Rex v 'Osai [2006] TOSC 26; CR 35-2006 (14 July 2006)

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

NO. CR.35/2006

REX

-V-

SAMUELA LOTUKALAFI ‘OSAI

BEFORE THE HON. JUSTICE FORD

Counsel: Mr Kefu for the Crown and Mr Kaufusi for the accused

Dates of hearing: 10, 11, 12 May 2006
Date of written submissions: 12 and 26 June and 3 July 2006
Date of judgment: 14 July 2006

JUDGMENT

The charges

[1] The 61-year-old accused is charged with one count of causing grievous bodily harm and one count of causing bodily harm. The particulars to the first count allege that on 19 May 2005 at Uoleva he shot the complainant, Halani Mahe, in the right thigh with a .22 rifle causing him a severe wound. The particulars of the second count allege that on the same day the accused hit the complainant on the forehead with a machete "causing a deep laceration that showed the scalp bone."

The evidence

[2] The events giving rise to the charges occurred on the island of Uoleva which is the Island lying immediately to the south of Lifuka, the main Island in the Ha'apai group. The journey from the main centre of Panga'i on Lifuka to Uoleva takes approximately half an hour by boat. The court was told that there are no villages on Uoleva but there are two resorts or "motels" as they were referred to in evidence. One of the motels is called the "Captain Cook" and it is operated by Samisoni Kaifoto (referred to as "Soni"); the other is the Taiana Motel and it is operated by the accused.

[3] At the time of the incident on Thursday 19 May 2005 the 42-year-old complainant was in the process of building another resort on the island on an allotment owned by his father,'Ofa Mahe. The complainant had a group of approximately 10 young men assisting him. It seems that on the day in question the men were engaged in carrying out preparation work prior to the commencement of construction. The complainant told the court that he had been working on a fence and others said that they had been carting rocks for the foundation. In all events, the men finished their work for the day early in the afternoon and then the complainant and approximately 7 of the workers consumed between them a bottle of whisky mixed with water. The complainant said that they had about three or four cups each and afterwards he felt, "warm but very much in control of himself."

[4] At approximately 3 p.m. two of the group announced that they were going to get some cigarettes. The complainant thought that they were going back to the boat the men had been using which was moored at another point on the island but later one of the workers told him that the two boys had actually taken the boat and the complainant then assumed that they had gone back to Panga'i to buy the cigarettes. After a period of time, which I gather was approximately 2 hours, the complainant became concerned that the boys had not returned and he began to worry that the boat may have run out of fuel. He decided at that point that he would go and ask Soni at the Captain Cook Motel if they could borrow his boat to go and look for the boys. He took with him a can of benzine to use in Soni's boat. Four of the other workers walked over to Soni's place with the complainant but when they arrived they found that Soni was not there -- he had gone off to feed his pigs.

[5] The complainant and the four others, Fe'afa'aki, Fuka, Maketi and Sime, then decided to walk over to the accused's place to see if his boat was available. The complainant was still carrying the can of benzine. He told the court that while they were on the beach in front of the accused's place the accused suddenly appeared with a machete and told them to get off his beach. The complainant said that at that point he was standing on the sand only a few metres from the waters edge and he asked the accused, "why". In response the accused suddenly struck him on the forehead directly above his nose with a machete. After striking the complainant on the forehead with the machete, the accused raised the machete again and was about to strike a second blow when two of the other boys, Sime Tamale ("Sime") and Solomone Maketi Falevai ("Maketi") intervened.

[6] Sime and Maketi both gave evidence. They were approximately 40 m away from the point where complainant had been struck with the machete. They told the court that they were filling in time by throwing stones into the sea. Sime said that he had noticed the accused coming down from his allotment and next thing he saw him attacking the complainant with the machete. He said he saw the accused swing the machete twice and he saw blood on the complainant's face. In cross-examination he seemed to accept that it may have only been the one blow that he witnessed but he said that he noticed the complainant "acting in a karate way" trying to avoid being struck again. He had his hands up to his face. Sime told the court that as soon as he saw the accused strike the complainant with the machete he ran over to where the two men were standing and shouted out, "No, no, stop it."

[7] Maketi told the court that he noticed the complainant fall down when he was struck with the machete and he could see that the accused was then trying to strike him a second time. He said that he immediately picked up a fau branch that was lying on the sand and ran over and struck the accused with the branch on his forearm. The machete then fell to the ground and the accused ran back to his house about 20 m away. An unusual feature of the case, which defence counsel highlighted often, is that the accused has only one arm. His right arm is amputated above the elbow.

[8] Sime said in evidence that after the machete attack the accused ran back towards his house and he (Sime) grabbed hold of the complainant who had started to follow him. He then saw the accused standing on the deck of his house and as he was watching he saw the accused reach out and pick up a rifle from behind the door. The accused then told them all to leave otherwise he would shoot someone. Sime said that he immediately apologised to the accused and moved the other boys back. The witness was asked why he had apologised and he replied, "because I was scared of the gun."

[9] Sime said that they then all started to walk back towards Soni's place. The accused called out to them to bring back his machete and one of the boys threw the machete back towards the accused's property. Sime said that back at Soni's place he used a bit of cloth that had been dipped in sea water to clean the blood from the complainant's face and he wrapped a length of lavalava around his head to stop the bleeding.

[10] The complainant told the court that after arriving back at Soni's place and having his head injury attended to he decided to return to the accused's place and ask the accused why he had chased them off the beach. He said that he walked back and as he was standing on the beach he looked up and saw the accused standing outside his house still holding the gun. The complainant said that he asked the accused why he had chased them from the beach. He said that he could not really hear what the accused was saying but suddenly he heard a shot ring out and he realised that he had been shot in the upper part of his right leg. He knew that he was injured because he could not lift his right leg. He tried to drag his leg and he was able to move away from the scene but he then fell down and eventually the other boys came and assisted him. He was taken by boat to the hospital at Panga'i. The complainant remained in hospital for a week. The injury to his forehead was treated but the doctor has been unable to dislodge the bullet from his thigh. The complainant said that in cold weather his thigh becomes very painful.

[11] That is really a summary of the evidence called by the Crown. Each of the Crown witnesses were subjected to a very lengthy cross-examination by Mr Kaufusi. They made some concessions and there were certain conflicts in their evidence but in general they were of a relatively minor nature.

The defence

[12] The accused elected to give evidence. He told the court that immediately prior to the incident he saw the complainant coming along the beach. He said that he was "walking and swaying" and carrying a black plastic bottle (the benzine for the boat). He said that they were coming straight to his motel where foreigners were and he asked them why they were coming there. He said that they then walked back towards the beach and he followed them. He said that the boys were standing in a shed by the beach and the complainant was standing away from the others. He said that the complainant told him that he (the accused) had no authority over them as it was government property and the complainant then attacked him and told him that he would "hit him today." The accused said that he was scared of the complainant because he was a big guy and he thought that if he just stood there then he would be injured and so he ran to his dwelling house to get a bush knife thinking that the bush knife would help him get them off his land.

[13] The accused told the court that when he returned with the bush knife the complainant was approaching him -- the others were still down on the beach. He said that the complainant was standing there crouched in a karate position and he said to the accused, "hit me". The complainant said that he noticed his feet and the complainant was about to kick him and so he hit him on the forehead with the bush knife. His actual words were, "I hit him with the bush knife. I thought that was the only way of stopping (the complainant) from getting hold of me and my being injured."

[14] Referring to the subsequent shooting incident, the accused told the court that he saw the complainant approaching his home. He said that the complainant was shouting and saying words which he could not understand and so he told him to go away. He said that the complainant walked away and then he turned and said to the accused, "Go ahead, shoot me, shoot me. Today I will kill you." The accused said that at that point the complainant looked very angry and he started walking towards him in "a karate way". The accused said, "I told him to go but he did not go and so I shot him in the leg."

The evidence

[15] In cross-examination Mr Kaufusi was able to extract an important concession from Maketi. The witness agreed that shortly prior to the machete incident he had heard the complainant saying to the accused words to the effect, "this is government property, I am going to hit you." When that same allegation had been put to the complainant earlier he had denied that anything like that had happened. Maketi said that after the complainant made that threat he noticed the accused ran back towards his motel and then he returned with the machete. Sime made no mention in his evidence about this particular confrontation and I am prepared to accept that he did not witness the exchange. In other words, Sime's first awareness of something untoward happening between the complainant and the accused began when the accused arrived on the scene with his machete. I do not find the gap in Sime's evidence in this regard surprising because they were on the beach some 40 m away from where the incident took place.

[16] It was significant that neither Fe'ofa'aki or Fuka were called as witnesses. The evidence satisfied me that they were standing close to the complainant when the preliminary skirmishing was going on prior to the machete attack. I suspect that they may well have confirmed the concession made by Maketi in cross-examination.

[17] The accused was not a particularly impressive witness and his evidence in court was disjointed but he did make a voluntary statement to the police on 23 May 2005 which I did find easy to follow. The statement, made in the form of a so-called "Confession Statement," was produced by the police as an exhibit. In my view, with one significant exception which is dealt with in para [36], it fairly accurately described what most likely happened at his motel property on the day in question and I, therefore, set out the translation in full:

" Yes, it is true, on Thursday 19 May 2005 around 5.30 in the afternoon, I was at my motel at Uoleva cleaning up the allotment when I noticed Halani Mahe walking around the back of my motel. I approached him and chased him away for he's got no reason to be on my motel property. He then walked to the beach and I followed him, I there saw some other youth who I did not know. They were standing there and I told them to get off my allotment. Halani then told me that this place belongs to the government and I told them to get off for they are disturbing the foreigners. Halani then told me that he is going to beat me up and they started to move up therefore I ran towards my allotment and brought my bush knife. When I came with it, they were standing on the sand. I told them to go away from here and Halani told me that they were going to beat me up today and when he approached me I then hit him with the bush knife which caused injury to his forehead. Then another guy attacked me with a tree branch which he hit my hand with and caused the knife to slip from my hand. I then ran to my house and brought a .22 gun. I told them to get off the property and then they did so. After a short while, Halani returned back. I told him to get off the property, he did so,. After a short while, he returned back and I shot his right leg. He then turned around and returned and by that time, I confirmed to myself that the reason why he was going back was because my shot hit him but I had no knowledge of the part of his right leg that the shot hit."

Submissions

[18] Mr Kaufusi made no reference to any case law on the subject but he analysed the evidence in minute detail and submitted that the defence to both charges was self-defence. In relation to the machete incident counsel described the actions of the complainant which constituted the imminent threat to the accused in these terms:

"(a) The complainant told the accused three times that he or they will assault him then the complainant moved his hands in a karate action and walked towards the accused.

(b) If the complainant was weaving his hands in a karate action and moving backwards it meant that he did not pose any imminent threat to the accused but because he was weaving his hands in a karate action and moving towards the accused it meant he posed an imminent threat to the accused.

(c) In cross-examination of Solomone Maketi Falevai he told the court that Halani, the complainant, told Kalafi, the accused, that this is government land, he will assault him."

[19] Mr Kaufusi prefaced his submissions by inviting the court to take particular note of the fact that the accused was 61 years of age and the complainant 42; the accused has only one arm and the complainant has two arms; that the complainant is strong and healthy and the accused had no one to call in aid except the two ladies (guests at the motel, referred to as "the foreigners").

[20] In response Mr Kefu submitted:

"From the evidence in court it seems that the complainant may have made some karate motions to the accused before he was struck with the machete. If that is accepted by the court, the Crown submits that they were just mindless childish motions without any substance or intention of inflicting violence against the accused. According to Sime, the complainant became emotional when he cried after he was struck with the machete and kept on asking why the accused had done this to him. This is a sign of the childlike mannerisms of the complainant and is an indication and confirmation of his lack of serious aggression towards the accused before he was struck with the machete."

[21] In relation to the shooting incident, Mr Kaufusi submitted that the complainant had come back to the accused's property to seek revenge for what the accused had done to him. Mr Kefu, on the other hand, submitted that the complainant simply intended to discuss with the accused what had happened earlier. The specific actions of the complainant which gave rise to the need for self-defence on the part of the accused in relation to the shooting incident were summed up by Mr Kaufusi in these terms:

"The accused submits that if the complainant wanted to discuss then the complainant should have told him but in fact he did not. The complainant told the accused to shoot, he didn't care if the accused shot. The complainant was told three times to go but the complainant turned back and shouted to the accused to shoot him, also he told the accused that he will kill him today then he walked towards the accused moving his hands in a karate action."

As to the reasonableness of the degree of force used by the accused on that occasion, Mr Kaufusi submitted that the accused had no alternative to using the rifle "to make the situation safe." He said that the accused could not get help from Soni's place because Soni was not there.

[22] In response, Mr Kefu submitted that the accused could not have believed that the complainant posed any imminent threat to the accused, his property, his employees or his guests. Crown counsel's principal submissions on this aspect of the case were:

"VI. Knowing the accused had a rifle, the complainant confronted the accused directly which supports more his intention to discuss what had happened earlier.

VII. Knowing the accused had a rifle, the complainant did not recruit the assistance of Sime and Maketi when he returned to the accused's resort, indicating he did not want to use violence against the accused.

VIII. The complainant shot at a distance from the accused, and so, being unarmed, the complainant was not in close proximity to the accused to cause any physical harm."

[23] As to the degree of force used by the accused, Mr Kefu submitted that the accused's actions in shooting the complainant could not be justified because the complainant was unarmed, by himself and he did not carry out any attack. Crown Counsel further submitted that if there was a need to mitigate any threat, the accused could have fired a warning shot in the air or given a verbal warning that he would shoot but he did neither of these things.

The law

[24] The common law recognises that a person who acts reasonably in self-defence or in defence of others commits no unlawful act. One of the most oft cited authorities on the subject is the judgment of Lord Griffiths in the (UK) Privy Council case Beckford v The Queen [1987] UKPC 1; [1988] 1 AC 130. At p144 his Lordship said:

"The common law has always recognised as one of the 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 . . . . The test to be applied for self-defence is that a person may use such force as is reasonable in the circumstances as he honestly believes them to be in defence of himself or another."

[25] In the leading Australian authority on self-defence, Zecevic v Director of Public Prosecutions [1987] HCA 26; (1987) 162 CLR 645, 661, the High Court of Australia commended the wisdom of the observation of the Privy Council in Palmer v The Queen [1970] UKPC 2; [1971] AC 814 that an explanation of the law of self-defence required no set words or formula:

"The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal."

[26] To like effect, Blackstone's Criminal Practice (2006) A3.30 suggests that the law as to self-defence:

"can be formulated quite simply and neatly along the following lines: A person may use such force as is reasonable in the circumstances for the purpose of self-defence . . . Although this formulation makes no express mention of any requirement that the use of force should be necessary, it should be remembered that if the use of force is clearly unnecessary (e.g. because the initial aggressor has started to retreat it will not be "reasonable in the circumstances" to use force."

[27] Although the defence raised is self-defence, it is not for the accused to prove that he was acting in self-defence. The onus remains on the Crown to prove beyond reasonable doubt that the accused did not believe that he was acting in self-defence. If the Crown does not exclude self-defence as a reasonable possibility then the accused should be acquitted.

[28] In considering the issue of self-defence, therefore, the court needs to have regard to three factors. First, what did the accused, from his point of view, believe was happening at the time; secondly, bearing that in mind, was he acting from his point of view to defend himself; and, thirdly, was the force used reasonable given what the accused believed was happening at the time. Whether the accused thought it was reasonable is not the point. It is for the Crown to prove that there was an absence of reasonable grounds for the accused’s belief that the degree of force used was necessary.

[29] As Blackstone puts it A3.35:

"The basic rule is that if the accused misjudges the degree of force permissible and uses excessive force, he is deprived of the defence . . . . It would seem that the reasonableness of the degree of force used is coming close to being treated as merely evidence of whether the accused was genuinely motivated by self-defence or whether he was in fact acting with some other illegitimate motive, excessive force being evidence that self-defence was not the accused's real purpose."

[30] There is another aspect of the law of self-defence which has particular relevance in the present case. It relates to the situation where an accused person is the original aggressor coupled with a failure to retreat. The issues were dealt with in Zecevic as follows (663):

"Where an accused person raising a plea of self-defence was the original aggressor and induced or provoked the assault against which he claims the right to defend himself, it will be for the jury to consider whether the original aggression had ceased so as to have enabled the accused to form a belief, upon reasonable grounds, that his actions were necessary in self-defence. For this purpose, it will be relevant to consider the extent to which the accused declined further conflict and quit the use of force or retreated from it, these being matters which may bear upon the nature of the occasion and the use which the accused made of it. Indeed, even in circumstances in which the accused was not the original aggressor, retreat in the face of the threat of violence before resort to force may be relevant to the belief of the accused or the reasonableness of the grounds upon which the accused based his belief. There is, however, no longer any rule that the accused must have retreated as far as possible before attempting to defend himself. It is a circumstance to be considered with all the others in determining whether the accused believed upon reasonable grounds that what he did was necessary in self-defence."

[31] Blackstone A3.34 makes the same point in these terms:

"A failure to retreat is only an element in the consideration upon which the reasonableness of an accused's conduct is to be judged. Similarly, there is no hard and fast rule that a person who initiates a confrontation cannot rely on self-defence."

[32] In New Zealand the position is covered by a specific statutory provision. As a result of an amendment in 1980 to section 48 of the Crimes Act 1961 which deals with self-defence, it is irrelevant who hits or starts the aggression first. The relevant question is whether the accused was defending himself.

Conclusions

[33] It is well settled that it is a matter of law as to whether there is sufficient evidence to justify a defence of self-defence but the matter must be considered on a view of the evidence most favourable to the accused.

[34] Turning to the facts of the present case, the accused referred throughout to "his allotment". The evidence showed that he is not the allotment holder. The land appears to be designated as government land. The accused, however, did produce a letter confirming that in 2001 he had been given permission from the Minister of Lands to build a guesthouse on the Island and he had also been instructed to make sure that no unlawful dredging of sand occurred on the beach.

[35] I am prepared to accept that when the accused was initially confronted by the complainant after he had asked the men to get off his allotment, he was facing what he genuinely apprehended was imminent danger to himself. The complainant, Fe'ofa'aki and Fuka had started walking towards the accused and the complainant was threatening to beat him up. No one was armed at that stage. The accused was not only outnumbered but he would have been very conscious, of course, of the fact that he had only one arm.

[36] Faced with that threat of violence, it must have appeared to the others that the accused had sensibly and reasonably elected to retreat. He ran back up towards his motel. That should have been the end of the matter. The complainant and the other two boys did not bother to chase after him. They returned back down to the beach. At that point in time, therefore, the threat of violence the accused had been facing was over.

[37] What then happened, however, was that the accused provocatively returned to the scene with the machete and from that point on, rather than acting in self-defence, he embarked on an escapade of aggression. I do not accept the accused's statement that when he returned with the machete, the complainant repeated his earlier threat to beat him up. At that point both Sime and Maketi were witnesses to what was going on and I prefer their evidence, which supports the complainant's evidence, that no threats were made by the complainant. I accept that the complainant was probably acting in a karate-like a way, as the witnesses described his movements, but I am also satisfied beyond doubt that in doing so, he was simply trying to avoid being struck with the machete. He was not trying to attack the accused nor was he threatening him.

[38] As the High Court stated in Zecevic (664):

"A person may not create a continuing situation of emergency and provoke a lawful attack upon himself and yet claim upon reasonable grounds the right to defend himself against that attack."

[39] My conclusion, therefore, in relation to the machete incident is that the use of force by the accused was clearly unnecessary because, adopting the words from Blackstone cited above, "the initial aggressor had started to retreat". The complainant and the other boys had walked back down to the beach. The accused's actions, therefore, in returning to the scene and carrying out the machete attack were unreasonable and motivated not by genuine self-defence, but out of a sense of angry retaliation or pure aggression on his part.

[40] In relation to the shooting incident, I prefer the complainant's description of events and I find that what he told the court is not dissimilar to what the accused said in his Confession Statement. My finding is that there were no acts of aggression or threats made by the complainant when he returned to try and speak to the accused about what had happened earlier.

[41] Mr Kaufusi submitted that the complainant returned to the accused's property seeking vengeance but I reject that contention. For one thing, the complainant was fully aware that the accused had a machete and a .22 rifle. If he had been intent on seeking revenge I am satisfied that he would have armed himself with a weapon of some sort or brought with him more of his workers. Instead he returned alone and unarmed.

[42] The Crown has proved beyond reasonable doubt that in respect of both the machete attack and the shooting incident the accused did not believe that he was acting in self-defence, and for this reason the defence must fail.

[43] Why the accused acted in the foolish and dangerous manner he did is quite beyond me, but the law does not protect a person from the consequences of acting out of some implausible motive. At the end of his evidence, the accused was asked by the court whether he was annoyed or upset because the complainant was starting to develop a resort which would be in competition to his own motel. The accused denied that proposition and said that he was happy to see the new development on the Island. As it turns out, however, the complainant has not proceeded any further with his proposed development.

[44] In his written submissions, Mr Kefu suggested that the motive for the attack was that the accused was overprotective of his business; angry that the complainant had disputed him about his rights over the land and the beach; and simply lost his temper under trivial circumstances. It is not necessary, of course, for the Crown to establish a motive but the accused's aggressive reaction certainly remains one of the puzzling features of the case.

[45] The accused was not asked to demonstrate how he held or fired the rifle with his one arm but he did tell the court that at the time of the incident the rifle had 18 bullets in its magazine and when he fired the shot the complainant was standing approximately 15 meters away. In all the circumstances, he is perhaps very fortunate not to be facing more serious charges.

[46] Mr Kaufusi, quite rightly in my view, did not challenge the prosecution evidence regarding the nature of the injuries sustained by the complainant and I am satisfied that the Crown has proved beyond reasonable doubt that they did amount to grievous bodily harm and bodily harm respectively.

Finding

[47] I am satisfied that the Crown has established all the necessary elements of each charge beyond reasonable doubt and the accused is convicted accordingly.

NUKU'ALOFA: 14 JULY 2006

JUDGE