Rex v Aumua [2005] TOSC 9; CR 209 2004 (9 March 2005)

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

NO. CR 209/04

BETWEEN:

REX
Prosecution

AND:

SENOLITA AUMUA
Accused

BEFORE THE HON MR JUSTICE FORD

Counsel: Mr Sisifa for the Crown and Mr 'Etika for the accused

Date of hearing: 4 March 2005
Date of judgment: 9 March 2005

JUDGMENT

The 19-year-old accused, Senolita, is charged with one count of bodily harm contrary to section 107 of the Criminal Offences Act (CAP. 18). The Crown's case is that on 3 October 2004 Senolita confronted the 21-year-old complainant, Mele, on the verandah outside the Anglican Church at Kolofo'ou. There was an ordination ceremony being conducted inside the church at the time. Senolita was angry at Mele because she thought that she and her sister, Penina, were gossiping about her and her 16-year-old sister, Fuavosa. She was also angry because she believed that Mele, a few days earlier, had told her mother that the accused bullied her at school.

At the time of the confrontation, the accused and her sister had walked over to where Mele and Penina were seated and the accused had sat down in a plastic chair directly facing Mele. Mele responded to the accused's verbal accusations by telling her that they had not been gossiping about her and, in relation to the bullying allegation, she said that what she talked to her mother about was between her and her mum.

It is alleged that in anger the accused then stood up and scratched Mele on the face and that is the basis for the bodily harm charge. Mele retaliated by pushing the accused to the ground. A scuffle then broke out with the two women pulling each other's hair before other people broke up the fight.

To establish the charge, the Crown needs to establish four elements. First, that there was injury amounting to bodily harm; secondly, that the bodily harm was caused by the accused; thirdly, that at the time of the assault the accused had the intention of causing bodily harm to the victim and, finally, that the accused caused the bodily harm without what is called "lawful justification".

The Crown called evidence from the complainant and her sister. They were both impressive witnesses, particularly the sister, Penina. Their evidence confirmed the Crown's version of events.

The onus of proof, of course, is on the Crown and it must establish each element of the charge beyond reasonable doubt. The accused does not have to prove anything. Nor does she have to give or call evidence. In this case the accused elected to give evidence and she also called evidence from her sister and a bystander.

The accused disputed the Crown's version of events. She alleged that after talking to the complainant, she stood up from her chair and was starting to walk away when the complainant suddenly assaulted her by pushing her. She fell to the ground and then when she got back to her feet a scuffle developed between them and they started pulling each other's hair. The accused indicated that at one point during the fight, as a defensive action, she's scratched the complainant's face. The accused’s younger sister, Fuavosa, gave evidence supporting the accused's story. The independent witness did not observe the scratching incident.

At the end of the day, the issue before the Court is one of credibility. Who do I believe -- the complainant and her sister on the one hand or the accused and her sister on the other?

As I have already indicated, I found the complainant and her sister reliable and credible witnesses. On the other hand, I did not believe the evidence given by the accused and her sister. The accused made a statement to the police on the day of the incident, which was produced by the Crown and what she told the police was consistent with the complainant's version of events. In answer to the question why had she scratched Mele's face, the accused had told the police, "I was angry at her for giving my sister a bad look." Significantly, she did not say anything to the police about the scratching being a defensive action in response to an attack on her by the complainant. In short, I am satisfied beyond reasonable doubt that the accused scratched the complainant's face as alleged by the Crown, but that is not the end of the matter.

Mr 'Etika submitted that should I reach that conclusion then the Crown has still not made out the charge because the scratches did not amount to "bodily harm". The definition of bodily harm relied upon by the Crown is that set out in section 107 (2) (b) of the Criminal Offences Act, namely, "any wound which is not severe."

In support of his submission, Mr 'Etika referred the Court to the English Court of Appeal decision in JJC (a minor) v Eisenhower [1983] 3 All ER 230, where it was held that there needed to be a breach in the whole of the skin in order to establish a wound.

This Court has always taken exactly the same view. In R v Faóso [1996] Tonga LR 36, 38, Hampton C. J. said:

" I take the view that wound bears the meaning that it has borne for many a year in this jurisdiction, and in the common law jurisdictions generally, namely an injury that carries with it the severance of the continuity of the whole skin."

That same principle was reiterated as recently as last year by Ward C. J. in R v Valu (unreported) CR 234-36/03, judgment dated 2 June 2004.

In the present case, the evidence of Dr Siale 'Akau'ola, called by the Crown, was that the scratch marks he examined on the day of the incident were superficial. Indeed, of the three scratches to the complainant's face identified in the medical report, the complainant admitted in cross-examination that she was unaware of two of them until they had been pointed out to her by the doctor. The doctor told the court that the scratch marks did not puncture the whole of the skin at any point but only the outside layer.

That being the case, I must uphold Mr 'Etika's submission. The Crown has not established that the complainant suffered a wound within the recognised meaning of that word and the accused is acquitted accordingly on the bodily harm charge.

Mr Sisifa submitted that if I concluded that the injury did not amount to a wound then, pursuant to clause 13(d) of the Constitution and section 42 (3) of the Criminal Offences Act, I should find the accused guilty on the lesser charge of common assault. Mr 'Etika submitted, in effect, that such a step would be unfair to the accused because, as counsel, he had conducted the whole of the defence case on the basis of the indictment as it stood and even the most elementary research should have alerted the Crown to the fundamental weakness in its case.

I do not need to decide the issue on the criteria referred to in counsel's submissions. Section 42 (3) of the Criminal Offences Act, coupled with clause 13(d) of the Constitution, allows the Court to find the accused guilty of a lesser offence if the allegations in the indictment amount to, or include by implication, an allegation of another offence "falling within the jurisdiction of the Court of trial." Common assault is not an offence falling within the jurisdiction of this Court. It is an offence triable summarily in the Magistrates' Court.

The option, therefore, of substituting the lesser offence of common assault for the charge of bodily harm is not one that is available to me. The accused is accordingly discharged.

NUKU'ALOFA: 9 MARCH 2005.

JUDGE