Court dismisses firearm and ammunition case [1]
Wednesday, September 9, 2020 - 18:33
Viliami Talivakaola was discharged at the Supreme Court on charges relating to the importation of prohibited goods, namely a shotgun and 900 ammunitions, alleged to have been smuggled to Tonga in a shipment from the United States last year.
The accused was charged on two counts, on July 3, 2019 at Ma’ufanga, he caused to be imported prohibited goods, [one 12 gauge shotgun and 900 .22 ammunitions] without an import licence, under the Arms and Ammunitions Act, contrary to S.95(1) of the Customs and Excise Management Act (the Act).
Hon Mr Justice Niu in a ruling on September 4 dismissed the two charges and discharged the accused.
He found that the indictment against the accused was bad because it charged him with two counts of offences under s.95(1) of the Act, which are not offences under that section of the Act.
“I cannot convict him of another offence under s.95(1) because Clause 13 of the Constitution prohibits me from doing so."
Evidence
The Court heard, two boxes were shipped from the United States, arriving on May 24, 2019. They were unloaded by the shipping agent S.F. Oceania at their premises at Ma'ufanga. Both boxes were to be shipped by them to Vava'u, where the consignee of the boxes was, the accused.
However, only one of the boxes (8x4) was shipped to Vava'u, arriving there on July 1, 2019. The other box (4x4) was left at the warehouse of S. F. Oceania at Ma'ufanga.
Upon arrival of the box at Vava'u, the accused went to collect it, where Customs Officers found several firearms in it, and upon confirming that there should be two boxes, contacted the Customs in Nuku'alofa to check out the other box.
The accused had an import licence issued by the Police under the Arms and Ammunitions Act to import a . 22 rifle and 600 .22 bullets only. He was arrested in Vava'u on July 3, 2019 and charged with several offences.
In his interview, the accused said the 4x4 box was packed by his wife and his father. He was also there himself and had begun shopping to pack the box but that it had not been packed.
The accused said that after he returned to Tonga, he was told that there were two guns in the box and that there were many bullets in there too, and admitted to the charges.
The shotgun and the bullets were inspected by an armourer, who confirmed that they were in working order and condition, and that the accused had no import licence
Arguments
Defence counsel did not pursue to exclude the accused's record of interview, answer to the charges and statement as evidence.
However, he submitted that the shotgun and 900 bullets were restricted goods not prohibited goods, because they were not prohibited to be imported, like all the goods which are listed in the list of prohibited goods, which was made by the Minister with the consent of Cabinet under S.45 of the Act.
They are listed instead as restricted goods in the list of restricted goods made by the Minister with the consent of Cabinet, in the Customs and Excise Management Act Order 2007.
Because the shotgun and the bullets are not prohibited goods, he submitted that it was not an offence under S.95 (1) to cause to import them. The offence under S.9(1) is to cause to import prohibited goods. The offence "to cause to import" only applies to prohibited goods.
He then submitted that the two offences with which the accused were charged in the indictment did not exist under S.95 (1) and they should be dismissed.
In response, the Crown submitted that restricted goods were included in the definition of prohibited goods in S.2 of the Act which provided prohibited goods", meaning respectively any goods the importation or exportation of which is prohibited or restricted by law.
"However, the Crown submitted that "restricted goods" was not included in the definition of the term "prohibited goods" but the term "restricted by law" was used. Therefore any goods restricted by law is a prohibited goods for the purposes of section 95 (1) of the Act."
There is no offence under section 95 (1) of causing to be imported "restricted goods" but because the accused had an import licence to import a . 22 gun and 600 bullets, the excess gun and bullets became prohibited goods.
In addition, because S.2 defined prohibited goods as including goods restricted by law, the accused was correctly charged with causing to import prohibited goods, namely, the excess gun and bullets, said the Crown.
The accused also did not deny and had still not denied importing the excess gun and bullets.
Void
The judge said, the Crown also emphasised that the Act placed the burden of proof upon the accused.
S.117 provided in smuggling prosecutions, the onus of proof shall lie with the accused in any smuggling or counterfeit prosecution.
That meant, as the Crown argued, that the prosecution in the present case was a smuggling prosecution, and that the onus of proof relied upon the accused to disprove the case for the Crown. It also submitted that the accused had failed to do that because he had given no evidence nor called any, he said.
The judge said, the definition of smuggling did not include 'causing the importation of prohibited goods', which is the specific offence in S.95 (1) with which the accused was charged.
He said, S.95 (1) provided for the offences of import, export and causing to import or export prohibited goods. Yet S.2 only referred to import and export of prohibited (and restricted) goods.
“I do not see how I can say that the legislature has intended that the offence of causing the importation of prohibited goods be included,when it had not expressly said so itself. Secondly, what is the onus of proof that shall be with the accused? The proof of what? It is unfortunate that the Act is silent about what it is that the accused has the burden of proving,” he said.
“It therefore leaves both the prosecution and the defence to speculate as to what it means.
“Despite what the provision says, the Crown has not relied upon it and has instead prosecuted its case against the accused as if the burden of proof lies upon it instead, and then merely said that the accused has the burden of disproving the case against him.
“To me, that provision of Clause 11 is the foundation upon which the rule of law, due process and natural justice are based.
“It is the basis upon which the fundamental law of the presumption of innocence is based. For the Act to provides that in respect of smuggling and counterfeiting prosecutions that foundation is to be put aside, and that the accused person is to bear the onus of proof instead,” he said.
Justice Niu then considered the provisions of clause 82 which provided: The Constitution is the supreme law of the Kingdom and if any other law is inconsistent with this Constitution, that other law shall, to the extent of the inconsistency be void.
“Because S.117 does not provide what it is that the accused person has the burden of proving, I can only interpret it as meaning that it provides that the accused person has the burden of proving his innocence of the charge that is made against him.”
That is inconsistent with clause 11 of the Constitution, as I have stated and I therefore find that S.117 is void, said the judge.