Vaipulu Ikamanu was discharged on charges relating to the importation of prohibited goods, a .22 rifle and 6,801 ammunitions, alleged to have been smuggled in a box from the United States last year. He said he was only asked to collect it.

Hon. Mr Justice Niu in a ruling on September 3 dismissed the charges and discharged the accused, after finding that the Crown failed prove the two charges, after a trial at the Supreme Court.

It was alleged that on July 22, 2019 at Ma’ufanga the accused caused to be imported prohibited goods, a .22 rifle and 6,801 .22 rifle ammunitions without an import licence under the Arms and Ammunition Act, contrary to section 95(1) of the Customs and Excise Management Act.

The Court heard that a 8x4 wooden box with the name "Sione Litoki" was among several boxes, which were left in the premises of shipping agent, SF Oceania at Ma'ufanga, uncollected by its consignees.

Because the consignees had not collected these boxes, Customs decided to have them checked for any prohibited or restricted goods. They called the Police to have their trained dog check out these boxes. The dog was agitated by the contents of this 8x4 box of Sione Litoki.

Police and the Customs opened the box and found, amongt its contents, 2 x .22 rifles and 7401 x .22 bullets. They closed the box again and left it to see who would come to collect it.

On July 22, 2019 the accused came to collect it. He had an import license to import 1 x. 22 rifle and 600 x .22 bullets and a bill of lading for the box.

The bill stated that the box contained clothing and a scooter. Customs called the Police and the box was opened, and the accused was shown the two rifles and the bullets.

The accused said he did not know about the other rifle or about the extra bullets.

Dismissal

The judge said these offences under S.95(1) were serious offences because they carried a heavy penalty of a fine of up to $100,000 and of imprisonment of up to 10 years or either one of them.

“The evidence required to prove the commission thereof must be strong, such that despite evidence produced or given by an accused, it is proof beyond reasonable doubt.”

In addition, the Crown submitted that the accused has a burden of proof in a smuggling or counterfeit prosecution, which this case is, was provided in S.117 of the Act.

However, the definition of smuggling does not include “causing the importation of prohibited goods”, which was the specific offence in S.95(1) with which the accused was charged, he said.

"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."

After hearing the evidence, the judge was not satisfied that there was evidence that the accused did cause the extra gun and bullets to be imported.

He said the Crown had not proved when it was that these goods were imported into Tonga. “It could have and it ought to have done so, but it did not,” he said.

The evidence was that this box had not been collected by anyone. Several other boxes were uncollected. The only explanation given was what the accused told the Customs Officer, that he was made a consignee of the box because the shipper, who was also consignee had died and that the wife had asked him to be consignee with two other persons to collect the box from Customs in Tonga.

“That does not make the accused the one who had caused Sione to have sent the extra rifle and bullets to Tonga, because we do not know whether or not the box was still overseas at the time that the widow had told the accused of the extra rifle and bullets,” said the judge.

“I come to the only conclusion, for the reasons I have given, that the Crown has failed to prove the two charges it has brought against the accused, and I dismiss them and discharge the accused.”