A Nuku'alofa Supreme Court judged quashed a conviction and sentence against Fangatapu Ngavisi at the lower court for killing a sow, because there was a miscarriage of justice.

Hon. Mr Justice Niu in a ruling this month upheld an appeal by Ngavisi, the appellant, who had initially pleaded not guilty to the offence but then changed it to guilty, at the Magistrate’s Court, where he had been sentenced to two-years imprisonment, which was fully suspended, and ordered to pay $1,300 compensation to the respondent and owner of the sow, Vaiouni.

Ngavisi then filed an appeal to the Supreme Court.

The charge was that he killed the respondent's pregnant sow by stabbing it with a hoe and hitting it with a cane knife at a tax allotment in Makaunga this year. The respondent complained to the police and the appellant was charged with killing the sow under S.182 of the Criminal Offences Act.

The judge said, the main grounds of the appeal was the claim by the appellant that his killing of the respondent's pig was lawful based on the provisions of the District (Animal Enclosure) Regulations 2009. 

Those regulations were published in the Tonga Government Gazette Supplement Extraordinary no. 8 that included, “the owner or occupier of any cultivated land or of any enclosed land may shoot or kill any animal found trespassing and damaging such land provided that the owner notify the owner of the animal if known…”

The counsel for the appellant referred to Regulation 6 and said that the appellant did have lawful justification for killing the complainant's pig because the pig had trespassed and damaged the land upon or in which his crops were growing. 

In addition, the appellant did notify the complainant to come and get her pig and that she did come and take it and made use of the whole of the carcass of the pig. He also provided a valuation of the appellant's crops damaged by the pig at $2,973 pa'anga.

Crown case

In response, the Crown said that that the appellant in this case had freely and knowingly changed his plea from not guilty to guilty and that he was no stranger to the Court because he had been tried and convicted in 2011 of manslaughter.

She submitted that there was no merit to the appellant’s appeal and that it be dismissed and that the Magistrate was correct.

The judge accepted that at the time of the killing of the pig, there was and there still was Regulation 6, which gave lawful justification to the owner or occupier of land to shoot or kill any animal (include a pig) found trespassing and damaging such land. 

It was clear that neither the police who prosecuted the appellant, nor the Magistrate, was aware of that Regulation and even the appellant did not know of it, “but I do not blame him for not knowing it because he was just a lay person,” the judge said.

"I believe the police have the responsibility and obligation to know the laws, which apply to people in the villages they look after. If they were aware of this law, they would not have prosecuted the appellant. And if the Magistrate was aware of it, as she ought to, she would not have accepted the change of plea and to have the charge dismissed or proceed with the trial to see if the prosecution would prove unlawfulness of the killing of the pig."

In addition, there was no assessment of loss

Miscarriage of justice

The judge then concluded there was a miscarriage of justice and that the conviction of the appellant was unlawful because he had lawful authority under regulation 6 to kill the pig, which damaged the land on which his crops were growing.

He was the occupier of that land by virtue of his crops. Because his conviction was wrong, the order for compensation was wrong and could not be sustained. He then ordered that the sentence, conviction and compensation of the appellant quashed.

In addition, the appellant's costs in the sum of $500 in this case was ordered to be paid by the respondent.