Rex v Pau'uvale [2019] TOSC 1; CR 109 of 2018 (30 January 2019)

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

CR 109/110/111 of 2018

BETWEEN: REX

Prosecution

AND : ‘AMONI PAU’UVALE

TU’IANO PAU’UVALE

FILIPE PAU’UVALE

Accused

BEFORE LORD CHIEF JUSTICE PAULSEN

Hearing : 22-24 January 2019
Date of Ruling : 30 January 2019

Counsel : Mr T ‘Aho for the Prosecution

Ms L Kuli for the Accused

VERDICT

The charges

[1] The three accused are brothers. They have been tried for the offence that they did cause serious bodily harm to Dave Kanongata’a (Dave) on or about 11 September 2017 at Hofoa contrary to ss. 107(1) and (2) of the Criminal Offences Act.

[2] It is alleged in the indictments that in an attack on Dave, ‘Amoni Pau'uvale (‘Amoni) used an iron pipe, Tu’iano Pau’uvale (Tu’iano) used a rock and Filipe Pau’uvale (Filipe) used a piece of wood to inflict ‘wounds’ on Dave.

[3] The three accused entered pleas of not guilty and elected trial before a judge sitting alone without a jury. The trial was conducted before me over three days on 22-24 January 2019. At the conclusion of the evidence and after hearing submissions from Counsel I reserved my verdict until 30 January 2019.

Some initial observations

[4] This case is a sequel to a trial that was conducted by Cato J in July 2018 (R v Kanongata’a CR 26 of 2018, 17 July 2018). Arising out of the same facts Dave was tried for causing serious bodily harm to ‘Amoni. It was alleged that Dave had used a machete to hit ‘Amoni’s hand causing a deep laceration. Dave was acquitted on that charge because Cato J found that the prosecution had not negatived self-defence. Dave said that he had used the machete in his defence after being hit on the head by a steel bar carried by ‘Amoni. Relevantly however, Cato J was left in doubt whether Dave had in fact suffered an injury to his head and said at [3] of his verdict:

Aside from this, however, I have not found a resolution of the case easy. Part of the reason is the failure of the Crown to call a number of witnesses who were present that night and were witnesses to the events...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...

[5] As will become apparent, notwithstanding that this is the second trial to examine the relevant events I too am left in doubt whether Dave suffered a wound to his head. It was also a feature of the case that witnesses who could have been expected to shed light on what had occurred did not give evidence.

[6] The prosecution case proceeded on a different basis than the indictments suggested would be the case in two respects. First, although the indictments allege that the three accused took part in a joint attack upon Dave and that each had used a certain weapon (an iron pipe, timber or rock), at trial the prosecution evidence was that only the iron pipe was used on Dave. Also, the indictments allege the infliction of ‘wounds’ upon Dave (although this may be a typographical error) but at trial it was alleged that he suffered one wound to the head from being struck by the iron pipe wielded by ‘Amoni, albeit as part of a joint attack by all three accused.

The elements and cautions

[7] The essential elements that the prosecution must prove in order to establish a charge of serious bodily harm under s. 107(1) are that:

(a) An accused;

(b) Wilfully;

(c) Without lawful justification;

(d) Caused ‘harm’ to another.

[8] The term ‘harm’ is defined in s. 107(2) and the prosecution relies upon s. 107(2)(c); that is the infliction of a ‘wound that is not severe’. Mr. ‘Aho submitted, and I accept, that to constitute a wound for the purposes of the statute, there must be a breakage in the continuity of the skin. A laceration to the head would constitute a wound.

[9] Before an accused can be found guilty as part of a joint criminal enterprise the prosecution must establish beyond reasonable doubt:

(a) The existence of an understanding or arrangement between the accused and one or more other persons amounting to an agreement to commit the offence with which he is charged; which agreement remained in existence at the time the offence was committed;

(b) The accused’s participation in some manner in the commission of the offence;

(c) That in accordance with the agreement one or more of the parties to the agreement performed all of the acts necessary to commit the offence charged, in the circumstances necessary for the commission of that offence; and

(d) That at the time of entering into the agreement the accused had the intent required for the commission of the offence.

[10] Proving the agreement of a number of persons to commit an offence may be a difficult task. The prosecution may have to rely on evidence that leads to an inference of the agreement. An agreement does not have to be reduced to writing or satisfy any formalities. It may consist of an express agreement or a non-verbal understanding arising from the conduct of the parties and the circumstances of the case. It may be entered into before or spontaneously with the conduct that constitutes the offence.

[11] I have reminded myself of a number of other important matters which I find were very ably summarised by Hampton CJ in R v Fa’aoso (Unreported, Supreme Court, CR 520/95, 13 February 1996)

As this is a judge alone trial I remind myself of several fundamental matters. The most important of which is, of course, the fact the onus of proof lies on the Crown at all times and it is to the standard of proof beyond reasonable doubt in relation to the charges and every constituent element of the charges. There is no obligation on the accused to prove anything, nor is there any obligation of any sort for him to call evidence or give evidence himself. Here he chose not to give evidence but there is no significance in relation to that. The onus and the standard are unchanging and rest on the Crown throughout. I remind myself that I must judge the matter only on the evidence which I have heard in this Court; if the Crown chooses not to call all its potential witnesses then so be it. On the basis of the onus and standard I have already mentioned, they stand or fall on the evidence which they choose to call before me.

The competing scenarios

[12] The prosecution and the defence presented competing scenarios which can broadly be summarised thus. The prosecution contends that Dave intervened to break up a fight between his brother (Semisi) and Tu’iano and was then attacked by the three accused during which he was struck on the head with an iron pipe by ‘Amoni and wounded. The defence contends that the three accused never attacked Dave together, that he had fought only Filipe before retreating to get a machete and that when he was chasing Filipe ‘Amoni hit him with the iron pipe in Filipe’s defence. The defence also contends that Dave did not suffer a wound.

The evidence

[13] The prosecution called three witnesses. They were Dave, Salesi Mafi, a Police Officer who took a statement from ‘Amoni, and Sauni Holani. The prosecution also submitted a medical certificate as evidence that Dave had suffered a wound.

[14] The defence called all three accused along with their elder brother Solomone Pau’uvale (Solomone) and Dr Viliami Vao, the author of the medical certificate.

Dave’s evidence

[15] Dave and the accused are neighbours and he has known them for between 5-10 years. He has never previously fought with them. He had been drinking at Hofoa and then bought more liquor and went home and was drinking there with his friend, Etuate. His brother Semisi had mixed a drink for himself and left. Dave was drunk. Dave heard swearing from the road. His brother Semisi was in the middle of the road. He was swearing and was being followed by Tu’iano and another man, Sione. Dave walked over and asked Tu’iano and Sione to go back because Semisi was very drunk. He was then tackled by his cousin, Toutai. Toutai was angered by the swearing. Toutai was taken away by his father and when Dave got up Semisi and Tu’iano were fighting. He tried to stop the fight. He then saw the three accused advance upon him. Filipe and Dave attacked each other and then he was attacked by all three accused. They were throwing punches and kicks at him. ‘Amoni had an iron pipe, Tu’iano had a rock and Filipe had a piece of wood. The attack lasted about 2 minutes. He cannot recall if Tu’iano used the rock but Felipe did not hit him with the wood. He was hit on the head with the iron bar by ‘Amoni and fell to the ground and was dizzy and his head bled. He got up and Semisi came with a hoe and was attacking the three accused. Rocks were being thrown at his house. The three accused retreated and then began attacking again. Dave ran into his property and was chased by ‘Amoni and Felepi and they were very close. He grabbed the machete to defend himself and ran back at Filipe and ‘Amoni. ‘Amoni was near a vehicle parked in the driveway. ‘Amoni attacked him with the iron pipe but he ducked and ‘Amoni missed him. Dave hit ‘Amoni with the machete and ‘Amoni tried to block the machete with his hand.

Salesi Mafi’s evidence

[16] Salesi Mafi took ‘Amoni’s record of interview and no objection was taken to it. The following is the most relevant extract from the statement:

Q13 Explain what happened.

A13 We were... at home with my brothers Tuiano went to get his charger and while he went we heard that there was a fight. We gto up with the...to see I saw that Tuiano was being attacked by boys in front of Dave so I went over the fence with Fine to stop the fight as we know each other and so we fought. Dave came running with a cane knife and he almost hit Filipe with it and so I hit Dave with the rod not sure if it hit his back or his head and Dave then hit me with the cane knife

Q14 There is one witness here that the injury to Dave’s head was when you hit him with the piece of rod. What do you say to that?

A14 It is perhaps right, but I did not intend to hit him causing injury.

Q15 Where did you hit Dave?

A15 Beside a van inside Dave’s compound.

Q16 Who authorized you to enter into Dave’s compound?

A16 I wasn’t authorized by anyone.

Q17 Who else did you know was involved in this fight?

A17 `It was just me and Filipe and Tu’iano.

Sauni Holani’s evidence

[17] Sauni is Dave’s sister and was at the same residence. She had not been drinking. She saw Semisi and Tu’iano fighting on the road and ran to stop the fight. ‘Amoni ran over and was chasing Semisi with a pipe but couldn’t catch him. She ran to the back of the property with Semisi. She then went back to the front and had a clear view and saw Filipe and Tu’iano attacking Dave. ‘Amoni joined the attack. The attack lasted for about 15 minutes. All three accused were punching and kicking Dave and he fell down and ‘Amoni hit him on the head with the iron pipe. Filipe carried a piece of timber and Tu’iano carried a rock but they did not use them. Semisi came with a hoe to frighten the accused. Dave was able to escape from the attack and he ran to the back of the property and grabbed the machete. She gathered her sisters and went inside. She did not see Dave use the machete. Dave was taken to the hospital.

[18] It was put to Sauni that she had, in effect, colluded with Dave as to the content of her evidence. In re-examination Mr. ‘Aho put to her a statement that she had made on 27 September 2017 to the Police about the incident where she that had said that the accused were all attacking Dave and had beat him with a pipe and a stick and a rock causing injuries to the back of his head.

[19] In answer to questions from me, Sauni said that Dave was not on friendly terms with the accused and has argued with them and they physically fight each other when they are drunk.

The medical reports

[20] A medical report of Dave’s injury was produced as exhibit 3. The report notes that Dave suffered a laceration to the left parietal region requiring 3 stiches and that the injuries were consistent with him having been attacked with a piece of iron. The report also states that Dave was first seen by Dr. Vao on 19 September 2017 at 0200 hours. The report was prepared on 22 September 2017.

[21] There is another medical report, admitted by consent as exhibit 4, that states ‘Amoni was first seen at the hospital in relation to a machete wound to his hand at 11pm on 11 September 2017.

Tu’iano’s evidence

[22] Tu’iano was playing cards with his brothers at the family house which is diagonally over the road from Dave’s house. He had not been drinking. He knows Dave and has never fought with him. He walked to a house where he stays, which is nearby, to collect his charger. Semisi and Sione were swearing at each other on the road. He and Sione are related so he tried to lead Sione away. Toutai then arrived and asked him who was swearing. Dave had turned up and Dave and Toutai attacked each other. He went to stop them and Semisi attacked him. Toutai’s father came and took Toutai away. He continued to fight Semisi. He saw Filipe and ‘Amoni running towards him and Filipe and Dave fought. Semisi ran away and he did not follow. Dave then ran on to his property and Filipe and ‘Amoni followed him. ‘Amoni had a pipe but he did not see where he got it from. He then saw Dave running back out with a machete following Filipe. ‘Amoni was standing close to a vehicle in the drive. Dave had the machete in the air ready for use and ‘Amoni hit him with the pipe. Dave then hit ‘Amoni with the machete. The machete got loose from Dave’s hand. Dave went back to the house and was swearing. At no time did he pick up a rock or join in a fight attacking Dave. He never saw Filipe with a piece of timber. He never saw Sauni that night. ‘Amoni was taken to the hospital. He went to the hospital and saw Dave was there.

‘Amoni’s evidence

[23] He knows Dave as they are neighbours. He was playing cards with his brothers at home. They are Mormons and do not drink alcohol. They heard shouting outside. They went outside and saw Tu’iano and Semisi fighting. Filipe jumped over the fence and he followed Filipe and ran towards Tu’iano. There was a child holding a pipe and he took the pipe. He did not see either Sauni or Toutai. Filipe was ahead of him. Dave and Filipe began attacking each other. Dave and Semisi then ran to the back of Dave’s house and Filipe followed them. He ran behind Filipe. There was not much light at the end of the drive and Filipe turned back. Dave was following Filipe with the machete. Dave was holding the machete up in the air in his right hand. ‘Amoni was standing near a vehicle parked in the driveway. He could see Dave had something in his hand but was not sure what it was but as Dave got closer he saw it was a machete. He used the iron pipe to hit the machete and because Dave had the machete in the air he had to strike behind his head. He hit the machete but also hit Dave on the back of the head. He did not see Dave bleed. Dave then knew he was there and responded by attacking him with the machete. He tried to block the machete with his hand and was injured. Dave and he kept hitting at each other and he felt his hand go numb and he couldn’t see anything. He awoke in the emergency room at the hospital. He saw Dave at the hospital that night but did not see any blood and did not know what had happened to him. He said that he never joined with the other accused in an attack on Dave. Filipe did not have rock nor did Tu’iano have a piece of timber and he did not strike Dave with the pipe as the three were attacking him. He said that he had never previously had an argument or a physical fight with Dave.

[24] Mr. ‘Aho asked ‘Amoni to confirm his evidence that he had tried to hit the machete and he replied ‘yes’. Mr. ‘Aho did not directly challenge ‘Amoni’s evidence that his intention had been to strike the machete. In relation to his record of interview (particularly Q17) ‘Amoni said that he was asked did he know who was involved in the incident and it was in that context that he said it was just him and Filipe and Tu’iano.

Filipe’s evidence

[25] He has known Dave for between 5-10 year and they are neighbours. He has never before fought with him and was friendly with him. He was playing cards at home with his brothers and they heard noise on the road and went outside to the fence to see what was happening. Tu’iano and Semisi were fighting and Dave was standing nearby. He did not see Toutai or Sauni that night. He jumped the fence to run towards Tu’iano and Dave approached him. As he pushed past Dave they started fighting. They were fighting with their fists. Semisi ran from Dave’s house with a hoe and Semisi tried to hit him but the hoe broke on the road. Semisi and Dave ran into Dave’s property. He chased them but turned back because he reached a dark area. He did not see ‘Amoni but Tu’iano was standing on the road. At no time did the accused jointly attack Dave. He did not hold a piece of timber and he did not see ‘Amoni with a pipe or Tu’iano with a rock nor did he see Dave with a machete. The Vice President of his Church Stake calmed him down and he went back to his house and he was told later that ‘Amoni was in the hospital and he went to see him that night.

Solomone’s evidence

[26] Solomone knows Dave very well and has never fought with him. He was at home playing cards with his brothers. They are Mormons and do not drink. They heard noises from the road and went to see what was happening. Tu’iano and Semisi were fighting and Dave joined in. Filipe and ‘Amoni jumped the fence and he followed along with another person called Fine. The fighting stopped for a short while and out of the blue Dave appeared with a machete. He and ‘Amoni backed away to the road. Dave attacked with the machete and surprisingly a pipe was thrown from the side and ‘Amoni took the pipe and defended himself. After ‘Amoni was struck by the machete he pulled ‘Amoni away and the fighting stopped. Filipe, Tu’iano and Fine were just observing. He did not see Sauni at all. He recalled seeing the hoe on the road but did not remember its condition. He never saw his three brothers join in an attack on Dave nor did he see Filipe with timber or Tu’iano with a rock. The only person injured that night was ‘Amoni and he was taken to hospital. Dave was not injured and he did not see his head bleeding.

Dr. Vao’s evidence

[27] Dr. Vao is a Senior Medical Officer at the Emergency Department at Vaiola Hospital. He did not recall seeing Dave but confirmed that he would have done so as he completed the report (exhibit 3) and recorded seeing Dave on 19 September 2017. The report was completed on 22 September 2017. Before giving his evidence he had checked the hospital’s records and confirmed that he saw Dave on 19 September 2017. There was no record that he had seen him on 11 September 2017. His report was not complete because it did not record whether the wound was a fresh one or not but he would have noticed if it was an 8 day old wound and written that in his report. He agreed it was odd that Dave said he was hit on the head on or about 11 September 2017 and then presented at the hospital with a very similar wound on 19 September 2017. He said that the Emergency Department operates a triage system and that it generally handles only emergencies and if someone presented for a check-up of an old wound at 2am in the morning they would be sent away and told to come back the next day.

Discussion

[28] Mr. ‘Aho submitted that this case turns entirely on credibility. He invites me to accept the evidence of Dave and Sauni in reliance upon which he submits that the prosecution has established beyond any reasonable doubt that all three accused acted together pursuant to a joint enterprise to attack and intentionally inflict harm upon Dave. The Crown case is that the agreement or understanding of the three accused to pursue their joint criminal enterprise is to be inferred from their spontaneous and co-ordinated attack on Dave, during which he was hit on the head with the iron pipe.

[29] Ms. Kuli presented helpful written submissions in which she argued:

[29.1] That there was no agreement between the accused to pursue a joint enterprise to attack Dave;

[29.2] That the accused never participated in a joint enterprise and did not jointly attack Dave;

[29.3] That Dave did not suffer an injury to his head (at least not during the events in issue); and

[29.4] ‘Amoni was acting in defence of Filipe when he struck Dave with the pipe and in those circumstances no offence was committed.

[30] The circumstances that the witnesses described were emotionally charged, dynamic and fast moving. Each witness responded differently to the events as they unfolded and could not be expected to observe all that was going on around them. Their ability to accurately take in what was happening would no doubt be affected by a range of factors not least of which would have been fear, and in the case of Dave, the effects of alcohol. It is only to be expected that the evidence of the witnesses would not be uniform, as was the case.

[31] There were aspects of the accuseds’ evidence that I found surprising. For instance, Filipe said he did not see ‘Amoni with a pipe or Dave with the machete. Notwithstanding that, I found the accused to be generally credible witnesses. They said they had not been drinking that night and there was no challenge to this evidence. Their recollection of events was broadly consistent and in the main was plausible.

[32] I have greater misgivings about the credibility of Dave and Sauni. Dave was intoxicated and had been drinking that night at two locations. Clearly he could not recall all that had happened. At one point in his evidence he said ‘The truth is I was drunk’ and ‘There are things that I remember and there are things that I don’t remember’. In another part of the evidence he said he was ‘too drunk’ and when I asked him what he meant by that he said ‘Because I know I was drunk’. I then asked him ‘And do I understand you to be saying that you know that the [accused] weren’t drunk?’ and he replied ‘Yes’. I also found Dave’s version of events convoluted and implausible.

[33] I am sceptical that Dave entered the scene as a peacemaker when Toutai, who was angered by the swearing, attacked him. Likewise if, as Dave says, he was only attempting to lead Semisi away, I cannot see why any of the accused (who were sober and apparently on good terms with him) would attack him. In many respects Dave’s evidence contained contradictions or was improbable. For instance Dave said that the three accused were all holding weapons when they attacked him yet he also said they attacked him with punches and kicks.

[34] As far as Sauni is concerned no other witness gave evidence that they saw her. This is very surprising if she was so closely involved. There were other persons there that night who may have confirmed that Sauni was present, such as Etuate, Sione, Semisi and Toutai, but the prosecution did not call them.

[35] Sauni said that the accused fight with Dave when they are drunk, but no other witness, including Dave, agreed with that and the accuseds’ unchallenged evidence was that they do not drink. Sauni also said that the attack on Dave lasted 15 minutes which is plainly unlikely.

[36] Mr. ‘Aho introduced Sauni’s statement to the Police to counter the challenge that her evidence had been discussed with Dave and was ‘almost word for word’ the same as his. Yet I note that in her statement Sauni says the three accused beat Dave with a pipe and a stick and rock causing injuries to the back of his head. No other witness said that this had occurred and it is also contrary to her own evidence that she did not see Filipe use the timber or Tu’iano use the rock.

[37] I do not accept the evidence of Dave and Sauni that the three accused jointly attacked Dave. The evidence satisfied me that Filipe, ‘Amoni and Solomone had gone to assist Tu’iano, who was fighting Semisi, and that only Filipe fought Dave and with his fists. Dave retreated to get a machete and Filipe chased him and ‘Amoni followed. Having got his machete Dave advanced down the drive after Filipe. ‘Amoni, who was standing next to the vehicle in the drive, struck Dave with the iron pipe. Dave responded by striking ‘Amoni with the machete. I find that this was the only occasion that Dave was struck by ‘Amoni with the iron pipe. I find also that throughout the three accused were independent actors and that there is no basis to infer that they reached an agreement, express or tacit, to particpate in a joint attack upon Dave.

[38] I have not overlooked ‘Amoni’s record of interview. In ‘Amoni’s statement there is, to my mind, no suggestion that the accused were acting jointly in an attack on Dave. When ‘Amoni answered that he, Filipe and Tu’iano were involved in the fight he was plainly referring back to his answer to Q13 which does not refer to a joint attack on Dave.

[39] I am also left with reasonable doubt that Dave suffered a wound during the events described in the evidence. The prosecution alleged that these events occurred on or about 11 September 2017. Consistent with this, ‘Amoni’s medical report states that he was first seen at 11pm on 11 September 2017. The prosecution relied upon the evidence of Dave that he had bled from the head after being struck by the iron pipe but no other witness gave evidence that they saw either any blood on him or the wound to his head. The prosecution also relied upon the medical certificate of Dr. Vao but that states that he first saw Dave on 19 September 2017. He said that if the wound was 8 days old he would have recorded that on the report from which it may be inferred that the wound was fresh. He also said that there was no record that he saw Dave on 11 September 2017. I accept that Dave went to the hospital on the night of 11 September 2017 and it is possible (I put it no higher) that the dates on the medical report are clerical errors. However, the evidence falls short of satisfying me to the required standard that Dave suffered a wound.

[40] For completeness I note some final issues. Ms. Kuli argued that as the prosecution proceeded on the basis that the three accused had been involved in a joint venture, unless the prosecution could prove the guilt of them all then all must be acquitted. In his opening Mr. ‘Aho accepted that the failure of the prosecution to prove a joint enterprise was fatal to its case. In my view Ms Kuli’s submission (and Mr. ‘Aho’s concession) is not correct and if the evidence had established that ‘Amoni had committed the offence acting on his own and not pursuant to a joint criminal enterprise with the other accused it would be open to the Court to convict him.

[41] However this would not arise in this case for one of two reasons. First, ‘Amoni’s evidence that he used the iron pipe intending to strike Dave’s machete was not challenged and in the absence of such challenge reasonable doubt exists that he had the required mens rea for the offence. Alternatively, and as Ms Kuli argued, the evidence was that ‘Amoni struck Dave in defence of Filipe who Dave was chasing with the machete.

[42] In R v Orsai [2006] Tonga LR 169, 176 the Supreme Court noted that the common law recognises that a person who acts reasonably in self-defence or in defence of others commits no unlawful act. At page 177 (para [28]) Ford J said that the three factors that the Court must consider when considering self-defence were:

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

[43] ‘Amoni plainly deserved no credit for picking up the pipe nor for following Filipe when he chased Dave. However, given the background of the fights, a highly charged atmosphere, that Dave had retreated to get a machete and was advancing with the machete after Filipe with the machete raised in what could only have been interpreted as a threatening manner I consider Dave gave every appearance of having an intention to use the machete to inflict injury on Filipe or another. I could not be satisfied that it was unreasonable that ‘Amoni took the opportunity to disarm him by striking a blow with the iron pipe (be it to the machete or Dave’s body) and I would be unable to say that ‘Amoni’s defence of self-defence was not made out.

Verdict

[44] I find the three accused not guilty of the charges against them and they are acquitted and discharged accordingly.

O.G. Paulsen

NUKU’ALOFA: 30 January 2019 LORD CHIEF JUSTICE