Rex v Patolo [2003] TOSC 32; CR 263 2003 (10 July 2003)

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

NO. CR. 263-268/03

BETWEEN:

REX
Prosecution

AND:

1. KILINO PATOLO
2. TEVITA PAULA MAHE
3. MANU SALUNI
4. SAIA 'ANITUANAI
5. SIONE TALIA'ULI LANGI
6. SIONE LAVULO
Accused

BEFORE THE HON. JUSTICE FORD

Counsel: Mr S F Sisifa for the Crown and
Mr S F Fifita for all of the accused.

Dates of hearing: 23, 24, 25, 30 June and 1 July 2003.
Date of judgment: 10 July 2003.

JUDGMENT

Originally there were six accused and they were all arraigned to appear together. The first five were army officers -- the sixth accused was a civilian. They faced a variety of charges relating to an unsavoury incident at the Phoenix nightclub, Kolofo'ou, around midnight on Thursday 21 November 2002 or during the early hours of the Friday morning.

Upon arraignment, the sixth named accused, Sione Lavulo, pleaded guilty to the two charges he was facing and he has been dealt with separately. The remaining five accused all pleaded not guilty. The Crown's case is that they were participants in a fight outside the nightclub involving attacks on two police officers, Constables Taulanga Sili and 'Ofa Fifita, and wilful damage to a police vehicle.

The Crown called evidence from 16 police officers. Another witness was listed in the Crown's list of witnesses as a police officer but, in fact, he turned out to be a farmer. Rather surprisingly, neither the owner of the Phoenix nightclub or any of the security guards on duty that night were called as witnesses. They may have been able to shed light on some of the conflicting evidence given by the police and the army officers.

23-year-old Constable Taulanga Sili works at the Charge Office at the Central Police Station. He told the court that his shift on the night in question was from midnight to 8 AM and he arrived at work at approximately 11:45 PM on 21 November. He recalled a duty officer informing him that a complaint had been received from the Phoenix nightclub. When he arrived at the scene with his colleague, Constable Lelea, he spoke to one of the security guards and to "John", the Chinese man who owns the nightclub. They identified a certain individual who had been causing problems and they made it clear to the constable that they did not want him back inside the nightclub.

Constable Sili said in evidence that, at that point, he noticed another police officer, Constable Kavaliku, who had arrived earlier at the scene, "scuffling" with the young man in question (who remains unidentified). Sili said that he walked straight over to the troublemaker and told him that he was not wanted back in the nightclub and he asked him to accompany the police. The man refused. As Sili then tried to grab hold of him, the man called out to someone inside the nightclub called "Kami". The witness said that "three guys", who he knew to be boys from the army, then came out of the nightclub while the troublemaker he had been trying to arrest turned around and ran back inside the club. As Sili then started to walk inside to fetch the troublemaker, the three army boys started attacking him. He did not know their names but in court he identified them as the accused Mahe, 'Anituanai and Langi.

Sili said that he then ran out to the road where his police vehicle was parked. He looked back and saw the army boys standing beside the entrance to the nightclub, "yelling out to assault me". From that point on, Sili's evidence became rather confusing. He said that he got hold of one of the army boys, who he identified as the accused 'Anituanai, and he locked him in the police van but he managed to escape. Sili said that at the same time as the door of the police van was forced open, the other army boys started to attack him.

As Sili was attacked he was hit on the head by a full bottle of Royal beer thrown from the direction of the nightclub and he fell to the ground. Sili said that he was not unconscious at that stage and he remembered being attacked by about five people. He was pressed by Crown counsel to name or identify the people involved. He recalled Patolo punching him but I did not find his attempts at identifying the others at all convincing.

In this regard, I hasten to make it clear that I am not being critical of the young Constable. He was on the receiving end of a vicious and unprovoked attack. He had received a blow to the head which had knocked him to the ground and he was then attacked. In that situation, his main concern would naturally have been for his own safety rather than with identification. When asked to be specific, Constable Sili seemed to appear most comfortable when he gave the answer to counsel, "there were many of them."

In fact, the evidence as to whether Sili had been knocked unconscious when struck on the head by the bottle of beer, is unclear. Although, when asked this question specifically in cross-examination, the Constable said that he had not been knocked unconscious, earlier in his evidence in chief he had said: "As I fell down, I only came to light when I was at the fire station by the police training school. Someone was treating my face and head." It is simply not clear from the evidence whether at that point in time the witness was talking about falling down after being struck by the beer bottle or falling down sometime later after being attacked.

There was a suggestion made by defence witnesses that, before the attack on him, Sili had challenged the army boys to a fight. The allegation was that he had shouted out words to the effect, "any army officer who wants to have a fight step out onto the road." I say at once that I do not accept that evidence. For one thing, it was never put to Sili by defence counsel in cross-examination for his comments. For another, the police were hopelessly outnumbered at that stage and Sili would have had to have been out of his mind to lay down such a challenge. I simply cannot accept that he would have made such an obviously provocative remark.

As a result of the injuries he sustained, Constable Sili was taken to Vaiola hospital. A medical report was produced by consent which showed that he had sustained bruising and swellings over his eyes, cheeks, forehead , ears, chest and abdomen. There was also a laceration to the skull. The doctor concluded that the injuries were consistent with a fist fight. He said that the patient was most likely "attacked and punched repeatedly."

Constable Sili's colleague who travelled to the scene with him, 26-year-old Constable Sione Lelea, said in evidence that when they arrived at the nightclub there were already other police in attendance. He did not give numbers but conveyed the impression that there would have been only one of two others present. It is difficult from the evidence to know exactly what Constable Lelea did at the scene. His evidence was disjointed. Crown counsel said in his closing submissions that he remained in the police vehicle and called Central Police Station for further assistance. While that is probably a fair description based on Lelea's own evidence, there is other evidence which indicates it is more likely that the Constable initially tried to assist his fellow officers at the scene but when he realised that the police were outnumbered, he then returned to the vehicle and made the call for reinforcements. The officer was not wearing a police uniform that night.

Constable Lelea told how at one stage the police had managed to arrest about "five guys" but they had escaped from the police vehicle and they were then joined by others who had come out of the nightclub. The witness recalled seeing the attack on Constable Sili and Fifita. He identified the accused, Patolo, as one of the attackers on Sili but he could not identify any of the other accused as being involved either in that attack or the assault on Fifita. He estimated that there would have been more than 10 attackers in total.

After the fight at the nightclub, it appears as though the police retreated and called for reinforcements from the Police Training Compound at Longolongo. It also appears that the army personnel present at the nightclub were ordered by an officer to return to Sene Camp. As the stragglers were later walking down Wellington Road about 20 meters out from Sene army barracks, the police arrived on the scene in force. Estimates put the number of police officers at between 30 and 50. At Wellington Road, the police immediately began indiscriminately physically attacking the, then outnumbered, army officers. One police officer was alleged to be using an "iron bar" in the attack. Those army boys who were not immediately apprehended and arrested scattered and a number managed to climb over the wall into the barracks. It was at that point that four of the five accused, along with others, were arrested. None of the accused were arrested outside the nightclub. The fifth accused, Manu Saluni, was arrested in a totally different area altogether outside Wanda's bar at the Pacific Royale hotel in Taufa'ahau road . I will come back to the circumstances surrounding his arrest.

From Wellington Road, the first four accused and several other army officers (the exact number was not disclosed) were taken back to Central Police Station. They gave evidence about how they were attacked by the police as they alighted from the police vehicles and, again, when they were placed inside the cells at the Police Station. Several of the accused produced photographs which showed quite graphically the injuries they allege they received from police beatings while in custody. The photographs were taken four days after their arrest.

In cross-examination, the police duty officer on the night in question, Chief Inspector Pahulu, agreed that when he arrived back at the Police Station after making inquiries at Sene Camp, he saw police officers beating up army officers in the police cells. He said that he told the police officers to get out of the area and he took the keys and locked the door to the cells so that there would be no more problems. The inspector was not re-examined in any way on this matter.

I am satisfied that the accused were attacked by the police inside the cells in the manner alleged but I am not convinced that all the injuries shown in the photographs were necessarily the result of that particular beating. I suspect that some of the accused could have received their injuries in the fight back outside the nightclub or during the course of the arrests at Wellington Road. Having made that observation, however, I stress that the court cannot condone, in any form, the use of gratuitous violence on the part of the police. Counsel informed the court that civil proceedings are being taken against the alleged perpetrators and so I will say no more on this particular aspect of the evidence. I return now in the narrative to the scene outside the nightclub.

Twenty four-year-old 'Ofa Fifita works for the traffic Department at the Central Police Station. He said that he was on patrol driving along Taufa'ahau road on the night in question when he received a call from Central Police Station to attend a fight at the Phoenix nightclub. The fight was obviously well underway when he arrived at the scene. He told the court that as he got out of his vehicle he noticed a person, who he identified as the accused Mahe, come out of the night club and proceed to cross the road to a Chinese store. He went to arrest him because he could see that he was obviously drunk -- "zigzagging over the road." As Constable Fifita approached to make the arrest, the drunken individual attempted to punch him but the punch missed. At that same moment the constable was suddenly punched and kicked from behind. He fell to the ground but he told the court that he knew it was Patolo who had attacked him from behind because only seconds before the attack he had turned around and had seen Patolo running towards him.

Crown counsel appeared to place some weight on the evidence of 25-year-old Constable Kavaliku who also works for the traffic Department. It seems that Constable Kavaliku was probably the first police officer to have arrived at the nightclub. He said that he noticed a number of drunk people standing around the entranceway. He arrested one person who was not one of the accused and as he was about to make further arrests, Constable Sili appeared on the scene. One of the army boys Kavaliku attempted to arrest (who was not identified) began to resist and "scuffling" then broke out around the entrance to the nightclub in the area where the admission fees are collected. Kavaliku saw Sili being attacked. He was able to identify Patolo as the first attacker but he said that there were many who came out of the nightclub and joined in the fray. The witness said that after Constable Sili had fallen to the ground he was punched and kicked and the attackers then turned their attention to Constable Lelea and himself.

Constable Kavaliku said that they did manage to arrest four of the attackers but they all escaped from the police van. He confirmed that a further four police officers soon arrived on the scene but the police were still greatly outnumbered by the soldiers and the civilians involved in the fracas. Kavaliku said that he saw the attack on 'Ofa Fifita. He identified the attacker as Patolo. The witness also told the court that two of the police vehicles were damaged in the incident but he was not able to identify any of the accused as being responsible.

I need not traverse in detail the rest of the Crown evidence. None of the other police officers were able to identify any of the accused apart from the accused, Patolo. The evidence relating to the damage caused to the police vehicle was confusing and unreliable. Constable Siale, for example, spoke about Patolo kicking the door on vehicle "EK 19" but the vehicle referred to in the indictment is described only by its registration number "P1222" and it is not clear from the evidence if that vehicle is also known as EK 19. Police officer Tafa from the police engineering department gave evidence about damage having been caused to two Police vehicles -- "P1222" and "P1162". The evidence is simply inadequate, in my view, to establish charges against any of the accused in relation to vehicle P1222. Moreover, I am aware that the civilian, Sione Lavulo, who was charged along with the five accused pleaded guilty at an early stage to intentionally causing damage to vehicle P1222. It does not follow, therefore, that the damage to the vehicle must have been caused by any one or more of the accused.

As with any criminal trial, the onus of proof lies upon the Crown throughout. Before a conviction can be entered, each charge must be proved beyond reasonable doubt. There is no onus on an accused person either to give or call evidence. In this case, as I have already indicated, each of the accused chose to give evidence and additional evidence was called on behalf of some of the individual accused. In addition, each accused made statements to the police which were produced in evidence as exhibits.

There was no challenge to any of the police documentation on the voir dire and, as a result, Crown counsel made the decision not to call any of the countersigning officers. "Countersigning officers" are police officers who, following the general practice in criminal investigations, remain in attendance when an accused person is being interviewed by the interviewing officer and then witness the accused's signature on the record of interview and other police documentation.

Despite there being no challenge on the voir dire, defence counsel in cross-examination very properly put it to the police interviewing officers that each of the accused would say in evidence that the statements given to the police, including the so-called confessions, were "forced" or obtained by "duress" because of the pain they were suffering from as result of the police attack while they were being held in the cells at Central Police Station. As I have indicated, I have no doubt that such attacks did take place but that was in the early hours of the morning of 22 November immediately after the accused had been brought back to the police station. I am equally satisfied that, although reprehensible and totally unnecessary, those attacks were in retaliation for the attacks on the two police constables outside the nightclub rather than a display of force in order to elicit a confession. The statements obtained by the police were not taken until the late afternoon or evening of 22 November. I am satisfied beyond doubt that the statements themselves were not obtained by inducement, threat or promise in breach of section 21 of the Evidence Act (CAP. 15).

I have considered also whether, because of the police conduct, the court should in the exercise of its discretion, refuse to admit the statements under the proviso to section 22 of the Evidence Act. I have, however, decided against invoking the proviso. I am satisfied that the statements were voluntarily given. Several of the statements actually record the fact that the particular accused denied any involvement in the offence or offences with which he was being charged.

It will be evident that identification is the key issue in the case against the various accused. If this were a jury trial it would be necessary for me to give a very clear warning to the jury about the special need for care before relying upon identification evidence as the basis for a conviction.

The identification evidence produced by the Crown in the present case was scant indeed. I accept, however, that the circumstances under which the witnesses had to try and make their identifications were, for many obvious reasons, very difficult. The following passage from the evidence illustrates some of the resulting difficulties. Crown counsel in submissions relied upon the evidence given by Sili as to the identification of the three accused, Mahe, 'Anituanai and Langi. Constable Sili's evidence was that when he arrived at the nightclub and was attempting to arrest the original troublemaker, these three accused came out of the nightclub and started attacking him. He was asked, in evidence in chief:

"Q. Who was the first person you met?

1. As these three guys came out this person I was talking to (the original troublemaker) turned around and went into the nightclub. As I went over to try to bring him out, that's when the other three started punching me."
   

In cross-examination, however, Constable Sili said that 'Anituanai was the only one who punched him at that stage and then he (the constable) started running towards the police vehicle. The matter was picked up again by Crown counsel in re-examination in the following exchange:

"Q. You're saying 'Anituanai punched you. Are you saying that the other two punched you as well?

1. No, I ran. I ran because I knew the others would be attacking me as well."
   

As can be seen from these extracts, there is the conflict in Constable Sili's evidence about who punched him by the nightclub before he ran over to the police vehicle. In chief, he said that it was the three accused who he proceeded to name but later he said that it was only 'Anituanai. To complicate matters further, whereas Constable Sili said that Mahe was one of the three accused who came out of the nightclub right at the start and began punching him, Constable Fifita who did not arrive on the scene until sometime after the attack on Sili, said in his evidence that as he was getting out of his vehicle, he noticed Mahe coming out of the nightclub.

These passages from the evidence show how notoriously difficult identification can be at times. The courts recognise and accept that an honest witness who is convinced of the accuracy of what he says may well come across as a convincing witness but he may still be mistaken. If one such witness may be mistaken, so can a number of them.

In the course of this particular trial an incident occurred that demonstrated quite dramatically how easy it is for even experienced witnesses to make genuine mistakes in recognising people. One of the more senior police officers identified an onlooker wearing a blue shirt in the public gallery at the back of the court as one of the army boys who had been involved in the altercation with the police at Wellington Road. Perhaps, not surprisingly, that particular member of the public did not return to court the following day.

The trial also appears to have thrown up what can only be described as a much more serious case of mistaken identity. I indicated earlier that I would need to come back to the case against the accused, Manu Saluni. I now do so. Saluni gave and called reliable evidence to the effect that he was nowhere near the Phoenix nightclub on the night in question. He was drinking with a friend, also an army officer, at Wanda's bar in the Pacific Royale hotel in Taufa'ahau road. At one point in the early hours of the morning, the friend, who was drunk, began to cause problems in the bar. Saluni took him outside to await the arrival of a taxi to send him home to bed. Saluni was intending to go back into the bar after the taxi arrived. He told the court that while he was on the footpath at the front of the hotel waiting for the taxi to arrive, three police officers came along and beat him up until he blacked out. He did not regain consciousness until sometime around 10 AM that morning.

The bar manager and a staff worker at the hotel who were both on duty that night gave evidence corroborating Saluni's version of events. They confirmed that he had not left the hotel bar at any stage. I found both these witnesses to be entirely credible and I accept their evidence. I am satisfied that Saluni had no involvement whatsoever in the fight at the Phoenix nightclub or in the subsequent skirmishing in Wellington Road. He produced photographs taken four days after the incident which showed that he had suffered a severe beating around the eyes.

Being as charitable as I can, it would appear to be a case of mistaken identity on the part of the police officers involved but once again there can be no excuse whatsoever for such reprehensible behaviour by law enforcement officers. I cannot take the matter any further at this point because, unfortunately, none of this evidence was put to the constables involved in cross-examination. It should have been and they should have been given the opportunity of responding. It is for this reason that I refrain from naming the police officers in this judgment.

For the various reasons just stated, I have reached the conclusion that it would be unsafe for me to rely upon the identification evidence of any of the Crown witnesses unless there is other reliable evidence which goes to support the correctness of the particular identification in question. In R v Turnbull [1976] 3 All ER 549,553 Lord Widgery C.J. delivering the judgment of the court said that such evidence, "may be corroboration in the sense lawyers use that word; but it need not be so if its effect is to make the jury sure that there has been no mistaken identification."

Against that background and the principles applied in the Turnbull case, I now turn to consider the specific charges against the various accused:

Kilino Patolo

Count 1 charges Patolo with causing wilful damage to "a vehicle P1222 amounting to $4297.00." In his statement to the police, Patolo denied causing any damage to the vehicle. For the reasons already stated, the evidence relating to vehicle damage falls well short of establishing the charge against the accused. Patolo is acquitted on Count 1.

Count 2 is a charge of assaulting a police officer in the execution of his duty. The officer named in the particulars is 'Ofa Fifita. I found Constable Fifita's identification reasonably reliable and I find supporting corroborative evidence in Mr Patolo's statement to the police and in his evidence before the court. I do not accept Patolo's explanation in evidence that Constable Sili first challenged him to a fight. The second charge against Patolo has been proven to my satisfaction beyond reasonable doubt and he is convicted on Count 2.

Tevita Mahe

Mahe is charged with one count of assaulting an officer ('Ofa Fifita) in the course of his duty. Mahe admitted in his statement to the police that he attacked police officer Sili. In explanation he said that he was remorseful but he was drunk at the time. In the summons issued in the Magistrates' Court, Mahe was charged with the assaulting Sili but in the indictment he is charged with assaulting officer Fifita. The evidence was that Mahe, in his drunken state, threw a punch at Fifita which missed. Crown counsel accepted in his closing submissions that there was no evidence of an assault by Mahe on Fifita but for some inexplicable reason he did not, at any stage, seek an amendment to the indictment to substitute Sili's name for that of Fifita.

It is not for the court to patch up the Crown's case. In any event, it is too late now to amend the particulars because the trial is over. The test to be applied in relation to incorrect particulars is whether the defence would have been prejudiced by the erroneous description of the offence. Given the critical role that identification played throughout the trial, it would be quite impossible for me to conclude without hearing submissions from counsel, that the defence would not have been prejudiced by a late amendment to the particulars in the indictment to show the victim of the assault as Sili and not Fifita. There is no explanation before the court as to why the police officer named in the indictment is Constable Sili whereas the officer named in Mahe's admission to the police and in the original Summons was Constable Fifita.

For these reasons, the accused Mahe is acquitted.

Manu Saluni

I have already made it clear that Saluni has been the victim of a grave injustice. The charge against him should never have been brought. He is acquitted and discharged.

Saia 'Anituanai

This accused faces two charges. Count 1 alleges conspiracy to cause wilful damage to police vehicle P1222. For the reasons already stated, the evidence for the Crown was insufficient to establish any charges in relation to the police vehicle and the accused is, therefore, acquitted on Count 1 .

Count 2 alleges conspiracy to assault Constable Sili. Constable Sili identified 'Anituanai as one of his attackers but I have referred earlier to the inconsistencies in the Constable's evidence on identification which makes it imperative for me to seek sound corroborative evidence before I could convict. In his statement to the police, 'Anituanai said that when he went outside the nightclub the fighting was already over. In the document which is traditionally referred to as a "so-called confession", the accused said, "I feel guilty of what I did." In evidence he explained that he was at that point referring to what had happened later on in the altercation at Wellington Road rather than at the nightclub. I accept that explanation because Wellington road was the last topic dealt with in his record of interview. There is no admission by this accused anywhere in his record of interview of any involvement in the fight at the nightclub and he was not identified by any other Crown witness.

As there is no reliable corroborative evidence of any assault by the accused on officer Sili, he is acquitted on Count 2.

Sione Langi

The accused Langi faces two charges. Count 1 is conspiracy to cause wilful damage to police vehicle P1222. For the reasons already mentioned, he is acquitted on that charge.

Count 2 alleges conspiracy to assault Constable Sili acting in the execution of his duty. There is no corroboration whatsoever of Sili's evidence that Langi was one of his attackers. None of the other Crown witnesses make any mention of him. In his statement to the police, Langi says that he was "dead drunk" on the night in question and he was still inside the nightclub when the fighting occurred outside. He said that he was not involved in the fighting and after the dancing concluded he was taken back to Sene army camp by another army officer, Hola Iketau. Langi said that on his way back to the camp he was caught up in the melee at Wellington Road and arrested.

Langi's colleague, Hola Iketau, was not going to be called as a witness because he had earlier, apparently, been unavailable. In the end, he was called at the instigation of the court as the final witness in the case. He was an impressive witness. He was one of the few, it seems, army officers who had not had anything to drink on the night in question because he was on an exercise early the following morning. Iketau confirmed Langi's evidence in every respect. He said that Langi was drunk on the night but he was sitting beside him at the same table and he (Langi) did not go outside at any time. Iketau confirmed that it was he who accompanied Langi back to the army camp. He explained that as he was very drunk he did not want to let him go by himself "in case he might get injured." I accept that explanation. I am satisfied that Langi was not involved in the attack on Constable Sili and he is acquitted accordingly.

In summary, therefore, Patolo is acquitted on Count 1 of the two charges he faces but he is convicted on the second count. The other accused are all acquitted on the charges they face and are discharged accordingly.

NUKU'ALOFA: 10 JULY 2003

JUDGE