Rex v Kalavi [2015] TOSC 45; CR28.2015 (26 October 2015)

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

CR 28 of 2015

BETWEEN:

REX
Prosecution

AND:

KEFU KALAVI
Defendant

BEFORE THE HON. ACTING CHIEF JUSTICE CATO

VERDICT AND REASONS

[1] The accused had earlier pleaded guilty to manslaughter but this had not been accepted in discharge of the indictment by the Crown. The Crown proceeded to trial commencing on the 19th October, 2015, on a count of murder under sections 85, 86(1)(a) and (2), 87(1)(b) and 91(1) of the Criminal Offences Act. I reserved my verdict after three days of evidence. Section 87(1(b) of the Criminal offences Act provides that it is murder;

"if the offender intended to cause to the person killed any bodily injury which the offender knew was likely to cause death and was reckless whether death ensured or not."

The particulars were that, on or about the 20th February 2014, at Halaleva, the accused did intend to cause Dao Jin He bodily injury to his head when he stuck him with a piece of wood, and he knew that injury was likely to cause his death and he was reckless whether death ensued or not.

[2] The accused elected trial by Judge alone and represented himself.

THE LAW

I direct myself;

[3] "Homicide is the killing of a human being by any means whatsoever and is either culpable or non-culpable.

A culpable homicide consists in the killing of a human being by an unlawful act.

A culpable homicide may be murder or manslaughter.

For the purposes of this case, it is murder;

if at the time of killing by an unlawful act, the accused intended to cause to the person killed any bodily injury which the offender knew was likely to cause death and was reckless whether death ensued or not.

The essential elements the Crown must establish beyond reasonable doubt on this definition for a verdict of murder are these;

1. that the accused, on or about the 20th February 2014, at Halaleva did an unlawful act namely an assault by using a piece of wood to cause bodily injury to the deceased;
   
2. that this caused the death of the deceased; and
   

100. at the time of doing this he intended to cause the accused bodily injury;
     

4. and at this time the accused know that the injury was likely to cause death; and
   
5. he was reckless whether death ensued or not.
   

An assault is an unlawful act if it involves the intentional application of force to another without that other's consent.

Bodily injury involves an injury that is to the body, and injury is a hurt or injury calculated to interfere with the health or comfort of the victim.

Intention to cause bodily injury means that the accused actually intended to cause bodily injury. In deciding this, I am entitled to consider not only what the accused may have said about the matter but I may have regard to his actions, before, at the time of and after the alleged offence. All these matters may assist me to come to the decision as to whether or not the accused intended to cause the deceased bodily injury.

Likely means more than something that is merely possible. It must be shown beyond reasonable doubt that it was a likely or natural and probable consequence of his intention to cause the deceased bodily harm that death would result.

Nor does it mean that he ought to have known this by any objective standard but the Crown has to prove beyond reasonable doubt that he actually knew, that is in his own mind actually appreciated that the act was likely to cause death.

The further question for me to decide beyond reasonable doubt is was the accused at the time, was reckless whether death ensued or not, namely knowing that death was likely he carried on with the assault, regardless?

[4] By his plea to manslaughter and, indeed, the evidence of his admissions to striking the accused twice in the head area, contained within his record of interview, he admitted causing the deceased's, death that is the actus reus of causing death by an unlawful act. In this case, the principal issue was whether at the time of striking the accused with a piece of wood about the head he knew that his death was a likely consequence and proceeded to strike him, regardless.

THE EVIDENCE

[5] The evidence was in a narrow compass. The first witness was Mr Dao Ming He. He was aged 27 and the deceased was his cousin. On the 20th of February 2014, he said he had tried to ring his cousin but there was no answer. He said at about 10.30 to 11 pm he went to his place in Halaleva where the deceased had a shop with living quarters attached. He tried to contact the deceased but with no success and drove away only to return shortly after. He called another cousin to come over. He could see the deceased through a window. They saw that he was face down on a bed. Later the door was kicked in and he and family members entered. He saw a piece of wood in the store area. The till was empty of notes and that all that remained were some coins.

[6] The bedroom door, which was situated to the rear of the storage room noted in a plan that was exhibited, was locked. The deceased was lying on his bed and he had vomited a lot. He was still breathing. There were bruises on his face. The witness said these were to the upper right temple area. He did not notice any blood. His face was bruised and reddish. He had marks on his elbow and on his knee. There was bruising he said under the right forearm. They took him to hospital. He said about 1am. The delay was caused by waiting for the deceased family to arrive. He was still breathing when they arrived at the hospital.

[7] The officer in charge of the case, Inspector Faeamani gave evidence that he entered into a record of interview with the accused on the 12 November, 2014 which was admitted into evidence, without objection. The accused admitted going to the shop at some time after "maybe", he said, "20 minutes before 8 in the morning" to commit theft and taking what he described as his "theft outfit" which included a mask. He did not set out to rob this house but went in a car to the Halaleva area and asked to get out. There was a boy mowing in the area. He jumped into a nearby pig sty and got into his "theft outfit". He went from the sty into the backdoor of the Chinese shop. He entered the storage area, and took with him a piece of wood which is seen in the photographs. He saw the Chinese selling things and waited for him. He hid behind a refrigerator in the storage area when the deceased came in to the storage area. The deceased sat down on a wooden chair and continued with his phone call.

[8] He said he could not confirm how long he was behind the fridge but he stood up and threw a punch which did not connect well as the deceased swerved. The punch connected with his left cheek. He said the deceased then lunged towards him and he moved backwards toward the fridge where he said he grabbed the piece of wood and he hit the deceased on the head with it.

[9] He was asked how many times did he hit him. He replied that he hit him twice but the first strike was initially blocked by the right hand. However, he said the piece of wood kept travelling downwards and hit his head and the second strike hit him on the head and he fell down. He said he fell in the shop close to the cash registrar and collapsed. He lifted him into the back storage area and placed him down near the fridge. He took his notes and he threw some cigarettes at a boy and then went back to the pig sty and crossed the road to a nearby cemetery. A boy was mowing grass. He changed in the cemetery and returned and stood in front of the shop and the deceased was standing in the place where he had laid him down holding his head. He said he had asked him whether he was all right. The deceased did not reply and the accused said he went home. He was charged with murder and admitted it was true. The particulars of murder given in the charge sheet were simply, however, that he had used a piece of wood to hit the head of the deceased and punched him in the mouth resulting in his death. It did not include any allegations that he knew his actions were likely to cause death. In his voluntary statement under caution, he said he felt truly remorseful for what had happened.

[10] Subsequently, the accused participated in a demonstration in which he took the police and showed them various areas which were photographed and tendered into evidence. There was, however, no demonstration as to the manner in which the deceased was hit by the accused. Nor were any questions asked about how the piece of wood broke, the force that was used, or the accused's state of mind on the central ssue of whether he appreciated the blows were likely to cause.

[11] A pathologist, Eka Buadromo, prepared a report which was tendered in evidence. She gave evidence of bruising on the head and neck and said there were multiple bruises on the head in the right temporal area and on the left frontal temporal area. There was another long bruise (12x 3 cms) on the vortex right up on top of the head. She said it was on the middle of the head trending backwards. There was a reddish abrasion in the lower end of the forearm from the elbow joint to the medial of the left wrist. There was a lineal patterned reddish bruise with parallel lines on the posterior lateral left lower thigh.

[12] She said that there were haemorrhages in the scalp involving parietal frontal and temporal regions bilaterally. There was a large separated elongated haemorrhage obliquely across the parietal area. There was a comminuted fracture of the left temporal and sphenoid bone. There were numerous fractures of the skull. There were subdural haemorrhages in both parieto-temporal regions with clotted blood. Scan photographs of the cranial area showing fractures were produced in evidence. There was bleeding into the eye sockets. There was bleeding into the brain. The brain was swollen and pressed down or herniated into the spinal cord. The brain herniation caused cardiac arrest and his eventual death. Surgery was unsuccessful and the deceased died at 8.05 hours on the 21st February 2014. He had been seen first at the emergency department at 0025 hours. A CT scan was conducted.

[13] She said the deceased sustained multiple impacts to the head, the left ear, the lineal patterns of the left forearm and the back of the thigh. She said she had handled part of the piece of wood photographed at the scene and that piece was quite light. The bruising to the lower elbow and arm was consistent with a defence injury. She said that death was due to multiple blunt impacts to the head. There was definitely more than one. She said initially at least four, and later five impacts to the head, three of which had caused fractures. She said there would have to be considerable force to cause these fractures.

[14] Importantly, she gave evidence that in her opinion there were three blows that caused fractures and not two blows to the head as the accused said in his record of interview. When asked how clear she was there were three impacts to the head that caused fractures, she responded she was pretty clear but there was another possibility that, if he had fallen forward and hit his head, that would probably be the cause of fractures to that area. When asked whether she could exclude the possibility there were only two blows, she said she considered there were three impacts but the third might be associated with a fall to the ground. She later said also that it was not uncommon for persons who have severe head injuries to walk around and that varied, in time.

[15] The evidence of Akata Manu was read to the Court. She explained that around the time the lawn was being mowed( which the accused also mentioned occurring in his evidence) she came to the counter of the shop and observed the accused walking around, attempting to serve her and later going from the counter (shop area) into the storage room and placing his head on boxes and striking the box with his hand. She said she had gone to the shop approximately after 12pm. He was staggering. He confused her order. She could see there was a bruise on his elbow and he was drooling from the mouth. She thought he was highly intoxicated. She saw him crash into some hamburgers. She did not hear any noise. She saw a black car arrive somebody go to the counter and then return to the car. The driver laughed and the car drove off.

[16] The accused did not give evidence. He did not make closing submissions, either. He took little actual part in the trial.

[17] Mr Sisifa made closing submissions primarily on the issue of whether I should draw the inference beyond a reasonable doubt that the accused must have known that striking the man on the head at least twice with considerable force were actions from which death was likely. He submitted that I should draw this inference, in this case. He submitted the evidence revealed there were in fact multiple blows with a piece of wood, to the head delivered with considerable force according to the pathologist. He drew my attention to the fact that the pathologist had said as many as five impacts to the head.

FINDINGS

[18] It is plain that the accused by hitting the deceased on the head with a large piece of wood caused bodily injury and his death. What is more difficult is whether I can infer beyond any reasonable doubt that he must have known that it was likely that the deceased would die from the blows inflicted to his head and yet had carried on regardless.

[19] Although, the pathologist gave evidence that the impacts to the head could be about four or five, three of which she said would have caused fractures, she could not dismiss the possibility that the accused had inflicted only two blows to the head if a third impact causing fractures to the frontal part of the head had been the result of a fall to the ground and impact to his forehead. There were no questions asked of the accused as to what he thought was likely to happen to the deceased when he delivered the blows to the head. One blow, the accused, asserted was a glancing blow to the head. The pathologist confirmed the presence of a defensive wound to the lower arm below the elbow suggesting that this aspect of the accused's account was possibly truthful. The record does not show whether the deceased fell forward onto his head; but I cannot dismiss this possibility because one of the major impacts causing a significant fracture and a large bruise was to the middle of the head tending backwards.

[20] Given the state of the Dr Buadromo's evidence, I cannot exclude the possibility that there were only the two blows to the head as the accused said, and not more. In the absence of evidence as to how precisely these occurred, that is the absence of any eye witness evidence, or admissions from the accused as to the precise manner in which these blows were delivered, and the lack of any evidence as to his state of mind on the central issue of whether he knew that death was likely, prior to or contemporaneously, with delivering the blows, I am unable to draw the inference beyond reasonable doubt that he must have known that death was a likely consequence of his actions. In arriving at this decision, I have not overlooked the pathologist's evidence that the force of the impacts to the head were considerable. In the record of interview, the accused said he struck as a response to the deceased lunging towards him whereupon he picked up the wood from the area of the fridge. His actions were it seems a rapid response because he says the accused collapsed after the second blow. In these circumstances, that is rapid response, I find it more difficult to infer beyond doubt that he must have foreseen death as a likely consequence of his actions. Further, the accused said he went back to the shop and saw the deceased standing and asked him if he was all right. That the deceased was able to walk about after being struck was confirmed by the witness Akata Manu who had been served by him probably shortly afterwards when the lawns nearby were being mowed. The fact that the accused returned to the shop and inquired of the deceased whether he was all right suggests to me that when he struck the deceased he may not have appreciated that he would be likely to die. If he had appreciated that death was likely, he would in my view more likely to have left the scene without returning and inquiring as to whether the deceased was all right. Put shortly, he would have simply left him for dead. For these reasons, but not without difficulty, I am unable to feel sure that the accused knew that the deceased would likely die as a result of his actions and proceeded to strike him regardless.

VERDICT

1. For these reasons, I acquit the accused of murder but pursuant to his guilty plea, he is convicted of manslaughter.
   
2. He is remanded in custody for sentence and a probation report is ordered.
   

C. B. Cato
ACTING CHIEF JUSTICE

DATED: 26 OCTOBER 2015