Rex v Havili [2006] TOSC 18; CR 039-2006 (10 May 2006)

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

NO. CR.39/2006

REX

-V-

SUVA HAVILI

BEFORE THE HON. JUSTICE FORD

Counsel: Mr Kefu for the Crown and Mr Tu' utafaiva for the accused

Dates of hearing: 8, 9, 10 May 2006
Date of judgment: 10 May 2006

JUDGMENT

The Crown case

[1]. The accused is charged with one count of causing grievous bodily harm. On the night of Friday 16 December 2005 there was a dance at the Niu'akalo Beach hall which is about 1 1/2 miles north of Panga'i, Ha'apai, and during the dance a fight broke out between boys from Panga'i and boys from Hihifo. Some of those involved in the fighting belonged to rugby teams from the respective villages. There had been a rugby prize-giving function that same afternoon. When the fighting broke out inside the dance hall, the security guard made the fighting boys go outside. Outside the hall, the fighting continued and bits of timber and other objects were thrown between the two groups.

[2]. The prosecution alleged that during the fighting outside the hall, the accused hit the complainant over the head with a piece of timber and the resulting injuries caused him to suffer permanent loss of vision in his left eye.

The prosecution evidence

[3]. The 32-year-old complainant told the court that he was drunk on the night in question 'but not too drunk.' He said that he was not involved in the fighting although inside the hall one of the boys had punched him on the chest but he did not retaliate. He said that when the fighting then moved outside the hall he tried to break it up but that was his only involvement. He told how at one stage he was holding two boys apart and as he turned his head to the left to make sure that no one was going to punch him from behind, he was suddenly struck on the face with a piece of timber. He said that the blow landed in the area of his left eye, left cheek and left eyebrow. He fell down but he was able to crawl away. He said the injury started to bleed and he took off his T-shirt and held it against his face to stop the bleeding. He was then taken to Panga'i hospital for three days before being transferred to Vaiola Hospital in Tongatapu for a week or two.

[4]. The second witness for the Crown was a police officer, Langoia Makineti. He said that he was in the band section of the police and he had travelled to the dance with the complainant. He explained how they were good friends, having known each other since childhood days. Makineti said that he had not consumed any alcohol on the night in question. He told the court how, when the fighting broke out inside the hall, he had borrowed the barman's mobile phone and made a call to the police station at Panga'i for reinforcements but the incident was over before the police arrived on the scene.

[5]. Makineti said that he did not see the complainant involved in any fighting inside the hall but when the fighting moved outside he looked out through a louvre window at what was going on. He told the court that he saw the complainant trying to stop two boys from fighting and he had both his hands on the shoulder of one of the boys in front of him when the witness noticed the accused coming towards the complainant with a piece of timber. The witness said that he shouted out to the complainant but when the complainant looked up the accused hit him on the face and he fell sideways onto the ground. He did not see the complainant crawling away after being struck.

[6]. The next witness for the prosecution was Tangikina Finau. She was attending the dance with her husband. She saw the complainant participating in the fighting inside the hall. She said that he was drunk. Tangikina had no knowledge of what happened when the fighting moved outside except that she happened to see the accused strike the complainant with a piece of timber. She said that she was standing at the main doorway at the time and that the previous witness, Makineti, was standing at the doorway with her (Makineti had told the court that he observed the incident through a louvre window).

[7]. When asked in examination in chief on what part of the complainant's body the piece of timber had landed, Tangikina replied, 'on his face.' She then pointed to her left eye. She said that after he was struck, the complainant fell down but the witness did not see anything further after that because, as she put it, 'my husband pulled me back just to make sure that I was safe from the fighting.'

[8]. The final witness for the Crown was the police officer who interviewed the accused. He produced the record of interview, statement of charges and voluntary statement. There was no challenge to the admissibility of these documents but an important concession was obtained from the police officer in cross examination which does not appear in the record of interview. The officer admitted that before he began to record the interview, he was told by the accused's father that another person, namely Tevita Nau, had admitted to them a few days after the incident that it was he, Tevita Nau, who had caused the serious injuries to the complainant when, in the course of the fighting, he struck him on the face with a wheel brace.

[9]. The constable said that he then went and asked Tevita Nau about the allegation but Nau denied it and so he had carried on interviewing the accused. The accused admitted in his statement to the police that in the course of the fight he had struck the complainant on the face with a piece of timber 'causing injury' but in his evidence the accused denied using the words 'causing injury'. He said that the police officer had added those words to what the accused had told him and he (the accused) did not agree with them. The accused's father who was present during the entire interview supported what the accused told the court in this regard.

The case for the defence

[10]. The 19-year-old accused elected to give evidence. He is presently a student in form five at Toloa College in Tongatapu. At the time of the incident he was 18 years of age attending Ha'apai High School. He explained how he had ended up playing senior rugby for Panga'i in 2005 and earlier on the day in question he had attended a rugby prize giving ceremony. He said that before going to the dance he had been with his rugby mates and he had consumed nearly half a cup of vodka mixed with water. He and his friends arrived at the dance between 10:30 p.m. and 11 p.m..

[11]. The accused described the fighting that developed between the boys from Panga'i and Hihifo. He told how at one point during the fighting outside the hall he had been knocked to the ground and while on the ground he noticed a piece of timber which he picked up. He said that when he stood up, the complainant was close by attacking a person called Mafile'o Vi. The accused said that he did not know Mafile'o Vi but, fearful that the complainant might attack him next, he struck the complainant across the right side of the face with the piece of timber. He said that the blow did not injure the complainant and he noticed him run away. For his part, the accused made his way back out onto the main road and then to his home. The accused was asked why he had hit the complainant with the piece of timber and not his fists. He replied that the complainant was bigger than he was and if he had punched him then the complainant would have punched him back and caused him a more serious injury.

[12]. The thrust of the accused's evidence, in other words, was that he admitted hitting the complainant on the head with a piece of timber but he maintained that he hit him on the right side of the face and that he did not cause the complainant any injuries because the complainant immediately ran away.

[13]. The second witness for the accused was 22-year-old Tevita Nau. He told the court that he was involved in the fighting both inside and outside the Niu'akalo Hall. He said that at one point during the fighting outside, he was knocked to the ground. He was then able to make his way over to a vehicle and the driver of the vehicle (who he named in court) gave him an iron L-shaped wheel brace which is the accessory used for taking the nuts off the wheels of motor vehicles.

[14]. Tevita said that he then rejoined the fighting and was attacked from behind. He was again knocked to the ground and momentarily lost the wheel brace but he was able to regain it. He then stood up and struck the person standing nearest to him in the face with the wheel brace. He told the court that the person he struck was the complainant. He said that the complainant immediately fell down and, because he was fearful over what he had done, he (the witness) moved away from the group and eventually made his way home. In cross examination Tevita Nau said that he was well acquainted with the complainant and he had no doubt that was him who he had struck with the wheel brace.

[15] Tevita told the court how he later learned from other boys that the police were making inquiries of the accused about the incident. He said that the accused's grandparents were his immediate neighbours and several days after the incident, when the accused and his father were at the grandparent's house, he had gone over and told them both that it was he who had caused the injuries to the complainant.

[16]. The witness said that he had been given legal advice about self incrimination and he was fully aware of the possible consequences of making such an admission. When asked by the court why he had come forward and made the admission he did, the witness replied: 'I just want to free myself.'

[17]. Another witness called for the defence was Mafile'o Vi. He confirmed that the complainant was actively involved in the fighting.

[18]. The final witness in the case was the accused's father, 'Emasi Havili. He said that he was in Tongatapu on the Friday evening of the dance but he returned on the Monday and heard about the fighting. He said that he had gone to his parents' house and Tevita Nau, who lived next door, had talked to him and told him that his son was being accused of striking the complainant but he (Tevita) had been the one who had struck the complainant and caused the injury to his left eye.

[19]. 'Emasi told the court that he was present when his son was later interviewed by the police but prior to the interview at the police station he had told the officer about Tevita Nau's admission. The officer said that he would check it out but when he returned the officer said that Tevita Nau had denied the allegation.

[20]. 'Emasi said that he was upset with the police because he was convinced that it was Tevita Nau who had caused the complainant's injuries but when in the course of the interview the officer wrote down in the statement of charges that the accused had caused the injuries, 'Emasi told his son just to go ahead and sign the statement and they would wait until the matter came to court.

Findings on the evidence

[21]. The Crown, of course, needs to prove all the elements of the charge against an accused beyond reasonable doubt. If at the end of the case the court has doubt about any aspect of the prosecution case then the accused must be given the benefit of such doubt. After carefully considering all the evidence before the court and the demeanour of the various witnesses, I am of the view that the evidence adduced by the defence in this case has raised reasonable doubts about the Crown's version of events. These doubts have arisen because of a critical time gap in the prosecution case immediately following on from the point in time when the accused struck the complainant.

[22]. Before reviewing the relevant evidence, however, I need to make some general observations about the prosecution witnesses. First, I do not accept the complainant's evidence that he was not involved in the fighting. I am satisfied that, contrary to what he told the court, he was actively involved in the fighting both inside and outside the hall. He was also drunk. The complainant is a well-built muscular man and he appeared well capable of handling himself in a brawl.

[23]. The evidence of the second witness for the Crown, Langoia Makineti, appeared to be influenced by his long-standing friendship with the complainant. I did not accept his evidence that the complainant was simply trying to break up the fight and I have reservations about other aspects of his evidence.

[24]. Tangikina Finau was an independent witness who had not been drinking. She said that all she knew was that the accused struck the complainant with a piece of timber. She was closely questioned in cross examination as to where the piece of timber had struck the accused but I did not find her answers convincing. I suspect that knowing with hindsight that the complainant suffered loss of eyesight in his left eye, it was all too easy for the witness to conclude that she had seen him struck on the left side of the face.

[25]. Tangikina was asked what happened when the complainant fell down. She said that she had no knowledge of what happened to the complainant after he was struck because her husband had pulled her away from the door to keep her safe from the fighting. Later in evidence she said that she saw the injuries on the complainant's face and she saw blood. She was asked in cross examination why she had not mentioned this at the preliminary inquiry in the Magistrates' Court. She replied that she had not been asked. I did not find her evidence on this particular point convincing and I do not accept that she saw the complainant's injuries or blood after the blow by the accused.

[26]. To win an acquittal, all that the defence need do is establish a reasonable doubt about the prosecution case. If, after being struck by the accused, the complainant had immediately been brought into the hall or taken to hospital in his injured state then to my mind the Crown case would have been established. But that was not the situation.

[27]. Makineti was asked what happened after the accused had struck the complainant with the piece of timber. He replied that he did not see the complainant again until approximately 15 minutes later when he entered another door of the hall (not the main door) holding his T-shirt sweater over his face. The obvious question that then calls for an answer is what happened during that quarter of an hour after the accused struck the complainant? The defence case is that after being struck by the accused, the complainant was not injured and he was able to continue on fighting until he was later struck by Tevita Nau with the wheel brace.

Conclusions

[28]. It is not for the court to try and put together all the pieces of the jigsaw but it seems that in the absence of any other evidence accounting for the 15 minute time gap, the scenario put forward by the defence must be a plausible explanation. Admittedly, the complainant made no complaint about having been struck with a wheel brace but there could be reasons for that, not least of all his state of drunkenness and the fact that the police did have witnesses to the blow struck by the accused but not, apparently, to the blow struck with the wheel brace by Tevita Nau.

[29]. In an exchange with Crown counsel at the end of the trial, I put it to him that if the complainant had been knocked to the ground by the blow struck by the accused thereby sustaining the injuries complained of, then surely his close friend who had travelled to the function with him, Police Officer Makineti, would immediately have gone to his aid. The prosecutor opined that the reason Makineti did not go to the complainant's aid was most likely because at that point, 'the fighting was getting dangerous and uncontrollable and he would not have wanted to risk himself becoming involved in the fight.' I did not find that explanation particularly convincing, however, and I have difficulty in accepting the inevitability of the prosecutor's proposition that by trying to move his injured friend away from the scene, Makineti would have become involved in the fighting. I, therefore, have been left with doubts also about whether the complainant did fall to the ground injured as alleged after being struck by the accused.

[30]. The particulars provided to the charge in the indictment are very specific and are directed to the nature of the injuries sustained by the complainant. They allege that the accused 'used a piece of timber to hit the complainant around his left eye causing him to suffer permanent loss of vision in his left eye and a fracture of the optic skull for the left eye.'

[31]. The admitted act of the accused in striking the complainant on the head with a piece of timber was unlawful and dangerous and obviously had the potential to cause the grievous bodily harm complained of. For the reasons outlined, however, I have been left in doubt as to whether it was the accused or Tevita Nau who actually caused the complainant's injuries. The accused is entitled to the benefit of such doubt and for that reason he is acquitted and discharged.

NUKU'ALOFA: 15 MAY 2006

JUDGE