Supreme Court dismisses firearms charges; judge notes discrepancies in case

    Kuo fakata’e’aonga’i ‘e he Fakamaau’anga Lahi’ ha faka’ilo hia fekau’aki mo ha me’atau ‘i ha me’a ne hoko ‘i Ma’asi ‘o e ta’u ni’. Kuo tuku ange ai ‘a Andy Fukofuka mei he tukuaki’i pehē na’a’ ne ‘i ai ‘ene me’afana laifolo semi’otomētiki ka ne ‘ikai ha’ane laiseni.

    The Supreme Court has dismissed a series of firearms charges arising from an incident in March this year.

    Andy Fukofuka was accused of being in possession of a .22 semi-automatic rifle without a license at Fo’ui on March 20 this year.

    He was also charged with interfering with the course of justice by throwing away to hide  the rifle that was used to shoot Paula  Nivinoa Vakaahi.

    The police gave evidence that the accused had asked his friend, Noa Vakaahi, if he knew of anyone from whom he could buy a .22 rifle.

    On the morning of 20 March 2018, Noa Vakaahi came to the accused’s home at Fo’ui with a .22 rifle for him to look at and the accused asked him whether it was “clean” and Noa just laughed, police said.

    “The accused’s wife cooked them some  food  and  they  ate,” police told the court.

    “ After that, the accused went out and mowed the lawn. When  he stopped and went into his tool room,  Noa was sitting on a chair  there when he heard a bang and  saw  Noa  with  his  legs  out  in front of him and saying “oo”. The accused said  to  him:  “What?” Noa said to him: “It’s the gun”. The  butt  of the rifle  was  on  the table but the body of the  gun was not there. The accused thought that Noa was just joking, but when he went close to Noa, he then realised that Noa was injured  on the  right side of his  chest,  and that the rifle was lying by his feet. The accused then  pressed  his hand on the injury and carried Noa  to  the accused’s  car and  rushed  him  to hospital.”

    After the police were called they searched for the gun.

    Inspector Taniela Vea gave evidence that  Fukofuka told him that he had thrown the gun into the bush area between  Fo’ui  and  Masilamea when he was bringing Noa to the hospital.

    Witness Kuli Falekaono, the police armourer, gave  evidence  that  the  accused was granted  a licence to use a bolt action .22 rifle,  a  new rifle, on    November 4, 2016 and it expired on December 31, 2016. That licence was renewed on January 16, 2017 and it expired on  December 31, 2017. He said that on January  19, 2018,  the accused  had reported  that  that  rifle  was lost.

    Mr. Tu’utafaiva for the defence argued that the prosecution had  failed  to prove beyond reasonable doubt that the accused was in possession on a gun without a licence.

    He also submitted that the charge was that the accused had in his possession a .22 semi-automatic rifle, but there was no evidence that the accused had any such arm in his possession.

    Mr. Tu’utafaiva also argued that there was no evidence that Paula Nivinoa Vakaahi was shot with the .22 rifle alleged to have been thrown by the accused into the bush.

    In his summary of the case, Judge Niu said there were discrepancies in the English and Tongan versions of the charges.

    He also noted that there were discrepancies in the charges that had originally been laid in the Magistrate’s Court and those brought before the Supreme Court.

    Charges had also been laid involving the possession of a silencer, which was part of a gun, but not a weapon.

    In his summing up, Judge Niu said the charge that Fukofuka had possession of a  .22  semi­  automatic rifle without licence/or of a .22 rifle without licence was totally different from the offence committed from the Magistrate’s Court, which was that he possessed a “silencer” without a  licence.

    He said the prosecution had failed to charge the accused with  that offence, but has also failed to call or produce any evidence that  the accused had possession of a silencer, let alone without a licence.

    “The fact that a silencer is an accessory of a gun  cannot  justify  the  substitution  of   that accessory (silencer) with a .22 rifle.” Judge Niu said.

    “A silencer is not a gun. It is perfectly harmless on its own. It is not capable of propelling any bullet. A .22 rifle is a very different thing altogether because it is lethal. That is a much more serious case than the mere possession of a silencer on its own.

    “Accordingly , I find that the charge of possession of a .22 semi-automatic  rifle, or of a .22 rifle, without licence,  is one in respect of which no committal was  made  by  the Magistrate’s Court, and  is dismissed.”

    Judge Niu dismissed the second charge because it had not been laid in the Magistrate’s court and had not been committed from the Magistrate’s Court to this Court.

    The main points

    • The Supreme Court has dismissed a series of firearms charges arising from an incident in March this year.
    • Andy Fukofuka was accused of being in possession of a .22 semi-automatic rifle without a license at Fo’ui on March 20 this year.

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