IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

CR 235 and 236/2006

R

v

'Iongi anor

Shuster J 
25-27 May 2009; 8 September 2009 

Criminal law – firearms offences – question as to identification of accused – both accused were acquitted

On 11th July 2006 the 'Iongi family dance was held which brought together a large congregation of people at Tokomololo. The witnesses estimated between 100 and 200 people attended the dance that night. At around 11pm when the dance had ended and various people were packing away their musical instruments and cleaning the premises the Crown contends that a fight broke out between various youths from the neighbouring villages of Pahu and Tokomololo. The evidence revealed the fight included amongst other things, an exchange of rocks between the parties, and there were also reports of gunfire in the vicinity of the 'Iongi dance. The Crown contended that people were injured and admitted to hospital that same night apparently with gunshot injuries. The accused were subsequently arrested, their home searched, and they were charged in 2006 with firearms offences, namely carrying a firearm in a public place and discharging a firearm with intent to intimidate. Each denied their involvement and denied any knowledge of the use of firearms on the night in question.

Held: 

1. The main issue concerned the correct identification of the two accused as the principle offenders. It was trite law that any such identification must be treated with all due care. 

2. The Court considered all the facts especially the delay in bringing the matter to trial. Memories fade. The Court could not be certain that the identification of the two accused as perpetrators of the alleged crime on the night in question. 

3. The prosecution did not prove its case beyond reasonable doubt. The accused were acquitted and discharged. 

Statutes considered: 
Arms and Ammunition Act (Cap 39) 
Criminal Offences Act (Cap 18) 

Counsel for the Crown : Miss Tupou 
Counsel for the accused : Mr Tu'utafaiva 

Judgment

The Defendants 

The two defendants were arraigned on 25th May 2009 and pleaded NOT GUILTY to a two count indictment alleging offences of:- 

[1] Of carrying an arm in a public place, an offence contrary to section 44 of the Arms and Ammunition Act (Cap 39) 

[2] Discharging a Firearm with intent to intimidate, contrary to section 109 of the Criminal Offences Act (Cap 18) on the 11th July 2006. 

The defendants both elected to be tried by a Judge sitting alone. The matter was adjourned and set down for trial on the 25th May 2009. The main issue in this case - is one of identification of the two accused persons - as principle offenders. 

A preliminary matter: - I accept defence counsel's submission that in the lower court there may have been some confusion about the number of charges brought by the police, as against his two clients, but the case before me concerns but two charges and that is what we are here for, nothing more and nothing less, and these charges were subsequently vetted by Officers from the Crown Law Office.  

The Brief Facts 

The Crown say: this case emanated from an incident that happened on the night of the 11th July 2006, at the village of TOKOMOLOLO. The Crown says the 'ILONGI family reunion dance took place on that night, which they say was organised by the accused, and their immediate family and the dance took place at the local Mormon Church. 

The 'IONGI dance brought together a fairly large congregation of people, inside the tennis facility at the Mormon Church at TOKOMOLOLO where the 'IONGI family dance took place. I was told a number of spectators observed the dance from outside, on the road. 

The witnesses put an estimate of between 100 - 200 people who attended the dance that night. At around 23.00 hours on the 11th July 2006 - when the dance had ended and various people were packing away their musical instruments and cleaning the premises — the Crown says a fight broke out between various youths from the neighbouring villages of PAHU and TOKOMOLOLO. 

The evidence revealed the fight included amongst other things, an exchange of rocks between the parties, and there were also reports of gunfire in the vicinity of the 'Iongi dance. 

The Crown says people were injured and admitted to hospital that same night apparently with gunshot injuries - but strangely the evidence also revealed that there was no sign of any police attendance whatsoever - in the village on that night. 

The defendants were subsequently arrested their home searched they were interviewed and charged in 2006 with firearms offences. 

The Burden of Proof 

In every case the prosecution must prove the defendant is guilty. 

• A defendant does not have to prove his/her innocence. 

• In a criminal trial the burden of proving the defendant's guilt is, and always remains, on the prosecution throughout the trial. 

The Standard of Proof 

How does the prosecution succeed in proving the defendant's guilt? The answer is - by making me sure of it, nothing less than that will do. 

• So, if after considering all the evidence I am sure that the defendant is guilty, then I must return a verdict of GUILTY. 

• If I am not sure then my verdict must be one of 'NOT GUILTY'.

Circumstantial Evidence 

Sometimes a judge and / or a jury are asked to find some fact proved by direct evidence. For example, if there is reliable evidence from a witness who actually saw a defendant commit a crime; or if there is a video recording of the incident which plainly demonstrates his guilt; or, if there is reliable evidence of the defendant himself having admitted the offence, these would all be good examples of direct evidence against him-her. On the other hand, it is often the case that direct evidence of a crime is not available, and the prosecution relies upon circumstantial evidence to prove guilt. That simply means that the prosecution is relying upon evidence of various circumstances relating to the crime, and of the defendant; which they say when taken together will lead you to the sure conclusion that it was the defendant or defendants who committed the crime. 

It is not necessary for the evidence to provide an answer to all the questions raised in a case. You may think it would be an unusual case indeed in which a judge or a jury can say 'We now know everything there is to know about this case'. But the evidence must lead to the sure conclusion that the charge which the defendants face is proved against him. 

Circumstantial evidence can be powerful evidence, but it is important that it is examined with care, and I have to consider whether the evidence upon which the prosecution relies in proof of its case is reliable and whether it does in fact prove guilt. Furthermore, and before convicting on circumstantial evidence I should consider also whether it reveals any other circumstances which are or may be of sufficient reliability and strength to weaken or to destroy the prosecution case. 

I should also be careful to distinguish between arriving at conclusions based on reliable circumstantial evidence, and mere speculation. Speculating in a case amounts to no more than guessing, or making up theories without good evidence to support them, neither the prosecution the defence nor I, should do that. 

The Elements of the Offence of Carrying a Firearm in a Public Place 

To find the Accused Guilty of an offence alleging the defendant carried a firearm in a public place; the prosecution must prove each of the essential elements of the offence. In layman's terms and in a nutshell the essential elements are: 

• The accused 

• Carried and arm, or goes armed 

• In a public place 

• Without lawful authority of reasonable excuse 

The Elements of the Offence of Discharging a Firearm with Intent to Intimidate 

To find the Accused Guilty of an offence alleging the defendants discharged a firearm with intent to intimidate; the prosecution must prove each of the essential elements of the offence. In layman's terms and in a nutshell the essential elements are:- 

• The accused 

• Discharged a firearm 

• Near to other persons 

• And that the accused intended to intimidate (others) 

Oral Evidence 

PW1 Tu'ipulotu Talia'uli 
This witness gave evidence to the police and the court that he was an eye witness to the shooting of a gun at Tokomolovo on the night in question. 

PW2 Lolesio Hassia
This witness testified he found one live .22 bullet inside the second accused room at his home when the police searched the second accused room on 14th July 2006 acting on a search warrant. 

PW3 Eliki Tomu 
This witness was the police armourer who examined the single live .22 bullet Remington round which was found in the 'Iongi residence and the two fired .22 bullets recovered from the hospital. This officer confirmed neither of the accused held a firearms certificate. 

PW4 'Isimoto Vaihu 
This officer participated in the search of the 'Iongi residence on the 14th July 2006. 

PW5 Mavae Fakaanga 
This witness testified he was drunk and he said he saw a man called SAMU but he did not identify the accused Samuela. He told the court he ran towards the intersection when he heard gunshots he told the court he was throwing stones and was afraid when he heard the gun shots but he still went to see who was firing. 

PW6 Havea H Faiva 
This witness testified he saw the first accused Sitiveni with a rifle, and he testified he fired it. He also testified he also saw the second accused holding a pistol, and discharging it at the same time. He said he was injured and fell to the road where a T shirt was wrapped around his leg to halt bleeding. He confirmed the witness FAKAANGA was drunk. 

The Defendant's VCS 

The defendants VCS and charge statement were read into evidence and were admitted as evidence by consent. The evidence revealed the two defendants were interviewed by the police as follows — 

• Samuela 'Ilongi was interviewed on the 13thj July 2006 at 11.55 hours 

• Sitiveni 'Ilongi was interviewed by the police on the 25th August 2006 at 14.50 hours.

The Law Says: 

I am required to carefully consider the defendant's voluntary record of interview, and also his charge statement, to see if it is voluntary, or not, in the true sense of the word. In relation to that, it is my duty to decide two issues in relation to the statements and to any alleged confession. 

• First I must decide if the defendant actually made them 

• Second but only if I am sure that he did make them, I have to consider whether or not what he said was true. 

In determining that I should take into consideration all the circumstances in which I find it was, or may have been made. If for whatever reason I am not sure whether the confession was made, or I am not sure whether it was true, then I must disregard it. 

If on the other hand I am sure both that it was made and is true, I may rely upon it even if it was or may have been made by oppression or by other improper circumstances. In this case all these documents were admitted by consent and they contain no admissions to the charges. 

Analysis 

The evidence adduced by both the prosecution and the defendant reveals the following: The two accused persons CR235/06 SAMUELA 'IONGI and CR236/06 SITIVENI 'IONGI each denied their involvement in this incident, to the police - in both their VCS and to this court. The accused, denied any knowledge of the use of firearms, on the night in question despite as the Crown was said to have proved - a single live round of point .22 ammunition, had been found in the bedroom of the second defendant - by police officers during a search of the accused's premises — and under the authority of a Magistrates - Search Warrant. No firearms were found during the police search of the 'Ilongi residence. 

Crucial - The Identification Evidence 

This case, concerns the correct identification of the two accused as the principle offenders in this case - and it is trite law that any such identification must be treated with all due care. 

The Crown relied heavily upon the evidence of [1] MAVAE FAKAANGA and [2] HAVEA HIKULE"O FAIVA concerning the identity of the defendants as suspects and - as the people carrying and discharging firearms in a public place on the night of the 11th July 2006. 

The guideline case of Turnbull establishes - that there is always a special need for caution — before I can convict the accused in reliance upon the correctness of the identification and or the recognition of the accused by witnesses. The reasons and the need for caution are well established, in that a witness can be a convincing one - yet he/she can also be mistaken. The same can be said for evidence from multiple witnesses. 

The accused via his counsel — properly questioned whether the streetlights at the scene of the locus in quo were working on the night in question. They also questioned whether the lighting at two petrol stations was in good order, alight and working. Indeed much was said concerning even the existence of the lighting at the two petrol stations near the locus in quo in 2006. 

I am satisfied on the evidence placed before me in this trial, that there was a fight and that there were gun shots fired. I am satisfied on the evidence put before me that the prosecution witness FAKAAHANGA was drunk because this was confirmed by the Crown witness Mr FAVIA when he gave his evidence, and that evidence I fully accept. Mr. FAKAAHANGA'S evidence cannot in my view be reliable. 

Bearing all the facts of this case in mind, especially with the delay in bringing this matter to trial, I accept memories do fade. I cannot be certain that the identification of the two accused as perpetrators of this alleged crime stands up to the test - as enunciated in R v Turnbull. I cannot be satisfied the defendants were properly identified as the perpetrators in this case on the night in question. 

For this simple reason and this reason alone, I find the prosecution has not proved its case beyond reasonable doubt - so that I am sure the defendants committed the two offences with which they are charged. 

Accordingly I acquit and discharge the defendants on this indictment. They are free to go. However, I order the single round .22 Remington bullet found at the 'Iongi residence - is to be destroyed by the police.