Rex v Fanua [2005] TOSC 15; CR 003-004 2004 (9 May 2005)

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

NO. CR 3-4/2004

BETWEEN:

REX
Prosecution

AND:

1. VA’ENUKU FANUA
2. MONEATA VEAMATAHAU
Accused

BEFORE HON ACTING CHIEF JUSTICE FORD

Counsel: Ms L. Fukofuka for the Crown and Mr T. Fifita for the two accused

Dates of hearing: 6 April and 6 May 2005

Date of judgment: 9 May 2005

JUDGMENT

The Charges

The two accused are a de facto couple from Ma'ufanga. They are each charged with one count of, on the 23rd day of October 2003, causing grievous bodily harm to their immediate neighbour, Tipeti Finau. Tipeti is a police officer of some 14 1/2 years standing. At the time of the incident, he was attached to the Police Mobile Unit.

The Facts

The facts of the case can be briefly stated. On Monday 20 October 2003, Tipeti, now aged 34, attended a funeral in the morning and in the afternoon he drank liquor at his home with two of his friends. Between approximately 1 p.m. and 5 p.m. the three men consumed a bottle of rum between them. At one point the two friends had some food but Tipeti did not want to eat anything until he had finished drinking. After their meal, the two friends left for home and Tipeti passed out in a drunken state.

Later, when Tipeti woke-up he started looking for his wife to fetch his food. He found that she had gone to visit a neighbour's house and so he started calling out for her and swearing. He was still drunk.

At that point, the second accused, 36-year-old, Moneata, appeared on his doorstep and asked him to stop making a noise because there was a very ill person in the immediate neighbourhood and that person did not like noise.

I should interpolate that the allotment the complainant and the two accused live on belongs to Moneata's uncle, Sofele Katoa, who lives in New Zealand. Moneata holds authority from Sofele to look after the property in his absence. The two houses are approximately 25 m apart.

Returning to the narrative, Tipeti in his drunken and belligerent state, took exception to what he saw as Moneata's unwelcome and unwanted interference and he proceeded to assault her. He slapped her face and punched her on the chest and breast. Moneata fell backwards onto the ground. Tipeti then started dragging her along the ground and at one point he started choking her by the neck. He also stood over her with his legs apart lifting her by the shoulders and dropping her head back and forth onto the ground.

In the meantime, Moneata’s de facto husband, the first accused Va’enuku, was still inside their home. He told the Court that he had arrived home from work at around 5pm. Shortly after that there was a knock on his door and two police officers asked him if it was he who had complained about Tipeti. He told them that neither he nor his wife had complained. He said the police then left and he sat down to watch television.

As he was watching television Va’enuku could hear Tipeti shouting out and he knew that his wife went over to see Tipeti. Va’enuku at that stage went to the toilet and he said in evidence that when he returned from the toilet he could hear his young son crying and his daughter saying, “Tipeti stop beating up my mother.”

Va’enuku immediately ran over to where Tipeti was standing astride his wife assaulting her. He pushed him away and Tipeti faced up to him and started to challenge him to a fight. At that point Va’enuku punched Tipeti on the right jaw breaking his jaw and dislodging one of his teeth. This was the punch, which forms the basis of the grievous bodily harm charge against the first accused.

First Accused

The defence raised on behalf of the first accused is that he was acting reasonably in defence of his de facto wife. The common law recognises that a person who acts reasonably in defence of another commits no unlawful act.

I say at once that I am satisfied that the defence has been made out in respect of the first accused. The attack by the drunken Tipeti was vicious and if the first accused had not intervened when he did then I am satisfied that Moneata would have sustained severe injuries.

I am also satisfied that Va’enuku did not intend his punch to break Tipeti's jaw or his tooth but he was only intent on trying to stop Tipeti's attack on Moneata. Tipeti is a tall, strongly built policeman. Moneata is an average built woman. In my view, the force that Va’enuku used was, in all the circumstances, reasonable and he is entitled to rely upon the defence of defence of others.

As explained by Lord Griffiths delivering the judgment of their Lordships in Solomon Beckford v The Queen [1987] UKPC 1; [1988] 1 AC 130 at 144:

"The common law has always recognised as one of these circumstances the right of a person to protect himself from attack and to act in the defence of others and if necessary to inflict violence on another in so doing if no more force is used than is reasonable to repel the attack such force is not unlawful and no crime is committed. Furthermore a man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike."

Tipeti, in his evidence, denied the nature of his attack on Moneata. He referred to it as a scuffle in which she fell to the ground and he strongly denied standing over her and dropping her head back and forth onto the ground. I do not accept his evidence in this regard. The Crown called evidence from Tipeti's 20-year-old married daughter, Vaikalafi, who was a witness to the whole incident and she admitted in cross-examination seeing her father choking Moneata by the neck and banging her head on the ground. Vaikala was a refreshingly honest witness.

The first accused is, therefore, acquitted.

Second Accused

After the first accused threw the punch at Tipeti which I have described, both men started fighting and the fight was eventually broken up by another neighbour who was called as a Crown witness, ‘Asipeli Kupu. ‘Asipeli had just arrived home from work. He told the Court how he was able to stop the fight and separate the two men. Then as they both started walking towards their respective homes Moneata suddenly struck Tipeti on the top of the head with a length of PVC hollow plastic piping that had been used as a clothesline support. The blow from the PVC pipe caused a laceration to the top of the complainant's head. It was that blow to the head with the PVC pipe, which forms the basis of the grievous bodily harm charge against the second accused, Moneata.

I am satisfied that the blow struck by Moneata was not struck in self-defence. The fight had by that point in time broken up. The blow was struck in anger. Moneata admitted that much in her statement to the police:

"Q. Why did you hit Tipeti which the pipe?

A. I was very angry because he assaulted me and dragged me around."

Anger, of course, is not a defence.

The Crown, nevertheless, still has to prove beyond reasonable doubt that the blow from the plastic pipe caused “grievous harm” to the complainant. The definition of grievous harm in section 106(2) of the Criminal Offences Act (CAP. 18), which the prosecution relies upon, is that set out in subsection (c), namely, “any severe wound”. The question I have to consider is whether the resulting injury amounted to a “sever wound”.

"Severe wound"

At common law, the meaning attributed to "wound" has long been established as an injury, which causes the continuity of the skin to break. See R v Wood (1830) 1 Mood CC 278; Moriarty v Brooks [1834] EngR 1141; (1834) 6 C & P 684. Commenting on the common law meaning attributed to the word "wound", McMullin J. stated in the New Zealand case of R v Waters [1979] NZCA 24; [1979] 1 NZLR 375, 378 (CA):

"A breaking of the skin would be commonly regarded as a characteristic of a wound. The breaking of the skin will be normally evidenced by a flow of blood and, in its occurrence at the site of a blow or impact, the wound will more often than not be external."

What constitutes a severe wound is not defined in the Act but it would obviously need to be something more than a trifling injury. In the context of "an attack of illness or disease, pain, suffering, loss, or the like," the Shorter Oxford Dictionary definition of "severe" is, "attended with a maximum of pain; grievous, extreme." I see no reason why that same definition should not also extend to cover the expression "severe wound".

Case Law supports this interpretation:

* In the case of R v Rowson and others [1985] 2 All ER 539, a fractured skull caused by two blows to the head was called a "severe wound".

* In the New Zealand case of James v R (10 August 1998) CA 140/98 a shotgun wound to the foot was described as a "severe wound".

* In another New Zealand Court of Appeal case, Li v R (28 June 2000) CA 140/00, a wound caused by sledging a garden slasher into the victim's thigh, causing a laceration 7 -- 10 cm long and 4 cm deep was described as a "severe wound";

* A punch to the thigh that needed 19 stitches was described as a "severe injury" in Lane v Holloway [1967] EWCA Civ 1; [1967] 3 All ER 129;

What does not constitute a "severe wound" was discussed indirectly in the recent Tongan case of R v Tau'aika (unreported) where there was a nasty cut and broad area of skin loss to the side of the left eye, haematoma to the left eye and cheek, tenderness to the jaws and haematoma and tender swellings on three areas of the back of the head. The Court held that these injuries amounted to bodily harm but could not be considered sufficient to amount to grievous harm.

Again, in R v Fa’aso [1996] Tonga LR 36, Hampton CJ held that – brokers jaw and laceration of the lips suffered by a rape victim, did not amount to a sever wound.

Did the second defendant cause a "severe wound"?

Although medical evidence was called by the Crown from Dr Ámanaki Fakakovi who treated the complainant's broken jaw and broken tooth, there was no direct medical evidence given about the laceration to the top of the complainant's head.

The complainant said in evidence that when he first attended the hospital a nurse came and treated the wound to the top of his head and Dr Fakakovi's report mentions under his list of "findings", "scalp laceration near middle of the skull about 5 cm in length already sutured on arrival at hospital 20.10.03."

In the absence of persuasive medical evidence on the subject, I am not prepared to simply assume that the laceration described could properly be categorised as a severe wound. The Crown has failed, therefore, to establish this important element of the offence.

The Court does have a discretion to substitute a lesser offence for that of causing grievous bodily harm but the case was conducted on the basis of the indictment as it stands and, more significantly, given the complainant's provocative, aggressive and disgraceful conduct in attacking the second accused in the way that he did, I am simply not prepared to subject Moneata to any further indignity.

The second accused is also, therefore, acquitted and discharged.

NUKU'ALOFA: 9 MAY 2005

JUDGE