R v Tuimana - [2007] NZCA 459

ORDER: NOT TO BE PUBLISHED IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA350/07 [2007] NZCA 459

THE QUEEN

v

ALBERT TUIMANA

Hearing: 16 October 2007

Court: O’Regan, Chisholm and Potter JJ

Counsel: A N Isac and K M Sutherland for Appellant
M E Ball for Crown

Judgment: 23 October 2007 at 3 pm

JUDGMENT OF THE COURT

A The appeal against conviction is allowed and a re-trial is ordered.

BWe order that this decision is not to be published in news media or on the internet or other publicly accessible database until final disposition
of trial. Publication in law report or law digest permitted.

R V ALBERT TUIMANA CA CA350/07 23 October 2007

REASONS OF THE COURT

(Given by Chisholm J)

Introduction

[1] Albert Tuimana stood trial in the District Court at Palmerston North on two counts of possessing firearms contrary to s 45 of the Arms Act 1983. His defence was that in terms of that section he had “lawful, proper, and sufficient purpose” for possessing the firearms, namely, the defence of himself and his family. Judge Dawson ruled that there was insufficient evidence for this defence to go to the jury, and Mr Tuimana was ultimately convicted and sentenced to two years imprisonment.

[2] This appeal against conviction relies on two primary grounds: first, that the Judge misdirected himself as to the appropriate test for determining whether the appellant’s defence should be left with the jury; second, that if the correct test had been applied his defence should have remained with the jury. Although the appellant made application to adduce further evidence in support of his appeal, we have found it unnecessary to consider that aspect.

Background

[3] To a significant extent the factual background underpinning the appellant’s defence is not disputed. Indeed, an agreed statement of facts had been prepared before trial, but in view of the Judge’s ruling that statement was not presented to the jury.

[4] It is common ground that late on 4 July 2006 there was a drive-by shooting at

41 Benmore Avenue, Palmerston North, following which the police located nine spent .22 cartridges on the road as well as bullet holes in a front window of the house and the garage door. The appellant gave evidence that he was present when the shooting took place and that he believed that the incident had been triggered by an allegation that he “stood over” the shooter’s uncle.

[5] There was a further incident during the early hours of the morning of

2 October 2006. It is not disputed that seven shots were fired at the house at

74 Botanical Road, Palmerston North, which was occupied by the appellant, his partner and two children. All rounds hit the house, some passing through multiple walls. The appellant’s wife called the police. Both the appellant and his partner gave evidence about…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Tuimana

Details

AGLC: R v Tuimana [2007] NZCA 459
Case: [2007] NZCA 459
Decision Date: 23 October 2007

CaseChat Overview and Summary

Albert Tuimana was convicted of possessing firearms in violation of the Arms Act 1983, and he appealed this conviction to the New Zealand Court of Appeal. The central issue in this appeal was whether the trial judge correctly assessed whether Tuimana's defence of having a lawful, proper, and sufficient purpose for possessing the firearms should be presented to the jury. The Court of Appeal found that the trial judge misapplied the legal test for determining whether the defence should be left to the jury. Instead of focusing solely on whether there was a credible or plausible narrative that might lead a jury to consider the possibility of self-defence, the judge also considered issues of credibility and wider policy implications, which are properly the domain of the jury. The Court of Appeal concluded that the evidence presented did establish a credible or plausible narrative for the defence, and the appeal against conviction was allowed. Consequently, a re-trial was ordered.

Orders