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R v Taufahema [2025] TOSC 28; CR 218 of 2024 (24 March 2025)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY
CR 218 of 2024

BETWEEN:
REX
-Prosecution

AND:
MOTEKIAI TAUFAHEMA
-Accused

JUDGEMENT

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC via AVL
Appearances: Mr A Fisi’iahi for the Crown Prosecution
The Defendant in Person
Trial: 19 – 21 March 2025
Judgement: 24 March 2025

1. BACKGROUND

1. The Defendant is charged in the indictment as follows:
   1. Count 1: Common Assault contrary to section 112(g) of the Criminal Offences Act.
   2. Count 2: Serious Causing Bodily Harm contrary to section 107(1), (2)(c) & (4) of the Criminal Offences Act.
   100. Count 3: Discharging a Firearm with Intent to Intimidate contrary to section 109 of the Criminal Offences Act.
   4. Count 4: Using An Arm Without A License contrary section 4(1) and (2)(b) of the Arms and Ammunitions Act.
   5. Count 5: Possession of Utensils contrary to section 5A of the Illicit Drugs Control Act.
2. Count 1, common assault is proved if the prosecution establishes an act which without lawful justification inflicts violence or causes an apprehension of violence. Count 2, serious causing bodily harm is assault which cause bodily harm which is not severe, Count 3 discharging a firearm within intent to intimidate is proved if the defendant presents a loaded firearm within range of another and discharges it within the intention intimidating or annoying that person, Count 4 means what it says, using a firearm with no license to do so whereas Count 5 is the possession of utensils used in connection with the illicit drugs here the allegation is 5 empty packs and a weighing scale.
3. The Court has encountered many challenges in this case, when this matter came before me on the 19 January 2025, the defendant was unrepresented but indicated that he hoped to raise funds to be able to do so. The case was originally set down for trial in May but was brought forward to 19 March 2025. The defendant was warned of this last week and told that if he wished to apply for an adjournment because of his failure to secure representation he must state his case in writing. He did not.
4. On 19 March 2025, he said that was because, at the time he was remanded in custody. I do not accept that as a sufficient reason for explaining why it was that he wished for an adjournment but in any event the Court cannot continually adjourn a trial so that the Defendant can amass sufficient funds to be represented.
5. It is a matter of regret that legal aid is not available, but I must deal with the situation as I find it and I concluded that the defendant would be able to present his case and that I would give him every proper assistance to enable him to do so. I therefore declined to postpone the matter further and it proceeded to trial.
6. In the result he put his case well and I have a clear picture of his submissions.
7. Another challenge was that the alleged victim of the machete attack was not available to give evidence last week during the trial. I was told that he was on the Court video link on the morning of 19 March 2025 but had to return to work during the afternoon.
8. I was told by Counsel that his employers would not permit him to return to court to give evidence on the following subsequent days and his only availability would be after 6pm. I reminded counsel that a subpoena has been issued to which they should enforce but in the result this witness has been unavailable.
9. However, I have before me a medical report which is agreed in which sets out the injuries of the missing witness. I have concluded that no injustice to the Defendant is occasioned by dispensing with that witness bearing in mind that the injuries which is sustained are not in dispute.
10. I respectfully remind the prosecution that they must take steps to ensure that their witnesses come to Court and if there are difficulties with the authorities of another jurisdiction then representations at a high level should be made to ensure that that does not happen in the future. It is my firm conclusion that the Defendant’s case was in no way prejudiced either by the absence of that witness or the fact that he was not represented.
11. He understood the case against him, and he put questions to the witnesses with cogency.
    2. THE EVIDENCE
12. I now turned to the evidence.
13. There was some disagreement the reasons for which are unclear between the Defendant and the first witness (who I will refer to as “Nuku”), the Defendant drove past him on the night question and swore at Nuku. He then went to the Defendant’s premises to remonstrate with him or at least to inquire why he had sworn at him, according to Nuku the Defendant invited him into his house where there was an exchange of views.
14. The Defendant then produced a machete, Nuku tried to retreat but the Defendant threw it at him, however it hit someone else and that of course is the injury to which I have just mentioned.
15. After that according to Nuku the Defendant took out a pistol from a bag and fired it into the air and it discharged a bullet. He then waved the pistol towards the road where what I shall call the “Nuku party” were standing. Fortunately, no one was injured. The Nuku party comprised of six boys, and I find were all intoxicated.
16. This witness says that four shots were fired in all, 1 into the air and 3 towards the road. Nuku then reported the incident to a town officer who attended the scene when the Defendant’s brother who had arrived in his car drove off.
17. During cross examination it was put to him that he (Nuku) in fact had entered the house uninvited and that he the Defendant asked Nuku to leave the premises because he was drunk. He denied that the reason the Defendant produced a machete was because he did not leave, and what happened was that he retreated, and the Defendant threw the machete at him.
18. Then according to the Defendant, the witness threw rocks at him as did the others, all of them had been drinking and that was the reason that Defendant came fire his firearm. Nuku denied throwing rocks, his case was that he fled the house and was attempting to climb over the gate of the fence of the property when the defendant fired the gun at him. during re-examination Nuku claimed that he was inside the premises when the gun was fired and that the reason for getting into the house was to have a conversation.
19. A neighbour Vika Lepa gave evidence. She thought that the altercation was a domestic incident and saw the defendant carrying a machete which he threw and hit the victim causing an injury. She heard someone say to the defendant “if you’re a tough guy let’s fight.” According to this witness the defendant went into his house brought out a gun and shot it into the sky and he then continued to shoot the gun in the direction of the boys who were running away.
20. In other words, there was an altercation the Defendant came out of his property with a machete which he threw and hit the injured party. He was challenged to a fight. He responded by going into his house and returning with a gun which was shot into the sky and then towards the intruders, she said that the machete was thrown as Nuku was trying to get over the fence. She did not say that anyone had been throwing rocks at the Defendant.
21. The next witness, Kalolaine Lepa was also an eyewitness she lived across the road from the Defendant and she says that she saw the Defendant arguing while she was putting out her washing. She saw the Defendant with a machete and a group of boys near him so he threw the machete and it landed on someone but she could not say who. The Defendant went into his house came out with a gun and began firing shots at the boys, who ran away. He stood beside the shop near his home marked on the sketch map (Exhibit 1) and continued shooting towards the road.
22. On 20 March 2025 I heard from Sitiveni Tungitau. He was one of those in the road when the Defendant drove passed and swore at him and his companions. This resulted in an altercation between Nuku who went to the property ahead of the others and the Defendant. According to this witness, the Defendant came out of the property wielding a machete, the Defendant then claimed that the others attacked him with rocks and that is the reason he went and got his pistol.
23. During re-examinations the witness’s previous statement was put to him that stated that the defendant and Nuku were inside the residence when the Defendant was striking towards Nuku with a machete. This of course was completely contrary to his oral evidence and as a result I can place very little reliance on what this witness has said, although I attribute the inconsistency to a lapse of memory rather than any sinister motive.
24. I then heard from Leilani Lepa a young lady aged 25. Her sister said she had videoed the incident and she had heard an altercation and initially thought it was the Defendant was quarrelling with his wife.
25. She said that she saw the defendant with a machete together with Nuku who was inside the property when she says the Defendant threw the machete directly at Lemoto (the inured victim ), the Defendant then went into his property then came out and the next she heard was 4 gunshots, 1 into the air and 3 being fired directly in the direction of the boys standing on the road.
26. The Defendant left when his brother arrived, and she saw the car reverse and drive away at speed. It is remarkable that the video in question was neither viewed by the police nor taken into their custody. I caused enquiries to be made for that to be produced. In the result the video was not very helpful in that it showed first that what happened was during daylight and second that there were at least two shots and third that the figure which is said to be the defendant was seen at a distance in the undergrowth. The upshot is the video proved of little assistance.
27. The town officer Sione Kafoa was called and quickly attended the scene. He drove around the area looking for the retreating motor car, but it was unsuccessful. I am invited to draw the inference that this was because the gun had been spirited away in the motor car. On the other hand, it is submitted that the absence of bullets is explained because the gun in question was not a firearm within the meaning of the Arms and Ammunitions Act but a starting pistol which does not have bullets but caps which cause a starting noise. I will deal with that submission later in this judgement
28. Senior Constable Inoke Vaka arrived shortly at the scene and the Defendant told him that it was that he did not use a pistol but a cap gun which he threw into the neighbour’s property. The officer and a search party looked for the weapon without any success. I am asked to infer the reason for that was because the Defendant’s brother had taken it with him in the motor car and disposed of it in some way. An important part of this officer’s evidence was that his attention was drawn to an injury which was sustained by the Defendant, and which is said to support his account that rocks were thrown at him by the Nuku party.
29. I also heard evidence from Dr Molimoli Ofahulu. She is an experienced medical officer with considerable knowledge of wounds caused by dog bites. She was asked about the injury to Lemoto who was taken to hospital. Her evidence was that it was caused by a sharp instrument because it was a clean wound and inconsistent with the jagged edge wound that she would expect by someone who was injured whilst climbing over a fence.
30. Another officer who was part of the search team gave evidence which I do not think takes the case much further except that the search of the Defendant’s bedroom revealed 3 empty plastic packets and a kitchen scale in the bedroom with an additional 2 empty plastic packets on the door frame. It is said that the scale is a domestic kitchen scale. Again, I will deal with my conclusion on this matter later in this judgement.
31. An officer from the armoury department gave evidence that the Defendant did not have a license to own a firearm and this was not challenged. I will have to deal with the issue later of whether he needed one.
32. The Defendant gave evidence, and I listen to what he had to say with some care he said that he was driving when some boys who had obviously been drinking tried to block his way, but he continued driving home where upon one of the Defendant’s came to his premises and when he asked what do you want? The reply was “knife to the neck.”
33. This defendant told the Nuku party which by then had assembled to leave the premises. They did not do so he says that, “I took a machete near the door in an attempt to ward them off, some were already on the road” the upshot was a rock was thrown at him and in self-defence he threw the machete.
34. This caused the intruder to jump over the fence and Lemoto’s injury to his foot was caused when the machete hit his foot as he was jumping to avoid it.
35. He then said that his children have a toy gun which is the gun he took possession of. The children are one years old and two years old respectively. He pointed the gun at Lemoto and he ran away and jumped over the fence so I continued to discharge the gun.
36. They retaliated by throwing rocks at him. He then threw the gun at Lemoto. His brother arrived just then and the boys left.
37. The police arrived 20 to 30 minutes later they were told what had happened. They conducted a search with the results I’ve already indicated. In essence, the defendant says that the boys must have run off with the gun.
38. His wife give evidence, she runs her own business and was obviously intelligent and gave evidence carefully. She was not in a position to assist us to what how it all began because the first she saw was the group inside the property or one of them and Junior Esau was inside shouting and walking towards her husband, he sounded angry she said and refused to leave. She became very scared because of her two children and also asked him to leave and then she noticed Lemoto near the abandoned shop together with Esau who had a stick and Lemoto had a rock who threw the rock at her husband then she said she heard that her husband discharge the toy gun.
39. They continued to threaten and swear at her husband and therefore he discharged the gun twice upon which they jumped over the fence and threw through rocks from the road. The police arrived shortly thereafter at which time the boys had left, and they conducted a search a with negative result.
40. In cross-examination she expanded about the gun. She said it was a toy gun which her husband used to entertain her children, and she produced a statement which she had made in support of a bail application which broadly speaking corroborates what she said in in evidence.
41. It is a matter of regret that the statement was not disclosed by the prosecution. They say that because it was a bail application in the Magistrate Court, so they had no reason to do. That is quite incorrect, any material in the possession of the prosecution which might assist the defence must be disclosed again. I do not attribute to any sinister motive to that failure, and I hope it will not happen again.
    100. DISCUSSION
42. I am grateful for the helpful submissions from the Prosecution that was provided this morning which I have considered with some care. I am also grateful for the submissions from the Defendant dealing with the issues in this care.
43. It now falls to me to bring some order to the mishmash of evidence which I have heard and read.
44. The scene was fast moving and an apt to cause confusion, but I have a clear picture of what I find happened and I must remind myself throughout my deliberations that this is a criminal trial, and the prosecution must prove the allegation so that I are sure or in other words beyond a reasonable doubt.
45. Count 1 of common assault where the prosecution must establish that the Defendant had in his possession, a machete and that he threw it in the direction of Nuku although it in fact struck an injured a third-party on the face of it, that is an unlawful act causing an immediate apprehension of violence. There is some confusion about this evidence. Was Nuku invited into the property? Or did he go in uninvited bearing in mind that he was part of a group who had been drinking heavily on the Friday and Saturday?
46. I think it unlikely that he would have been invited into the property because he had just been involved in an altercation with the property owner outside but whether or not he went in by invitation or as a trespasser, the owner that is to say the Defendant had the right to ask him to leave and if he did not, to use proportionate force to compel them to do so.
47. Everyone has a right to defend themselves and their own property, but they must act proportionately. It might be thought that the use of a machete could only in very rare circumstances be regarded as a proportionate way of expelling a trespasser but here, I have to bear in mind that Nuku had been drinking heavily and was as I find intoxicated.
48. I find also that the Defendant was at home with his wife and children and that he may have honestly perceived himself to be in a vulnerable position.
49. It follows that I am not able to the criminal standard to find what the Defendant had done was unlawful because there is a reasonable doubt that he honestly believed that what he was doing was necessary in the circumstances of the case, so brandishing the machete per se does not in the fact here amount to common assault.
50. I now pass to Count 2 of serious causing bodily harm. This relates to what happened outside the premises. The evidence which I accept is that the defendant whilst outside brandished the machete and did intend to hurt Nuku with it, but in fact missed him and it struck a third-party in his leg causing superficial injuries which were quickly tended to at the local hospital. Thus, what the defendant did cause “a wound which is not severe”
51. I therefore hold that what the defendant did outside the property was plainly unlawful. He could have retreated indoors if he thought he was under threat or remained indoors when the assailant left. He did neither but came out swinging his machete and throwing it recklessly at the man he intended to injure. I am satisfied this constitutes an offence of serious causing bodily harm. It was an assault, it caused a wound, and there was no lawful excuse for doing so.
52. I now pass to Count 3 discharging a firearm with intent to intimidate contrary to section 109 of the Criminal Offences Act which states;

“every person who with intent to intimidate or annoy discharge is a firearm near any other person presents a loaded firearm at a personal persons within range shall be liable to imprisonment not exceeding five years”

53. Here, the Defendant I find and its not seriously disputed did fire his pistol 3 or 4 times, once into the air and twice or thrice to those who I find were retreating over the fence.
54. I find the defendant did go back into his house bring out a gun which he fired first into the air and twice or thrice at those who were trying to escape through the fence. Plainly what he did was unlawful.
55. There was no possible reason why he could not have remained indoors until the threat passed if he thought it was a threat or simply asked the intruders to leave. There is no doubt in my mind that discharging a firearm into the air near other people was done certainly to intimidate them and it goes without saying that aiming the pistol as I find he did on three occasions in their direction was plainly an attempt to intimidate the retreating party since I reject the evidence that they were throwing rocks at him at the time indeed I’m satisfied that their prime aim then was to get away as quickly as they could.
56. The issue I must grapple with is whether what the defendant had in his hand was a firearm. The Arms and Ammunitions Act defines “arm’ in section 2 as follows:

“means any lethal barrel weapon of any description from which any shot, bullet or other missile can be discharged, or which can be adapted for the discharge of any such shot, bullet or other missile, and any weapon of whatever description designed or adapted for the discharge of any innoxious liquid, gas or other thing dangerous to persons; and includes any component part of any such weapon, and any accessory to any such weapon designed or adapted to diminish the noise of flash caused by the firing the weapon, but does not include articles designed or adapted solely to discharge spares for spearing fish”

57. The decisive question therefore is did the defendant have a firearm in his hand or was it as he claims a toy gun with caps used to entertain his children? This plainly would not be a firearm because it did not have amongst other characteristics a lethal barrel.
58. There are arguments either way, on the one hand there is the fact that the brother sped off with the car and it may be suggested and was suggested that it was because he had the gun with him and wanted to get rid of it. Further the Defendant’s account is that he threw the gun at Lemoto.
59. I find this difficult to accept because if he did, it is to be expected that it would have been present in the garden when the police conducted their search.
60. On the other hand, the absence of bullets following the search suggests that no bullets were in fact discharged which is a pointer in favour of the Defendant’s case that what he used was a toy gun.
61. I have to hold fast to the criminal standard of proof and be satisfied beyond reasonable doubt that what the Defendant had in his hand was in fact a firearm although I am very suspicious that he did, I cannot be certain as I must be if I am to convict the Defendant of this account, it follows therefore that he is to be found not guilty.
62. If that is the case for count 3 then the same applies to being in unlawful possession of a firearm under count 4 because if the weapon was not a gun, there was no necessity to have it registered.
63. Turning finally to count 5, I take judicial notice of the fact that the 5 transparent plastic packages, 3 in the bedroom and 2 in the doorframe that are typically used in connection with drugs. I also take account of the fact that they were in close proximity to the kitchen scale.
64. Of course, I totally accept that kitchen scales are often used for lawful purposes, but in that case, they would be found in the kitchen and not in a bedroom.
65. The location of the scale in the bedroom near the empty packs found as they were is a strong indication that, taking the scene as a whole, these were instruments used to connection with illicit drugs and accordingly I find count proved to the criminal standard
    4. FINAL RESULT
66. For Count 1 of Common Assault, Count 3 of Discharging a Firearm with Intent to Intimidate and Count 4 of Using an Arm without a License, I find you not guilty and acquit you of those charges.
67. For Count 2 of Serious Causing Bodily Harm and Count 5 of Possession of Utensils, I find you guilty.
    

HON. MALCOLM BISHOP KC

LORD CHIEF JUSTICE

NUKU’ALOFA

24 March 2025