Rex v Fifita [2004] TOSC 48; CR 405 2003 (21 September 2004)

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

NO. CR. 405/2003

BETWEEN:

REX
Prosecution

AND:

'ETIMONI FIFITA
Accused

BEFORE THE HON MR JUSTICE FORD

Counsel: Mr Kefu for the Crown and Mr Vaipulu for the accused

Dates of hearing: 8 and 9 September 2004
Date of judgment: 21 September 2004

JUDGMENT

The 50-year-old accused is charged with manslaughter. It is alleged that on 2 August 2003 he caused the death of his son, Tu'avao, by striking him on the face until he became unconscious. The case for the Crown is that Tu'avao was intoxicated at the time and while in both an unconscious and intoxicated state he suffered an aspiration of gastric contents from his stomach, which caused a blockage of his trachea or windpipe and that, in turn, led to his untimely death.

The 23-year-old deceased, who lived with his family at Kolonga, was the second of seven children -- 6 boys and a girl. He was unemployed but it is clear from the evidence that he had regular access to alcoholic liquor. One of his brothers told the Court that he would be in an intoxicated state at least three times a week.

The oldest brother, Kakala, said in evidence that on the evening prior to his death (which was a Friday night) Tu'avao was heavily intoxicated. He had been drinking during the day. Kakala was planning to go to a Tongan kava party at Vaini that night and Tu'avao wanted to join him. Kakala explained how he tried unsuccessfully to make him get out of the vehicle and stay at home but the deceased insisted on joining the group going to Vaini.

There was evidence that at Vaini the deceased spent most of his time outside the kava party hall consuming alcohol. Around 9 p.m. a friend took him over to the local police station to sleep "because he had become too intoxicated".

At approximately 1a.m. the kava party broke up. Kakala wanted to leave his brother sleeping in the police station, explaining to the driver of the van that he would be able to catch a bus home to Kolonga the following day. The van driver, however, drove over to the police station and woke Tu'avao. At that point he had sobered up a little.

When the van reached Kolonga, Kakala walked straight home and went to bed. The deceased, however, turned and walked off into the night. Where he spent the next seven or eight hours and what he did during that time is unknown. The evidence was silent in relation to that passage of time but it is apparent that somehow he had been able to obtain further access to alcohol.

The narrative resumes again probably around 8:30 a.m. on Saturday 2 August. The deceased's younger brother, 17-year-old Vaikele, told the Court that approximately about that time he became aware that the deceased was at a neighbour's house because he heard the neighbour's children yelling out his name. He said that he could tell from what the children were saying that his brother had just arrived at the neighbour's house.

Vaikele said that he walked over to the neighbour's property and tried to talk his brother into going home to sleep because he was so intoxicated but the deceased swore at him and refused to leave. Approximately one hour later, the deceased was driven home in a van. There was no evidence as to whose van it was but Vaikele told the Court that he saw his brother climb out of the vehicle and he then heard his father (the accused) telling him to go inside and get some sleep. He said that his father was not angry and he heard him tell his brother "many times" to go and sleep.

The deceased, who at that stage was very drunk and unsteady on his feet, did not go inside and so his father slapped him. On the first occasion, the deceased lifted his arm to protect himself and the blow landed on his arm. Vaikele said that at that point the deceased fell to the ground and his father struck him a second time but the deceased protected himself again and the blow landed on his arm.

Vaikele said that his father then picked his brother up and told him to go inside and get some sleep. His brother started walking towards the house but suddenly he turned and began to run off telling his father that he was leaving home and he would never return. The witness described the way in which his brother ran. His movements were clearly those of an intoxicated person.

At that point, Vaikele noticed his father pick up a stick and chase after his brother. He twice hit him with the stick across the buttocks. On the second occasion his brother fell to the ground. By then he had ran a distance of some 30 to 40 metres. Vaikele was then asked in evidence in chief what happened next:

"Q. What happened when your brother fell to the ground?

A. My father sort of lifted him up by the shirt and slapped him and he lifted him up again and was about to slap him and the shirt came off and my brother fell to the ground and became unconscious.

Q. After your father hit your brother with the stick how many slaps did your father give your brother?

A. Three.

Q. Which part of Tu'avao's body did the slaps land on?

A. On the face.

Q. Did you see your brother hiding his face from the slaps as he did before?

A. No.

Q. What caused the unconsciousness of your brother?

A. I don't know."

Later in evidence in chief, Vaikele was asked to describe the slaps. He said that his father used the open palm of his hand and he slapped him first with his right hand on the mouth, then with his left hand he slapped his nose, and, again with his right hand, he slapped his face. The witness described the blows to the Court. They could probably fairly be described as moderate blows. He said that his father then went inside the house.

Vaikele said that he also went back inside the house but his mother told him to go and put his brother under a nearby 'fau tree and he did so. He described how he held both his brother's hands and dragged him along the ground on his stomach to the 'fau tree -- a distance of some 10 metres. Vaikele told the Court that he had not paid any particular attention at that point to whether the deceased was still breathing. He said that he thought he was "unconscious from being intoxicated". A short time later his mother told him to go back and throw some water over his brother and he did so. He said that his brother was still lying on his stomach and he poured the water on the back of his head. He then went back inside the house to start cooking.

At some stage the parents moved out and sat under the tree with Tu'avao. Vaikele told the Court that after approximately half an hour he also walked over to the tree and his father told him to check to see if his brother was still breathing. Vaikele told the Court that when he turned his brother over he could see that he was not breathing and he knew immediately that he was dead. He also noticed that a small amount of blood had "dripped out of his nostrils."

The witness was questioned by both counsel as to when exactly he first noticed the blood around the deceased's nose. He said that it was after he had dragged him to under the 'fau tree and turned him around. He was not asked whether the nosebleed could have occurred while his brother was being dragged to under the 'fau tree. The evidence was that he was dragged along on his stomach for a distance of some 10 metres. From the photographs, the deceased appears to have been of heavy build and the witness was of slight build. It must have been a possibility that at some point while being dragged along on his stomach, the deceased's face could have come in contact with the ground causing his nose to start bleeding. It was a possibility not excluded by the evidence.

The family arranged for the deceased to be taken to Viola Hospital and two days later a thorough autopsy was carried out on the body by Dr Siale 'Akau'ola. The detailed autopsy report was produced to the Court as an exhibit and Dr 'Akau'ola gave helpful evidence explaining his findings in layman's terms.

The doctor told the Court that the deceased had obviously eaten a large meal shortly before his death. He described as "interesting" his finding of a partly digested bone in the deceased's stomach, shaped like a cube and some four centimetres in diameter. The witness stressed that while it had nothing to do with the cause of death, he believed that it was significant in that no one would swallow a piece of bone of those dimensions unless the person was intoxicated or it had been somehow forced into his system.

Dr 'Akau'ola found that the deceased's windpipe was completely filled with fluid and food like particles. He also observed dried up blood secretions coming out of both nostrils, which contained food like particles. The doctor explained that a person who vomits while in a reduced state of consciousness is often not strong enough to eject all the vomit and so he inhales the gastric contents back through his windpipe. Normally a person would only have to cough in order to clear a windpipe blockage but a person in a semiconscious or unconscious state does not have that same ability. The doctor said that what happens in those circumstances is that the aspiration of the gastric contents causes an obstruction of the airway system and consequential death.

Dr 'Akau'ola concluded that the scenario outlined was the most likely cause of the deceased's death. His conclusions were not challenged and I accept them.

The accused, as was his right, did not give or call evidence but he did make an unsworn statement to the police, which was produced as an exhibit by consent. There were some minor variations between his statement and the evidence given by his sons but, in general, what he told the police in his record of interview appears to have the ring of truth about it. He said in his statement that he had slapped his son only twice and I accept that evidence because that is what the elder son, Kakala, also told the Court. Whilst in general I found the younger son, Vaikele, a credible witness I did not find his evidence completely convincing when he described how his father slapped his brother three times with alternate hands and yet, somehow, at the same time he was able to hold onto his T-shirt. The older brother had been asleep and had only woken and seen what was going at the time his father was chasing after Tu'avao.

The accused was asked about the incident by the police officer:

"23. What happened when you caught Tu'avao?

A. I held his T-shirt and he fell to the ground.

24. Didn't you throw him down?

A. No.

25. When he fell to the ground, was he facing up or down?

A. He fell down on his buttocks.

26. What happened when he fell on his buttocks sitting?

A. I slapped him again.

27. How many times did you slap him this time?

A. Twice.

28. Where did those two slaps land?

A. On the nose and mouth.

29. After those two slaps, how was your son?

A. I saw him trying to get his breath.

30. How was he trying to get his breath?

A. He was breathing hard.

31. What help did you do when you saw him trying to get his breath?

A. I let him lay down on his back.

32. What did you do then?

A. I told two of my sons to get a bucket of water.

33. Who are those two sons?

A. Kakala and Vaikele.

34. Why was there need for the bucket of water?

A. To cool him off because I thought he was dead drunk.

35. Was the water poured on him while he was lying on his back?

A. No, I told them to take him under the tree."

The accused was asked by the investigating police officer why he had beaten the deceased. He replied that he was upset because he held the position of Church Minister.

To establish a charge of manslaughter, the Crown must be able to prove beyond reasonable doubt a homicide or killing and that the homicide was culpable or blameworthy. Homicide is culpable when it consists of the killing of any person by an unlawful act or any of the other methods identified in section 86 (1) of the Criminal Offences Act (Cap. 18). In the present case, the allegation is that the accused killed the deceased by an unlawful act, namely, the assault and, therefore, the essential ingredients the Crown has to prove are, first, that there was an unlawful assault by the accused and, secondly, that the assault caused the death of the deceased.

The first issue is not in dispute. Mr Vaipulu very sensibly admitted that the actions of the accused in striking his son across the face amounted to an assault and, hence, an unlawful act but counsel contended that the Crown had failed to prove that the assault had caused the death of the deceased.

For his part, Mr Kefu quite properly conceded that the unlawful act must be one which is likely to cause harm to the victim, albeit not serious harm. Crown counsel contended that the assault in the present case was such an unlawful act and, even if it was not the immediate cause of death, it was a significant contributing factor and that was sufficient to establish the second element of the charge.

In recent years, similar issues to those arising in the present case have been considered by the New Zealand Courts. I find the New Zealand decisions particularly relevant because section 160(2)(a) of the (NZ) Crimes Act 1961 is virtually identical to section 86(1)(a) of the (Tonga) Criminal Offences Act (Cap. 18). The latter reads:

"86. (1) Culpable homicide consists in the killing of any person either --

(a) by an unlawful act."

The New Zealand equivalent reads:

"160. (2) Homicide is culpable when it consists in the killing of any person --

(a) by an unlawful act."

In R v Renata [1992] 2 NZLR 346, the New Zealand Court of Appeal considered the wording of the statutory provision in question. Cooke P., delivering the judgment of the Court of Appeal, said (p.349):

"Clearly when one person unlawfully assaults another by a dangerous application of force, the assailant is guilty of manslaughter if death is caused even in a most unexpected way. Unlikelihood of the result is relevant only to penalty, although it may be of great significance in that regard . . . The expression "unlawful act" in the context of the law of manslaughter is not one upon which the present case calls for any attempt at exhaustive definition; but an unlawful assault intended to cause some, even though minor, physical harm or hurt to the victim is undoubtedly within it."

In an earlier decision, R v Tomars [1978] 2 NZLR 505, 511, the Court of Appeal had to consider whether it could be said that a particular act caused the death of the deceased under another limb of section 160 (2) of the (NZ) Crimes Act. In delivering the judgment of the Court, Richmond P. said:

"Here again we use the word "cause" in its ordinary legal sense of contributing in a not insignificant way to his death."

That approach, with respect, seems entirely appropriate to any consideration of the same issue under the "unlawful act" category of culpable homicide. The unlawful act need not be the sole or even the immediate cause of death but it must be proved to be one of the significant causes.

Applying the foregoing principles to the facts of the case before me, before I can convict, I am required to be satisfied to the required standard of proof in criminal cases that the admitted unlawful act -- the two slaps to the face, played a not insignificant role in the deceased's untimely death.

Crown counsel contended that the deceased's state of intoxication was not sufficient in itself to cause him to lose consciousness and he relied upon the evidence of Vaikele as proof that the deceased became unconscious after the two slaps to the face. Vaikele, however, is not a medical expert. It is true that he said that his brother fell to the ground and became unconscious but then he went on to say that he became unconscious from being intoxicated and he reaffirmed that statement in cross-examination. He was also asked in cross-examination why he thought that his brother was unconscious and he replied:

"I'm saying that because when I came to take him to under the 'fau tree he did not make any movement at all."

The problem I have with that evidence is two-fold. First, I do not accept that the deceased "fell to the ground" in the manner Vaikele described. I prefer the description given by the accused to the police, which was corroborated by the evidence of the older brother. Secondly, it could well be correct that the accused was in an unconscious state but he could equally have simply been in a drunken and exhausted stupor. I am not satisfied that Vaikele would have been able to detect the difference.

As I have already observed, I accept the evidence that the deceased was regularly in a state of intoxication several times a week but I also accept Vaikele's evidence that he had only ever seen him as drunk as he was on that particular day twice before.

Mr Kefu submitted that the deceased was not that drunk that he did not know where he was and counsel made the point that he was still able to speak and he had been able to fend off the initial two blows with his hand. He was not, therefore, totally out of his mind. There is some force in that submission.

I have already noted that, in his written report, Dr 'Akau'ola concluded that the most likely cause of death was "upper airway obstruction due to aspiration of gastric contents." In his evidence in chief the doctor explained that it is not possible to carry out alcohol and blood testing in Tonga. He was then asked further questions about the likely cause of death:

"Q. When you say the cause of death was aspiration of gastric contents, are you able to tell the Court what actually causes the aspiration?

A. Yes, like I said, the commonest cause of aspiration -- there are people who are very intoxicated or unconscious and they vomit -- or anybody who is drowsy and vomits food contents out of their stomach and because they are drowsy or too intoxicated, their cough reflex is not strong enough to cough the contents out and they then inhale it and, as I said, normally it's the intoxicated state but, as I said, I could not prove it from the examination although I suspect that probably he was, from the history.

Q. But could a person who was very drunk just -- like -- fall asleep and because of his intoxication would it cause the aspiration without some physical intervention?

A. Yes, that has been described.

Q. From your experiences here in Tonga is that common?

A. It's not uncommon. I personally have been involved in a few cases but it is not uncommon.

Q. If this person's intoxicated state was caused by physical external intervention like being slapped unconscious would it have caused this aspiration?

A. That's possible also. I mean anything that reduces the consciousness of any person, be it physical, drugs or alcohol. You can have the same outcome."

The leading final question in the above passage about the effects of physical external intervention presupposed that the deceased had been "slapped unconscious". The deceased was a solid, muscular young 23-year-old. He was taller than his father. The doctor found no evidence of any bruising on the face attributable to the slapping and he distinctly ruled out the preceding blows with the stick as the cause of death. Even allowing for the deceased's grossly intoxicated state and the fact that moderate force was used, I find it difficult to accept that two slaps with an open hand would have been sufficient to cause such a young man to lapse into a state of unconsciousness.

It seems to me more likely, given his tiredness, fatigue and grossly intoxicated condition, that when the young man lay back on the ground in the manner described by the accused, he simply lapsed into the "intoxicated state" Dr 'Akau'ola referred to a number of times in his evidence and, as the doctor readily accepted, that condition in itself would have been sufficient to trigger off the sequence of events leading to his death.

The problem with the Crown's case is that it relies upon possibilities and speculative propositions. Such evidence can never form a sound basis for a criminal conviction. In short, I have not been persuaded that the unlawful act relied upon by the Crown contributed in any significant way to the deceased's death.

The accused is, accordingly, acquitted and discharged.

NUKU'ALOFA: 21 SEPTEMBER 2004

JUDGE