Tu'i'ile'ila v Rex [2007] TOCA 5; AC 01-2007 (20 July 2007)

IN THE COURT OF APPEAL OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

AC 01/2007

BETWEEN:

TU’APASI TU’I’ILE’ILA
Appellant

AND:

REX
Respondent

Coram: Burchett J
Salmon J
Moore J

Counsel: Mr Tu’utafaiva for the Appellant
Ms Mafi for the Respondent

Date of hearing: 18 July 2007
Date of judgment: 20 July 2007

JUDGMENT OF THE COURT

[1] This is an appeal against the sentence imposed upon the appellant, who had pleaded guilty to an indictment by which he was charged with causing bodily harm contrary to s.107 of the Criminal Offences Act, the particulars of the offence specifying:

"on or about 11th February 2006, at Ma’ufanga, you wilfully and without any lawful justification caused bodily harm to Liumeitupou Muimui Tonga, in that you threw a beer bottle and hit her on the face causing injuries to her forehead and mouth."

The sentence appealed against was a sentence of imprisonment for one year, of which the final six months were suspended for two years from the date of release.

[2] In his sentencing remarks, the learned judge observed that the attack was unprovoked. Of some significance is that, upon this appeal, the facts agreed to by the Crown include that, before the bottle was thrown, the appellant and the complaint had got into a disagreement. We shall return to discuss the effect of this concession when we come to our conclusions.

[3] Although the particulars of the offence alleged the appellant threw a beer bottle, an allegation repeated in the Summary of Facts provided by the Crown at the sentencing hearing, a Victim Impact Statement was also provided at that hearing which alleged the beer bottle was not thrown but rather was held in the appellant’s hand, being used to strike the victim in the face. In addition, while the Summary of Facts referred to an altercation, in which each party swore at the other, as occurring before the beer bottle was thrown, the victim’s statement gave no indication of anything at all preceding or leading to the attack upon her.

[4] At the hearing before the learned judge, a Probation Report was tendered in which it was "recommended that a non-custodial sentence may be suitable" in the case of the appellant, who was aged 35 years and had no previous convictions. The Probation Report summarised the appellant’s version of events, according to which an altercation was initiated by the victim at a bar where he was with a friend. After the hearing had proceeded some way, the judge said:

"What concerns me, Mrs Tupou [she was then counsel for the appellant] is the facts as outlined by yourself and in the summary are totally different from what the complainant has said in the victim impact report and her letter and there is a difference in two areas. She says he did not throw the bottle but he held it in his hand and then he continued to follow her into the car park and lunged at her. And also she doesn’t say anything about swearing at him or interrupting him and you put that forward as a strong submission. You say that had she not interfered then this would not have happened and because of that, the sharp conflict in those important areas and this is a very serious offence, I really want to hear evidence on these matters because I’m afraid it can’t be resolved."

The matter was then adjourned for the calling of evidence.

[5] At the resumed hearing, the complainant gave evidence that the attack on her occurred "out of nowhere", specifically that she and the appellant "hadn’t" had a conversation preceding it and she "had no reason to speak to him." She said she had "no idea" why he attacked her, adding "I was literally facing one direction and he came from another. I didn’t understand why." She repeated the version that the bottle was used to strike her while it was in the appellant’s hand; it was not thrown.

[6] A friend, a Ms Palu, who was with the complainant at the time, was called to corroborate her version, but in doing so came into conflict with a statement she had made to the police. She had said in the statement both that "there was an exchange of words between the accused and the complainant" and that "after that the accused threw the VB bottle at the complainant". In cross-examination she conceded there was "an argument" and "after the argument ... the accused threw the bottle". She also conceded, after some hesitation, that "[t]he reason why there’s inconsistency in [her] evidence before the court today and [her] statement to the police is because [she was] present during the whole entire time [the complainant] was giving her evidence."

[7] The appellant gave evidence that he was with a female friend when the complainant, whom he did not know, interrupted and "started [an] argument". They were 4 or 5 meters apart, a table being between them, and then he threw a beer bottle at her. His evidence was confirmed by another man who was present at the bar, a Mr Vi, who said "[i]t started with the argument", and then from a distance "almost the length of counsel’s table" the bottle was thrown. He was related to the complainant and went to the hospital to confirm she was not seriously injured, but he had not made a statement for the police. Nothing in his cross-examination cast doubt on his evidence. Indeed the judge, during argument, said of him "he was unshaken under cross-examination".

[8] During argument, the judge also said "[t]he question I needed to clarify was whether he threw [the beer bottle] as alleged in the indictment or whether he held it until the last minute". The difficulty about this statement is that it leaves out of account the other disputed issue, the appellant’s assertion of a preceding argument to which the judge had referred, when the matter was adjourned, in the passage quoted above in paragraph (3), on which also the "unshaken" witness confirmed the appellant’s version and contradicted that of the complainant.

[9] When his Honour gave his sentencing reasons, he again seems to have overlooked the corroboration the appellant’s version had received, both from Mr Vi and from the startling admissions made by Ms Palu in cross-examination, upon the question whether the throwing of the bottle of beer was (as the complainant said) part of an attack "out of nowhere" or came out of (although, of course, it was not justified by) a prior argument. His Honour referred to an "unprovoked attack", which, having regard to the issues raised before him, seems necessarily to have involved an acceptance of the complainant’s account despite the contrary evidence, despite his rejection of her other claim that the bottle was not thrown but she was hit with it, and despite the inherent probability that something initiated such an action. It was in this situation that the Court was informed by counsel that "the Crown now agrees that there was an argument first".

[10] The Crown’s concession must be given some weight in the consideration of the matter. Because the complainant denied any argument, the only version of the argument in evidence is that of the appellant, according to which she initiated it. The other relevant matters were referred to by the judge – the violence of throwing a bottle of beer at a woman’s face, the fact that intoxication affecting self-control is an aggravating rather than a mitigating factor (Hu’ahulu v Police) [1994] Tonga LR 93 at 95, per Ward CJ), the dangerous potential of the action although the injuries were not in fact very serious, and on the other hand, the appellant’s plea of guilty and previous unblemished record.

[11] Counsel for the Crown referred to a passage in the Probation Report as indicating that the victim had suffered permanent scarring, despite the very optimistic view of the doctor who treated her. It is not clear how the Probation Officer got the idea a scar "on the left side" of the face was relevant, but in fact the only injuries caused by the appellant were to the "centre of her forehead" and the "right corner of her mouth". Another matter put for the Crown may also be dismissed. It was said the appellant had not apologised to the complainant; but the complainant wrongly (in the view of a magistrate who dismissed her claim) accused the appellant of harassing her, after which he would, as the Probation Officer noted, have found it difficult to approach her to tender an apology.

[12] In the circumstances, we have concluded there should be a grant of leave to appeal against sentence, and the appeal should be allowed to the extent that the appellant should have the last 9 months of his sentence suspended instead of merely the last 6 months. The orders made in the Supreme Court are otherwise confirmed.

Burchett J
Salmon J
Moore J