R v Malupo [2023] TOSC 46; CR 31-33 of 2023 (11 September 2023)

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

CR 31 - 33 of 2023

REX

-v-

Kali Malupo
Sine Malupo
Siaosi Malupo

JUDGEMENT

BEFORE: HON. COOPER J
Appearances: Mrs. E. Lui for the prosecution
Ms. A. Kafoa for the defendants
Date of order: 11 September 2023

Date of trial : 2 - 4 July 2023

Date submissions : 31 August 2023

Judgement handed down: 11 September 2023

Key words
Self-defence
Machete attack

Case law referred to
R v Jogee, [2016] UKSC 8, [2016] UKPC 7 [2017] A.C. 387
R v Noble [2016] EWCA Crim 2219

Relevant legislation
section 106(1) and (2)(c) of the Criminal Offences Act
section 112(a) of the Criminal Offences Act
section 112 (a) (1) of the Criminal Offences Act

1. At the conclusion of the submissions an ex tempore judgement was handed down whereby the first defendant was convicted of grievous bodily harm and the second and third of common assault.
   
2. Set out below are the reasons for those verdicts.

Indictment

3. What essentially should have been a two count indictment the Crown have framed in this way.
   

Kali Malupo, Sione Malupo, and Siaosi Malupo are charged with the following offences:

STATEMENT OF OFFENCES

Kali Malupo

(Count 1)

CAUSING GREVIOUS BODILY HARM, contrary to section 106(1) and (2)(c) of the Criminal Offences Act.
Sione Malupo

(Count 2)

CAUSING GREVIOUS BODILY HARM, contrary to sections 8, 106(1) and (2)(c) of the Criminal Offences Act.
In the alternative to Count 2

(Count 3)

COMMON ASSAULT, contrary to section 112(a) of the Criminal Offences Act
Siaosi Malupo

(Count 4)

CAUSING GREVIOUS BODILY HARM, contrary to sections 8, 106(1) and (2)(c) of the Criminal Offences Act.
In the alternative to Count 4

(Count 5)

COMMON ASSAULT, contrary to section 112(a) of the Criminal Offences Act.

PARTICULARS OF THE OFFENCES

Kali Malupo

(Count 1)

Kali Malupo of Manuka, on or about 31 October 2022, at Manuka, together with Sione Malupo and Siaosi Malupo, you did wilfully and without lawful justification, cause grievous harm to Filihia Li, when you struck his head with a machete causing a severe wound to his head.

Sione Malupo

(Count 2)

Sione Malupo of Manuka¸ on or about 31 October 2022, at Manuka, together with Kali Malupo and Siaosi Malupo, you did wilfully and without lawful justification cause grievous harm to Filihia Li, when you assaulted him which enabled Kali Malupo to hit Filihia Li’s head with the machete causing severe injury to his head.

In the alternative to Count 2

(Count 3)

Sione Malupo of Manuka¸ on or about 31 October 2022, at Manuka, you did wilfully and without lawful justification punch Filihia Li, without his consent.

Siaosi Malupo

(Count 4)

Siaosi Malupo of Manuka¸ on or about 31 October 2022, at Manuka, together with Kali Malupo and Sione Malupo, you did wilfully and without lawful justification cause grievous harm to Filihia Li, when you assaulted him which allowed Kali Malupo to hit Filihia Li’s head with the machete causing severe injury to his head.

In the alternative to Count 4

(Count 5)

Siaosi Malupo of Manuka¸ on or about 31 October 2022, at Manuka, you did wilfully and without lawful justification punch Filihia Li, without his consent.

Elements

4. Grievous Bodily harm
   1. that on or about 31^st October 2022 at Manuka,
   2. the defendant in question,
   3. wilfully and without lawful justification,
   4. caused grievous harm to Filihai Li.
5. Common Assault
   1. that on or about 31^st October 2022 at Manuka,
   2. the defendant in question,
   3. wilfully and without lawful justification,
   4. assaulted Filihai Li.
6. The allegation pursuant to section 106 of the Criminal Offences Act (the Act) requires the Crown to prove to the requisite standard that the defendant, whose case is being considered, deliberately caused the complainant grievous bodily harm. Once self-defence is raised it is for the Crown to rebut that beyond a reasonable doubt.
7. Their case was pursuant to section 106 (2) (c) the Act, that it was a severe wound.
8. It has not been argued otherwise.
9. The allegation pursuant to section 112 (a) requires the Crown to prove to the requisite standard that the defendant, whose case is being considered, deliberately punched the complainant (section 112 (a) (1)). Once self-defence is raised it is for the Crown to rebut that beyond a reasonable doubt.
10. It was argued that the second defendant grappled with Filihai Li but did not punch him.
11. Whilst alibi/ lack of participation is argued on behalf of the third defendant.
    

Background

12. The allegations arose from the events of the night of 31^st October 2022 in Manuka, Tongatapu.
    

What is agreed as between the parties

13. Both exhibits were agreed. Exhibit 1 is a photograph book of the scene. Exhibit 2 consists of two pages. The first page a “Medical report on police case” (the report) the second and final page is a single photograph showing Filihai Li, lying on what appears to be hospital bed or trolley. A person wearing a medical style blue plastic glove has their hand on his shoulder. Filihai Li has a plastic tube stretched across his face which appears to be attached to his nose.
    
14. His eyes are both blackened; there appears to be blood that has collected under the skin beneath both orbits.
    
15. On the top of his head, above the forehead he has a significant area of his scalp missing, described as an “open wound” in the report with “skull exposure”.
    
16. In the opinion section of the report is a basic sketch to illustrate the location of this wound. The circle that represents the head is labelled “...from a superior view”. There is another smaller circle inside that, cross-hatched and labelled “open wound”; that was to the top right of Filihai Li’s head.
    
17. The incident that led to this injury occurred on 31^st October 2022, in Manuka, in the early evening, approximately 2000 hrs, outside the Filihai Li’s father’s family home. It was caused by Kali Malupo with a machete, after there had been a confrontation between Filihai Li who was drunk and standing in the road, and Kali Malupo in his vehicle. Kali Malupo had moved his vehicle towards Filihai Li and Filihai Li had punched and smashed a front head light. Kali Malupo then produced a machete and struck Filihai Li with it causing the injury. Filihai Li was unarmed and there is no suggestion he ever had a weapon or any person thought he may have had one.
18. In his vehicle from the start was Kali Malupo, his wife, Kalonikakala Li, and son Sione Malupo.
19. By the time the wounded Filihai Li was led into his father’s fale, a number of other people were also present. Those were Filihai Li’s step mother, Kalonikakala Li, and Otukolo Malupo, also Siaosi Malupo.
20. Otukolo Malupo was a prosecution witness. Neither side adduced any evidence nor sought to explain whether he was related to the defendants. The Court was left with no answer to this rather obvious point.
    

The disputed facts the Court must resolve

21. In relation to Kali Malupo, the Crown contended

• that Filihai Li was wounded by Kali Malupo after his getting out of the vehicle following the headlight being smashed.
• Kali Malupo was armed with a machete and there were two attempts to strike Filihai Li on the head with the machete and the third attempt being successful, causing the injury.
  

On the other hand Kali Malupo contended

• After the headlight was smashed, Filihai Li approached the driver’s window where Kali Malupo was sat getting so close to the car his left thigh was against the door.
• That Filihai Li punched through the open window at Kali Malupo twice.
• Kali Malupo dodged the first. Grabbed the hand of Filihai Li the second time to stop the attack. Kali Malupo grabbed the machete he had in his car next to him and thrust the machete out the window horizontally before he brought it backwards in an arc.
• That happened just as Filihai Li broke free from Kali Malupo’s grasp and was about to punch a third time. This single sweep backwards with the machete by Kali Malupo whilst unintended caused the injury to Filihai Li’s head.
• On behalf of him his advocate has argued that wounding was proportionate self-defence.

22. In respect of Sione Malupo and Siaosi Malupo.
    

The Crown contend

• that both Sione Malupo and Siaosi Malupo participated on the basis of joint venture ; R v Jogee, [2016] UKSC 8, [2016] UKPC 7 [2017] A.C. 387. Crown’s case is that they joined their father in his attack and intended to assist in the deliberate injury their father caused with the machete making them jointly criminally liable.
  
• Sione Malupo and Siaosi Malupo attacked Filihai Li by repeatedly punching him, just as Kali Malupo was leaving his vehicle, armed with a machete.
• As Kali Malupo approached Filihai Li he ordered Sione Malupo an Siaosi Malupo to step aside so he could strike Filihai Li. That both sons stepped aside and as they did so shouted words of encouragement to their father to attacked Filihai Li; “Beat him until he shits himself”.
  
• Filihai Li was injured by the 3^rd strike of the machete despite his father tackling Kali Malupo. Sione Malupo and Siaosi Malupo then continued to punch Filihai Li, as he kept retreating all the way back to his fale even as he was trying to get in the door to be cared for.
  
• In the alternative, if the conduct of Sione Malupo and Siaosi Malupo in punching Filihai Li, as alleged, did not constitute grievous bodily harm by joint venture they nevertheless are guilty of common assault.

The defence contend

• neither Sione Malupo nor Siaosi Malupo punched or attacked Filihai Li. Sione Malupo left his father’s vehicle after the accidental injury to Filihai Li had been caused, doing no more than holding back Filihai Li from attacking Kali Malupo.
• Kali Malupo and Melkiola Li simply tripped as they tussled.
  • Siaosi Malupo was not at the scene at this time and arrived only as Filihai Li was being led into his father’s fale to be cared for.
  • Siaosi Malupo never had any physical interaction with Filihai Li nor threatened him.

23. This being a Judge only trial I have reminded myself the Crown need to prove all essential elements beyond a reasonable doubt. That not every matter raised needs to be resolved only so much as to answer the question, on each count any defendant faces, whether they have proved their case.
24. I have found the evidence of the prosecution witnesses both credible and that they corroborated one another. Filihai Li was plainly drunk at the time and his memory was effected by this.
25. His broad account was entirely corroborated by the other prosecution witnesses, who each provided more detail; those further accounts corroborating one another .
26. In my consideration of the case I have largely made reference to those other prosecution witnesses.
    

Count 1 Kali Malupo

27. When I consider Exhibit 2; both the photograph and the report, it is quite clear the objective evidence did not support the defendants’ version.
    
28. Kali Malupo’s account was that Filihai Li was so close to his vehicle his left thigh was actually touching the driver’s side door when Filihai Li punched at him twice through the open window.
29. Kali Malupo then injured him with the machete.
30. The mechanism that Kali Malupo and his co-defendants and his witnesses stated was the cause, is substantially undermined by the injury being to the very top of the head.
31. A thrust of a machete horizontally out through the window would very likely to have caused an injury to anyone at the driver’s side door, which is where the defence suggest Filihai Li was, yet there was none.
32. On the other hand, that objective evidence supports the version the Crown rely on, that is to say, Kali Malupo having left his vehicle, he and Filihai Li were then standing more or less face to face, there was a strike down, made by Kali Malupo aimed at the head of Filihai Li, who had tried to move out of its way but was struck, despite his father tackling Kali Malupo.
33. Kalonikakala Li corroborated both Melikiola Li and Otukolo Malupo; their accounts were of three strikes each aimed at the head. All the while Melikiola Li trying to stop Kali Malupo from attacking and having to dodge these blows too.
    
34. Kalonikakala Li was stood close by, a matter of just a few feet, the area well let by a nearby street light and the house lights.
35. In my mind it is significant the admission by Kali Malupo that he caused the injury with his machete on an unarmed man, so there would be no reason for any of the Crown’s witnesses to concoct an untrue version of events.
    
36. If it is thought, or argued, that the Crown witnesses wanted to minimise and give untrue answers to cover the fact that Filihai Li was the aggressor in that he threw punches at Kali Malupo at his vehicle’s window, I totally discount that version for the following reasons.

Firstly the Crown’s witnesses were all candid that Filihai Li was drunk, troublesome and had smashed the headlight of Kali Malupo’s vehicle; none gave any hint they might wish to minimise any of those facts.

Secondly, given the way the vehicle of Kali Malupo was driven towards Filihai Li in the road, they each could have characterised that as some threatening act by Kali Malupo that justified Filihai Li in puncing the head light. None of them did; from which I conclude they were not given to exaggerating their accounts.

Thirdly, to react against the use of fists with a machete is so plainly disproportionate, it defies logic for the Crown witnesses to need to minimise the role played by Filihai Li had he approached right up to the driver’s door. Had it been true that Filihai Li was at the car door punching into the car at Kali Malupo, they would have no need to alter that as Kali Malupo’s reaction would have been so obviously disproportionate. So, I have no doubt they would have simply given evidence of that version, had it occurred that way.

37. The defence account is unbelievable, and when I consider the Crown’s allegation of a strike from above that is entirely supported by the evidence.
38. I also note that the defence case, predicated on Filihai Li being at the car door to attacking Kali Malupo, was said to involve a tussle after the punches were thrown. Kali Malupo said it involved the smashing of the plastic cover to the top of the car door.
39. Precisely what this part of the vehicle was, was never made entirely clear. But, it was noteworthy there was not produced any evidence of this by the defence, whereas a photograph of that damage would have been so simple to have put before the Court. Also, one may have expected there to have been injuries associated with such force and damage. Yet none were said to have been inflicted.
40. That account did not have the ring of truth, so tended to undermine the defence case on that point and generally.
    
41. I conclude the defence witnesses have put their heads together and concocted a version of events as to how the head injury was caused. Consequently their evidence as to lead-up to that injury becomes, itself, highly questionable.
    
42. As against the defence account, the Crown witnesses (i) had no reason to lie (ii) their accounts were not shaken by cross examination (iii), and their narrative was entirely realistic as to the build up to the injury to Filihai Li’s head.
43. It is noteworthy that Kali Malupo accepted he had his car engine running during the time his headlight was smashed and the confrontation with Filihai Li. I also discount his version of there having been an attack by Filihai Li at his window, as the most obvious way to avoid that would have been to simply drive off which he was well placed to do.
    
44. Consequently I am quite sure of their account, that there were three strikes at Filihai Li, who was standing with Melikiola Li. They both dodged first two and third connected and caused the grievous injury. I find the following.
45. The attack by Kali Malupo consisted first in his showing the machete out the window of his car in retaliation to the smashing of his headlight. Filihai Li approached the vehicle but not so as far as the driver’s side window. He fell back at the sight of the machete. Kali Malupo left his car armed with the machete, pursuing Filihai Li into the grounds of his father’s ‘api then wounding him just by the pole of the car port (Exhibit 1 photograph 3). The injury intended was worse than that caused as just Melikiola Li. I find he tackled Kali Malupo at the critical moment. The blow aimed squarely at Filihai Li’s head he partly diverted by taking this action, though not enough to escape the injury suffered.
46. I accept Melikiola Li’s account that had he not done this, Filiahi Li’s head would have been, in his words, split in two.
    
47. From the foregoing there can be no question of self-defence or defence of property on the part of Kali Malupo.

Counts 2 and 4; Sione Malupo and Siaosi Malupo

48. Both face allegations of causing grievous bodily harm by jointly participating in the attack on Filihai Li.
    
49. The test following R v Jogee [2016] UKSC 8, [2016] UKPC 7 [2017] A.C. 387 and taken from the jury direction approved of by the Court of Appeal in R v Noble [2016] EWCA Crim 2219 is:
    

Did either Sione Malupo or Siaosi Malupo join in with Kali Malupo, who

(1) either realised was out to cause a severe injury and, if so,

(2) did either intend to encourage or assist the deliberate intention to cause serious injury ?

If so either would also be guilty of the offence.

Sione Malupo

50. It was agreed that Sione Malupo was in the vehicle with Kali Malupo from the start.
51. The evidential basis for the allegation of joint venture comes from, inter alia, Kalonikakala Li.
    
52. She stated:
    

Filihai Li moved towards the driver’s door. [He] saw the machete and he fell back.

When he fell back [Kali Malupo’s] sons attacked [him]. [Sione Malupo and Siaosi Malupo] ran from the left side of the vehicle, they were already outside the vehicle at that time.

They just attacked Filihai Li; at that time [Melikiola Li] was holding back Kali Malupo.

Kali Malupo was trying to get off the vehicle with the machete.

Sione Malupo and Siaosi Malupo attacked Filihai Li, [he] fell back into [their] residence.

When Sione Malupo and Siaosi Malupo attacked Filihai Li. Melikiola Li held back Kali Malupo, apologising to him.

When Sione Malupo and Siaosi Malupo were attacking Filihai Li, Kali Malupo called out to Sione Malupo and Siaosi Malupo to move so that he can hit Filihai Li with the machete.

Melikiola Li was holding back Kali Malupo. Melikiola Li was in between Filihai Li and Kali Malupo, facing Kali Malupo.

The evidence was then of the order being given to Sione Malupo and Siaosi Malupo move aside again.

They did, then Kali Malupo struck out at Filihai Li head, the first two missing before the third struck.

53. Her account corroborated Melikiola Li’s evidence as to this sequence of events.
54. It follows that the cross-examination of both Sione Malupo and Siaosi Malupo needed to carefully explore :
    • (i) whether either saw Kali Malupo with the machete before he left the vehicle?
    • (ii) where were they in relation to him as he got out the vehicle (evidence going to what either may have appreciated as to Kali Malupo’s intentions)?

Both (i) and (ii) being relevant to the first question on joint participation.

(iii) did either attacked Filihai Li as Kali Malupo approached ?
(iv) did any such attack intentionally assisted or encouraged Kali Malupo’s deliberate intention to cause severe injury ?
(v) whether they acted upon any command to step out of the way to encourage or assist the deliberate intention on the part of Kali Malupo to cause a severe injury ?
(vi) whether words by them were directed to encourage or assist the deliberate intention to cause severe injury by Kali Malupo ?

55. There needed to be by the Crown a clear distillation of the evidence of their witnesses turned into questions put to the second and third defendants. But, that did not happen.
56. I am quite certain that neither was cross-examined sufficiently so as to put the Crown’s case.
57. The closest the Crown came to that in the case of Sione Malupo was at this part of the evidence:

“No [It was not after Kali Malupo said “stand aside” that he did that]

“No” [there was not a machete attack by Kali Malupo on Filihai Li after they stood aside]

Neither [him] nor [his brother ] said to beat him, [Sione] was the only one there.
That was not when Kali Malupo hit Filihai Li with the machete

58. None of those questions separately or cumulatively were precise or detailed enough to be said to have properly put the case for the Crown to Sione Malupo.
    

Siaosi Malupo

59. His evidence was that he had never been in the vehicle that evening. The evidential basis for suggesting otherwise came from Filihai Li in his evidence-in-chief when he stated that Kali Malupo was in the vehicle along with his wife and both sons.
60. The Crown needed to carefully challenge Siaosi Malupo on his denials. Siaosi Malupo had said he was at home “chilling” after supper and did not go with the others.
61. When he gave that evidence-in-chief he was hesitant pausing a long while before giving his vague answer so as to make it sound highly questionable.
62. Yet that was not picked up on nor properly explored or probed in cross-examination.
63. All that was asked of him in cross-examination of those crucial moments was whether he was in the car, which he simply denied and if he attacked Filihai Li after the smashing of the headlight and punched Filihai Li forcing him back into his father’s ‘api, which he also denied. He denied there had been a strike (presumably with the machete) by Kali Malupo to Filihai Li or that he had called out to Kali Malupo to beat Filihai Li.
64. In both cases, the cross-examination of Sione Malupo and Siaosi Malupo did not fully put the case as alleged by the Crown witnesses so that neither had been properly challenged on the allegation, or with sufficient detail, to engage the test in R v Jogee.
65. As to the question whether Siaosi Malupo was in the car with his brother, father and mother at the time of the confrontation with Filihai Li, that was never resolved.
66. Kalonikakala Li was not clear on this point and Filihai Li whilst adamant, it is to be noted he was drunk to the point of being quarrelsome. I can not rely alone on his account of that detail.
67. The Crown, despite an invitation from the Court to provide a map to base their cross-examinations on, did not do so. That meant the question as to how believable Siaosi Malupo’s account of staying at home only then to hear the disturbance and come running, as he suggested, could not properly be assessed. So it remained unclear if he was really in the vehicle or alternatively, swiftly at the scene.
    

Alternative counts of common assault

68. Both Sione Malupo and Siaosi Malupo faced allegations of common assault in the alternative.
69. Sione Malupo plainly lied when he gave an account of Filihai Li injured by the side of the car.
70. I am quite sure that even if Siaosi Malupo was not in the car with the rest of his family, he was very quickly at the scene and attacking Filihai Li. The Crown’s witnesses were all clear on that and nothing undermined those accounts.
71. I pause to mention one detail of Otukolo Malupo’s evidence. In-chief his evidence was of Filihai Li punching the headlight, then moving towards the driver’s door, but not getting that far and falling back when the machete was produced through the window.
72. In cross-examination he was asked if Filihai Li ran over and attempted to assault Kali Malupo and he answered yes.
73. I am quite clear that question was not specific enough for me to construe that answer to mean that Filihai Li reached the door of Kali Malupo’s vehicle and or started, or threatened any form of attack there.
74. Given that the defence case was that Filihai Li had been so close to the door his left thigh was touching the vehicle’s door, any cross-examination needed to put precisely that degree of proximity.
75. When viewed against the defence case, the lone question put as to how close Filihai Li got to Kali Malupo in his vehicle was inadequate.
76. I am quite sure that both Sione Malupo and Siaosi Malupo did not act to protect their father nor in defence of property; simply out of furious vengeance. Their attacks, both in tandem, as they were and lasting as long as they did, reveals levels of anger and violence going beyond self-defence.
77. I am also quite sure they continued to attack Filihai Li after he was grievously injured. This is strong evidence of their state of mind from the start; that they were determined upon violently dealing with Filihai Li for violence’s sake and did so.
    

Verdicts

78. I find Kali Malupo guilty of Count 1 grievous bodily harm.
79. Whereas I find Sione Malupo and Siaosi Malupo not guilty of grievous bodily harm, I find them both guilty of common assault.
80. I now make two observations about the trial.
81. Firstly, from the foregoing it will be entirely obvious to anyone that all defendants should have been charged with attempted murder. No explanation has been offered as to why this was not so.
82. Secondly, the medical evidence plainly needed expanding upon, rather than simply a one-page note and a photo. Ultimately it did not stop and clear finding by the Court, but it was crying out for expert evidence as to how this was caused, from what height and angle; when spelt out may have concentrated the defendant’s minds on arraignment.
83. Both these points should have been picked up in any proper case review.
    

NUKU’ALOFA	N. J. Cooper
11 September 2023	J U D G E