Importation of firearms charges dismissed, Judge rules law used to prosecute must be void

    The Supreme Court has dismissed charges regarding to the importation of weapons.

    Viliami Malolo e Hau Talivakaola was charged with importing at Ma’ufanga on July 3, 2019, a 12 gauge shotgun without an import licence under the Arms and Ammunition’s Act contrary to Section 95(1) of the Customs and Excise Management Act.

    He was also charged with having, on the same date, importing 900 rounds of  .22 Remington ammunitions without an import licence under the Arms and Ammunitions Act contrary to Section 95 (1) of the Act.

    The defence argued that the shotgun and bullets were not prohibited goods and it was therefore not an offence under S.95 (1) to cause to import them.

    The defence submitted that the two offences did not exist under S.95 (1) and they should be dismissed.

    Judge Niu, presiding, ruled that the prosecution must fail because it violated the principal that a person was innocent unless proven guilty.

    He said that in its opening address and in its closing submissions, the Crown emphasised that the Act placed the burden of proof upon the accused.

    He argued that the Crown treated the offence as a smuggling prosecution in which the onus of proof lay with the accused in any smuggling or counterfeit prosecution.

    “Smuggling is defined in Section 2 of the Act as ‘the importation or exportation of goods with the intention to defraud the revenue and includes the importation or exportation of prohibited or restricted goods,’ “ the judge said.

    “That means, as the Crown argues, that the prosecution in the present case is a smuggling prosecution, and that the onus of proof lies upon the accused to disprove the case for the Crown.”

    Judge Niu cited the provision that nobody should be tried unless they had first received a written indictment. “Such written indictment shall clearly state the offence charged against him and the grounds for the charge. And at his trial the witnesses against him shall be brought face to face with him (except according to law) and he shall hear their evidence and shall be allowed to question them and to bring forward any witness of his own and to make his own statement regarding the charge preferred against him.”

    The judge argued that Parliament could not enact a law under which the onus of proof of guilt of an accused person be shifted altogether so that he has to prove his innocence instead.

    “To me, that provision of clause 11 is the foundation upon which the rule of law, due process and natural justice are based,” he said.

    “It is the basis upon which the fundamental law of the presumption of innocence is based. For the Act to provide that in respect of smuggling prosecutions that foundation is to be put aside, and that the accused person is to bear the onus of proof instead, I find that difficult to accept, in view of the fact that clause 11 still requires the burden of proof in criminal trials to rest on the prosecution instead.

    “I must consider the provisions of Clause 82 which provides that the Constitution is the supreme law of the Kingdom and if any other law is inconsistent with this Constitution, that other law shall, to the extent of the inconsistency be void.

    Judge Niu said that because the section under which the accused was charged required him to prove his innocence, it was inconsistent with  Clause 11 of the Constitution and was therefore void.

    He said the indictment against the accused was bad because it charged the accused with two counts of offences under S.95 (1) of the Act which were not offences under that section of the Act.

    He could not convict him of another offence under S.95 (1) because the Constitution prohibited it.

    “I therefore must dismiss the two charges against the accused and discharge him.”

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