Rex v Angitoa [2000] TOSC 26; CR 1123 & 1162 1999 (27 July 2000)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA

CR.NO.1123/99 & NO.1162/99

REX

-v-

SIAI ANGITOA
'ASALONI MAFIFAKAPOTU

BEFORE THE HON. CHIEF JUSTICE WARD

Counsel: Miss S. Tupou for prosecution
Mr L. Veikoso for both accused

Date of hearing: 24, 25 and 26 July 2000
Date of judgment: 27 July 2000

JUDGMENT

Each accused is charged with housebreaking, wilful damage to property and common assault. The offences all relate to the same incident on the 30 July 1999. On that day, a number of people attended a drinking session in Tatakamotonga at the house of the alleged victim of these offences, Sione Taimani, whom I shall refer to as the complainant. The group included the accused 'Asaloni, and the complainant.

The early events are relevant and not disputed. The group had started drinking about midmorning and was drinking spirits and home brew for some of the time and then home brew only. Many of the drinkers were drunk including the complainant and 'Asaloni. Later, one of the drinkers, Lupeni, attacked a son of the complainant and was then struck in turn by another of the sons. As a result of that blow, he received a cut above the eye.

When that occurred, the complainant ordered everyone out of the house and went to rest after asking his wife, who was also present, to prepare him some food.

By that time it would appear that 'Asaloni had gone home and, on his own account, had taken a shower and then gone to a nearby house where a number of people were practicing for a show. Included in that group was the other accused, Siai.

Lupeni had gone to the same house and told those present that he had been cut with a knife at the drinking session. A number of the people at the practice then went to Sione's house and it is the events following their arrival there that are the subject of these charges.

The complainant and his wife Litia gave evidence. Litia described how, when the others arrived, she heard a banging on the door of the house and, when she looked through the louvres by the door, saw 'Asaloni and Siai kicking and hitting the door. When that had no effect, 'Asaloni picked up and used a concrete block and Siai used a piece of wood. At the same time she could hear 'Asaloni shouting, "beat" and "kill".

She ran to warn her husband but, as he got up, the door to the house opened and the two accused rushed in. Her husband was naked and ran back to the bedroom to get the bedcover to wrap around himself but, before that and as he was just at the entrance to the bedroom, 'Asaloni hit him on the top of his head with the brick. Siai then struck him on the back of the neck with the wood.

Both accused then followed him into the bedroom and continued to punch and kick him. At some stage they were joined by two others who joined in the beating of the complainant.

The attack stopped when the father of the two accused arrived and chased them out. He then sat down and apologised to the complainant. Litia cleaned up the blood from her husband's face and saw that he had a bruise on the top of his head, cuts to his mouth, a swollen neck and bruises to the body.

The complainant told the court that he did not go to the doctor that day. However, the next day the pain was bad and so he went then but there is no medical evidence of the injuries.

On 11 August, the police officer assigned to the case went to Tatakamotonga and saw 'Asaloni and asked him to go to the police station with him. He agreed and was interviewed there under caution and charged. The officer had been asking about Siai as well and, when he heard the message, he too went to the police station on his bicycle. He was also interviewed under caution and charged.

The admissibility of these statements was challenged by the accused and I held a trial within a trial. The grounds of challenge were, first, that the answers were wrongly recorded or were fabricated which goes to weight but does not otherwise affect their admissibility.

The second ground was that the officer had not followed the requirements of sections 21 and 22 of the Police Act. The officer's evidence was that he had only asked them to accompany him to the police station. When he had finished questioning them he released them because, he said, they told him they were leaving. The accused claimed they had been arrested and it is true that the officer recorded a question in his interview of 'Asaloni as; "Do you know the reason why the police arrested you?" He told the Court that was a mistake.

On the evidence before me, I am satisfied beyond reasonable doubt that the officer did not arrest these two men. The manner in which they came to accompany him to the police station and of their release support that view. Mr Veikoso submitted that they should not have been questioned until they had been taken before a magistrate. I do not accept that is the result of the provisions of section 22 of the Police Act. In a case such as this where the suspects were not arrested or in a case where they have been, if the intention is to ask a few questions and immediately release them, there is no need to detain them until a magistrate can be contacted. Even if there had been such a requirement, I do not accept it would be ground for ruling that the answers given to the police under caution are inadmissible solely for that reason.

'Asaloni told the officer that he went to the house and took a brick and smashed it on the door. The door opened and he entered and punched Sione down. He said that Sione attacked him so he threw punches at him. He said he did this because he was angry that he had injured the accused's cousin.

Siai also referred to the fact that he was angry when he saw the injury to Lupeni. He was asked whether Litia had allowed him to enter the house and he said she had not and was asked why he entered to which he replied that he entered to beat up Sione.

Both accused gave evidence at the trial.

'Asaloni told the court that he struck the door with a brick but denied that he caused it to open. It was, he explained, opened by the complainant. He said that the complainant was brandishing a piece of wood and the accused attacked him and they both fell inside. He admitted to punching Sione but denied using a brick to hit him. He also stated that Siai never came into the house and that only the other two had been involved in the attack on Sione.

Siai agreed he was angry and went to the house. When he arrived, he saw one of the complainant's sons by the door and grabbed him and pulled him down. They struggled but another person, Fine, held him and stopped him fighting. He denied entering the house or attacking the door or the complainant. He never, he said, had a piece of wood.

A number of other witnesses were called all of whom were either friends or relatives of the accused. They all supported the suggestion that Siai did not go into the house. I do not set out their evidence but they differed in the details of what he was doing outside whilst the attack on Sione was taking place in the house. I was not impressed with any of the eye-witnesses other than the complainant and his wife and the accuseds' father. One was declared hostile and acknowledged he had not spoken the truth and I disregard his evidence in its entirety. The others I am satisfied beyond any doubt were attempting to shift the blame from Siai.

The burden is on the prosecution throughout to prove the case against each accused beyond reasonable doubt. I have considered the case against each accused separately.

In the case of the accused 'Asaloni, he mentioned that, when the door was opened, Sione was holding a piece of wood and so he tackled him. The suggestion of self-defence was not raised but I have to consider it if the evidence could support such a suggestion. I have done so and am satisfied to the required standard that it was not a case of self-defence. Indeed I go further and am satisfied that the complainant never had a piece of wood at any stage.

I am satisfied beyond any doubt that 'Asaloni did attack the door with a brick and caused damage to it. I am also satisfied to the same standard that the attack on the door forced it open and that he then entered the house. Once in, he attacked the complainant and struck him with the brick once on the top of his head. Thereafter he continued the attack with his fists and feet.

The result of the attack on the door was to cause wilful damage and he is convicted of count two. By that attack he was able to break into the house with the intent when he did so of assaulting Sione. That is housebreaking and he is convicted of count one. I am equally satisfied that he assaulted Sione and he is convicted on count three.

The case against Siai causes me more difficulty. As I have stated I am satisfied the witnesses were trying to cover up for him to a greater or lesser extent. I found both the complainant and his wife credible witnesses and both told how Siai came into the house and joined in the assault. Litia was certainly accurate in her account of the other two joining in and also the arrival of the accuseds' father. In his interview, the accused appeared to agree with the police that he did enter the house.

I found the accuseds' father a credible witness. He told how he struck the accused, 'Asaloni with a piece of wood as he left the house. He said he had brought the wood with him.

As I have stated, I attach little weight to the evidence of the eye-witnesses generally. I accept that Litia saw the people attacking the front door clearly enough and there is no reason to doubt that she was accurate in her account of that. However I am not satisfied to the required standard of a criminal trial that the complainant and his wife could not have been mistaken in their statement that Siai was in the house. At that time, there were a number of people attacking the complainant. The wife had already seen him with a piece of wood and later that piece of wood was in the house when the accuseds' father came in and chased the others out. I feel there is risk that those incidents may have affected the recollection of Litia and I must therefore acquit Siai of the assault.

I am satisfied beyond reasonable doubt that he did attack the door with a piece of wood and he is convicted of wilful damage on count two. He had gone to the house in anger at the injury to his cousin. That anger led him to join in the attack on the door and the resultant forcing of it to open. I am satisfied he was doing that with the intention of forcing an entry into the house in order that Sione should be attacked even if he did not subsequently carry out that purpose and he is convinced of housebreaking on count one.

NUKU'ALOFA: 27^th July 2000.

CHIEF JUSTICE