Rex v Kanongata'a [2018] TOSC 27; CR 26 of 2018 (17 July 2018)

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

CR 26 of 2018

BETWEEN: R E X - Prosecution

AND: DAVE ‘ISOA KANONGATA’A - Accused

BEFORE THE HON. JUSTICE CATO

Counsel: Ms Sikalu for the Prosecution

Mr Tu’utafaiva for the Defendant

V E R D I C T

1. The accused stood trial before me as Judge alone on one count of causing serious bodily contrary to sections 107(1)(2)(c) 4(a)(b) of the Criminal Offences Act arising out of an incident that arose on the 11^th September 2017 at Hofoa where it was alleged he used a machete to hit ‘Amoni Pau’uvale’s hand causing a deep laceration.
   
2. It was plain and not in dispute that the accused did with a machete strike the hand of the complainant ‘Amoni Pau’uvale during the incident and I am satisfied this plainly qualified as a wound. I am satisfied and it was not in dispute that this wound was caused by the complainant putting up his left hand in a defensive manner to prevent the accused striking him with the machete.
   
3. Aside from this, however, I have not found a resolution of the case easy. Part of the reason is the failure by the Crown to call a number of witnesses who were present that night and were witness to the events. This may have been because the police failed to take statements from a number of potential witnesses to events thereby restricting the prosecution case. Also I am left in doubt as to whether prior to the wounding, the accused as he had alleged, did in fact suffer an injury to the head from a steel bar carried at the time by the complainant, ‘Amoni Pau’uvale. The accused said in re-examination by his counsel, Mr Tu’utafaiva, that he had taken a medical report to the police at the time it seems he lodged a complaint. The officer in charge was unable to confirm whether a complaint had been laid and nor did the Crown adduce evidence to refute that a medical report had been given to the police by the accused. There was no Officer in charge in court, during the trial, and this meant that the Prosecutor did not have access to this information before the defence case was closed.
   
4. The complainant, ‘Amoni said that he had been playing cards late in the evening with others who included his brother Solomone and Filipe Pau’uvale, Fine Tau, and others when he heard noise from outside. He said he saw what appeared to be his younger brother, Tuiano, in a fight around the road area. The group went outside to assist Tuiano. The complainant said he saw his brother fighting with the accused who lived across the road nearby and the accused’s brother Misi. He saw others across the road at least one of whom was armed with a hoe. He said somebody threw an iron pipe into the area which he picked up. Tuiano was restrained and it seems that the fight broke up. The complainant, however, picked up the bar and he pursued the accused and others across the road and into their property. He said he chased them to scare them off with the pipe that was made out of iron and was about two and a half feet in length. He said that the accused went into an area the rear of his house and the complainant turned around and stood by a motor vehicle. A short time later, he saw his brother, Filipe, appear, chased by the accused who had a machete. He was positioned out of sight of the accused and, as the accused and Filipe ran past, he tried to strike the accused’s machete. He admitted that he connected with accused back and said that he did not know whether he had hit his head. ‘Amoni said that the accused retaliated by bringing his arm which was positioned upwards down and it connected with his left arm. He admitted that he was still holding the bar with his right hand. He said he began to feel a numbing sensation in his hand and took no further part in events being taken to hospital for treatment where he remained for some time. He said to Mr Tu’utafaiva, when asked how the accused had reacted to being hit by him, that he realised someone was behind him so he turned around and swung the machete at him with an overhead movement. He said that he moved his head up and the accused struck his left hand.
   
5. The accused gave a different version of events. He said that he had been hit with the pipe by the accused on his head after falling to the ground, having been chased from the road area. He had got up and left the area and had picked up the machete by the side of the back door of his home. He said that there were stones thrown by members of the complainant’s group at the house and motor vehicle. He had said to the interviewing officer, Detective Paea Penisoni, who also seems to have been the officer in charge of the case that he had hit him in defence because if he hadn’t struck him with a machete they would have trashed our house. He mentioned to the officer also that he was struck on the head prior to getting the machete and had used his hand as a guard. His brother had also been struck with something. Detective Penisoni confirmed that she had seen bruising on the accused but that it looked like an old injury. I note, however, that the interview took place about ten days after the incident. She confirmed that the accused had told her he intended to possibly lay a complaint.
   
6. The accused admitted in evidence that he was drunk that night and was angry that he and his brother had been injured. He called a witness who confirmed that she had seen the incident. She had lived nearby. She saw the accused fall on the ground and be hit by the complainant several times, and later saw him involved with ‘Amoni when the accused used the machete and ‘Amoni blocked it with his hand. She said the blow with the machete would have hit the complainant around the bottom of his back and the complainant had put his hand around his back. Later, she said the accused had come to her family for assistance and had been taken to hospital by her and her mother. She said her mother and the accused’s mother were friends and she had been recently asked by his mother to give evidence. She said she had not discussed her evidence with the accused.
   
7. I observe that I was not very impressed with her evidence. I consider that, although she may have been present she gave her evidence in a partisan way and, whilst I did not dismiss her completely, I would not place much weight on her evidence that the accused was hit on the head or of her observation of the striking of ‘Amoni with the machete. She said she saw the complainant hit the accused on the ground about 5 times when the accused said only twice. The version she gave of the complainant being struck with the machete simply does not accord with either the complainant’s or the accused’s version of events.
   
8. As I have said, I would have welcomed evidence being given by others for the prosecution, Tuiano being one and another Filipe who the accused is alleged to have chased before using the machete to strike ’Amoni. On the evidence, I heard, however, I cannot dismiss the possibility that the accused was injured in the head as he claims. There was evidence that he raised this with Detective Penisoni. This issue should have been explored and, even at trial, it would not have been too late to secure evidence from the hospital as to whether he has been a patient as he claimed. Penisoni admitted that he had spoken to her about raising a complaint about ‘Amoni. In these circumstances, I cannot eliminate the possibility that the accused suffered an injury to the head prior to picking up the machete as he and others returned from the road where the fighting had occurred to their property.
9. I remind myself that self-defence, which Mr Tu’utafaiva relies on here, requires a court to consider, as Ford J said in R v Orsai [2006] Tongan LR 169, to three factors;
   

“First, what did the accused, from his point of view believe was happening at the time; secondly, bearing that in mind he was acting from his point of view to defend himself; and thirdly was the force used reasonable given what the accused said was happening at the time.”

Ford J also said;

“Whether the accused thought it was reasonable was not in point. It was for the Crown to prove that there was an absence of reasonable grounds for the accused’s belief that the degree of force was necessary. It was irrelevant who hit or started the aggression first. The relevant question was whether the accused was defending himself.”

10. I had occasion, as Mr Tu’utafaiva and Ms Sikalu pointed out to consider this issue in R v Sio Vaka CR 90 of 2016, 13^th June 2017 where I acquitted the accused of manslaughter on the grounds of self-defence. In that case, I referred to the observations of Lord Morris in Palmer v The Queen [1970] UKPC 2; [1971] AC 814, at 831-2 where he states;
    

“If there has been attack so that defence is reasonably necessary it will be recognized that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively believed was necessary that would be most potent evidence that only reasonable defensive action had been taken.“

11. In these dynamic, often quickly moving scenarios, it can be difficult for a court to assess what was going through a person’s mind and whether a reaction to a violent situation was a justifiable response. The accused deserves no praise for picking up a machete, which I observed in Vaka, was to introduce a dangerous dimension to an already volatile scene. I viewed with scepticism his statement to the police that he did this to save his home or at trial to save his sisters who were in the house. I consider it possible he may, have chosen, however to arm himself with a knife so as to scare his neighbours away from his property and that is why he chased Filipe. It is, at the time, he used the machete to strike ‘Amoni, however, that I must judge his actions and whether the Crown has negatived the plea of self-defence. He stated in evidence to Mr Tu’utafaiva that he was scared and if he had not used the machete to strike out at ‘Amoni, ‘Amoni would have hit him with the metal pipe and ended up by killing him. The Crown quite correctly challenged him on that and drew his attention to what he had told Detective Penisoni that they would break down his house. He then said, “I was scared ‘Amoni would hit me again with the metal pipe and cause me harm.”
    
12. I have already said, on the evidence I heard, I could not dismiss the possibility the complainant had hit him earlier with the pipe. I also do not dismiss entirely that in picking up the machete he was trying to drive his neighbours away. I am left in a state of doubt as to his state of mind at the time he wielded the machete and struck the hand of the complainant. I consider that the action of the complainant in striking him, (although the accused said he did not connect), took him by surprise as he chased Filipe and passed the vehicle and in reaction he may have swung at or lashed out at ‘Amoni with the machete in defence. It is not clear to me that what he did was in revenge at that moment and was an excessive action particularly if, as he says, he had been hit by the complainant earlier in the head whilst on the ground. In this regard, I paid some attention to the evidence of a brother of ‘Amoni, Solomone, who said to the prosecutor in answer to a question to demonstrate what he actually saw;
    

“Amoni hold up his hand like this and I could not know what he was holding on his other hand but they were hitting each other.”

13. In these circumstances, with both weapons capable of causing serious harm, and for the reasons I have given I am unable to say the prosecution beyond a reasonable doubt has negatived self-defence and I acquit the accused. He is discharged.
    

C. B. Cato
DATED: 17 JULY 2018 J U D G E