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ORDER: NOT TO BE PUBLISHED IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.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BWe order that this decision is not to be published in news media or on the internet or other publicly accessible database until final disposition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 this incident.

[6]      It is also common ground that on the same night there was another shooting incident in Palmerston North involving the discharge of numerous rounds from a high powered weapon into a dwelling and that one of the occupants was struck by a bullet and seriously wounded.  The occupants of that house were associated with the appellant who gave evidence that he was told about that shooting later on 2 October.

[7]      On 13 October 2006 the police executed search warrants at a number of addresses including the appellant’s home.  At the appellant’s home two firearms, one with a silencer, were located in the garage.  No ammunition was found.  Up to that time nobody had been arrested in relation to the earlier shooting incidents.

[8]      In due course the appellant was charged pursuant to s 45 of the Arms Act which provides:

45       Carrying or possession of firearms, airguns, pistols, restricted weapons, or explosives, except for lawful, proper, and sufficient purpose

(1)       Every person commits an offence and is liable on conviction on indictment to imprisonment for a term not exceeding 4 years or to a fine not exceeding $5,000 or to both who, except for some lawful, proper, and sufficient purpose,—

(a)       Carries; or

(b)       Is in possession of—

any firearm, airgun, pistol, restricted weapon, or explosive.

(2)       In  any  prosecution  for  an  offence  against  subsection  (1)  of  this section in which it is proved that the defendant was carrying or in possession of any firearm, airgun, pistol, restricted weapon, or explosive, as the case may require, the burden of proving the existence of some lawful, proper, and sufficient purpose shall lie on the defendant.

The defence case relied on subs (2).

[9]      In support of his defence the appellant gave evidence that about two days after the shooting on 2 October he ran into a friend from Porirua who asked him if he needed any help, by which the appellant understood that his friend was offering to get him a firearm.  The appellant told his friend that he needed a hand gun to protect himself and his family.  He said that about a week later a newspaper article to the effect that the police were concerned that the shooters might come back was brought to his attention.

[10]     According to the appellant he then rang his friend in Porirua about acquiring a hand gun and spent the next couple of days trying to sell his car so that he could pay for it.  Having failed to sell his car, he drove down to Porirua on the night of

12 October, collected two firearms and ammunition and left his car in payment.  A

friend drove him back to Palmerston North where he arrived home around 2.30 or

3am.  He put the rifle and ammunition in the garage and intended to put them in his bedroom later that day.   Before he could do so the police executed the  search warrant.

[11]     Makere  Paniora,  the  appellant’s  partner,  also  gave  evidence  about  the shooting during the early hours of 2 October.   Under cross-examination she was asked whether her partner was at work the night before the search warrant was executed (the night the appellant maintained that he had travelled to Porirua).  Her response was that he had been at work that night and had come home between midnight and 1am to check on her (the evidence was that, when the appellant was working, he usually came home from work at about midnight to check on her, apparently because of their safety concerns arising from the earlier shooting incidents).  When asked during re-examination whether she was sure about that she said that she was “not sure at all”.   The appellant’s application to adduce further evidence was designed to provide this Court with further information about whether he was at work that night.

[12]     There were two trials.  At the first trial the Crown unsuccessfully applied to the trial Judge, Judge Atkins QC, to have the defence of lawful, proper and sufficient purpose withdrawn from the jury.  Judge Atkins rejected that submission on the basis that it was the possession of firearms rather than the use of them that was claimed by

way of self-defence and he considered that the history of the matter justified leaving the defence with the jury.  The jury was unable to arrive at a verdict and a re-trial was ordered.

[13]     At the re-trial before Judge Dawson and a jury the Crown again sought to have the defence of lawful, proper and sufficient purpose withdrawn from the jury. As in the first trial this application was made after the defence had closed its case.

District Court Ruling

[14]     Judge Dawson concluded that the evidence did  not  reveal  any imminent threat against the appellant or his family at the time the rifles were located at his address.  He considered that any threat was “a potential threat based on events three months and again 11 days earlier from the time when the rifles were found by the police”.  It was also noted by the Judge that there was no independent confirmation of the appellant’s evidence that he had only acquired the two rifles and ammunition hours before the police search, that there was a direct contradiction between the appellant’s evidence that he had travelled to Wellington and the evidence of his partner, and that there were two rifles.

[15]     Having  considered  s 45  of  the  Arms  Act  and  Adams  on  Criminal  Law, including the case law referred to in the text, the Judge concluded that the issue was whether “there is any evidential foundation on which a jury could conclude that Mr Tuimana’s possession of two rifles and, as he says, ammunition, was for the lawful purpose of self-defence”.  For a number of reasons he concluded “there is not a credible or plausible narrative which might lead a jury to consider the reasonable possibility of self-defence”.

[16]     First, for the appellant to be justified in possessing and possibly using rifles in  self-defence  in  a  residential  area,  thereby  putting  the  lives  and  safety  of neighbours and road users at risk, the appellant needed to have done more to avoid such a “dangerous confrontation”.  By way of example the Judge said the appellant could  have  told  the  police,  contacted  Housing  New  Zealand  (the  appellant’s landlord) about changing addresses, or moved his family out.

[17]     Second, the two rifles were located in the garage where they could not have been immediately available for self-defence purposes.   The Judge said that it was neither credible nor plausible that the rifles were in the appellant’s possession for self-defence purposes because to get the guns and ammunition he would have had to leave his bed, go downstairs, cross the yard to the garage, and climb to the rafters.

[18]     Third, if Mr Tuimana was justified in arming himself in these circumstances then any person or group of people who perceive themselves to be at risk from others could act accordingly.  The Judge considered that this would lead to the rule of the gun taking precedence over the rule of law.

[19]     Fourth,  with  reference  to  the  evidence  that  the  appellant  had  only  just acquired the firearms on a trip to Porirua and that he had not had time to take them into the house, the Judge noted that this was directly contradicted by his partner who said that the appellant came home every night during the relevant period to check on her.  Thus, the Judge concluded, it would have been “impossible for [the appellant] to have been to Porirua when he said he had been there”.

[20]     Fifth, the Judge noted that no evidence had been adduced to show “any imminence of any future attack, or that an attack would ever occur again”.   The Judge believed that the only evidence of the alleged attack in July 2006 came from the appellant who did not mention that attack to the police until approximately three months later.

[21]     Finally, the Judge considered:

[26]      Mr  Tuimana’s   evidence   throughout   had   the   distinct   aura   of unreliability.  He was obviously frank in his evidence when it supported his position.  He was either evasive or refused to answer when it did not support his case.  For example, his description of going to Porirua the night before his arrest was thrown into considerable doubt by his partner’s evidence that he was coming home to check on her every night.   When asked why he purchased two guns, one with a silencer, the response was to the effect of that was what he was given.   When asked to name the person or persons from whom he purchased the guns, he refused to answer, supposedly to protect them from prosecution.  It could equally have been for the reason to protect his version of what actually happened.  He also claimed to have left the ammunition in the garage in a place where it would easily have been found.  It was not found by the police officer whose evidence was that he conducted a thorough search.

In the Judge’s view Mr Tuimana knew more than he was prepared to tell and “the onus is upon the defence to establish that the defence of self-defence should be put to the jury”.

This Appeal

[22]     The first ground of appeal alleging that the Judge had misdirected himself revolved around two primary allegations.   First, that the Judge had conflated the defence of lawful, proper and sufficient purpose under s 45(2) of the Arms Act with the defence of self-defence under s 48 of the Crimes Act 1961.   Amongst other things it was alleged that this had led the Judge to wrongly consider the imminence of the threat and other matters that were relevant to the actual use of force in the context of s 48 as opposed to the passive state of possessing weapons in the context of s 45.  Second, rather than confining himself to the issue of whether there was a credible or plausible narrative which, as a matter of law, would enable the matter to be left to the jury, the Judge became involved in credibility issues which were the domain of the jury.  These allegations were developed by Mr Isac with reference to the Judge’s ruling and case law.

[23]     In relation to the second ground of appeal Mr Isac claimed that if the Judge had correctly applied the evidential test he would have been obliged to leave the appellant’s defence with the jury.  Counsel noted that a detailed, specific, and largely unchallenged narrative about earlier events giving rise to the threat was before the Court and that this narrative was largely corroborative of the appellant’s evidence. He submitted that any contradictions or inconsistencies in the evidence and issues of credibility were for determination by the jury, not the Judge, and that by becoming involved in such matters the Judge was usurping the function of the jury.

[24]     While  Ms  Ball  accepted  that  at  some  points  the  Judge  appeared  to  be assessing credibility, she submitted that when the decision is looked at overall it was not issues of credibility that led to the Judge’s conclusion that the defence should be taken away from the jury.  Rather, it was the Judge’s concerns about the evidence, including the evidence that no ammunition had been located and the absence of any

evidence  supporting  the  inference  that  there  was  an  imminent  threat  of  attack. Ms Ball argued that the Judge had carefully considered the applicable law, applied the correct principles in determining whether there was a credible and plausible narrative, and was justified in withdrawing the defence from the jury.  Like Mr Isac she traversed relevant case law.

Discussion

[25]     With specific reference to s 45 of the Arms Act the Supreme Court has recently confirmed that the defence of possession of a firearm for the lawful purpose of self-defence should not be left to the jury unless there is a credible or plausible narrative which might lead the jury to entertain the reasonable possibility of self- defence:   Young v R [2006] NZSC 38 at [4]. When reaching that conclusion the Supreme Court endorsed the earlier decision of this Court in R v Wang [1990] 2

NZLR 529.

[26]     While a defence of lawful purpose of self-defence should not be left to the jury unless there is a credible or plausible narrative justifying that course, once that threshold has been satisfied the trial Judge is obliged to put the defence to the jury: R v Wang at 534.  This screening by the Judge avoids the defence being left with the jury where the evidential foundation is insufficient for a jury to reasonably entertain the possibility of self-defence.  On the other hand, once the evidential threshold is satisfied it is for the jury to decide whether the defence has been made out.

[27]     It is clear that the Judge started out by posing the correct question, namely, whether there was a credible or plausible narrative which might lead the jury to entertain the reasonable possibility that the purpose for which the appellant had the firearms was self-defence.  The critical issue is whether he confined himself to that question once he took the next step of considering the evidence, or whether he stepped beyond his role into the jury’s domain.

[28]     We are satisfied that the evidence adduced at trial, coupled with the agreed statement of facts to be presented to the jury, established the requisite credible or plausible narrative for the appellant’s defence to be left to the jury.   It was not

disputed that on no less than three occasions within the space of around three months there had been shooting incidents involving the appellant or an associate, that one of those incidents had resulted in serious injury, and that when the firearms were found at the appellant’s home the shooter or shooters involved in those incidents were still at large.   There was also evidence from the appellant that on the day he went to Porirua he had read a newspaper article indicating that the police were concerned about the possibility of further attacks and that he wanted a hand gun to protect himself and his family.  In our view this evidence satisfied the evidential threshold that the Judge was obliged to apply.  This was not a situation where the only tenable inference was that the threat of further attacks had passed by the time the appellant was found in possession of the firearms.

[29]     Although, as the Judge noted, there are inconsistencies and contradictions in the evidence as well as issues about the appellant’s reliability, those are matters for a jury  to  determine.    It  will  be  for  the  jury  to  decide  when  the  appellant  took possession of the firearms, whether there was ammunition, the need for two firearms, accessibility issues, and the like.  The jury will also have to consider whether or not inferences can be drawn about the likelihood or imminence of any future attack. While those matters might ultimately tell against the appellant’s defence, they are not capable of negating the fact that there was a credible or plausible narrative for determination by the jury.  We might also add that while we can sympathise with the Judge’s concern that the rule of the gun might take precedence over the rule of law, it will ultimately be for the jury to determine the guilt or innocence of the accused. All the Judge was required to do was examine the evidence to see if the necessary evidential foundation for the defence had been established.  Consideration of wider policy matters was not part of that role.

[30]     Our view that the Judge ended up applying the wrong test is reinforced by the concluding paragraphs of his ruling:

[28]      The  standard  of  proof  requires  the  accused  to  establish  on  the balance  of  probabilities  that  he  had  some  lawful,  proper  and  sufficient purpose for the possession of each firearm.   To do so, he must present a credible or plausible narrative upon which a defence of self-defence might be based.

[29]     For the reasons given, the defence submissions and the evidence presented during this trial do not establish a credible or plausible narrative to the required standard of proof upon which a defence of self-defence might be based.

[30]     Nor do the defence submissions and the evidence establish to the required standard of proof any imminent future attack.

On our reading of these paragraphs the Judge has merged the credible or plausible narrative test that he is required to apply with the balance of probabilities test that the jury is required to apply.

Outcome

[31]     We are satisfied that the appellant’s defence that he had possession of the firearms for the purpose of defending himself and his family should have been left with the jury.  The appeal against conviction is allowed and a re-trial is ordered.

Solicitors:

Fitzherbert Rowe Lawyers, Palmerston North

Crown Law Office, Wellington