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R v Latu [2023] TOSC 58; CR 47 & 48 of 2022 (24 November 2023)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

VAVA’U REGISTRY


CR 47 & 48 of 2022


REX

-v-

PENITIKETO LATU

TALIAI TAPUELUELU


VERDICT


BEFORE: ACTING LORD CHIEF JUSTICE TUPOU KC

Counsel: Mrs. Eliesa for the Prosecution

Mrs Ebrahim for both Accused

Trial: 4 to 6 September 2023

Verdict: 24 November, 2023


The charges

  1. The accused are both charged with the offence of serious causing bodily harm under section107(1), 2(c ) and (4) of the Criminal Offences Act (Count 1) or in the alternative, for common assault, contrary to section 112 (a) of the said Act (Count 2).
  2. Section 107 (1),2 (c ) and (4) of the Criminal Offences Act provides:

(1) Every person who wilfully and without lawful justification causes harm to any person in any manner or by any means whatsoever shall be guilty of an offence under this section.

(2) “Harm” for the purposes of this section means —

....... (c) any wound which is not severe;

(4) The offence of serious causing bodily harm —

(a) is punishable by a term of imprisonment for any period not exceeding 5 years;

(b) shall, subject to sections 35 and 36 of the Magistrate’s Court Act, be heard and determined by the Supreme Court.

  1. Section 112(a) of the said Act provides:

Every person who wilfully and without lawful justification — (a) strikes at or actually hits another person with his hand or with anything held therein.

  1. Section 100 of the Tonga Police Act states:
  2. The particulars of Count 1 are that the Defendants on or about 26 June, 2021 at Neiafu wilfully and without lawful justification caused harm to ‘Isileli Latu when they assaulted him causing a fracture to his jaw.
  3. In the alternative Count 2, the particulars are that on or about 26 June, 2021 at Neiafu the Defendants assaulted ‘Isileli Latu when they repeated punched and kicked him without his consent.

The Elements of the Offences Charged


  1. In order for either accused to be convicted of causing serious bodily harm I must be satisfied beyond any reasonable doubt on the evidence considered separately, that;

Count 1

(a) The Defendants;
(b) On or about 26 June, 2021 at Neiafu;
(c) Together;
(d) Wilfully;
(e) Without lawful justification;
(f) Caused harm to Isileli Latu by repeatedly kicking him on the mouth; and
(g) Causing fractures to his jaw

Count 2


(a) The Defendants;
(b) On or about 26 June, 2021 at Neiafu;
(c) Together;
(d) Wilfully;
(e) Without lawful justification;
(f) Assaulted Isileli Latu by repeatedly kicking him;
(g) Without his consent.
  1. Wilfully means the accused intentionally did the act or acts causing the harm. The act does have to be established beyond a reasonable doubt to be a material cause of the harm.[1]

Common Purpose

  1. I must be satisfied beyond a reasonable doubt that a common unlawful purpose to which the accused was a knowing party has been established in fact. In Masalu[2], Cato J opined that the position in law was as set out for Tonga by Ford J in Fakatava [2001] Tonga LR 76 when he said;

“it is not necessary that there should be any kind of elaborate pre-arrangement to constitute a joint enterprise- Hunter v Sara [1999] 105 A Crim R 241, but the assailants must share a common purpose to cause harm to the victim and make it clear by their actions to the other that was their common intention R v Peters and Parfitt [1955] Crim LR 501. The common intention or agreement is gauged from their conduct.”

  1. His Honour continued that the approach on accessorial liability is that followed in Fakatava that “at common law each party to a common unlawful enterprise is liable for acts done in pursuance of the joint enterprise [and] this includes liability for unusual consequences if they arise from the common purpose”. And a later variation was that “.....accessorial liability may only be imputed for a crime that is subjectively foreseen or contemplated beyond reasonable doubt by a secondary party or confederate as a possible incident falling within the scope of the common unlawful enterprise.”
  2. I have also found relevant R v Tas[3], (which makes reference to Jogee[4] and the relevant principle therein) where Sir Brian Leveson PQBD stated:

“......The joint enterprise is to participate in the attack on another and events proceed as happened in this case with Tas punching one of the victims (otherwise than in self-defence), then providing backup (and an escape vehicle) to the others as they chased after them. One of the principals kicks the deceased to death (or, as articulated in [96] of Jogee, the violence has escalated). Alternatively, a bottle is used or a weapon found on the ground. Both based on principle and the correct application of Church[5] (participation by encouragement or assistance in any other unlawful act which all sober and reasonable people would realise carried the risk of some, not necessarily serious, harm to another, with death resulting), a conviction for manslaughter would result: the unlawful act is the intentional use of force otherwise than in self defence.”

  1. I have further directed myself on the very significant matters summarised by Hampton CJ in R v Fa'aoso[6] referred to by Paulsen LCJ, in R v Tu’ifua (2018) as follows;

“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. .........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 Evidence

  1. The Prosecution called 10 witnesses. They were ‘Isileli Latu, Inspector Taniela ‘Unga, Police Officer Mirza Fifita, Police Officer Melenaite Hopoi, Investigating Officer Talamai, Officer Talifolau Vailea, Kivalu Pita, Limoni Siasu, Dr. Tatila and Dr. Po’ese.
  2. The accused, Penitiketo Latu and Taliai Tapueluelu both elected to give evidence.

The Location

  1. The offending occurred inside the police station at Neiafu, Vava’u. Throughout the trial the witnesses referred to a charge room, a watchouse, the bathroom and cell No.4.
  2. The charge room is located at the front of the police station whereby one enters after a set of concrete steps from the front. Exhibit P5 - Photos 3 and 4 show the entrance and counter where complaints are received. Photos 5 and 6 show the same room from behind the counter where officers are seated to receive the public.
  3. The watchouse is an adjoining room with a door behind the left side of the counter leading into it. It has a backdoor that opens onto a corridor that leads to the bathroom and cells[7]. To the right from the backdoor is the bathroom. Next to it is prison cell No.5 and then cell No. 4 and facing the corridor is cell No.3. This back entry can be seen in photos 7 and 8 at pages 4-5 of exhibit P6. Photos 9 – 11 at pages 5-7 is inside the watchroom. Photos 12 and 13 on pages 7-8 show outside the watchroom to the corridor leading to the bathroom and prison cells.

Apprehension of ‘Isileli Latu

  1. There was no dispute that the offending occurred on 26 June, 2021. ‘Isileli Latu (‘Isi), at the time was 19 years old and an officer in His Majesty’s Defence Forces. ‘Isi had been drinking with colleagues at the Fangatongo base after work. After consuming 6 cans of beer and some mixed liquor he felt heavy and hungry and left to find food. It was starting to get dark. On his way he was engaged in a physical altercation with a male person who ran from him and into the fire department.
  2. ‘Isi followed him wanting to fight. Firemen, Hakalo and Officer Taifolau Vailea (“Vailea”) were on duty that night. They chased ‘Isi away. Vailea said that ‘Isi was swearing and wanting to fight. They tried to take him into the police station but he prevented them by holding onto the fire departiment fence. The fire department is located right next to the police station.
  3. The first accused, Penitiketo Latu (“Latu”) was on the steps at the entrance to the police station and saw the commotion. He went down to the take ‘Isi inside. ‘Isi resisted arrest and the second accused, Taliai Tapueluleu (“Taliai”) came out to assist. They both took him inside.
  4. Kivalu Pita (“Kivalu”) and Limoni Siasau (“Limoni”) were also outside on the steps of the police station and saw what happened. They both attested that Taliai came out to help Latu take ‘Isi inside. Limoni said that when they both had him, ‘Isi was no longer resisisting and willingly went inside with the officers. Officer Vailea also attested that when Latu took ‘Isi from them, he was not resisting or swearing as he was taken in.
  5. Taliai says he was inside and did not assist Latu at this point. Officer Melenaite Hopoi (“Hopoi”) in agreement said she was with Taliai inside. Latu also said he took ‘Isi inside by himself.

Physical altercation with Latu in the chargeroom

  1. When ‘Isi was taken inside the chargeroom, Taliai directed Latu to search ‘Isi and to put him in the prison cell.
  2. ‘Isi admitted that he threw the first punch at Latu. He said that during the fight with Latu he felt Taliai wound his arm around his neck and he blacked out. When he regained consciousness, he was inside the prison cell. He could not close his mouth or speak and his jaw hanging downwards. There was blood where he lay.
  3. At this point, I would note, that from the descriptions by Taliai, Kivalu and Limoni, I am satisfied that Taliai wounding his right arm around ‘Isi’s neck and bringing up his left arm to control him is consisitent with a choke hold.
  4. Kivalu said he was standing by the front door to the chargeroom after ‘Isi was taken into the chargeroom. He knew ‘Isi. He is the son of the town officer of ‘Utulei and an army officer. He saw Latu and ‘Isi behind the counter when they started to fight. He said he could see the door to the adjoining watchouse open. When Taliai got involved in the fight, at one point he was pushed back and fell backwards into the watchouse. He kicked the door closed. While ‘Isi had his back to the watchouse and still fighting with Latu, the watchouse door opened and Taliai jumped out behind ‘Isi, wound his right arm around ‘Isi’s neck, brought his left arm up and held ‘Isi in a choke hold. ‘Isi fainted and the two fell to the floor.
  5. Hopoi was inside the chargeroom when Latu brought ‘Isi inside. She said she could tell ‘Isi was drunk. She was seated at the counter on the left side as you enter and almost directly in front of the door to the watchouse, with her back to the wall and watchouse. ‘Isi and Latu were in the area behind her, between the counter and the wall. Latu told ‘Isi to face the wall. ‘Isi became angry and she was shocked when he bumped into her right arm from behind and then hit the counter. She immediately ran outside and onto the steps. She met Limoni[8] entering the chargeroom on her way out but heard Taliai say to take ‘Isi inside the prison cell. She returned to the chargeroom about 3-5 minutes later.
  6. Latu described how difficult it was for him to control ‘Isi inside the chargeroom, as he resisted being searched. He said they were behind the counter in the chargeroom. He told ‘Isi to face the wall and put his arms up onto the wall. He told ‘Isi that he was going to be searched and then put in the prison cell. ‘Isi told him no one was going to put him in the cell. ‘Isi threw a punch that landed on his chest and then tackled him twice. Latu ducked and ‘Isi hit the counter. It was at this point that Taliai jumped up and held ‘Isi. They struggled up to the door to the watchouse and went inside. Taliai finally managed to force ‘Isi to force ‘Isi onto the floor. He walked into the watchouse and Taliai told him to go outside and cool down. He went out to the corridor to the cells and saw Fifita standing there.
  7. In his interview with Investigating Officer Talamai (“Talamai”), Latu described the physical altercation to have begun by ‘Isi tackling him and then punched him on the chest. He returned a punch that hit ‘Isi on the mouth. It was at that stage that Taliai jumped up to help. They forced ‘Isi onto the floor, searched him and then put him in prison[9].
  8. Inspector Taniela ‘Unga (“”Taniela”), in his interview with Talamai[10] said that he asked Fifita and Latu about ‘Isi’s injuries and Latu said it resulted from one punch from him and he did not know his jaw was broken until a colleague who had visited ‘Isi in hospital told him.
  9. Taliai’s evidence was he was inside the chargeroom with Hopoi when Latu entered with ‘Isi. He asked Latu if he knew ‘Isi was a member of the Defence Force. Latu did not respond but told him that ‘Isi was drunk and was swearing in front of the fire department and that’s why he brought him inside.
  10. Taliai directed for ‘Isi to be searched and told Hopoi to make the necessary entry on the Station Diary. He said Hopoi looked nervous and he took the Station Diary from her to record entry 96.
  11. ‘Isi punched Latu and he yelled out for Latu to be careful and not get hurt. He told ‘Isi to comply with the officer’s orders but ‘Isi tackled Latu. Latu ducked to his right and ‘Isi got a hold of Latu’s shirt with his right hand and he hit the counter with the left side of his face. In this movement they both fell toward the counter taking the counter with them almost a meter to the entrance across the room.
  12. He got behind ‘Isi and tried to grab him around his stomach. He was unable to do so. He wound his arm around ‘Isi’s right shoulder pulling it down to his chest area and held him back. ‘Isi still resisted him and tried to free himself. He told Latu to stand back. He could not lift and throw ‘Isi down on the floor so when they came to the door of the watchouse he fell backward into the room with ‘Isi on top of him. He turned himself to the side so he can get up. At this time he saw there was blood on his own shirt.
  13. In contrast, Taliai’s police statement of 12 July, 2021, records[11] that Latu told ‘Isi to face the wall and to put his arms up. ‘Isi refused. Latu tried to turn ‘Isi to face the wall, ‘Isi pushed him away causing Latu’s body to sway backwards and when Latu’s body returned to position, he repeated for ‘Isi to face the wall and to stop resisting, ‘Isi had curled his hands into a fist and said “what do you all mean?” and punched Latu. He missed and then attacked Latu with his body and they both fell towards the counter taking it almost to the door.
  14. He then stepped up and told Latu to come and help him to put ‘Isi on the floor to make for a safer and easier search. He said he held ‘Isi and told him what he was doing was bad and caused him to lie on the floor. He asked ‘Isi to lie face down. ‘Isi did not comply. ‘Isi remained on his back facing up and continued punching up at him. Then he stated:

“..... I told PC Latu for the two of us to take and lock him up in the cell where it was safer because I was hurting from his punches but it was fine I was able to protect myself.

We then managed to quickly take him to cell #04 and locked him there and we walked back to the office....”


  1. Taliai accepted that he recorded the relevant entries in P9 - The Station Diary. In entry 96 - 26/6/21 - 2015hrs, reads:

“PC Latu arrested ‘Isi Latu (m) ‘Utulei for drunkedness in a public place at the front of the fire department, searched and put into cell 04, no goods found on him.”


  1. Some 2 hours or more later, he recorded entry 116 – 26/6/21 – 2228hrs, stating:

“SC Tapueluelu reporting status of ‘Isi Latu in entry 96 – Isi pushed PC Latu when he was to be searched, saying “Wait, and what do you mean about that?” and about to punch PC Latu. A struggle between the two ensued until I ran up and made him lie down to be searched – when that was completed he was locked up in cell #04- nothing out of the ordinary – it was not recorded on time.”


The events in the Watchroom

  1. Kivalu after watching what happened in the chargeroom moved towards the watchhouse after ‘Isi was dragged inside. He said ‘Isi was unconscious and lying on his back. He saw both Latu and Taliai kick ‘Isi on the head area at least twice. The two men were in uniform he said and had their police boots on when the kicks were administered. When Latu and Taliai saw him watching, they shut the door.
  2. Kivalu and Limoni went around the back where he could look into the watchouse through the window[12]. He saw ‘Isi lying on the floor, still unconscious but alone. Latu and Taliai were no longer there. He could see blood on ‘Isi’s mouth and all over his face. Kivalu went inside and felt ‘Isi’s heart and told Limoni he was still alive. He tilted Isi’s head to his right to prevent any possibility of suffocation from the blood. ‘Isi did not respond. They went outside.
  3. About 5 minutes later, Kivalu said Latu and Taliai returned in a vehicle. He asked them to take ‘Isi to the hospital in case he died. Taliai told him to take ‘Isi to the shower and wash the blood off him. Kivalu refused.
  4. He saw Latu and Taliai grab each of ‘Isi arms and dragged him to the shower while he stood outside. They put ‘Isi under the shower and turned it on. He saw them use Isi’s top to wash the blood off him. Then they grabbed each arm and dragged him out of the shower and bathroom, dragged him to prison cell No.4 and left. ‘Isi was still unconscious.
  5. He got Isi’s top and wiped the blood in the watchouse and then mopped the blood ‘isi laid in the room.
  6. Limoni, in his police statement of 12 July 2021 stated that he heard stomping of feet from inside the watchhouse. He entered the watchhouse and saw Taliai and Latu there with ‘Isi lying still on the floor with blood everywhere. He said ‘Isi looked like he was dead and on seeing the amount of blood there, he knew ‘Isi was seriously injured. While they were standing there, Fifita arrived and Taliai told him to take ‘Isi to the shower and wash the blood off.
  7. Fifita grabbed ‘Isi’s feet and dragged him to the bathroom and then to the prison cell and locked him in. ‘Isi was unconscious the whole time. Taliai and Latu returned to the charge room.
  8. He said that he and Kivalu mopped up the blood in the watchhouse and he felt sorry for ‘Isi. He wanted them to take him to the hospital. But he knew Taliai would not allow it. He said that when he put the mop away, he saw ‘Isi was awake.
  9. In contrast, during the trial, Limoni said he entered the watchhouse and saw ‘Isi lying on the floor on his right side with his eyes closed. He could hear him breathing. He saw Latu standing by Isi’s feet and Taliai by his head. Then Latu took a step forward and kicked ‘Isi’s head around the jaw area and retreated.
  10. Latu and Taliai told Officer Fifita to take ‘Isi to the bathroom to wash off the blood from his mouth and his clothes. Fifita took ‘Isi while they stood watching. Fifita dragged ‘Isi to the bathroom and then to the prison cell. Limoni was unsure whether ‘Isi was awake at that point or not. He said when ‘Isi was taken to the prison cell, he was fully clothed and ‘Isi swore and beat the door of the prison cell and said his mouth was injured.
  11. Limoni said the blood in the watchouse was in one place except after ‘Isi was dragged to the bathroom. He said it was as big as the size of an A4 piece of paper. He said there was no blood during the altercation in the chargeroom. He and Kivalu mopped up the blood in the watchouse.
  12. Limoni assisted the investigating officer with identifying the location of persons involved in the incident as he saw it both in the chargeroom and watchroom shown by cones at photos 1,2,5,67,9,10 and 11.
  13. Fifita was at the back of the police station, on his phone, and like Limoni heard stomping noises coming from the watchhouse. He said it sounded like shoes stomping on the floor. He came to the backdoor of the watchhouse and looked inside. He saw ‘Isi lying on the floor facing up. Taliai and Latu flanked him on either side. ‘Isi’s eyes were closed. He did not ask anything and Taliai and Latu said nothing. Taliai and Latu lifted ‘Isi up and told him to take ‘Isi to the bathroom to sober him up and wash off the blood. Later in his evidence he said that ‘Isi’s eyes were open but he could not walk.
  14. According to Latu he was told by Taliai to go outside to cool down. He went outside through the backdoor of the watchouse and met Fifita standing there. After about 2 minutes he entered the watchhouse via the backdoor again. ‘Isi was lying on the floor with Taliai standing next to him catching his breath. Taliai then tried to sit ‘Isi up but was met with resistance from ‘Isi. Taliai told Latu to leave again and to get Fifita to help him because ‘Isi may listen to him given they went to the same school.[13]
  15. Taliai said after he got up off the floor, ‘Isi was still trying to escape. He told ‘Isi he will be searched but ‘Isi continued to throw punches and refused to be searched. He said he was exhausted and later saw Latu enter from the door to the chargeroom.
  16. He had managed to sit ‘Isi up but ‘Isi laid down again. He saw Fifita at the backdoor of the watchhouse and called him to come and help. He told ‘Isi to listen to Fifita. ‘Isi said it was none of his business and Taliai returned to the chargeroom.
  17. Taliai later went back to check on Fifita and ‘Isi. They were still in the bathroom. When they finished, Latu took ‘Isi to the prison cell and Taliai stopped them and lifted ‘Isi’s top to look for injuries but could see none. He asked ‘Isi if he was injured. ‘Isi said no. He told Latu to take ‘Isi to the prison cell. After he was locked up, ‘Isi still shook the prison door and was swearing at them.

Bathroom and Prison Cell

  1. Kivalu’s version of the events was that about 5 minutes after he saw ‘Isi in the watchroom, Latu and Taliai returned in a vehicle. He asked them to take ‘Isi to the hospital. Taliai told him (Kivalu) to take ‘Isi to the shower and wash the blood off. He refused and so Taliai and Latu grabbed ‘Isi by the arms and dragged him to the shower. Afterwards, they dragged him out, again by his arms and placed him inside prison cell No.4. ‘Isi remained unconscious throughout. He took ‘Isi’s top and used it to wipe the blood in the watchhouse and then mopped it.
  2. Limoni said that Fifita dragged ‘Isi by his feet to the bathroom to wash the blood off his face and clothes and then he dragged ‘Isi back to the prison cell.
  3. Fifita said he lifted ‘Isi from behind and dragged him to the shower. While in the shower ‘Isi was talking nonsense and was cheering from inside. In the meantime, Latu and Taliai returned to the chargeroom. When he lifted ‘Isi out from the shower, Latu took him to prison cell No.4.
  4. Hopoi heard Taliai give instructions for ‘Isi to be taken to the prison cell and then she saw both Latu and Talliai take ‘Isi to the prison cell. She thought ‘Isi was walking.
  5. Latu agreed Fifita took ‘Isi to the bathroom and he in turn took ‘Isi to the prison cell. Taliai asked ‘Isi whether he was injured and ‘Isi said no. He led ‘Isi by his arms to the cell while ‘Isi was swearing.
  6. Under cross examination, Latu revealed that ‘Isi was in the shower for about an hour. He admitted that he and Taliai used ‘Isi’s top to wipe the blood off him.
  7. Taliai, in his record of interview[14], said that after Taniela called out for them to check the blood in one of the cells, he went out saw that ‘Isi was spitting out blood. When he spoke to him he was much calmer and compliant. He let him out to the shower to check his injuries and found that he was badly injured and they took him to the hospital.

Inside the prison cell


  1. Inspector Taniela ‘Unga (“Taniela”) said he was Officer in Charge on the night in question. He came into the station at around 11pm that night. He noticed a smear of blood on the counter in the chargeroom. He asked Hopoi what it was from. She did not respond.
  2. He heard talking from the kitchen and saw Latu, Taliai and Fifita there. He went back through the watchouse and stood at the backdoor to check on the prison cells.
  3. He looked toward the cells and heard a murmuring sound. Then he saw a bloodied hand holding onto the door of cell No.4 and heard someone say, “police there is an injured person here”.
  4. He did not check for himself but called out to Latu and Taliai to take the prisoner to the hospital and to provide a full report at the end of their shift. He then went on to join a group of men drinking kava there.
  5. In contrast, Taniela’s interview as recorded by Talamai on the Dairy of Action (P7) varied. In it, Taniela said that when he saw the blood on the counter he suspected that there was an injured person there. He stood at the door of the watchouse and saw ‘Isi sitting inside the cell with a bloodied mouth[15]. He told Taliai and Latu to attend to him and to submit a report at the end of their shift.
  6. He said he asked Fifita and Latu about ‘Isi’s injuries and Latu admitted he punched ‘Isi. He learnt about ‘Isi’s broken jaw from Officer Filipe who visited him in hospital. ‘Isi’s nurse said that his jaw was broken and he was being transferred to Tonga.
  7. Under cross examination, Taniela confirmed that he was aware of previous complaints against Taliai and Latu for assaulting prisoners where they were acquitted. He could not recall if any had involved medical reports. He could not confirm whether Latu and Taliai had previous criminal records.
  8. Kivalu estimated an hour from ‘Isi being placed in the cell to Inspector Taniela ‘Unga arriving at the police station. ‘Isi had regained consciousness some 10 minutes prior.
  9. Kivalu asked ‘Isi if he was injured but did not understand what he was saying in response. He saw ‘Isi put 4 of his fingers inside his mouth. He asked him if he wanted to be taken to Mesake[16], ‘Isi nodded.
  10. Kivalu said he informed Taniela about Isi’s injuries and urged him to take him to the hospital in case he died. Kivalu said that Taniela asked him how the prisoner was injured and he told him he was assaulted by Latu and Taliai.
  11. In his police statement, Limoni said that ‘Isi was unconscious when he was placed in the cell. He saw him awake after he finished mopping the floor and while he was putting the mop away. In contrast, in his viva voce evidence, Limoni said that when ‘Isi was put inside the prison cell, he was beating the door of the cell and swearing.
  12. Taliai said that after ‘Isi was locked up in the prison cell he was shaking the door and continued swearing at them. Latu agreed that he took ‘Isi to cell No. 4 and like Taliai, said ‘Isi was still swearing at them.

Taking ‘Isi to the hospital


  1. Hopoi said that between 10-11pm that night, she saw ‘Isi seated outside of the prison cell. There was blood in his mouth and he was in pain. He asked her to push up the bottom of his jaw. She pushed his jaw up and ‘Isi said it felt better.
  2. She returned to the chargeroom and said that ‘Isi should be taken to the hospital. Taliai told her that was the reason he had been taken out of the cell.
  3. In the station diary, Taliai recorded entry 118 – 26/6/21 – 2330hrs, stating

“SC Tapueluelu entered and saw blood in cell#04 and found it was ‘Isi Latu from his mouth – released to be taken to Ngu Hospital to see a nurse or doctor went with PC Latu.”


  1. Talamai was the Investigating Officer in this case. He submitted photographs he took of the location where the incident occurred; a sketch map of the same; diary of action, a cell diary and station diary.

The Medical Reports

  1. Two medical reports were produced. The first was produced by Dr. Tatila as exhibits P2-P4 which included a picture of the human skull and an x-ray of the victim’s face showing the relevant fractures to his jaw. The second was produced by Dr. Po’ese.
  2. It was not disputed and I accept that on the night of 26 June, 2021 ‘Isileli Latu (“the victim”) sustained injuries. He was examined by Dr. Foliaki Tatila at the Pilinisi Ngu Hospital at Neiafu, Vava’u on the same night.
  3. Dr. Tatila’s examination and findings recorded: (i) intoxicated young gentleman; (ii) limited mouth opening, limited mouth movement; (iii) intra-oral – bleeding from lower right mandible, stepping of the jaw (mandible) between, right parasymphyseal region; (iv) facial x-ray show: bilateral fracture of the mandible. She opined that the described injuries were “likely due to blunt object exerted with force to mandible region.”
  4. The victim was transferred to Vaiola Hospital in Tongatapu and examined by Dr. Canieli Po’ese on 29 June, 2021. His reported recorded: (i) trismus[17]; (ii) odynaphagia[18]; (iii) bilateral[19], displaced unfavourable fracture of the right body and left angle of the mandible[20]; (iv) step in the occlusion 44 and 45[21], maloclusion of the left molars[22]; (v) paresthesia of the left angle of mandible towards L lower mandible[23].
  5. Dr. Po’ese opined that the injuries are consistent with a blunt object applied with force to the face. In his experience unfavourable fractures are rare. In his years of practice he had seen maybe 2 or 3 similar cases. One, he recalled involved a vehicle accident.
  6. Dr. Po’ese said the treatment was an open reduction internal fixation which involved putting in screws to stabilise his jaw and insertion of plates to assist with healing were conducted on 2 July and again on 9 July. The accused was admitted from 29 June to 13 July. He was assessed 2 to 3 times before he returned to Vava’u. He confirmed Dr. Tatila’s evidence that the accused would return to have the plates and wires removed.
  7. He said there would be ongoing reviews of the accused for a period of 2- 3 years. He said the victim was treated with ORIF under general anaesthetic on the left body with plate and screws on 2 July, 2021 and again on 9 July, 2021 with intra-osseons stainless steel wires on the left angle. IV medications were administered to control infections and NSAIDS to minimize pain.
  8. Both counsels put to Dr. Po’ese their respective cases. For the Prosecution, Dr. Po’ese was asked if the injuries could be caused by police boots. For the Defence, it was put whether a counter could cause the bilateral fracture suffered by ‘Isi. Dr. Po’ese’s view was, it would all depended on the force used.
  9. On the day of the trial, ‘Isi said that the plates and wires had all been removed. Apart from his family noticing he was at times forgetful, everything was back to normal for him.
  10. I have considered both counsels helpful submissions for which I am grateful.

Findings


  1. On the evidence, I find that on the evening to 26 June, 2021 ‘Isi was drinking with colleagues at the Fangatongo army base. When he left to look for food, he was intoxicated.
  2. On the way, he engaged in a physical altercation with a person who ran into the fire department. He followed the person into the fire department and when he could not find him, he was agitated and was swearing at the premises.
  3. Latu who was outside at the police station, next door and observed what was going on. He went down to take ‘Isi inside. It makes no difference whether Taliai came and helped Latu take ‘Isi inside or not. I believe Limoni and Vailea that when ‘Isi was being taken inside, he went willingly.
  4. Once inside the chargeroom ‘Isi was told he would be searched and placed in prison. ‘Isi resisted and when Latu reached out to make him face the wall, he punched Latu hitting him on the chest. Latu punched him back hitting ‘Isi on the mouth.
  5. Next, I find that ‘Isi tackled Latu. Latu ducked and ‘Isi hit Hopoi’s arm first before hitting the counter. Hopoi got up and ran outside. Latu got hold of ‘Isi’s top and held him face to face with ‘Isi’s back to the watchouse. Taliai jumped up behind ‘Isi and wound his right arm across his neck bringing up his left arm to hold ‘Isi in a choke hold.
  6. ‘Isi fainted and fell to the floor. Taliai and Latu dragged him inside the watchouse. Once inside the watchouse, Taliai and ‘Isi, fully uniformed with police boots on, kicked ‘Isi’s head around his mouth and jaw area. I find that those kicks caused the injuries described at paragraph 82 above sustained by ‘Isi.
  7. I am satisfied that ‘Isi was drunk, unconscious and defenceless when Taliai and Latu administered those kicks. I am convinced that under those circumstances, there was nothing to cause them to honestly believe they needed to use the force they did to defend themselves from an imminent attack by ‘Isi. Therefore the said kicks were nothing less than deliberate and intentional.
  8. Clearly, section 100 of the Police Act does not apply, rendering the kicks administered by Taliai and Latu unlawful.
  9. I am satisfied that the Taliai and Latu ought to have known that participating in the act of kicking ‘Isi on the head, with their police boots on whilst he lay unconscious and defenseless on the floor, carried a real risk of some harm to him. I do not accept that the attack on ‘Isi inside the watchouse was by any measure in self defense.
  10. I further find that Taliai and Latu dragged ‘Isi to the bathroom and turned on the shower on him. That they used his top to wash him and then dragged and locked him up in prison cell #04. Isi was unconscious throughout this time.
  11. The Prosecution accepted the inconsistencies in its witnesses evidence and submitted that such inconsistencies are not uncommon given the incident occurred 2 years prior as well as witnesses giving their account without necessarily confirming who was where at any given point of time. Mrs Ebrahim argued that the inconsistencies have created more doubt. Respectfully, I do not agree.
  12. As I have said earlier, Taliai and Latu as the accused are not required to prove their innocence. But I am minded to say that I found their evidence convoluted and unreliable. In addition to what I have said above, the admission by Taliai that he intentionally left out vital information because he knew the matter would end up in court and that he would have recorded events accurately if it did not go to court, the written statements by both that they forced ‘Isi onto the floor, searched him and then put him in prison against the total turn about at trial, the attempt to shift the blame for the cause of the horrific injuries sustained by ‘Isi as a result of their violent act of kicking him to the head while he was unconscious, making up a story that Fifita put ‘Isi in the shower when in their interviews and written statement and station diary recorded they detained, searched and placed ‘Isi in the prison cell, Taliai changing his story yet again in his statement[24], yet again, that after Taniela told them there was blood in the prison, he found ‘Isi spitting out blood and took him to the shower to check for injuries, is lamentable. In the witness box, they came across as disingenuous.
  13. However, I found ‘Isi and Kivalu to be credible witnesses whose evidence remained unshaken under able cross examination by Mrs Ebrahim.
  14. ‘Isi readily admitted that his police statement contained things he did not say. I undertood that the statement was prepared and given to him for signing. He was cross examined on this point to which he responded that his evidence on the day of the trial was his recollection of the truth. I believe him. I have considered he, at the time expressed that he did not want the matter to go to court. I accept that as a result he may not have considered the content of his police statement seriously. At the end of that statement he expressed his wish not to press charges. He did not defend his actions and admitted he was drunk and hard to control. He readily volunteered he threw the first punch. At the end of his evidence at the trial, he still expressed that it was not his wish to prosecute and I agree with Mrs ‘Eliesa’s submission that ‘Isi had no reason to make up any of his evidence.
  15. As for Kivalu, he was by the door of the chargeroom and observed the incident there in full view. Similarly, he was in close proximity to the violence in the watchouse and witnessed what occurred there. Most of his evidence was verified in part by different witnesses at various points such as:
  16. Hopoi, Taniela and Fifita did not observe the physical altercation between ‘Isi and Latu or the attack inside the watchouse. Those who were witness to the relevant incidents were, ‘Isi, Kivalu, Limoni, Taliai and Latu.
  17. I considered Hopoi a truthful witness for the most part but tended to adapt to her colleagues evidence when she was not so sure about things. I found her evidence that she helped Latu push his jaw up credible notwithstanding ‘Isi’s evidence that it was Latu. Taliai confirmed that Hopoi told her about pushing up ‘Isi’s jaw and her request for ‘Isi to be taken to the hospital.
  18. Taniela came in after ‘Isi had been placed in the prison cell. It was on his orders that ‘Isi was thankfully taken to the hospital, otherwise things may have been different for ‘Isi.
  19. I find Limoni’s record of interview consistent with ‘Isi and Kivalu’s evidence in relation to Latu kicking ‘Isi on the head and ‘Isi’s condition when he was lying on the floor in the watchouse. Against his evidence about Fifita taking ‘Isi to the shower, I prefer Kivalu’s evidence that it was Taliai and Latu who dragged ‘Isi to the shower and then to the prison cell as discussed above. In observing him in the witness box he appeared nervous. I put it down to a poor recollection due to the lapse of time.

Result

  1. For the reasons I have given and in viewing the evidence as a whole, I am satisfied beyond any reasonable doubt that the Prosecution has proved all of the elements alleged in Count 1 of the indictment against both accused.
  2. I therefore find Penitiketo Latu and Taliai Tapueluelu guilty, and they are convicted of serious causing bodily harm as charged.
NUKU'ALOFA
P. Tupou KC
24 November, 2023
Acting Lord Chief Justice

[1] R v Masalu [2015] TOSC 30
[2] Ibid.
[3] [2018] EWCA Crim 2603
[4] [2016] UKSC 8, [2016] UKPC 7
[5] [2016] UKSC 8
[6] Unreported, Supreme Court, CR 520/95, 13 Feb 1996
[7] Refer to exhibit.P6
[8] According to Limoni’s own evidence he did not enter the chargeroom until he heard stomping noises come from the watchouse. It is quite possible that it was Kivalu entering the chargeroom at this point.
[9] The Diary of Action (P7) – 16/7/21 – entry 11, pg.2
[10] Ibid. entry 17,pg.4
[11] Pg.3
[12] Refer to photo 13 at pg. 8- first door on the left is the back door of the watchroom. Kivalu was at the first windown beside the door at this point.
[13] Taliai denied he said or knew Isi and Fifita went to the same school
[14] P11 – pg,3
[15] Diary of action – entry 17
[16] He was described as a brother and /or an uncle
[17] If patient has limited capacity to open his/her mouth due to injury.
[18] Difficulty in swallowing, here, her saliva.
[19] Mean both sides were fractured.
[20] Plasm and tissue are pulling the bone away in a favourable fracture, it means the skin and tissue can still the bone together.
[21] Fracture on right of teeth 44 and 45 – where when patient bites, the teeth do not meet.
[22] Teeth not touching
[23] Numbness of that area.
[24] P.11, pg.3
[25] I find the diary of action unreliable in terms of its content and exactness of the time.

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