Rex v Vakalahi [2004] TOSC 28; CR 228 2003 (7 June 2004)

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

NO. CR 228/03

BETWEEN:

REX
Prosecution

AND:

SEMISI VAKALAHI
Accused

BEFORE THE HON MR JUSTICE FORD

Counsel: Mr Sisifa for the Crown and Mr Kengike for the accused

Dates of hearing: 2 and 3 June 2004
Date of judgment: 7 June 2004

JUDGMENT

The accused is charged with one count of bodily harm contrary to section 107 of the Criminal Offences Act (CAP.18). In the particulars of the offence in the Indictment, it is alleged that on 29 November 2002 at Navutoka he wilfully and without any lawful justification caused bodily harm to Vanisi Keinga by stabbing him on his left shoulder with a knife. The accused admitted causing the stab wound to the victim but he contends that his actions were justified because he was acting in self-defence.

Some months prior to the hearing, Crown counsel informed the court at a Directions Hearing that the complainant, Vanisi, had left for New Zealand but the prosecution, nevertheless, intended to proceed with the case in his absence. On the first morning of the hearing, Crown counsel informed the court that he had just learned that the complainant had returned from New Zealand and he was available to give evidence. Vanisi was called as the Crown's first witness. It turned out to be an inauspicious start to the Crown's case.

Vanisi told the court that he was 22 years of age and the only thing that he recalled about the 29th of November 2002 was that he had been drinking Bounty rum with other boys, starting between 6 and 7 p.m. and then waking up in hospital later that night. He said that he had a "small injury" to his left shoulder but he had no idea what had caused it. He said that he was still drunk at the hospital.

Vanisi was an unimpressive witness. No application was made to have him declared hostile but I simply do not believe that he had no recollection, whatsoever, of the events giving rise to this prosecution.

In cross-examination, he confirmed that the families had reconciled and apologised to each other over the incident. He also admitted to having pleaded guilty to charges of drunkenness and causing a disturbance that had been made against him in a private prosecution brought by the accused arising out of the same incident. There is another charge of assault still pending in the Magistrates' Court which has been held up because of the complainant's absence in New Zealand.

The Crown called two eyewitnesses and the police investigating officer. The accused elected to give evidence and other evidence was given on his behalf by his wife and his mother who were both eyewitnesses to the whole incident. There was little dispute of any significance in the evidence given by these various witnesses apart from whether or not the complainant had attacked the accused before the stabbing occurred.

The 28-year-old accused, Semesi, told the court that he has owned a shop at Navutoka for approximately two years. He lives with his mother, wife and children in a house adjacent to the shop. It was not clear from the evidence whether the house is actually behind the shop or alongside it.

In all events, on the evening in question at some time, most likely between 8:30 p.m. and 9 p.m., the accused, his wife and their eldest daughter, who was then two years of age, were sitting on the verandah in front of the shop eating pineapples. There was a suggestion that the accused's younger brother may have been with them but the evidence was unclear on that point. The accused was cutting the pineapple with the knife that they used in the shop. His mother was sitting on the verandah of the house close by.

The scene was suddenly disrupted by the noisy arrival of the drunken complainant. He was swearing at the accused and threatening to beat him up for telephoning his (the complainant's) mother and complaining about his drinking. It was an allegation which the accused denied but, because of the threats, the accused's mother came over and apologised to the complainant so that he would go away. He did so.

Some time later (the estimates varied from between five minutes to half an hour) the complainant returned, still in a belligerent state, swearing and threatening the accused. The accused stood up and was standing on the verge between the verandah of his shop and the road. He began apologising to the complainant again trying to calm him down so that he would leave. The complainant, however, walked up to him and threw a punch at him with his left first. The accused was able to dodge the first punch but the complainant then threw another punch with his right fist and hit the accused on the left side of his neck. The accused, still reeling from the blow, reached out with the knife he was holding and stabbed the complainant on the outside of his left upper arm.

The complainant fell backwards down onto his hands and then stood up and ran off. The accused stood back and stayed at the shop.

The accused's mother who had ran over to the shop and witnessed the whole attack from a close distance had started calling out for help before the complainant threw the first blow. She heard the threats that he was making and she told the court that she felt sorry for her son. She was calling out for help from her brother, Sitani, who lived nearby. Sitani did arrive on the scene after the attack and he chased after the complainant. He eventually returned with him and the complainant apologised to the accused who by that time was back inside his shop.

The accused's mother then paid a neighbour $10 for him to take the complainant to hospital. The accused's mother accompanied him together with another witness. At the hospital, the wound was checked but it did not require any stitching or other treatment. A strip of adhesive plaster was applied to the cut and the complainant was allowed to return home.

That is a narrative of the facts as I find them. The two Crown witnesses did not see the complainant strike the accused before the stabbing but I am satisfied that that is what happened. They were not as close to the scene as the accused's wife and mother. The accused and his witnesses seemed totally credible and I have no doubt that it was the complainant who struck the first blows in the manner they all described. That version of events is also corroborated by the accused's own statement to the police where he admitted causing the injury with the knife but said that the complainant had attacked him first.

Against that factual background, the issue I now have to determine is whether the accused can rightfully claim, as he does, that his actions were in self-defence and, therefore, justified.

Although self-defence is referred to as a "defence", it is not for the accused to prove that he was acting in self-defence. If the issue of self-defence is raised by the evidence, as it clearly was in the present case, then it is for the Crown to prove, beyond reasonable doubt, that the accused was not acting in self-defence. If the Crown does not exclude that as a reasonable possibility then the accused must be acquitted.

Mr Sisifa referred the court to the well-known description of the law relating to self-defence pronounced in Palmer v R [1970] UKPC 2; [1971] AC 814. In delivering the judgment of the Privy Council, Lord Morris said, at p.831:

"It is both good law and good sense that a man who was attacked may defend himself. It is both good law and common sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances."

Mr Sisifa placed particular emphasis on the following further extract from the judgment:

"If there is some relatively minor attack, it would not be common sense to permit some act of retaliation which was wholly out of proportion to the necessities of the situation."

Crown counsel, whilst accepting that every case must depend upon its own facts, submitted that, in the circumstances of the present case, the appropriate retaliation to the attack by the complainant, would have been punching back, rather than retaliation with a knife. There is support for counsel's submission in R v Whyte [1987] 3 All ER 416 which was a case where, as stated in the head note, "the defendant stabbed a man with a lock-knife, the blade of which was already open, when the man punched him in the face."

In delivering the judgment of the Court of Appeal, Lord Lane, after succinctly analysing the facts, said:

"It is perfectly plain that on any view the use of an already prepared knife, the blade having been extended, in circumstances such as this, could not possibly be reasonable under any circumstances, whether the direction in Palmer v R was given or not."

The reference Lord Lane makes to "the direction in Palmer v R" is significant in the context of the present case. What his Lordship was there referring to was a further passage from the judgment of Lord Morris, referred to above, setting out a qualifying factor relevant to the issue of whether the force used in a particular case was reasonable.

The qualifying factor needs to be considered in the context of the law which does not give people a blank cheque to use as much force as they like, even if they are defending themselves. There must be a reasonable balance between the threat as the accused believed it to be and the force used to meet it.

Lord Morris's "qualifying factor" referred to in the passage above appears in Palmer v R at p.832:

"If the jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary, that would be most potent evidence that only reasonable defensive action had been taken."

As it turns out, there was a most unusual feature to the present case. It became apparent to the Court as soon as the accused was called to the witness box. It was noticed that he favoured his left side, his left arm appeared withered and his left hand was significantly deformed.

In evidence, the witness explained that he had suffered from polio when he was only nine months old and he has lost some of the use of his left side. His wife described him as being partially paralysed on the left side. His mother did not refer specifically to the polio but it was a fair inference from her evidence that that is why she felt protective of her son and began calling out to her brother for help. The blow from the complainant had struck the accused on the left side of his neck.

I am left in no doubt that the actions of the accused in this case fall precisely within the qualifying direction given by Lord Morris. Not being able to properly defend himself, the accused, in a moment of anguish, instinctively struck out with the knife he had been using and stabbed his attacker on the upper arm. I am satisfied that it was not an act of pure aggression or angry retaliation. It was, instead, an instinctive, understandable and totally defensive reaction to an unprovoked attack by the complainant.

In short, I am satisfied that the accused was acting in self-defence and he is, accordingly, acquitted.

NUKU'ALOFA: 7 JUNE 2004

JUDGE