Rex v Fakatava [2001] TOSC 13; CR 090-93 2000 (26 April 2001)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY

No. Cr 90-93/2000.

BETWEEN:

REX
Prosecution

AND:

1. TU'IPULOTU FAKATAVA
2. MATEAKI KOLOSITI
3. 'OUENI OHI
4. FE'AO TANGINOA
Accused

BEFORE THE HON MR JUSTICE FORD

Counsel: Mr Tapueluelu for the Crown,
Mr Veikoso for first and second accused;
Mr Tu'utafaiva for third and fourth accused.

Dates of Hearing: 5, 6, 7, 8 March and 17 April 2001
Date of Judgment: 26 April, 2001.

JUDGMENT

On the night of Sunday 12 December 1999 the complainant, Toka'one Kolo, who was then 20 years of age, was out walking around Ma'ufanga with a couple of friends. He noticed another group of Ma'ufanga youths sitting around drinking behind Luia Fakatova's shop and he approached them and asked for some cigarettes. He was not given any cigarettes but he ended up in a scuffle and punches were thrown.

The complainant, Toka'one, decided that he was outnumbered and so he and his friends then ran off but they returned a short time later and threw stones at the drinking group. In the meantime, the drinkers had been joined by some other boys who had been at the Catholic Church choir practice and some girls who were also caught up in the stone throwing - one or more of them was hit with stones.

The boys from the choir practice then invited the drinkers to go with them and find Toka'one and beat him up. It is unclear exactly how many went off in pursuit of Toka'one but certainly the four accused were willing and active participants in the venture and there were probably up to four others involved who, for some reason, do not appear before me. The pursuers eventually tracked Toka'one down. He was hiding on the roof of a house in Vuna Road opposite Faua wharf.

Two of the accused, 'Oueni Ohi and Fe'ao Tanginoa, climbed up onto the roof after Toka'one and there was some fighting. Toka'one had a stick or piece of wood and he was using that to protect himself and then he lost the piece of wood and he fell off the roof. The complainant said in his evidence that he was pushed off the roof but, in statements made to the police, two of the accused said that he jumped off the roof and this was confirmed by an independent witness. It has not, therefore, been proved to my satisfaction beyond reasonable doubt that the complainant was pushed off the roof.

The complainant said that he fell on his knees and they were dislocated but the doctor who examined him said in evidence that he found no sign of any dislocation of the knees. The complainant also said in his evidence in chief that when he fell down from the roof he could not see what was happening because he was protecting his face. In cross-examination, however, he said that when he hit the ground he blacked-out and he did not know anything after that until the police arrived. There is other evidence which suggests that after the complainant fell he was able to run in the direction of the main road before the youths attacked him. So, although it is not possible for me to determine the precise spot on the api where the attack took place, there is no doubt that the complainant was viciously set upon. He was punched and kicked and one of the group used a stick or piece of timber to attack him. The complainant lost consciousness for a period.

When the attack started the complainant's friends ran off and, although it seems a number of people were watching the assault take place, no one came to the complainant's assistance apart from Sevesi Siola'a, a security guard from Davina's Bar and Restaurant along the road. Sevesi had noticed the youths chasing someone as they ran past Davinas and he later went along to the api where the noise was coming from to see what was happening. By the time he arrived on the scene the complainant was on his back on the ground being beaten up by about seven or eight boys. He was bleeding from the head. As Sevesi entered the property, he yelled out that the police had arrived which was not correct but the mention of the police was sufficient to scare the attackers off and they proceeded to leave the scene. Sevesi, with assistance, lifted the complainant and carried him to the side of Vuna road and waited there for the police to arrive. The police arrived a short time later having been called by a neighbour. Their records show that they received the call-out at 1:15 a.m. on the morning of 13 December 2001.

The police then took the injured complainant to hospital. In the front of the police van were the driver and the sergeant in charge of the case. In the rear of the van were the injured complainant, Toka'one, his rescuer, Sevesi Siola'a, another helper Tevita Halafihi and two of the accused - Fakatava and Kolositi. I mention the composition of the van load because Fakatava and Kolositi claimed in Court that they themselves had being beaten up on that van journey.

The doctor who examined the complainant in hospital described his injuries in Court. He said that he had multiple lacerations including a laceration of the scalp which had resulted in blood loss and required stitching, a deep laceration above the right eye which also required stitches, another laceration on the right leg between the knee and the ankle, a fractured hand and various swellings. He was discharged from hospital after two and a half days.

The attack was a serious one; potentially life-threatening. One of the eye witnesses, Tevita Halafihi, said in evidence that after the attackers ran off he entered the api because he wanted to see if the complainant was still alive. That gives an indication of the ferociousness of the assault but the motive for the attack is not clear. Crown counsel asked the complainant early on in the trial how the fight started and he referred to an incident which had occurred about a week prior to 13 December 1999 on the same api as the stone throwing incident. The complainant said that on that occasion the youths were drinking methylated spirits out of a bucket and they let him join them but they became upset and a fight broke out after he poured some "refresh powder" into the bucket to make the methylated spirits taste sweeter. It appears that at least one of the accused was present that day. On 12 December when the complainant approached the group of youths for some cigarettes they again were drinking methylated spirits and they were drunk. Perhaps, when people are drunk on methylated spirits it becomes an idle exercise to try and look for some rational motive.

All the accused made statements to the police. Fakatava and Kolositi challenged the admissibility of their statements but after hearing evidence on the voir dire, I ruled that the statements were admissible. These two accused also complained that they had been beaten up by the police and one of the others in the police van on the night of the incident. I do not accept that any of the police in the van punched the two accused as alleged. It does seem, however, that the witness, Sevesi Siola'a, the security guard from Davinas who had come to the complainant's rescue, did assault both of the accused in the police van. In explanation he said, "I was just upset at what they had done to the other boy." He said that the policeman in the back of the van stopped him from going any further. I do not accept that the two accused sustained injuries of the type, and to the extent, which they claimed in Court.

Perhaps, in all the circumstances, Mr Siola'a's actions after the incident were understandable. Exactly why it was necessary, however, for the police to have the two accused in the back of the same van as the injured complainant and the two witnesses is something that was not explored before me but the potential for an incident of the type which I have just described must, upon reflection, have been obvious.

Both Fakatava and Kolositi admitted in their statements to the police being involved in the attack on the complainant. They told the Court that their statements were given under duress and after assaults and threats from the police but I do not accept that evidence. They had both been drinking methylated spirits before the incidents. Tanginoa had also been drinking methylated spirits. He admitted chasing after the complainant "to beat him up" and he says that he climbed onto the roof of the house but before he could get involved in the fight, the complainant had jumped and he says that he did not take part in any of the attack on the ground. Ohi was not drunk. He had been at the church choir practice. He admitted fighting the complainant on the roof but he says that when he climbed down from the roof he and Fakatava went home.

I do not accept that Tanginoa and Ohi did not take part in the attack on the complainant on the ground. On the contrary, I am satisfied beyond reasonable doubt that they took a very active role in the assault. Kolositi, in his statement to the police, said that all four of the accused were beating the complainant on the ground and that evidence was corroborated by the evidence of Tevita Halafihi who I found to be a reliable witness. He told how the people who he had seen on the top of the roof had then come down and joined in the attack.

All the accused are charged with causing bodily harm contrary to section 107 of the Criminal Offences Act (CAP. 18). The word "harm" is defined in the section and for present purposes the relevant definition is:

"(c) any wound which is not severe."

To constitute a wound the continuity of the whole skin must be broken - Moriarty v Brookes [1834] EngR 1141; (1834) 6 C&P 684. There need be no profusion of blood; one drop would be sufficient.

Some problems arose in the present case over the "Particulars of Offence" set out in the indictments. At the end of the prosecution case, Crown counsel applied for leave to amend two of the particulars. The application was opposed by both defence counsel but after hearing legal submissions I ruled that the amendments could be made without injustice and so I allowed the application. The difficulty arose because the particulars contained more detail than was strictly necessary. The original particular in relation to Fakatava, for example, stated:

"Tu'ipulotu Fakatava, on or about the night of 13th December, 1999 at Ma'ufanga you did together with Mateaki Kolositi, Oueni Ohi and Fe'ao Tanginoa attack Toka'one Kolo wherein you beat him with a piece of timber on the head and legs, thereby causing him injury."

The amendment sought to add after the words "head and legs" the additional words "and punched and kicked him on the body".

The amendment sought in relation to Ohi's particulars was to include the allegation that he had thrown the complainant off the roof in addition to the existing allegation of having beat him with a piece of timber on the body.

In a case of this nature involving multiple assailants and different types of injuries it is not necessary and perhaps unwise in the drafting of an indictment go into such evidentiary details. Not only will such particulars often require amendment after all the evidence has been heard but they can mislead the defence in that counsel may elect, as was alleged in this case, not to pursue a particular issue in cross-examination because he was misled by the details pleaded in the particulars to believe that it would not be a relevant issue.

In England section 3 of the Indictments Act 1915 requires the indictment particulars to give "reasonable information as to the nature of the charge" and the Indictment Rules 1971 require the particulars to "disclose the essential elements of the offence".

The position in Tonga is governed by clause 11 of the Constitution (CAP. 2), which requires the indictment particulars to clearly state "the grounds for the charge". Without spelling it out, therefore, in as much detail as the English provision, clause 11 requires the particulars to contain at least the basic reason for the charge and, in this regard, the English provisions provide a useful guide as to the requirements.

Emmins on Criminal Procedure, 7th ed (1997) gives a precedent indictment particular for a bodily harm charge which, adapted to the present case, would simply read:

"A on or about the day of did together with B, C and D wilfully and without lawful justification cause bodily harm to X."

Such a particular would have been sufficient to inform the accused of the substance of what he allegedly did. If further particulars were considered necessary, they could be applied for and if the Crown did not disclose them voluntarily then, in an appropriate case, the Court would make an Order.

Returning to the facts of the present case, the evidence is that the complainant had sustained three "wounds" to the body such as to constitute "harm" within the meaning of section 107. There was the wound to the side of the scalp, the wound above the right eye and the wound to the right leg between the knee and the ankle. Although I am satisfied beyond reasonable doubt that all of the accused took part in the attack on the complainant, it is quite impossible to determine from the evidence which of the accused caused the particular wounds to the complainant's body which I have identified. It is also a possibility that one or more of the wounds were, in fact, inflicted by others in the group attacking the complainant apart from the four accused.

The situation is not dissimilar to that in Mohan v R [1966] UKPC 3; [1967] 2 AC 187. In that case the two appellants, father and son, attacked a man called Mootoo Sammy with cutlasses killing him. The evidence indicated that only one wound proved fatal but it could not be established who inflicted the wound. The appellants contended that each of them was entitled to be acquitted unless it was proved either that he inflicted the fatal wound or that in attacking Sammy they were acting in pursuance of a pre-arranged plan. The Privy Council dismissed the appeals on the basis that as the appellants were attacking the same man at the same time with similar weapons and with the common intention that he should suffer grievous bodily harm, each of them was present aiding and abetting the other and thus there was no need to prove any pre-arranged plan.

In the present case, the prosecution's position is even stronger because I am satisfied beyond reasonable doubt that in carrying out the attack the four accused were acting in concert. When they set out together to look for the complainant they embarked on what has been recognised in a number of reported decisions as a "joint enterprise". The objective was to catch the complainant and, as Fakatava said in his statement to the police, "beat him up because he has caused trouble many times".

The relevant principle was stated by Lord Parker in Anderson and Morris [1966] 2 QB 110 as follows:

"Where two persons embark on a joint enterprise, each is liable for the acts done in pursuance of that joint enterprise, [and]... this includes liability for unusual consequences if they arise from the execution of the agreed joint enterprise."

It is not necessary that there should be any kind of elaborate pre-arrangement to constitute a joint enterprise- Hunter v Sara [1999] 105 A. Crim R 241, but the assailants must share a common purpose to cause harm to the victim and make it clear by their actions to the other that that was their common intention- R v Petters and Parfitt [1995] Crim. L. R. 501. The common intention or agreement is gauged from their conduct.

In a commentary on Petters v Parfitt the learned editors of the 1995 Criminal Law Review, page 501, say:

"It is different if there is an agreement between A and B that the crime be committed, even though that agreement is tacit and made immediately before, or in the course of the commission of the offence. A and B see a policeman approaching, they exchange glances, and A goes for the officer while B stands by, ready to intervene if A seems to need his assistance. There is now evidence on which a jury could find an agreement to collaborate in the commission of the offence, a joint enterprise. If B knocks down the second approaching policeman, A will be liable for that assault. The agreement has to be deduced from the conduct, but that is usual in joint enterprise cases.

As the Court puts it in the present case, there must be a "common shared intention"-"each has the same intention as the other and each knows that the other intends the same thing."

The attack on the complainant by the four accused in the present case was carried out pursuant to the common design and each party to the joint enterprise is equally liable for the consequences of acts done in pursuance thereof. It matters not that the Crown has been unable to prove which of the accused inflicted the wounds that I have identified nor, for that matter, whether the wounds were inflicted by one of the other assailants who has not been charged. They were all in it together - part of a joint enterprise.

That being the position, I find each of the accused guilty of the crime charged and they are convicted accordingly.

NUKU'ALOFA: 26 April 2001.

JUDGE