Rex v Vi [2005] TOSC 12; CR 018 2005 (10 June 2005)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
HA’APAI REGISTRY

CASE NO. CR 18/05

BETWEEN:

REX
Prosecution

AND:

TEVITA VI
Accused

BEFORE THE HON CHIEF JUSTICE WEBSTER

Trial held before Chief Justice Webster sitting alone at Pangai, Ha’apai on 14 & 15 March, and for submissions at Nuku’alofa on 4 April 2005.

Counsel: Prosecution: Mr Sisifa
Defence: Mr Tu’utafaiva

RESERVED DECISION GIVEN AT NUKU’ALOFA ON 10 JUNE 2005.

Preliminary

The accused was charged on indictment with manslaughter, contrary to section 92 and 93 of the Criminal Offences Act (Cap 18), and alternatively with bodily harm, contrary to section 107(1) of that Act, the particulars being:

(Count 1 - manslaughter)

Tevita Vi of Pangai, Ha’apai, on or about 3 July 2004 at Pangai, you did cause the death of Sime Soakai when you slapped him on the right side of his face with your left hand while he was drunk causing him to fall and hit his head on the road, and thus caused him to receive severe head injury and thus caused his death.

(alternative Count 2 – bodily harm)

Tevita Vi of Pangai, Ha’apai, on or about 3 July 2004 at Pangai, you did wilfully and without lawful justification cause harm to Sime Soakai when you slapped him on the right side of his face with your left hand while he was drunk causing him to fall and hit his head on the road, and thus caused him to receive severe head injury.

In this case the prosecution focussed on culpable homicide falling within section 86(1)(a) of the Act, which provides:

“Definition of culpable homicide.

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

(a) by an unlawful act; or

(b) .....

(2) Culpable homicide is either murder or manslaughter.”

Witnesses

The prosecution led evidence from Det Cpl ‘Isileli Veikoso, Pangai, Ha’apai; Mrs Tiulipe Soakai, Ha’ato’u, Ha’apai, widow of Mr Sime Soakai; Mr Suli Fililava, Tongoleleka, Ha’apai; Mr Malu Mafi, Hihifo, Ha’apai; Mr Sione Mahe, Pangai; Mr Latu Vea, Pangai, Ha’apai; Miss ‘Eseta Tu’ifua, Pangai, Ha’apai; Det Sgt Asaeli Katoa, Pangai, Ha’apai; Dr Lisiate ‘Ulufonua, Acting Chief Medical Officer, Niu’ui Hospital, Pangai, Ha’apai; and Dr ‘Ana ‘Akau’ola, Senior Medical Officer in Radiology, Vaiola Hospital, Nuku’alofa. The accused gave evidence on his own behalf. Documentary exhibits were also produced by the prosecution.

Essential elements of manslaughter

The essential elements of the offence of manslaughter relevant to this case are:

That it was the accused;
who killed the deceased;

by an unlawful act (ie not an act allowed by law);

which he did intentionally,

and that, applying an objective test, all sober and reasonable people would recognise the risk that some harm would result that act;

when he slapped the deceased on the right side of his face with his left hand while the accused was drunk,

causing him to fall and hit his head on the road,

and thus causing him to receive severe head injury,

and thus causing his death.

As set out below, there is no requirement for the prosecution to establish an intention by the accused to cause the deceased bodily injury which the accused knew was likely to cause death and was reckless whether death ensued or not. All that need be proved is that the accused intentionally did what he did, that the death was caused by it and that, applying an objective test, all sober and reasonable people would recognise the risk that some harm would result.

The evidence

Sime Soakai’s habitual drunken behaviour

There was evidence, which I accepted, that the deceased Sime Soakai was frequently drunk at Pangai, when he would shout and make noises, especially in public places in Pangai. The accused admitted in cross-examination that he had arrested Sime Soakai once previously for being drunk, when he informed Sime that he was very drunk and was going to be arrested, and he did that and took him to the Police Station; the accused also said in evidence that usually when Sime shouted his usual words, most of the time the accused went and spoke to Sime and Sime stopped. There was also evidence from Det Cpl Veikoso that he had once arrested Sime after a report from a local bar that he was causing trouble with his son-in-law: he had informed Sime that he was drunk and causing trouble and Det Cpl Veikoso said that Sime had agreed and had given in to Police authority. I therefore accepted that Sime Soakai was not a violent or aggressive person when drunk; and I inferred that the accused knew that on the date of the incident on 3 July 2004 Sime would not have attacked him or anyone else in Pangai.

Drinking party on 3 July 2004

There was essentially no challenge as to the identity of the accused, the background to the incident when the accused slapped Sime Soakai, or the fact that it was the accused who delivered the slap. The background was that Sime Soakai had been drinking beside Pangai market with Suli Fililava, Malu Mafi and Sione Mahe on the morning of Saturday 3 July 2004 from around 10.00 am, and that they had consumed 2 bottles of vodka. There was evidence that during that time Sime Soakai had fallen backwards off his chair, and had also fallen when he got up to go to the toilet. I accepted all that evidence as established beyond reasonable doubt.

Accused’s Police service

I accepted the evidence for the accused that he was a Lance Corporal in the Police with 9 years’ service, although he had originally been a mechanic on one of the Police vessels and had transferred to full Police service working full-time at Pangai Police Station after that vessel sank. As a result he had never gone through the usual recruit training at the Police Training School at Nuku’alofa, but had picked up the job from colleagues as he went along, learning and following Police procedures from other officers while working at Pangai Police Station.

The accused accepted that a Police officer should be calm and patient at all times when dealing with any kind of situation, and at times like this incident; that in any such situation an officer should try to resolve it in a peaceful manner; that it was not reasonable for a Police officer to lose his temper in such a situation; and that a Police officer should not assault any member of the public. He said that a Police officer should do what he thought was best when carrying out his duty, and if possible stop a person beforehand if he was committing an offence or about to commit an offence.

Sime’s shouting

The incident had occurred around 2.00-3.00 pm when the members of the drinking party, including Sime Soakai, all walked up from the market to the main road at Pangai. At that stage Sime Soakai had been shouting very loudly and noisily his usual words such as "No one here at Pangai, I will destroy Pangai". When the men reached the main road they had started walking south along the main road, with Sime Soakai still shouting. Suli Fililava crossed to the other side of the road and following him was Malu Mafi. Sione Mahe was walking on the verandah of the former ‘Ofa Kelepi Toutai [OKT] store and they were followed by Sime Soakai, who was walking on the road beside the verandah.

Intervention of accused

At that time the accused was at home doing some carpentry work and he said he repeatedly heard shouting coming from the main road at Pangai. The accused’s sister was present; and in cross-examination he accepted that in Tongan custom it is not good to swear when a sister is around, but he denied that he was angry when there was that shouting because his sister was around at the time. I regret that, considering the whole evidence I was unable to accept that denial. The accused then approached the next allotment, said to be that of the old MAFF office situated next to the main road, from where he saw the 4 men approaching the main road and said he noticed Sime Soakai shouting repeatedly. However the accused denied in cross-examination that when he heard that shouting by Sime he was angry due to that and the fact that he was used to Sime being drunk. Again I was unable to accept that denial. The accused said that as he stepped over the fence onto the road he said to Sime to keep quiet, but he kept on shouting.

All 3 of Sime Soakai’s companions said that they then saw the accused running to the main road. Suli Fililava said he saw the accused holding onto an object, which seemed to be a piece of timber, and saw him running from the old MAFF allotment and jumping the fence to the main road. He said that the accused then ran past him and later he heard a banging sound and saw Sime Soakai lying on the ground on the roadside next to the OKT store. Malu Mafi also recalled the same as Suli Fililava, but Sione Mahe’s account was that, as the accused ran past, it was a matter of seconds when he heard a banging like a slap and as he turned round he saw Sime Soakai lying on the ground. The accused accepted Sione Mahe’s description in evidence that he had been walking in a hurry.

There was also another important eye witness, ‘Eseta Tu’ifua, a 14-year old schoolgirl at Ha’apai High School, who was at her house when she heard shouting from the main road. When she heard the shouting she ran outside the house and as she looked towards the main road she saw the accused walking past hurriedly towards Sime Soakai. As the accused approached Sime Soakai he had thrown the object he was holding in his right hand (described as like a timber) to the verandah of the OKT store; and at the same time with no pause and no hesitation the accused slapped Sime on the right side of the face with his strong left hand (he is left-handed). After ‘Eseta had been shown her statement made shortly after the incident, she accepted that as Tevita Vi crossed the road he called to Sime to stop making noises, but that Sime had still been shouting when Tevita Vi reached him. In the witness box ‘Eseta demonstrated how the accused slapped Sime, drawing his left arm to the back before he moved it forward in a full swing to slap him. She said that Sime then fell to the ground, she said he fell like a doll after being slapped. The accused said that Sime fell down on his back.

It is consistent with the account of ‘Eseta and the accused’s statement in his Police interview that as the slap was delivered (by the accused’s strong left hand, as he was left-handed) to Sime’s right cheek there was some turning of his head as he fell, so that a fracture of the left side of the temporal skull bone, as shown on the x-ray, was entirely consistent with the evidence.

The accused said that he did not arrest Sime on this occasion because of his old age and sometimes he (the accused) stopped Sime, who obeyed what the accused said. The accused said that on this occasion the last time he spoke to Sime they were standing together and he spoke to him, finishing off what he was saying, at the same time as he then slapped him. The accused said he was trying to get across to Sime to keep quiet. He suggested that he had to slap Sime's mouth to stop him from shouting or behaving in a disorderly way; and that there was no alternative but to assault Sime, which I regret I was unable to accept; and I found beyond reasonable doubt that that view was not honestly held by the accused. The accused also said he did not hit Sime very hard, but on all the other evidence I could not accept that, as it was clear that Sime was slapped with sufficient force to make him fall down, ie with considerable force.

When he was later interviewed by the Police the accused said when asked about that:

“Q11. What happened to Sime Soakai and his friends who were drunk?

A11. I walked towards Sime Soakai and I said to him “How many times have I told you to stop making noises when you are drunk”. I then slapped him on the right cheek and he fell down.”

Sime’s bleeding

All 3 eye witnesses from the drinking party noticed that blood came out of Sime's ear and mouth. The accused himself said during his interview that he noticed blood on Sime’s mouth; and in evidence he said that Sime was bleeding from his mouth and left ear. The accused asked Suli Fililava to hold Sime while he called Latu Vea to come in his vehicle. They had then put Sime onto the vehicle and rushed him to Niu’ui Hospital, Pangai. The accused also said during his interview that when they put Sime onto the vehicle to rush him to hospital, he noticed blood running out of Sime’s left ear.

Hospital treatment

When Dr ‘Ulufonua saw Sime Soakai on admission at Niu’ui Hospital he also noticed a slight leakage of blood from the left ear, which is usually indicative of a fracture at the base of the skull or skull areas close to the ear, and he said that was one of the major reasons why he took him into hospital. He said that in this case the swelling of the brain would have started almost instantly from the time of the trauma (ie Sime hitting his head on the ground), or within not more than 1 hour.

Dr ‘Ulufonua’s evidence was that on admission, and after close neurological monitoring, Sime Soakai was diagnosed to have 2 problems: 1. a severe head injury; and 2. a left side fracture of the temporal skull bone. Sime was unconscious or semi-conscious from that time onwards, and I accepted Dr ‘Ulufonua’s evidence that, despite Sime’s state of intoxication, right from the start he thought that he had severe head injuries and started neurological monitoring. Dr ‘Ulufonua said that Sime was managed accordingly, with routine intensive nursing care of an unconscious person with a severe head injury. He had discussed Sime’s case with the Surgical Team and the Intensive Team at Vaiola Hospital, Nuku’alofa and they had agreed with the problems he stated and his findings. If it had been possible to move Sime to Vaiola Hospital he could have been put on an artificial ventilator, but Dr ‘Ulufonua said that at the time transferral to Vaiola Hospital was impossible, particularly as Sime was unconscious, so routine management was continued at Niu’ui Hospital, Ha'apai.

There was also evidence that Sime could have been treated with steroids to reduce the brain inflammation, but that these would only work depending on the severity of the inflammation; or he could have been treated by drilling a hole in his skull to release the pressure, but that had not been done. Dr ‘Ulufonua’s colleagues at Vaiola Hospital had agreed with his findings.

Sime’s death

Dr ‘Ulufonua also reported that Sime had died on 18 October 2004 after ongoing complications of his 2 problems: severe electrolyte imbalance, diabetes insipidus, recurrent fitting episodes, severe malnourishment and sepsis, which were difficult to manage at Niu’ui Hospital.

Complications prior to death

I accepted the evidence of Dr ‘Ulufonua that, based on his clinical findings plus the subsequent x-ray of Sime's head, those complications listed in his Report were caused by Sime’s severe head injury, and eventually lead to his death over 3 months later on 18 October 2004. I also accepted his evidence that a large trauma to the head would be the first on his list of causes; and that all Sime’s problems were a consequence of the incident at admission, mostly problem number 1. The complication of severe electrolyte imbalance arose from Sime being unconscious, not moving around and not able to use his muscles (with electrolyte) so they release electrolyte and these come out in the urine, of which Sime was producing a large amount. The complication of diabetes insipidus indicates damage to an organ inside the head which regulates the blood sugar, once there is a problem it is very hard to cure, there is no control centre and the body produces urine and because sugar is withdrawing there is abnormally high sugar in the body; and Sime was producing a larger amount of urine, which is a very good indication and sign of diabetes insipidus. These first 2 problems relate to almost every unconscious patient who does not recover. The complication of recurrent fitting episodes is caused by a lot of things such as a severe blow to the head and arose from electrolyte imbalance, higher blood sugar level, direct/indirect trauma, and sepsis: all things which occurred in Sime, but Dr ‘Ulufonua considered it was probably trauma first and last. The complication of sepsis, which is an infection in the blood, arises from patients being confined to bed and unable to move; and sometimes because Sime was so big he tended to have sores which were a focus to start infection.

Medical Report

Dr ‘Ulufonua’s written Report dated 22 November 2004, following Sime’s death, was:

“Re: Mr Sime Soakai M/73 yrs (dob: 29/01/1931) of Ha'ato'u –

Medical Report on Cause of Hospitalization and Cause of Death.

May I refer to the above which he was brought into the hospital by Constable Tevita Vi on July 3rd, 2004 and I found him to be unconscious withdrawing to pain only and has a strong smell of alcohol. I then admitted him to the hospital for close observation with a suspicion of Severe Head Injury.

On admission, after close neurological monitoring and investigations he was diagnosed to have these problems.

Problems 1. Severe Head Injury (Glasgow Coma Scale of < 8)

With Cerebral Edema

2. Linear Left Sided Fractured Temporal Skull Bone

He was then managed accordingly with routine intensive nursing care of an unconscious person from Severe Head Injury. Due to his critical condition I discussed his situation with the Surgical Team & Intensive Team in Vaiola Hospital in which they agreed with his problem but a transferral is impossible hence have to continue with the management in Niu'ui Hospital.

The above died on 18/10/2004 after acquiring complication of his problems such as Severe Electrolyte Imbalance, Diabetes Insipidous, Recurrent Fitting Episodes, Severely Malnourished and Sepsis which were difficult to manage in Niu'ui Hospital.

These problems were explained to family members hence no resuscitative measures were undertaken when he arrested.

Any information with regards to his condition would be provided if needed.

Yours sincerely,

(sgd) Dr Lisiate F 'Ulufonua,

ACMO NIU'UI HOSPITAL.”

I accepted Dr ‘Ulufonua’s clinical findings from his clinical observations, as indicated in his Report and in evidence, that Sime was suffering from a severe head injury received from his fall when slapped by the accused. I also accepted Dr ‘Ulufonua’s evidence that, although in this case there were no visible marks that told him straight away that there was a fractured skull, trauma to the skull would not necessarily have shown significant bruising, as he had dealt with a number of cases in the past with no bruising at a fracture.

X-ray

Dr ‘Ulufonua recorded Sime’s severe head injury and fractured temporal skull bone, which was evident from the X-ray (Exhibit 3) shown to the Court by him and Dr ‘Akau’ola. He considered that the fracture would be contributed to by Sime’s condition, with a history of alcohol abuse and lower bone density due to ageing.

An X-ray of Sime’s head was taken on 7 July and sent to Dr ‘Akau’ola at Vaiola Hospital, Nuku’alofa, whose report dated 12 July was:

“SXR - Fracture of the temporal parietal bone on the Lt is demonstrated.

No basal skull view provided so cannot R/O base of skull #

C-spine C1 - C5 only in NAD.

Should do swimmer’s view to cover C1 - C11.

Dr ‘Ana ‘Akau’ola”

Dr ‘Ulufonua said he had been definite in his diagnosis after seeing the x-ray, but wished to have a second opinion as there was likely to be a legal case. He had been further assured on 22 November, when he wrote his Report.

The evidence of Dr ‘Akau’ola was that Sime’s death resulted from the fracture of the left parietal region (ie the left side of the head); and that if there was also injury to the middle meningal artery, which was usually but not always torn when there was a temporal bone fracture, that was likely to have caused brain fever and problems. I accepted that evidence as supplementing that of Dr ‘Ulufonua, even although (as submitted by Mr Tu’utafaiva for the accused) she could not tell whether the middle meningal artery had been injured; and Dr ‘Ulufonua did not refer to the artery in his Report or evidence.

I found, on the excellent explanations by Dr ‘Ulufonua and Dr ‘Akau’ola in evidence, that it was highly likely that the severe head injury arose from the fracture of the temporal parietal bone on the left causing tearing of the important ligament behind it and hence tearing of the middle meningal artery. As the blood bleeding from that artery had nowhere to go within the skull, it would compress the brain, leading to a swelling of the brain and brain oedema, which is a very serious thing and can lead to all the types of complications suffered by Sime, as described in Dr ‘Ulufonua’s Report. But I also accepted Dr ‘Ulufonua’s evidence that brain oedema can be caused by direct trauma.

In relation to the cause of that fracture on the left side of the head, Dr ‘Ulufonua in cross-examination accepted that the fracture could still have happened from Sime repeatedly falling backwards from his chair when drinking opposite the market; and that it could also have been caused when he fell onto the ground when he stood up to go to the toilet. However Dr ‘Ulufonua said that a fall from a chair or hitting the head while standing up and causing a fracture would not usually cause a person to be unconscious; and that there was no significant bruising to Sime's body or head.

Relevant law

Mental element for manslaughter

In relation to the mental element for manslaughter, Mr Tu’utafaiva for the accused referred to Smith & Hogan (10th Ed 2002) at pages 379 & 381. There the learned authors cite Lord Atkin in Andrews v DPP [1937] 2 All ER 552,554-5 (HL):

“... of all crimes manslaughter appears to afford most difficulties of definition, for it concerns homicide in so many and so varying conditions ... the law ... recognises murder on the one hand, based mainly, though not exclusively, on an intention to kill, and manslaughter on the other hand, based mainly, though not exclusively, on the absence of intent to kill, but with the presence of an element of ‘unlawfulness’ which is the elusive factor.”

Then, referring to manslaughter by an unlawful and dangerous act, the learned authors state that the present law is that an accused is guilty of manslaughter if he kills by an unlawful and dangerous act. The only mens rea required is an intention to do that act and any fault required to render it unlawful. It is irrelevant that an accused is unaware that it is unlawful or that it is dangerous (Newbury, referred to below), and that he is unaware of the circumstances which make it dangerous, if a reasonable person would have been aware of them (R v Watson [1989] 2 All ER 865 (CA)).

In DPP v Newbury [1976] UKHL 3; [1976] 2 All ER 365,367 (HL) Lord Salmon referred with approval to what Humphreys J said in R v Larkin [1943] 1 All ER 217,219 (CA):

“Where the act which a person is engaged in performing is unlawful, then if at the same time it is a dangerous act, that is, an act which is likely to injure another person, and quite inadvertently he causes the death of that other person by that act, then he is guilty of manslaughter.”

Lord Salmon said that was as an admirably clear statement of the law which has been applied many times:

“It makes it plain (a) that an accused is guilty of manslaughter if it is proved that he intentionally did an act which was unlawful and dangerous and that that act inadvertently caused death, and (b) that it is unnecessary to prove that the accused knew that the act was unlawful or dangerous. This is one of the reasons why cases of manslaughter vary so infinitely in their gravity. They may amount to little more than pure inadvertence, and sometimes to little less than murder.”

On these points also see Archbold 2003 paras 19-100 & 19-105.

However the learned authors of Smith & Hogan go on to state that the better view is that a criminal act must be identified and proved, including the appropriate mens rea, as in R v Lamb [1967] 2 All ER 1282 (CA) and R v Scarlett [1993] 4 All ER 629,636 (CA).

But in Attorney-General’s Reference (No 3 of 1994) [1997] UKHL 31; [1997] 3 WLR 421,436-7,441-4 (HL)[1997] UKHL 31; , [1998] 1 Cr App R 91, it was held by the House of Lords, applying Newbury, that it was sufficient for the mens rea for manslaughter that the defendant had intended to commit an act which was unlawful and which all sober and reasonable people would have recognised as creating a risk of harm to some other person. As Lord Hope of Craighead said at p 443:

“Nor is it necessary, in order to constitute manslaughter, that the death resulted from an unlawful and dangerous act which was done with the intention to cause the victim to sustain harm. This is because it is clear from the authorities that, although the defendant must be proved to have intended to do what he did, it is not necessary to prove that he knew that his act was unlawful or dangerous. So it must follow that it is unnecessary to prove that he knew that his act was likely to injure the person who died as a result of it. All that need be proved is that he intentionally did what he did, that the death was caused by it and that, applying an objective test, all sober and reasonable people would recognise the risk that some harm would result.”

In Lamb an act which was not an unlawful act (pulling the trigger of a revolver in jest) was involved and it was held that manslaughter could only be established by proving gross negligence: Archbold 2003 para 19-100. In other words the mens rea essential for manslaughter is limited to the mens rea appropriate to the unlawful act: Archbold 2003 para 19-105.

Then in R v Williams [1987] 3 All ER 411,414 (CA), which was referred to but not followed by McElrea J in R v Kulitapa CR 416/03, 8.10.04 , Lord Lane CJ said:

“The mental element necessary to constitute guilt is the intent to apply unlawful force to the victim. We do not believe that the mental element can be substantiated by simply showing an intent to apply force and no more.”

The key passage, referred to (but only in part) by McElrea J is at p 415, where Lord Lane CJ said:

“In a case of self-defence, where self-defence or the prevention of crime is concerned, if the jury come to the conclusion that the defendant believed, or may have believed, that he was being attacked or that a crime was being committed, and that force was necessary to protect himself or prevent the crime, then the prosecution have not proved their case. If, however, the defendant’s alleged belief was mistaken and the mistake was an unreasonable one, that may be a powerful reason for coming to the conclusion that the belief was not honestly held and should be rejected.”

However that was a case of assault causing actual bodily harm, not manslaughter, and I found that in relation to manslaughter it has been superseded by the Attorney-General’s Reference.

In Kulitapa McElrea J followed Scarlett, which in the present case was cited by Mr Sisifa for the prosecution, and where it was stated (at p 636):

"They [the jury] ought not to convict him unless they are satisfied that the degree of force used was plainly more than was called for by the circumstances as he believed them to be and, provided he believed the circumstances called for the degree of force used, he is not to be convicted even if his belief was unreasonable."

But, in view of that sentence, Scarlett is a case which clearly has to be applied with great care. Smith & Hogan state at p 276:

“The general principle ... is that the law allows such force to be used as is reasonable in the circumstances as the accused believed them to be, whether reasonably or not. ... It is immaterial that he was mistaken and unreasonably mistaken.

The question ‘Was the force used reasonable in the circumstances as D [the defendant] supposed them to be?’ is ... a question, to be answered by the jury or magistrates. If D’s use of force was reasonable to cause any harm which could reasonably have been foreseen, it is justified or excused, even if it results in some greater harm. ...

D’s belief that he is only doing what is reasonable may be evidence, but no more, that it was reasonable. 7 ...

These cases relate to self-defence but similar considerations apply to force used to prevent crime or to effect an arrest etc.”

and footnote 7 states:

“Scarlett appeared to have significantly modified this rule but Owino decides that Scarlett in no way qualifies the law as stated in Williams.”

Further on at p 277 of Smith & Hogan it is made clear:

“There may be an issue as to what circumstances D believed to exist, especially where the claimed belief is an unreasonable one.”

In Archbold 2003 para 19-169, referring to Scarlett, it is stated:

“In Scarlett there is a suggestion in the judgment (at p 636) that not only is the accused entitled to be acquitted if he used no more force than would be reasonable in the circumstances as he believed them to be, but he would also be so entitled if he used no more force than he himself genuinely thought necessary in the circumstances as he believed them to be, even though excessive on an objective assessment. The customary view is that it is for the tribunal of fact to say what degree of force is reasonable in the circumstances as the accused believed them to be. Scarlett was considered in R v Owino [2002] UKHL 5; [1996] 2 Cr App R 128 (CA); [1995] Crim LR 743, but the customary view was upheld.”

In Owino it was said (p 132):

“The jury have to decide whether a defendant honestly believed that the circumstances were such as required him to use force to defend himself from an attack or a threatened attack. In this respect a defendant must be judged in accordance with his honest belief, even though that belief may have been mistaken. But the jury must then decide whether the force used was reasonable in the circumstances as he believed them to be.”

The Court of Appeal went on to say in Owino (p 133-134 & p 744) that, read in context and properly understood, Beldam LJ in Scarlett was not saying that a person was entitled to use any degree of force he believed to be reasonable, however ill-founded the belief; and it went on to say that the law was as set out in Williams, ie that a person may use such force as is (objectively) reasonable in the circumstances as he (subjectively) believes them to be. The Crim LR commentary adds at p 744 that it is best that Scarlett is not referred to in the future - a view with which I agree.

In summary therefore, the approach in Williams put forward by Smith & Hogan is that the force used must be objectively reasonable in the light of the facts (and the circumstances and the danger) as the defendant subjectively believed them to be. An accused is not allowed to use as much force as he thought reasonably necessary.

That approach has since been followed by the Privy Council in London in Shaw (Norman) v The Queen [2001] UKPC 26, [2001] 1 WLR 1519; [2002] 1 Cr App R 77, [2002] Crim LR 140 (PC), where it was stated:

“19. In the opinion of the Board it was necessary for the trial judge to pose two essential questions (however expressed) for the jury’s consideration:

(1) Did the appellant honestly believe or may he honestly have believed that it was necessary to defend himself?

(2) If so, and taking the circumstances and the danger as the appellant honestly believed them to be, was the amount of force which he used reasonable?”

In that concise statement the emphasis is of course on the belief being honest.

But in any event, as I have stated above, I consider that Scarlett and the other authorities referred to above have been overtaken by the Attorney-General’s Reference, which I find highly persuasive and shall follow. McElrea J did not refer to the Attorney-General’s Reference in Kulitapa, presumable because it was not cited to him in Kulitapa and, because of that case and also the other authorities referred to above, I regret that I have to disagree with his view on the mens rea required for manslaughter.

Cause of death

As a matter of law an accused is still criminally liable if he hit a blow which was a cause of death – meaning something more than a minor cause; the incident need not be the sole cause of death, nor even a substantial cause, but it must be one of the causes and something more than de minimis: R v Hennigan [1971] 3 All ER 133 (CA). Even if something else happened after the original blow, it is enough that the original blow contributed significantly to the resulting death, if at the time of death the original injury was still an operating cause and a substantial cause, albeit that some other cause was operating: R v Smith [1959] 2 All ER 193 (CMAC).

Grounds of decision

Was the slap an unlawful act?

On the evidence before me I was satisfied beyond reasonable doubt that the accused Tevita Vi slapped Sime Soakai at Pangai on 3 July 2004 with such force that he fell and struck his head on the ground. There was no issue about the identity of the accused, the time and location leading up to the incident, nor any issue of self-defence.

I accept that, while in fact Tevita Vi was not working at the time, as a Police officer in terms of section 20(b) of the Police Act he is always deemed to be on duty, but I was unable to accept that the slap fell within the ambit of his duty. The evidence showed that Sime and his unfortunate habit of getting drunk and shouting in public were well known to the accused and other Police officers in Pangai and that Sime was not a violent or aggressive man requiring restraint by force. The accused Tevita Vi himself gave evidence that on a previous occasion he had arrested Sime when he was drunk and he had gone quietly to the Police Station; and that usually when Sime shouted his usual words, most of the time the accused went and spoke to Sime and Sime stopped.

There was conflicting evidence about whether or not the accused told Sime to stop shouting and whether Sime continued to shout right up to the time of the slap. The accused himself said that on this occasion the last time he spoke to Sime they were standing together and he spoke to him, finishing off what he was saying, at the same time as he then slapped him. And in the accused’s unchallenged record of his interview by the Police, simply said at Answer 11 that he walked towards Sime and said to him “How many times have I told you to stop making noises when you are drunk”, then slapped him on the right cheek and he fell down. After ‘Eseta Tu’ifua had been shown her statement made shortly after the incident, she accepted that as Tevita Vi crossed the road he called to Sime to stop making noises, but that Sime had still been shouting when Tevita Vi reached him. Although Sione Mahe’s evidence varied, he did accept in cross-examination that the accused had spoken to Sime, but Sime had not stopped shouting. Therefore while I accepted that the accused spoke to Sime about the shouting before he reached him, I also accepted ‘Eseta’s evidence that the accused did not stop when he reached Sime, but slapped him immediately. That was consistent with ‘Eseta’s evidence that Tevita Vi was in a hurry, which was corroborated by the evidence of Sime’s 3 drinking companions (which in this respect I accepted) that the accused ran or jogged to where Sime was; the accused himself accepted Sione Mahe’s description that he had been walking in a hurry.

The evidence to the contrary, that Sime only shouted twice and that they did not hear the accused speak to him before slapping him, came from Sime’s 3 drinking companions, and as I believe they were almost as drunk as Sime himself, their evidence on the exact timing of events could not be considered as entirely reliable, so I preferred the evidence of the accused and ‘Eseta.

Although Sime may have been shouting right up to the time he was slapped, with threats to destroy Pangai, and thus committing the offences of being found drunk in a public place and being drunk and behaving in a disorderly manner in a public place in terms of section 3(j) & (k) of the Order in Public Places Act, I did not accept that the accused Tevita Vi took these literally as meaning that 73-year old Sime was likely to cause trouble (beyond his shouting) by actually fighting with anyone in Pangai; and I inferred that the accused knew that on that day Sime would not have attacked him or anyone else in Pangai. Although the accused said that he was trying to get across to Sime to keep quiet, and that he had to slap Sime’s mouth to stop him from shouting or behaving in a disorderly way, I was unable to accept that in the circumstances that was necessary or called for.

I therefore found it established beyond reasonable doubt that objectively there was no requirement for the accused to use any force on Sime at that exact time. Although the accused had a duty under section 20(e) of the Police Act to prevent the commission of offences and public nuisance, that could have been accomplished without slapping Sime, for example simply by asking or telling him again to stop and then arresting him if he failed to comply and taking him to the Police Station, which was not far away. The accused said that he did not arrest Sime on this occasion because of his old age and most of the time the accused stopped him and Sime obeyed what the accused said - he could have been more patient and done that on this occasion also.

Even accepting that the accused subjectively believed that it was necessary for him to slap Sime (although for these reasons I found beyond reasonable doubt that that was not an honest belief) I found it established beyond reasonable doubt, again for those reasons, that the accused’s use of force was not objectively reasonable in the light of the circumstances as he believed them to be.

But in any event, accepting that the accused had told Sime to stop shouting and Sime had continued to shout until the accused reached him, I do not accept that that was a reason for the accused immediately to slap Sime. There may be occasions when it is perfectly appropriate for a Police officer to use reasonable force - eg to stop a person continuing to commit a crime or to apprehend a violent criminal – but this was not one of them. A Police officer is given very great powers by the law, but he should always carry out his duty in a calm and dispassionate frame of mind and without allowing personal emotions such as anger to influence his actions. He should try to resolve such a situation in a peaceful manner without assaulting any member of the public, as he himself admitted in evidence. In this case I found on the evidence that the accused’s actions and whole approach to the situation showed that he had allowed his own anger to influence what he did – even if that anger at Sime again causing a drunken disturbance was to some extent understandable. To that extent I found that the accused deliberately assaulted Sime, as demonstrated by Answer 11 of his interview, and used excessive force. I believe it is significant that the accused had never been through the normal training for a Police officer at the Police Training School, though that does not excuse what he did.

Further, as already mentioned, I was satisfied beyond reasonable doubt that the force actually used by the accused was greatly in excess of any reasonable force required by the occasion. Although Sime was a tall man, he was also an elderly man with no history of aggressive behaviour, but I found that the accused slapped Sime with great force. That was shown by the demonstration in evidence by ‘Eseta of the way in which the accused delivered the slap with a full swing, and of the way in which Sime fell down immediately because of it, as ‘Eseta described it, he fell down like a doll. I accepted that evidence and was unable to accept the evidence of the accused that he did not slap Sime very hard. Tevita Vi’s slapping of the accused, accompanied by Tevita Vi saying “How many times have I told you to stop making noises when you are drunk”, seemed much more like the administration of punishment or retribution, which I must make clear is no part of the function of a Police officer on an occasion such as this.

On all that evidence I was satisfied beyond reasonable doubt that the degree of force used by the accused was plainly more than was called for by the circumstances as he subjectively believed them to be (as his belief that a slap was necessary to fulfil his duty cannot have been an honest belief); and therefore that the accused’s action in slapping Sime Soakai on 3 July 2004 was not objectively reasonable and was not an action which was in any way sanctioned by the law, and accordingly it was an unlawful act. Even if the accused subjectively and mistakenly believed that Sime’s actions required him to apply some force to Sime to stop him shouting, the force used by the accused was not objectively reasonable in the light of that fact, as shown by its effect in knocking down Sime.

I also found it established beyond reasonable doubt that the accused intentionally did what he did when he slapped Sime Soakai, and that, applying an objective test, all sober and reasonable people would recognise the risk that some harm would result.

Was the slapping a cause of death?

Mr Tu’utafaiva for the accused also submitted that the prosecution had failed to prove that the slapping of Sime by the accused was a substantial cause of death, as it had failed to prove that the fracture to the left side of Sime’s head was caused by the accused. In cross-examination Dr ‘Ulufonua said that the fracture could still have happened from Sime repeatedly falling backwards from his chair when they were drinking opposite the market; and that it could also have been caused when Sime fell on to the ground when he stood up to go to the toilet. In re-examination Dr ‘Ulufonua had confirmed that the fall from the chair or hitting the head while standing up and causing a fracture would not usually cause a person to be unconscious. Mr Tu’utafaiva submitted that it was not alleged by the prosecution that the fracture to the left side was caused by the slapping (by itself).

Mr Tu’utafaiva also submitted that there was no injury to the back of Sime's head, and the fracture, according to the x-ray, was to the left side of the skull. Dr ‘Ulufonua in cross-examination had said that there was no significant bruising to Sime's body or head, although ‘Eseta Tu’ifua’s evidence was that Sime fell like a doll after being slapped. He submitted that it could be more likely, if the injury was caused by the fall, that there should be a fracture on the back of the head, instead of the side, which added to the doubt about the cause of the fracture on the left side of the head.

However on the evidence before me I was satisfied beyond reasonable doubt that it was the slap by the accused which caused Sime to fall down instantly and like a doll (according to ‘Eseta) and strike his head on the road. It is consistent with the account of ‘Eseta and the accused’s statement in his Police interview that as the slap was delivered (by the accused’s strong left hand, as he was left-handed) to Sime’s right cheek there was some turning of his head as he fell, so that a fracture of the left side of the temporal skull bone, as shown on the x-ray, was entirely consistent with the evidence.

What is more important and more significant is that, despite the evidence of earlier falls while Sime was drinking, there was no evidence at all of any bleeding from Sime’s ear or mouth before he was knocked down. Yet as soon as Sime was on the ground when he was knocked down, all 3 of his drinking companions who were eye witnesses noticed that blood came out of his ear and mouth. The accused himself said during his interview that he noticed blood on Sime’s mouth and when they put him onto the vehicle to rush him to hospital, he noticed blood running out of Sime’s left ear.

When Dr ‘Ulufonua saw Sime on admission he also noticed a slight leakage of blood from the left ear, which is usually indicative of a fracture at the base of the skull or skull areas close to the ear, and he said that was one of the major reasons why he took him into hospital. He said that in this case the swelling of the brain would have started almost instantly from the time of the trauma (ie Sime hitting his head on the ground), or within not more than 1 hour, thus reinforcing the evidence that it was the fall from the slap by the accused which caused Sime’s severe head injury.

All that evidence satisfied me beyond reasonable doubt that the slap by the accused (which caused Sime to fall down instantly and strike his head on the road) was a cause (which was more than minor) of Sime’s severe head injury from which he subsequently died, as I find below.

Mr Tu’utafaiva further submitted that Dr ‘Ulufonua did not clarify or specify the problems of the deceased Sime which caused his death, as his evidence was based only on his clinical findings plus the x-ray of Sime’s head/skull. The evidence of Dr ‘Akau’ola, the radiologist, was that the death resulted from the fracture of the left parietal region (ie the left side of the head); and if there had also been an injury to the middle meningal artery that would have caused brain fever and problems, but she said in cross-examination that she could not tell whether or not the artery had been injured. Dr ‘Ulufonua had not referred to the artery in his Report or evidence.

Mr Tu’utafaiva also submitted that there were indications that Dr ‘Ulufonua was not sure of the real problem faced by the deceased Sime, and was not certain of the cause of death, as he said that the swelling of the brain could have been treated by the use of steroids to reduce inflammation, or by drilling a hole in the head to relieve the pressure. However there had been no evidence that one or both of those treatments was carried out on Sime, and no reason given in evidence for not carrying out one or both types of treatment. He submitted that other aspects of Dr ‘Ulufonua’s evidence in cross-examination on the contents of his Report, when he stated that severe electrolyte imbalance was highly possible, that diabetes insipidus was highly likely, depending on his clinical findings, and that recurrent fitting episodes were possibly caused by trauma to Sime’s head, also indicated that he was not sure of the real problem faced by Sime.

However I was unable to accept those submissions for the defence. As I have found above, I had no reasonable doubt that Sime’s condition on admission to hospital was caused by the action of the accused. He was conscious before that slap but unconscious or semi-conscious from that time onwards, and I accepted Dr ‘Ulufonua’s evidence that, despite Sime’s state of intoxication, right from the start he thought that he had severe head injuries and started neurological monitoring. Dr ‘Ulufonua’s Report after Sime’s death stated that on admission, after close neurological monitoring and investigations Sime was diagnosed to have 2 problems: 1. Severe head injury (Glasgow Coma Scale of < 8) with cerebral oedema; and 2. Linear left sided fractured temporal skull bone. The x-ray taken on 7 July (produced to the Court as Exhibit 3) had confirmed Dr ‘Ulufonua’s diagnosis by showing a fractured skull on the left side of the skull. Dr ‘Ulufonua said he had been definite in his diagnosis after seeing the x-ray, but wished to have a second opinion as there was likely to be a legal case. He had been further assured on 22 November, when he wrote his Report.

I accepted Dr ‘Ulufonua’s clinical findings from his clinical observations, as indicated in his Report and in evidence, that Sime was suffering from a severe head injury received from his fall when slapped by the accused and that complications arising from that were a substantial cause of his death, as I find below. I also accepted Dr ‘Ulufonua’s evidence that, although in this case there were no visible marks that told him straight away that there was a fractured skull, trauma to the skull would not necessarily have shown significant bruising, as he had dealt with a number of cases in the past with no bruising at a fracture.

Although this finding of death following a severe head injury does not depend on linking the severe head injury to Sime’s other problem of a fracture of the skull, I also found on the explanations by Dr ‘Ulufonua and Dr ‘Akau’ola in evidence that it was highly likely that the severe head injury arose from the fracture of the temporal parietal bone on the left causing tearing of the important ligament behind it and hence tearing of the middle meningal artery. I also accepted the submission by Mr Sisifa for the prosecution that the phrase “severe head injury” in the indictment covered a head injury such as a fracture of the skull, as well as internal trauma. As the blood bleeding from that artery had nowhere to go within the skull, it would compress the brain, leading to a swelling of the brain and brain oedema, which is a very serious thing and can lead to all the types of complications suffered by Sime, as described in Dr ‘Ulufonua’s Report. But I also accepted Dr ‘Ulufonua’s evidence that brain oedema can be caused by direct trauma.

I further accepted the evidence of Dr ‘Ulufonua that those complications listed in his Report were caused by Sime’s severe head injury, and eventually lead to his death 3 months later on 18 October 2004. I also accepted his evidence that a large trauma to the head would be the first on his list of causes; and that all Sime’s problems were a consequence of the incident at admission, mostly problem number 1. I found, on the evidence detailed above, that those complications arose from the severe trauma to Sime’s head and his consequent unconscious state. Severe electrolyte imbalance and diabetes insipidus relate to almost every unconscious patient who does not recover.

There was also evidence that Sime could have been treated with steroids to reduce the brain inflammation, but that these would only work depending on the severity of the inflammation; or he could have been treated by drilling a hole in his skull to release the pressure, but that had not been done, although Dr ‘Ulufonua had discussed Sime’s situation with the Surgical Team and the Intensive Team at Vaiola Hospital, Nuku’alofa, who had agreed with his findings. If it had been possible to move Sime to Vaiola Hospital he could have been put on an artificial ventilator, but a transfer had been impossible, particularly as he was unconscious.

In any event, as set out above under the relevant law, as a matter of law the accused is still criminally liable if he hit a blow which was a cause of Sime’s death which was something more than de minimis. Even if something else happened after the original blow – such as it being impossible to take Sime to Tongatapu for better medical treatment – it is enough that the original blow contributed significantly to the resulting death. I was satisfied that the fall caused by the accused’s slap caused Sime's death in the sense that the death flowed from the wound, even if the treatment of Sime had been wrong or could have been better (which in all the circumstances I do not accept): at the time of death the original injury was still an operating cause and a substantial cause, so Sime’s death could properly be said to be caused by the fall albeit that some other cause was operating.

Although the date of Sime’s death was not specified in the indictment, it was very clear that death followed on in a continuous process from the original slapping incident on 3 July 2004 and that in the whole circumstances the accused suffered no injustice or unfairness because the date was not specified in the indictment.

I therefore found it proved beyond reasonable doubt that the slap by the accused Tevita Vi of Sime was a cause of Sime’s death which was more than minor, and in reality was a substantial cause of Sime’s death.

Conclusion

I therefore found it proved beyond reasonable doubt that the accused Tevita Vi on 3 July 2004 intentionally slapped Sime Soakai on the right side of his face with his left hand while he was drunk, causing him to fall and hit his head on the road, and thus causing him to receive severe head injury, and thus causing his death. I also found it established beyond reasonable doubt that that was an unlawful act and not one carried out in terms of Tevita Vi’s duty as a Police officer; and that, applying an objective test, all sober and reasonable people would have recognised the risk that some harm would result.

I have to add that, even if I am wrong in applying that test for manslaughter from the House of Lords in the Attorney-General’s Reference, using the approach put forward by Smith & Hogan, I also found beyond reasonable doubt that the force used by the accused was not objectively reasonable in the light of the facts (and the circumstances and the danger) as the accused subjectively (but not honestly) believed them to be. Even if the accused subjectively and mistakenly believed that Sime’s actions required him to apply some force to Sime to stop him shouting, I found that that belief was not honest; the accused was not allowed to use as much force as he thought reasonably necessary, and the force he actually used was not objectively reasonable in the light of that fact, as shown by its effect in knocking down Sime.

I therefore find Tevita Vi guilty of manslaughter in terms of Count 1 and I convict him of that - a finding which I make with very great regret in view of Tevita Vi’s position as a Police officer of several years experience.

R M Webster
Chief Justice