Rex v Makafilia [2004] TOSC 46; CR 070 2002 (1 October 2004)

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

NO. CR. 70/2002

BETWEEN:

REX
Prosecution

AND:

SALESI MAKAFILIA
Accused

BEFORE THE HON MR JUSTICE FORD

Counsel: Miss Simiki for the Crown and Mr Kengike for the accused

Dates of hearing: 1, 10 and 24 September 2004
Date of judgment: 1 October 2004

JUDGMENT

There was a sharp conflict in this case between the evidence called for the Crown and the accused. Ultimately, the outcome is going to be a credibility issue.

The accused is charged with one count of causing bodily harm contrary to section 107(1) and (2)(d) of the Criminal Offences Act (CAP. 18). It is alleged that on the night of Tuesday, 7 May 2002, he wilfully and without lawful justification caused harm to the complainant, Viliami Tupou, by stabbing him with a knife on his shoulder, arm and chest.

The case for the Crown is that on the night in question the accused and others were drinking alcohol, swearing and making a loud noise in a house in Tofoa. At one stage during the evening a neighbour had called the police and the noise died down while the police were at the scene. The disturbance then resumed.

The victim lived on his grandparents' property right next door to the house in question. He became concerned, in particular, about the swearing because brothers and sisters lived close by and in Tongan tradition any swearing in the presence of brothers and sisters or female and male cousins is strictly tapu.

During the hours of 10 and 11 p.m., the complainant and his friend approached the house. The complainant knocked on the door and asked the accused if he could keep the noise down and stop the swearing. His friend had remained standing some distance back from the house. As the complainant then headed back towards his own home, his friend yelled at him to watch out because there were people coming from behind him. The complainant then turned around and struck the accused with his fist. The accused retaliated by stabbing the complainant a number of times with a knife in various parts of his body. The complainant was later rushed to hospital in a taxi where he was admitted and his wounds treated. He was discharged from hospital approximately two weeks later.

The 21-year-old complainant, Viliami Tupou, gave evidence substantiating the Crown's case and adding more details. He said that when he knocked on the back door he could see the accused and his brother-in-law in the house drinking. He yelled at them to stop their swearing and the noise. The accused came to the door and asked him what business he had interfering and at the same time he proceeded to shut the door.

Viliami told the court that as he did not want to become involved in a fight he turned and started walking back towards his home. The next thing he recalled was being confronted by the accused's sister, Kalo, who had appeared from around the side of the house. He said that Kalo had asked in a threatening manner why he had come to their house and she yelled out that they would "beat the shit" out of him.

The complainant told the court that he started to explain to the sister that he had only come to ask them to stop the noise and the swearing. At that point he saw the accused and the accused's brother-in-law (the sister's husband) come out of the house. The accused yelled at him that they would fight to the death. The complainant then continued walking away towards his own home when he suddenly heard his friend, Mo'ui, yell out to him. He turned around and saw the accused and the brother in law were coming after him. He asked why they were coming and the accused replied, "we will fight." Viliami said that he then told Salesi (the accused) that, “we must fight” and I punched him on the head. He said that the accused then stumbled back but he did not fall down and when he came forward again he, Viliami, felt a sharp object pierce his chest and he realised that he had been stabbed with a knife.

The complainant told the court that he immediately felt dizzy and he stumbled back and fell to the ground on his left side. He then felt the accused stabbing him again on his right arm, right shoulder and right hand and the side of his face. The complainant said that the injuries to his right hand were the most severe. The knife had torn into his hand and the wound was bleeding profusely. Scars from the various stab wounds were still visible on the day the complainant gave his evidence which was some 28 months after the attack.

The complainant said that after the attack he managed to crawl to the fence around his grandparents' house and then climb over the fence. As he escaped from the scene he could still hear the accused yelling out, "where are you; we will fight. Tonight I will kill you." The witness said that he did not want to disturb his grandparents because they were elderly and had high blood pressure and so he managed to call a taxi which took him to Viola Hospital. He confirmed that he was in the hospital for almost two weeks.

The complainant's friend, Mo'ui, also gave evidence for the Crown. He confirmed all the evidence given by the complainant leading up to the attack. He said that as the complainant had started walking back towards his grandparents' house he noticed the accused and the others were following him and so he yelled out to the complainant to watch out. He then described how the accused had attacked the complainant with the knife. At one point he heard the accused yell out to his attacker to stop stabbing him. In cross-examination Mo'ui described the knife as being around 10 inches in length with a metal pointed blade approximately 1 inch wide at the end nearest the handle.

The complainant had said in evidence that Mo'ui had run off during the attack and he had not seen him again that night. In his evidence, however, Mo'ui told the Court that he had witnessed the whole incident and when the complainant jumped over the fence into his grandparents' property they had both ran to the house and then to a little hut on the same allotment that they had both been living in. Mo'ui said that he checked out the accused's injuries and noted all the blood. He recalled the complainant telling him that he was feeling dizzy. Mo'ui wrapped some cloth around his friend's hand to try to stop the bleeding but he was unsuccessful. He then took him to Viola Hospital.

I accept Mo'ui's description of what happened after the attack. I suspect that the complainant's memory of those particular events may have been affected by his state of shock and dizziness.

As in any criminal case, the Crown is required to prove all the essential elements of the charge beyond reasonable doubt. In a charge of causing bodily harm, the Crown must prove that the accused caused, and intended to cause, harm to the victim. The actus reus need not necessarily be an assault because assault is not a prerequisite of the offence but, as the learned authors of Blackstone's Criminal Practice (1993) note, (para B2.34): "it is difficult to imagine a direct wounding or infliction of harm which would not constitute an assault.

"Harm" is defined in section 107(2) of the Criminal Offences Act. The definition is broad enough to include serious or permanent injuries as well as wounds which are not severe. In her closing submissions, Crown counsel sought leave to amend the indictment so that it referred to paragraph (c) of the definition of "harm" (any wound which is not severe) instead of paragraph (d) (any permanent disfigurement which is not a serious nature (sic). Mr Kengike did not consent to the amendment because the application was being made at such a late stage. Instead he indicated that he would leave it up to the court. I am satisfied that the amendment is appropriate in the interests of justice and that the accused will suffer no prejudice because of its timing. I, therefore, allow the amendment.

The essential elements of the offence of causing bodily harm are not really in dispute because the accused admits to wilfully stabbing the complainant with a knife but he relies upon the defence of self-defence. In evidence, the 27-year-old accused told the court that the house in question was his former family home but it is now occupied by his sister, Kalo Vakaola, and her husband. It is a one-room house made of roofing iron.

On the night in question the accused, who lives with his parents in Sopu, visited his sister and brother-in-law's house along with two friends from 'Eua who were brothers. He said that the four men began drinking around 8 p.m. and by 10 p.m. they had consumed two one litre bottles of gin. He denied that they were swearing or making any loud noises either prior to or after the police visit. He told the court that they were "playing music and just talking nicely."

The accused said that around 9 p.m. someone had thrown an object onto the roof of the house and he had gone outside but he could not see anyone. He said that around 10 -- 11 p.m. the two friends from 'Eua, who were intoxicated, had gone outside the house to leave. He said that his sister followed them to try and persuade them to go back inside the house but they had disappeared.

The accused said that he then heard someone banging on the door with an iron bar and he heard the person shout out, "open the door or I'll beat the shit out of you." The accused said that he recognised the voice and knew that it was the complainant. Shortly after that he heard his sister telling the complainant to get off her property otherwise she would lay charges against him. He heard the complainant respond to his sister, "get away or I'll beat the shit out of you."

At that point in time, according to the accused, he was cutting meat to cook for them to eat and he said that he opened the back door and saw the complainant. The complainant then started to walk back a short distance towards his own home. The accused said that the complainant told him to stop making noises or he would come and beat the shit out of them. The accused said that he told him to stop swearing and go home because he was not a policeman and they could not come and stop them making a noise. The transcript of the accused's examination in chief then continues:

“Q. Did Tupou (the complainant) say anything else?

1. He said to me you arsehole, I am coming tonight to beat the shit out of all of you. That's when I knew he was not going to get out of the house and that's when I walked towards him.
   

Q. At the time, when you exchanged words with the complainant where were the people you were drinking with?

A. They were staying outside the house.

Q. What happened when you walked towards Tupou?

A. I walked towards him to make him go so he would stop swearing on our property.

Q. Did you do anything?

A. I was just talking with him.

Q. What were the words that were spoken?

1. As I walked towards him he was standing there with an iron bar." (At that point the witness described the dimensions of the iron bar as being the same length as the width of the witness box (approximately 3 ft.) and the diameter of his arm). He continued:
   

He was still holding the bar as I walked towards him. We were standing face-to-face; I was right in front of him. I told him, "you go home and stop interfering.

Q. What did they complainant say?

A. He did not say anything. He attacked me and hit me with the iron bar.

Q. How did he hit you?

1. He was holding the iron bar with his two hands. He attacked me with the iron bar, hit me and it landed on my left shoulder.
   

Q. What did you do?

1. I told him to go. After I told him to go he then attacked me a second time and hit me again with the iron bar and then I raised up my hand to protect myself and it landed on my arm. After that I did not do anything to him I was just telling him again "go home, if you want us to stop making noises you go and call the police because you are not a police officer to come and tell us to stop, that's a police officers' job." He threw the iron bar and he attacked me with a punch that landed on my left jaw.
   

Q. What happened to you?

1. When he punched me on the jaw, I doubled back and I noticed him attacking me again with another punch that was about to land on my face.
   

Q. What happened?

1. When he attacked me I was holding the knife in my hand. He punched me again and after that, that's when I stabbed him with the knife.
   

Q. And what happened?

1. When I stabbed him with the knife maybe that's when he felt he was injured and he turned around and ran.
   

Q. Where did he runs to?

A. He ran and jumped over the fence to go into their house.

Q. It is true that the injuries that he showed here in court were caused by the knife that you had?

A. Yes.

Q. What did you feel when he left your house?

A. When he jumped over the fence I felt that I was satisfied.

Q. Did you try to get him back?

A. No.

Q. What happened to you?

1. I came and went inside the house, it was dark outside, not really dark but I could not see clear. When I went inside the light was on and I was able to see. At that time I was not aware that the complainant was injured. When I went into the house I saw blood on me. That's when I realised that Tupou was injured.
   

Q. Did your brother-in-law, two friends and sister come inside the house again?

A. Yes.”

That, essentially, was the description of the incident given by the accused in his evidence in chief.

In cross-examination he revealed for the first time a further alleged aspect of the case. He told the court that as the complainant ran off towards his house after the stabbing he (the complainant) was attacked and beaten up by the two brothers from 'Eua. Then, as the complainant climbed over the fence, his clothing became caught in the fence and the two brothers from 'Eua attacked and beat him up again. The accused said that he shouted at his two friends to come back. In re-examination the accused said that it was the complainant's feet that had become caught in the fence.

Crown counsel, in cross-examination, challenged the accused on virtually every aspect of his evidence. She put it to him that he had not said anything in his statement to the police about the complainant having an iron bar or the boys from 'Eua beating up the complainant at the boundary fence. The accused insisted that his evidence was the truth. He also said that he had told the police everything including the evidence about the iron bar but he had to agree that there was no reference to an iron bar in the police record of interview and no challenge had been made by his counsel to the accuracy of the police documentation.

The accused's sister, Kalo, also gave evidence on behalf for the defence. She and her husband live in the house in question. She said that on the night of the incident there had been no swearing or excessive noise coming from her home and she denied having sworn at the complainant at any stage. She said that the complainant had come over to their house swearing and he had refused to leave when asked. Then, when her brother (the accused) confronted him and told him to go home and stop interfering, the complainant had attacked and beaten up her brother with an iron pipe. The witness gave a description of the dimensions of the iron pipe, which matched the description that had been given earlier by her brother. She denied having seen her brother using a knife during the fight.

As I indicated at the outset of this judgment, the sharp and significant conflicts in the evidence make it necessary for me to make firm findings on the issue of credibility. Unfortunately for the accused, the complainant came across as an impressive witness and, apart from the observations I have made about his evidence after the attack; I have no qualms at all in accepting what he told the Court.

I cannot say the same about the accused and his sister. I simply do not believe their version of events. I am satisfied that their description of the incident itself is a tissue of lies.

The only defence evidence that caused me any hesitation related to the iron bar allegedly used by the complainant. As already noted, when the accused gave evidence he described its dimensions as being as long as the width of the witness box and the diameter of his arm. The iron bar had not been mentioned previously in the case and it was not referred to in the accused's statements to the police. The evidence seemed to have even taken Mr Kengike by surprise in that he had quite properly put to the complainant in cross-examination all the propositions he knew the accused would be giving evidence about but no mention was made of an iron bar.

When the accused left the witness box, however, his sister was called as the next witness and she also gave evidence about the complainant attacking her brother with, what she described as a length of iron pipe. She described the dimensions of the pipe as being equivalent to the width of the witness box and she said that it would have had the diameter of her arm. That evidence obviously corroborated what the accused had said and the question that then arose was if, as seemed to be the case, the accused had made up the story about the iron bar on the spot while giving evidence in chief, how was it that his sister, who had been waiting in the grounds outside the courthouse at the time, been able to give the Court the evidence she did about the dimensions of the weapon.

The answer was revealed in cross-examination. The Crown prosecutor, after what appears to have been a smart piece of observation or detection, obtained an admission from the sister that during the Court break, her mother, who had been sitting in the back of the Court throughout the trial, had gone outside and spoken to her about the evidence given in the case. The sister denied that the mother had talked to her specifically about the evidence that had been given by the accused relating to the iron bar but I did not find her denials convincing.

My rejection of the defence evidence does not, of course, mean that I can immediately jump to a conclusion of guilt. It is still necessary for me to be satisfied that the Crown has proved guilt beyond reasonable doubt.

On the complainant's version of events, he admitted that it was he who had struck the first blow. He said that after being challenged by the accused to a fight, he accepted the challenge and punched the accused on the head. There is evidence, therefore, to support a defence of self-defence. In that situation there is a burden on the prosecution to disapprove such a defence beyond reasonable doubt.

While the punch from the complainant would have entitled the accused to retaliate in order to defend himself, the law does not give him a blank cheque to use as much force as he likes. He is not, in other words, entitled to retaliate with force that is clearly excessive given what he believed was happening at the time. The principle applicable is summed up in the following passage from R v Whyte [1987] 3 All ER 416.418:

"A man who is attacked may defend himself, but may only do what is reasonably necessary to effect such a defence. Simply avoiding action may be enough if circumstances permit. What is reasonable will depend on the nature of the attack. If there is a relatively minor attack, it is not reasonable to use a degree of force which is wholly out of proportion to the demands of the situation. But if the moment is one of crisis for someone who is in imminent danger, it may be necessary to take instant action to avert that danger."

In the Whyte case the Court concluded the best case that could be made out from the appellant's point of view was that he had stabbed the victim because the victim had hit him in the face with his hand. Lord Lane, delivering the judgment of the Court, 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."

I respectfully agree with that observation. Repeated stabbing with a knife could never be reasonable retaliation for a single punch to the jaw.

I would simply add that I do not believe that the accused just happened to have the knife in his hand because he had been "cutting meat to cook", as he had claimed in his evidence. The evidence of his sister, which I accept in this regard, was that the group had had their meal earlier in the evening and the brothers from 'Eua, who had left for home by the time of the attack, had eaten with them. I am satisfied that the accused very deliberately picked up the knife and took it outside with him when he walked out to challenge the complainant to a fight. In other words, far from being an instantaneous reaction to an unprovoked attack, the violent stabbing with the knife was completely premeditated.

The Crown has proved the charge against the accused beyond reasonable doubt and he is convicted accordingly.

NUKU'ALOFA: 1 OCTOBER 2004

JUDGE