Rex v Tau'atevalu [2003] TOSC 9; CR 018 2002 (11 March 2003)

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

NO.CR.18/2002

REX

-V-

KALAKAUA TAU'ATEVALU

BEFORE THE HON. JUSTICE FORD

Counsel: Mr Sisifa for the Crown and
Mr Veikoso for the accused.

Dates of hearing: 12, 13, 24, 25 February and 3 March 2003.
Date of judgment: 11 March 2003.

JUDGMENT

It is alleged by the Crown that on 13 September 2001 at Ha'ateiho, the accused, without any lawful justification, caused bodily harm to the complainant, Yu Hai Wang, by striking him on the face with a piece of timber. He is charged with one count of causing bodily harm contrary to section 107 (1) and (2) (b) of the Criminal Offences Act (CAP.18).

The principal witness for the Crown was the complainant himself. He was cross-examined at considerable length. Although he had some knowledge of the Tongan language, the court was fortunate, indeed, to have the services of a very capable Chinese interpreter.

Mr Wang explained to the court that prior to June 2001 he had worked for some three years delivering bread for a Mr Helu, who he referred to throughout the hearing as "the boss". Mr Helu saw Mr Wang as an important connection with the Chinese shop owners to whom he supplied bread.

Sometime around the end of May 2001, Mr Helu left Tonga to go to New Zealand for six months. He wanted Mr Wang to take over the bakery business while he was away. Mr Wang was agreeable but he insisted upon having a written agreement. A six-month trial period, therefore, was agreed to from 24 May 2001 and if that turned out to be successful then a longer term contract was going to be signed up. The court was told that under the agreement, which was reduced to writing, 60 percent of the profits, after expenses, were paid to the "the boss" in New Zealand and 40% were retained by Mr Wang.

Mr Wang said in evidence that after Mr Helu left for New Zealand he worked hard in the bakery business sleeping only about three hours a day. On many of the days that the bakery machinery was operating he actually slept in his van on the bakery premises at nights instead of going home to his wife. The witness confirmed that he paid all the business expenses as they fell due including, which was significant in the context of this case, the monthly rent for the premises.

Mr Wang then explained to the court how on 9 September 2001 the bakery business had come to an abrupt halt. Apparently, a small machine used for grinding the wheat had broken down. A tradesman was called in to look at repairing the mechanism but he recommended a total replacement. Mr Wang contacted Mr Helu in New Zealand and arranged for him to send over a replacement machine. In the meantime, the bakery was out of action and so he locked the door to the premises.

On the morning of 13 September 2001, which was a Thursday, Mr Wang went to his bank in Nuku'alofa with the boss's son, Vili, (who also worked in the bakery) and arranged for $1000 to be transferred to Mr Helu's account in New Zealand to cover the cost of the replacement machine. He and Vili then returned to the bakery. Mr Wang told the court that when he attempted to open the door to the bakery he found that the lock had been changed. Upon looking through the window he was then surprised to see that bags of flour, yeast and sugar, which had been on the premises, together with a drum of diesel, were missing. At that point, he decided to see the landlord to find out what was going on. Vili suggested that they should come back that evening when the landlord's son would be home from work.

That evening at sometime between 7:30pm and 8pm Mr Wang and Vili, together with a nephew who had just arrived from China and another worker, drove around to the bakery to see the landlord's son. At that stage he was living in the house at the back of the bakery. Mr Wang referred to both "the landlord" and "the landlord's son" but he acknowledged that he was not sure exactly who owned the premises because he had paid rent to both the father and the son. In court, however, he identified the landlord's son as the accused in this case. He explained that his boss in New Zealand had been the one who had had all the dealings with the landlord and he (Mr Wang) had no idea of the terms of the underlying tenancy agreement that had originally been made between the boss and the landlord. He said that all he did after the boss left for New Zealand was to make sure that the rent was paid each month.

Returning to the narrative, Mr Wang then told how, after the van arrived at the bakery on the evening of the 13th , Vili proceeded to enter the compound while he and the others remained in the van. After a period he saw Vili and the landlord's son (the accused) in the compound yard and he could hear them speaking in Tongan. At that point, he got out of the van and walked towards the entrance gate which was closed but not locked. Mr Wang said he then started to ask the accused, who was standing on the other side of the gate, what was happening but before he could open his mouth, the accused yelled out the Tongan word for "arsehole" and struck him across the face with a length of timber. Mr Wang was not certain exactly what part of his face had been hit because he immediately lost consciousness but his recollection was that it was the left side. He apparently then regained consciousness for a short time only because his next recollection was waking up in hospital. He described the piece of timber as being of a similar size to the narrow end of the leg of one of the tables in the courtroom, which would have given it a diameter of between two and three inches. He explained that the accused had been standing on the inside of the gate at the time and the gate was closed but, as he was a big man, he had been able to swing the length of timber down over the top of the gate onto the witness's face.

Mr Wang was taken to Vaiola hospital. He described how he suffered fractures of the left cheekbone and a cut on his right eyebrow which required stitching. After the initial admission to hospital, where he remained for three days, he was readmitted for a further three days on 21 September and a metal plate was inserted in his left cheek. It remains there today. Mr Wang described the nature of the pain and discomfort he has endured.

The Crown called Dr Fakakovikaetau who treated Mr Wang at Vaiola hospital and carried out the operation. He told the court that upon admission, the patient was found to be suffering from a facial swelling and bony fractures in the left cheek region, he also had a deep laceration to his right eyebrow and swollen eyes. The doctor said that in his opinion the injuries to Mr Wang's left cheek resulting in the compressed and fractured bones could only have been brought about by means of "huge force". In cross-examination he explained that, given the complainant's small build and his weight of only 61 kilos, it was not possible for the cheek injuries to have been caused simply by a fall onto gravel or rocks unless the fall was from a height of at least 10 m. The doctor described the injuries as "serious" and said that they would have required more than one blow to the facial area. I am satisfied on the medical evidence that the injuries sustained by the complainant amounted to "harm" within the definition of section 107 2 (b) of the Criminal Offences Act.

As with any criminal case, the onus remains upon the Crown throughout to prove all the essential elements of the charge beyond reasonable doubt. There is no onus on an accused person to give or call evidence. In this case, the accused made statements to the police which were produced to the court and he gave and called evidence. An unusual feature of the case, perhaps, was that the accused admitted assaulting Mr Wang by striking him on the face with the piece of timber but he maintained throughout that the assault was justified and not unlawful because he was using reasonable force in defence of his property.

Defence of property is a recognised defence at law to a charge of assault. The principle is summed up in the following passage from Halsbury, 4th edition, Vol 11(1) para 499:

"A person is justified in using reasonable force in defence of his property, as for instance in removing a trespasser or preventing his entry or restraining another from taking or destroying his goods. No more force may be used than is necessary for the purpose."

The 31-year-old accused is an economist with the Ministry of Agriculture. He told the court that he owned the bakery in question and he had an agreement with Mr Helu under which the latter had the use of the bakery for one year from 2000 to 2001. He did not give the specific dates of the agreement but he indicated that it had expired in June 2001 when Mr Helu went to New Zealand. He said that since June 2001 Mr Wang and Helu's son, Vili, had operated the bakery without his approval or without paying any rent. The accused said that he had tried to talk to the "Chinese man" four or five times about the matter but he would simply run away and not discuss it.

Referring to the day of the assault, the accused said that in the morning he had been in a funeral procession and, as the vehicles had passed his bakery shop, he had seen Mr Wang and Vili "breaking into the bakery" but he could not leave the procession. He said that when he eventually arrived back at the bakery he noticed, "a lot of damage and things lost". He, therefore, decided to stay in the bakery house that night.

Referring to the actual assault, the accused told the court that about 7pm that same evening he was asleep in the house at the back of the bakery when he heard noises. He said that he then came around and saw Vili and the two Chinese men. They had climbed over the fence into the bakery compound. He said that he called out and asked them who they were and Vili responded by giving his name and then telling him not to shout back otherwise they would come and hit him. The accused said that at that point he told them to leave the premises and Vili said something back to him. The accused admitted that he then lost his self-control and he ran after them. He said that Vili and the other Chinaman jumped over the fence but he caught the complainant inside the compound and he hit him with a piece of timber that had been used to hold open one of the windows. He said that he hit him once and he fell down. He then chased after the others but could not locate them. When he returned to the bakery, the complainant was still lying on the ground in the same spot. The accused said that he felt sorry for him and so he asked two people nearby to take him to hospital which they duly did.

In his confession to the police, the accused gave six reasons as to why he had assaulted the complainant. He reaffirmed in evidence that, in his view, these reasons justified his attack. The reasons given (as translated) were:

"1. He broke into my bakery.

2. Trespassing into my bakery without any reason.
   
3. Operating the bakery without any authorisation from me without any lawful lights.
   
4. Not paying the electricity or water bills.
   
5. I have agreed (with the accused) to talk but he keeps avoiding me.
   
6. He operates the bakery and so many things have broken down e.g. the oven."
   

In cross-examination, the accused acknowledged that Mr Wang had operated the bakery for some four months after Mr Helu had left for New Zealand. In re-examination he revealed that at the end of May 2001 he had gone to a conference in Israel and he had not returned to Tonga until only 2 1/2 weeks prior to the day of the incident. That evidence had never been put to the complainant in cross-examination and it is inconsistent with other evidence before the court. I do not accept it. The accused did disclose, however, that it had been his father, Vai Lisiate, who had changed the lock to the bakery.

In general, I did not find the accused to be a credible witness and I reject his account of the incident. I do not even accept that he is the owner of the bakery. A neighbour called on behalf of the accused told the court that the bakery is owned by the accused's father, Vai Lisiate, and Vai confirmed that in his own evidence. Vai also confirmed that it was he who had entered into the verbal tenancy agreement with Mr Helu.

I found Vai to be no more credible than the accused. He told the court that his agreement with Mr Helu had expired back in January 2001 and he said that in February 2001 he had changed the lock on the bakery door and the building had never been used again since that date. Again, that proposition had never been put to Mr Wang in cross-examination for his reaction but, in any event, I simply do not believe that evidence.

The neighbour, Kalolo Tatola, called on behalf of the accused said that on the morning of the incident he had seen the complainant holding open the screen on the window of the bakery so that Vili could get inside. This was the so-called "break-in" which the accused had referred to. Mr Tatola was not able to explain how Vili had been able to climb in through the louvred window. He said that he did not see anything happen to the louvres. In general, Mr Tatola appeared to be a credible witness but I find that he was confused or mistaken in his evidence about Vili entering into the bakery building. There was no "break-in" on the morning of the incident.

Having rejected the accused version of events, it is then still necessary for me to consider whether the Crown has proved all the elements of the offence beyond reasonable doubt. I have no difficulty in reaching this conclusion. I studied closely the demeanour of the complainant, Mr Wang, during his lengthy cross-examination and he impressed me as a truthful witness. He was perhaps naive in trusting Mr Helu without checking out the basis of the underlying tenancy agreement between he and Vai Lisiate, but I accept that he paid his rent as it fell due. I also accept his account of the events of the morning of the incident and of the assault itself. The accused's father had changed the lock on the door at some stage during the previous 3 or 4 days. I suspect that either he or the accused himself was responsible for the missing flour and other items which Mr Wang had been using in his bakery business.

In any event, if there were problems of the type described by the accused in his six point explanation to the police then they did not justify the brutal, gratuitous, unprovoked attack upon Mr Wang. The accused could have called in the police or taken appropriate civil action. In cross-examination, he said that he had, in fact, laid a complaint with the police on the day of the incident but I do not believe him.

On the facts as I have found them to be, there is simply no way in which it could be said that the accused was justified in assaulting the complainant. Even had there been some justification, which I do not accept, I would have found the use of the piece of timber as a weapon to be excessive force. The accused is a large, well built young man. He would have had no difficulty whatever, in my view, in physically subduing the slightly built 61 kg complainant.

The Crown has succeeded in proving its case and the accused is convicted accordingly.

NUKU'ALOFA: 11 MARCH, 2003

JUDGE