Rex v Lavaka [2007] TOSC 47; CR 115-2007 (19 September 2007)

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

NO. CR. 115 of 2007

REX

-V-

LANGOIA LAVAKA

BEFORE THE HON. CHIEF JUSTICE FORD

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

Dates of written submissions: 30, 31 August and 14 September 2007.
Date of Judgment: 19 September 2007.

JUDGMENT

The charge

[1] The accused had been charged with one count of grievous bodily harm but, at the commencement of the hearing, the prosecutor was granted leave to amend the indictment by substituting the lesser charge of bodily harm contrary to section 107 of the Criminal Offences Act (Cap 18). The particulars allege that on or about 1 September 2006 at Pea, the accused wilfully and without lawful justification used a machete to hit the complainant, Stanford Moala, on the back of his head resulting in a wound to his head.

The facts

[2] The victim, Stanford Moala, is a 19-year-old student attending Tonga College. The 1st of September 2006 was a Friday. On the Friday evening the victim, along with other college students who had been watching a school rugby match, was walking along Taufa'ahau Road heading back towards their college. As the group was walking past the Fatupeapau Peato shop at Pea, which was on the left-hand side of the road in their direction of travel, a group of boys from Pea who were on the opposite side of the road in the area around the Lusia Cemetery began throwing stones at the college boys. There was no evidence from any of the Crown witnesses that the college boys retaliated but it appeared that they tried to take cover behind some containers which were located close to the shop.

[3] At one point during the stonethrowing, the accused was seen heading across the road towards the college boys and he struck the victim, who was still walking along the road in the direction of the college, on the back of the head with a machete causing a laceration. The incident appeared to be entirely unprovoked.

[4] The victim himself was not an impressive witness and he appeared to be disorientated and somewhat confused in the witness box. He said that he and the accused were facing each other; the accused lifted the machete and then he (the victim) attacked him and went in low and instead of the machete hitting his arm, it hit the back of his head. He was asked in examination in chief if he could demonstrate how they were facing each other but he said that he could not do so. I did not find the victim's account of the incident credible nor did I find his identification of the accused convincing. He was asked in court whether he could identify his attacker. At that particular point in time there were only three female reporters sitting in the body of the court along with the accused and the police usher in uniform. Nevertheless, it took the victim sometime to look around the courtroom, even focusing on an apprehensive male court clerk, before he purported to recognise the accused. Had the Crown case depended upon the victim's evidence alone for identification then it would most likely have failed. Significantly, however, the victim did make the observation, rather hesitantly, that his attacker was blind in the left eye.

[5] In contrast, the next two witnesses for the Crown were credible and totally convincing. The first, 30-year-old Kava Pale, lives at Pea and worked at the Fatupeapau Peato Shop. On the day in question she had finished work at 5 p.m. and a little later in the evening she was proceeding from her home to the Moeakiola Shop a little further along the road from the shop where she worked in order to buy some bread. As it turned out, she witnessed virtually the whole of the stonethrowing incident and the attack by the accused. At the time of the attack she was standing in front of the Fatupeapau Shop. She had known the accused for approximately 5 years. He lived near her home and two years previously they had actually worked together in the same shop for a period. She said that when she first saw the accused he was crossing over from the cemetery side of the road to where the college boys were gathered around the shop. She saw that he was holding a machete and she called out "Langoia, Langoia tuku ia" which means, "Langoia, Langia, stop it." The accused did not stop, however. The witness told the court that she saw him lift up the machete and strike the student on the back of his head. He then dropped the machete and ran off. Ms Pale retrieved the machete from the road and took it inside the shop. It was later collected by the police.

[6] The next equally impressive witness for the Crown was 21-year-old Vasiti Puafisi. She was actually working at the Fatupeapau Peato Shop at the time of the incident. She told the court that all of a sudden she heard shouting coming from the direction of the cemetery across the road. She stood at the shop door and witnessed the stones being thrown by the Pea boys at the students from Tonga College. The students were wearing their school uniforms. She said that she witnessed the assault. She saw the accused strike the back of the complainant's head with a machete. She could not recall exactly what part of the student's head had been struck apart from being able to say that it was the back of the head. The witness said that she had known the accused for over a year because he used to come to another shop that she had worked at. She also knew the complainant because he would come to visit someone in the area where she lived, but she was not aware of his surname. In cross examination Vasiti confirmed that she had seen the previous witness, Kava, running towards the accused trying to help the college boy and she heard Kava calling out to the accused to "stop it".

[7] The Crown also called evidence from the police investigating officer who had taken a record of interview, statement of charges and voluntary statement from the accused. There was a challenge by defence counsel to the admissibility of this documentation but after a hearing on the voir dire I ruled that they were admissible. In his record of interview, the accused admitted assaulting a college student on the evening in question by striking him on the back of his head with a machete and he said something was then thrown at him and he dropped the machete onto the ground. He did not know the name of the student. The accused was not asked in the record of interview why he had assaulted the student but in his voluntary statement he said this:

"I went over to Peteli to cut some of the grass and on my return home the students were throwing at me so I came with the knife and struck his head with it and he was injured and then some people stopped it so I went home and went to sleep."

[8] The Crown called evidence from Dr Kolini Vaea, Surgical Registrar with the Ministry of Health. Dr Vaea explained how the victim was admitted to hospital on 1 September 2006 heavily bandaged around his head. The doctor described observing an 8 cm laceration of scalp lying traverse in position with some oozing from the wound which had cut through all layers of scalp but there was no fracture to the skull.

The defence case.

[9] The accused elected to give evidence. He told the court that on the afternoon in question he had been cutting grass at a local cricket field with a machete. He said that his machete had an orange rubber handle and it was not the machete that had been produced in court. He said that as it was getting dark he began to walk home. He walked along Taufa'ahau Road and when he was about to enter his home he noticed his brother lying on the ground on the opposite side of the road and he saw "seven or eight" college students punching and kicking him. As he then crossed the road to the area where the attack was happening one of the students attacked him and he (the accused) struck the student on the arm with "the blunt end" of his machete. He said that after he struck the student, the others backed off and his brother was able to run away from the scene. At the same time "something like a rock" was thrown at the accused and he dropped the machete on the ground and also left the scene. The accused described the student he hit with the machete as "short, stubby, stocky and fair." He said it was not the complainant and the incident took place further along the road from where the complainant was attacked. No other witnesses were called on behalf of the accused.

[10] In cross examination the accused was asked whether he was blind in his left eye. He said that he was but that only happened on the 22nd of December 2006 when a cow kicked a stick on the ground backwards and the stick struck his left eye. He acknowledged that something had happened to his left eye previously but he did not volunteer what it was and he reiterated that he did not become totally blind in that eye until the 22nd of December.

[11] Mr Pouono presented helpful written submissions in which he reviewed the evidence and then went on to make observations, in particular, in relation to the issue of identification. In this regard, defence counsel noted the apparent conflicts between the victim’s evidence as to how the attack occurred and the evidence given by the two independent witnesses, Kava and Vasiti. He invited the court to accept the victim’s version of events as the most reliable and he made the point that as the victim was not so certain that his attacker "was actually the defendant" then the Crown had not made out its case.

Conclusions

[12] Both counsel accepted that in the end the case turns on the Court’s assessment of the credibility of the various witnesses. I have already expressed reservations about the victim’s credibility and made the point that had the question of identification been dependent upon his evidence alone then the prosecution is unlikely to have succeeded. On the other hand, I regret to have to say that I found the accused an entirely unconvincing witness and I reject his evidence as unworthy of belief. Refreshingly, as I have already indicated, I found the two independent prosecution witnesses credible and entirely convincing, as was the doctor’s evidence. I am satisfied that through these witnesses the Crown has proved all the essential elements of the offence beyond reasonable doubt and the accused is convicted accordingly.

NUKU'ALOFA: 18 SEPTEMBER 2007

CHIEF JUSTICE