Rex v Valu [2005] TOSC 17; CR 028 & 033 2004 (20 May 2005)

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

NO. CR 28/04 & 33/04

BETWEEN:

REX
Prosecution

AND:

TEKA VALU
Accused

BEFORE THE HON MR JUSTICE FORD

Counsel: Ms M. Tupou for the Crown and the accused in person

Dates of hearing: 16, 17, 18 May 2005
Date of judgment: 20 May 2005

JUDGMENT

The Charges

The accused appears on two separate indictments. They both relate to the same incident. In the first, he is charged with causing grievous bodily harm to Tevita Kengike and in the second he is charged with causing bodily harm to Sione Fa'amasa.

The case for the Crown is that on the night of Monday 12 January 2004 a fight broke out, following a dance at the Finefeuiaki Hall at Kolonga, between youths from Kolonga and the adjacent village of Niutoua. It is alleged that in the course of the fight the accused used a knife and stabbed Kengike in the low back, stomach and thigh and Fa'amasa in the left buttock.

Evidence

The accused conducted his own defence and cross-examined the Crown witnesses. He also elected to give evidence on his own behalf. The accused did not dispute the medical evidence relating to the injuries sustained by the two complainants but he strongly denied that he was the attacker. In essence, the accused claims that it was a case of mistaken identity. He says that he was not involved in the fighting. He accepts that he witnessed much of the action but he says that he was standing some distance away and he did not become personally involved. He told the Court that afterwards he went to the assistance of two boys (not the complainants) who had been left injured on the roadway.

21-year-old Sione Fa'amasa told the Court that he was at the dance with a group of about eight boys from Niutoua. Between them they had consumed a bottle of rum. He said that after the dancing had finished they walked outside the hall and he noticed the accused who was holding a knife and standing with a group of boys from Kolonga. He said that he knew the accused well and he was able to see him clearly in the light from the outside verandah of the hall. Sione said that he continued walking over to the roadway and he noticed that two of the tyres on his friend's car, which was parked directly across the road from the hall, had been punctured.

Sione then described how the group of boys, estimated to be approximately 20 in number, walked towards him and his friends. Stones were thrown and then fighting broke out. He said that he remembered being punched and then he blacked out. When he regained consciousness, he realised that he had been injured and stabbed with a knife twice. He did not know who had attacked him.

Tevita Kengike, also from Niutoua, said in evidence that he had been drinking homebrew during the dance. After the dance ended he walked outside the hall and was caught up in the fight between the two groups of youths. He said that the fighting took place between the front of the hall and the road. In cross-examination, he agreed with the accused that rocks and sticks were being thrown.

Tevita said that he recalled someone punching him on the back causing him to fall to the ground. When he stood up again he was stabbed in the back and as he turned around, the same person stabbed him in the thigh and the stomach. At that point, Tevita grabbed hold of his attacker's hand and was able to identify him as the accused. Someone else then punched him again and he let go of the accused's hand. He said that he knew the accused before the incident and he was able to identify him in the light shining from the verandah of the hall.

The other lay witness for the Crown was Lopeti 'Ofahulu. Lopeti is a married man and a carver by occupation. He told the Court that on the night in question he had been watching a video at his home and then sometime after 10 p.m. he and his wife had walked along to the dance hall. While he was standing outside the verandah of the hall, shortly before the dancing finished, he noticed the accused standing nearby holding a knife. He described the knife as being sharp pointed and approximately 9 inches in length. Lopeti said that when the fighting broke out he and his wife were afraid for their own safety and so they walked home. Lopeti did not witness any of the fighting but he was very positive in his identification of the accused as the person he had seen holding the knife.

A significant aspect of Lopeti's evidence is that he was sober. He told the court that he had not been drinking.

The final witnesses for the Crown were Corporal Tu'fua, the police officer who took statements from the accused, and Police Constable Kofeloa, the countersigning officer.

Because he was unrepresented, the Court asked the accused whether the statements he had given to the police had been made voluntarily and he gave an affirmative response. Later, however, when giving evidence, the accused indicated that the police had made up the answers to the questions in the two records of interview and he had only co-operated so that he could be released from custody quickly.

I say at once that I reject that proposition. Corporal Tu'ifua told the Court that he had not been involved in the arrest of the accused and he knew nothing about the case until he was instructed to take a statement from the accused. He said that during the interview, he asked the questions and the accused voluntarily wrote down the answers in his own handwriting. When that proposition was put to the accused, he denied that the handwriting was his but he gave the Court a sample of his handwriting and I have no doubt that it was he who wrote down the answers.

In the first record of interview, the accused spoke about the attack on Kengike. He freely admitted stabbing Tevita Kengike with a knife which he described as a "cooking knife". He was asked why he used the knife and he replied, "it was a fight."

In the second record of interview, the accused spoke about the attack on Sione and he admitted stabbing this complainant with the same cooking knife. When asked why he had used a knife during the fight, he replied: "There were lots of boys from Niutoua and they had stones and sticks."

In his evidence, the accused strongly denied having a knife in his possession that night and, as I have indicated, he denied being involved in the fighting in any way. I do not accept his evidence in this regard. Lopeti 'Ofahulu was an impressive witness and he had no doubt that he had seen the accused standing outside the dance hall holding a knife just before the fighting began. Lopeti, as I have already observed, was sober at the time.

Having rejected the accused's version of events, it is still necessary for me to be satisfied beyond reasonable doubt that the Crown has established all the necessary elements of each charge.

One concession the accused was able to obtain in his cross examination of Tevita Kengike was that when the case was called in the Magistrates' Court he had asked Tevita outside the court whether it was he (the accused) who had stabbed him and Tevita had answered, "No." In this Court, Tevita admitted that he had given that answer but he explained that he was scared to say it was the accused because he knew the accused well and he said he had a reputation for getting drunk and beating people up.

I interpolate that the 30-year-old accused told the Court that he is well known to the younger generation as a boxer. He represented Tonga eight times in boxing at the Oceania and South Pacific Games. His last representative appearance was in 1997.

I accept Tevita's explanation. I found him to be a thoughtful and honest witness. Even though he was admittedly influenced by alcohol on the night in question, his description of how he grabbed his attacker's hand while the knife was still inside his stomach was quite graphic. It was at that point that he looked up and recognised the accused as his attacker.

The leading authority on identification cases has long been the UK Privy Council case of R v Turnbull [1977] Q B 224. Giving the judgment of the Court, Lord Widgery set out at p228 the guidelines for directing juries in such cases. This is not a jury trial, of course, but sitting as a judge alone I have taken into account all the factors Lord Widgery listed; in particular, the need for caution in relying on the correctness of an identification bearing in mind the possibility that a mistaken witness can often be a convincing one.

The principles expounded by Lord Widgery in Turnbull were recently followed and applied again by the Privy Council in Langford v The State, [2005] UKPC 20 (11 May 2005). In Langford Lord Carswell, giving the judgment of the five-judge Court added:

"One other factor of general importance requires mention. Where, as in the present case, the identification depends upon the recognition by the witness of a person or persons previously known to him, the jury should be reminded that there is room for mistake in such cases as well as in those which turn on the identification of a person thitherto known to the identifying witness who is recollected by description."

I have taken all these factors into account and I have been left in no doubt, on the Crown's evidence, that the accused was involved in the fighting, that he had a knife and that it was he who caused the injuries to the two complainants. Although there were no eyewitnesses to the attack on Fa'amasa, the admission made by the accused in his statement to the police is sufficient in itself to support the conviction.

The accused did not claim to be acting in self-defence but I have, nevertheless, given careful consideration to that possibility. Although there was evidence that sticks and stones had been thrown during the fighting, the evidence satisfied me that no other person, apart from the accused, was carrying a knife and there was no evidence that the accused had suffered any injury or was in any sort of danger. That finding in itself is sufficient to rule out any element of self-defence but in any event I find that the use of a knife in all the circumstances was totally unjustified.

As I have indicated, no challenge was made to the medical evidence called by the Crown and I am satisfied beyond doubt that the injuries to the two complainants amounted to grievous bodily harm and bodily harm respectively.

The accused is, accordingly, convicted on both counts.

NUKU'ALOFA: 20 MAY 2005

JUDGE