A man prosecuted for smuggling guns and ammunition into Tonga after a woman asked him to collect a box of goods imported from the United States by her late husband, has escaped prosecution.
Vaipulu Ikamanu appeared in the Supreme Court on a charge of importing, on or about July 22, 2019, a prohibited good, namely a .22 rifle without an import license under the Arms and Ammunition Act, contrary to section 95(1) of the Customs and Excise Management Act.
Ikamanu was also charged with illegally importing 6801 .22 rifle ammunition.
In his opening remarks for the Crown, Counsel Joe Fifita said that the accused had to bear the burden of proof in a smuggling or counterfeit prosecution, which this case is, was provided in section 117 of the Act.
However, Judge Niu, presiding, said the definition of smuggling did not include “causing the importation of prohibited goods.”
More importantly he said the Act did not make clear what the accused had to prove.
“The Crown merely says that the accused has the burden of disproving the case against him,” the judge said.
“On the other hand, the defence says that the provision is no more than the reverse onus principle which is that as long as the accused has established a positive defence, upon a balance of probability, the onus reverts to the prosecution to disprove it beyond a reasonable doubt.”
Defence counsel Siosifa Tu’utafaiva argued that the indictment was bad because it did not specify or give any particular of what the accused was alleged to have done to have caused the restricted goods to have been imported.
“I agree with Mr Tu’utafaiva,” the judge said.
“An indictment is not an indictment unless it states the act (or omission) which the accused is alleged to have done that constitutes the offence with which he is charged.
“That is the essence of a fair trial, that the accused is informed before the trial, what it is he alleged to have done, in order that he can properly prepare to defend the charge which is brought against him.”
The judge said the Crown had not proved its case.
The evidence showed that a box had been imported from the United States and lain uncollected because the shipper, Sione L. Toki, had died. His widow had asked the accused to try to collect the box from Customs.
It was not known if Toki had died before the box arrived in Tonga because it was not known when he died or when the box arrived in Tonga.
“The evidence required to prove the commission thereof must be strong, such that despite evidence produced or given by an accused, it is proof beyond reasonable doubt,” the judge said.
“I find that the Crown has not proved that he did anything which caused the extra rifle and bullets to be imported.
“The Crown has failed to prove the two charges it has brought against the accused, and I dismiss them and discharge the accused.”
