Rex v 'Ofa [2003] TOSC 20; CR 145 2002 (3 April 2003)

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

NO. CR. 145/02

REX

-V-

'EPUEFI 'OFA

BEFORE THE HON. JUSTICE FORD

COUNSEL: Mr Sisifa for the Crown and Mr Kengike for the accused.

Date of hearing: 25 March 2003.
Date of judgment: 3 April 2003.

JUDGMENT

The accused, 'Epuefi 'Ofa, is charged with one count of causing bodily harm, contrary to section 107 of the Criminal Offences Act (CAP.18). The particulars in the indictment allege that on 24 January 2001 at Mapelu, Liahona, he wilfully and without justification caused bodily harm to Mele Falepapalangi.

The 36-year-old complainant, Mele Fakapapalangi, is a married woman living at Mapelu. She works as a waitress in a restaurant. On 24 January 2001 she arrived home from work at approximately 4 PM. Later, as she was on her way to visit her parents' house nearby, she met her friend and they started talking under a mango tree. While they were talking, they noticed the accused's son, Malu, who she estimated to be 10 or 11 years old, walk past them to her parent's house and call out the name of her mother, Salote. There was no response and the boy then walked back to his home. As he walked past the complainant and her friend, the friend asked the boy why he was calling out for Salote and he replied that he had a message for her from his father. He did not say what the message was.

The complainant and her friend continued talking and after a while they were joined by Salote who came and sat with them under the tree. A little later, Malu reappeared with two other children and he called out to the three woman the Tongan words for "shit face". He then repeated the words. The complainant said that it was not obvious who he was intending to refer to. None of the women reacted or did anything. The complainant returned to her home and later she went to choir practice which did not finish until after 9 PM.

At approximately 10 PM that same evening the complainant decided to go to the accused's house to see what the message was that Malu had for her mother and why the boy had been swearing at them. She never expected that anything untoward would happen otherwise she would not have gone on her own but she was a close friend of the accused's wife and the families often visited each other's home.

The complainant said that she knocked on the door and a young boy, Sione, who appeared from the evidence to be a visitor, opened it. He did not say anything but she went inside. She noticed the accused and his wife and some children. The accused was lying on the floor with his feet towards the door. The complainant asked him why he had sent his son to her mother's house and he replied that he wanted to have a message relayed to her. The complainant told him that her mother was old and she had sent her across instead and she asked what was the message. The accused replied that the reason he had sent his son to see her mother was because her mother had accused him of stealing a pig. The complainant then told him that she and her friend had been with the mother under the tree when the boy swore at them and she had not heard her mother say anything like that to the boy and so she asked the accused again, why he wanted to speak to her mother.

The complainant told the court that at that point the accused jumped up and said that he wanted her mother to go to his house so that he could "swear shit at her" and, as he spoke, he punched the complainant twice with his right hand on the left side of her face. He also punched her on her lip and on her head and on her left arm. She said that the punches were continuous and he did not stop.

The plaintiff said that as the punches landed on her body, her vision became blurred and she started to fall to the ground. The accused ran towards the back door and she could hear him saying, "I will kill you today". He repeated the utterance and she could see that he had grabbed a bush knife and a fishing spear and he was coming back towards her. The witness demonstrated how she then began walking backwards towards the door through which she had entered. When she reached the doorway she was still watching the accused though her vision was blurred. She had her back to the entrance-way and so, for support, she started to grope for the door frame with both arms outstretched above her head. Just as the accused was about to reach the complainant, his wife jumped up and intervened by standing between them and grabbing the accused and telling him to stop. He, nevertheless, was still able to reach out with the knife and it cut into the palm of the complainant's left-hand which was up by the door frame. The complainant still has a small scar from that cut today, more than two years after the incident. It is clear, however, that had his wife not intervened at the precise moment she did, the accused may well have carried out his threat to kill the complainant.

The complainant told the court how she was able to crawl to a neighbour's house and contact the police. She also described her injuries and her visit to Vaiola hospital. Very sensibly, Mr Kengike did not challenge the doctor's report or the nature of the injuries the complainant sustained. It was not necessary, therefore, to have the doctor called as a witness.

The Crown called a police officer who produced the "Record of Interview", the "Statement of Charges" and a form described as a "Confession Statement". There was no challenge to any of the police documentation and the officer was not cross-examined.

In order to establish a charge under section 107 of the Criminal Offences Act, the Crown must be able to prove beyond reasonable doubt that the accused committed an assault on the complainant, which is any intentional or reckless application of force; that the act complained of was unlawful and that it resulted in "harm" to the complainant as that word is defined in section 107 (2). The defence does not challenge any of these elements and it is accepted that the injuries sustained by the complainant amounted to "harm" within the definition.

The defence advanced by counsel for the accused appears to be a hybrid defence or mixture of self defence and defence of property. Both are recognised defences at common law. In essence, a person is justified in using reasonable force when acting in self defence, defence of others or defence of property provided that no more force is used than is necessary for the purpose.

The 39-year-old accused is a fisherman by occupation. He said in evidence that when Mele, the complainant, came into his home he could tell that she was angry. He was lying on the floor and she stood on his foot and said, "'Epu, why you swear at my mother?" The accused told her that he wasn't swearing at her mother but he wanted to ask her mother why she was saying that he had stolen a pig. He said that Mele kept shouting at him and his children were scared and so he asked her to get out of the house. He told her to get out of the house three times and she refused. In the end, she challenged him to come and take her out. He then jumped up and went towards her and pushed her on her right arm and told her to get out but she scratched and punched him. At that point, he punched her on the mouth and then once on the head. He said that he only punched her twice. The complainant was still attacking him when his wife intervened and grabbed her and pushed her outside.

The accused said that he did not use a bush knife or fishing spear but they were both in the living room because he had been using the bush knife and he was going to take the fishing spear when he went fishing later that night. The accused speculated that the complainant probably cut the palm of her hand when his wife threw her out of the house and she must have come in contact with the fence made of roofing iron.

In cross-examination, the accused told how the police had been around to his home that same day to try and get him to reconcile with someone over a claim about a stolen pig. He admitted being angry over the allegation that he had stolen the pig. The following exchange then took place:

"Q. I put it to you that because you were so angry during the day that when Mele came to you that night it made you more angry?

A. I was not angry. If I was angry I would have beaten her up as soon as she arrived."

I find that admission revealing. It shows a propensity to resort to violence against defenceless women.

The accused continued to repeat in evidence that he had not been angry with Mele but only with her mother but when his wife gave evidence, she admitted that he was, in fact, angry when Mele asked him about the boy swearing at her mother.

I found the complainant to be a completely credible witness and I accept her account of the events as they unfolded. The accused is a well-built man obviously very capable of looking after himself and I do not accept that the complainant would have been so foolish as to challenge him to remove her from the house or start scratching and punching him as alleged. I did not, therefore, believe the accused's version of events even though what he said was largely supported by his wife's evidence. The defences he put forward were not mentioned in any of his statements to the police. In cross examination the accused's wife admitted discussing the case with the accused "repeatedly". I am satisfied that they had rehearsed their story for the trial.

The defences advanced are rejected and the accused is convicted, accordingly.

NUKU'ALOFA: 3^rd April, 2003

JUDGE