that after the fight, when he got up, he asked Tevita, “ko e ha ‘oku taa’i pehe’i ai au”( why have you attacked/hit/beaten me this way?)