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Langi v Rex [2009] TOCA 10; AC 15-2009 (10 July 2009)

IN THE COURT OF APPEAL OF TONGA
NUKU’ALOFA REGISTRY

AC 15 of 2009

BETWEEN:

‘ALANI LANGI
Appellant

AND:

REX
Respondent

Coram: Burchett J
Salmon J
Moore J

Counsel: Mr. Fifita for the Appellant
Mr Kefu and Mr Lutui for the Respondent

Date of hearing: 7 July 2009.
Date of judgment: 10 July 2009.

JUDGMENT OF THE COURT

[1] The Appellant was convicted of attempted armed robbery and of causing grievous bodily harm after a Judge alone trial before Shuster J. He was sentenced by the judge to 18 years imprisonment. The appeal is against both conviction and sentence.

BACKGROUND

[2] The appellant and another man were alleged to have decided to rob a store. They parked their car close to a store owned by a Chinese couple. The Crown says they donned red hoods, and took a .22 rifle from the boot of the car. The other man performed the role of lookout while the appellant went to the store, which was protected by a grill, pointed the rifle at the Chinese woman inside and demanded money. She panicked and turned to leave the front of the shop and was shot suffering serious injuries. The accused and his accomplice then ran back to the car and drove away.

[3] The principal evidence at the trial was given by a witness who with a friend, was picked up by the appellant while walking along the road. This witness made a statement to the Police in which he said he heard the appellant say he wanted “to rob the Chinese to receive money to pay for the gun” The appellant parked the car near the Chinese store. The witness in his statement to the police then outlined the facts recorded above. He also said in his statement that when the appellant got back into the car he said they didn’t receive any money “because the Chinese ran off so I shot the Chinese in the ass” In his evidence at the trial the witness was much less forthcoming. He said that the two men got out of the car with a gun and that the person with the gun was probably the accused. He said the two men walked to the store and he heard a bang from the gun. He said couldn’t be certain who was holding the gun. When asked whether he believed his police interview was correct be said “yes from what I can remember”. After his statement was read to him he agreed that was the statement he gave to the Police, and that the two men were wearing red hoods but continued to express uncertainty as to who was holding the gun. In cross examination he said the police did not force him to say anything. He also said he knew both the appellant and the other man. The complainant was unable to identify the holder of the gun other then to say he wore a red hood. The appellant denied any involvement in the attempted robbery and did not give evidence.