R v Matangi [2024] TOSC 68; CR-VAV 2 of 2024 (30 September 2024)

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

CR-VAV 2 of 2024

BETWEEN :
REX
- Prosecution

AND :
TEVITA ‘OSAIASI PEPA VEIKUNE UNALOTO KI PULOTU MATANGI
- Accused

VERDICT

Before: Justice P. Tupou KC
Appearances: Mrs. ‘E. Lui and Mr. ‘A. Fisi’iahi for the Prosecution
Ms L. Fonua for the Accused
Trial 11 September, 2024
Date: 30 September, 2024

The Charge

1. On 19 March 2024, the Defendant pleaded not guilty to one count of causing grievous bodily harm to Mateaki Hafoka (Count 1), contrary to section 106 (1) and (2)(a) of the Criminal Offences Act, and one count of causing grievous bodily harm to Sikuvea Fifita (Count 2), contrary to sections 106(1) and (2)(c) of the said Act.
2. The matter was fixed for trial on 22 April, 2024 before Acting Justice Langi during the 1^st Vava’u Circuit. It is now being disposed of during this second Vava’u Circuit.
3. Here the elements of each offending were:
   1. That on 21 October, 2023;
   2. The Accused;
   100. Wilfully;
   4. Without lawful justification;
   5. Caused grievous bodily harm;
      1. any harm endangering life;
      2. to Mateaki Hafoka; and
      3. any severe wound;
      4. to Sikuvea Fifita.

Prosecution’s witnesses

4. The Prosecution called 7 witnesses.
5. The First Complainant is Mateaki Hafoka. He is 29 years old and is from Talau. The Second Complainant is Sikuvea Fifita, 26 years old and is from Longomapu.

Sikuvea Fifita

6. On the evening of 20 October 2023, Sikuvea was drinking at his home with Sione Toki (“Sione”). At around 7pm, they headed to the “Pua” bar in Neiafu. During the night, Sione wandered off. Sikuvea heard Sione call him from inside a van with the Accused and Mateaki. It was around 1am the next morning and they went to Talau to Lamipuli’s residence.
7. There, they continued consuming alcohol. The drinking party consisted of Sikuvea, Mateaki, the Accused, Lamipuli, Sione Toki and two girls. A photograph of the home was produced^[1], both Complainants identified that they drank outside on the cement slab and grass area adjacent to the house. It was said that there was reasonable light from the house right up to the fence. The fence was a long sheet of tin roofing placed horizontally to cover the entrance to the property. Photographs of the fence were produced.^[2]
8. The Accused and Sione were chatting nearby and got into a fight. Mateaki stopped them. Sione and the 2 female companions left. Those that remained returned to drinking.
9. Shortly after, the Accused attacked Sikuvea. He got up and the two of them fought. They were stopped by Mateaki. The Accused then went inside Lamipuli’s house while Sikuvea was talking with Mateaki. He had his back to the house while Mateaki faced it.
10. Sikuvea heard Mateaki say something about a “helepelu”^[3] (machete). He ran toward the fence earlier described, to hide. He saw the Accused coming toward him holding the machete up over his head. He showed the court how the Accused held the helepelu, by the handle above his head.
11. When the Accused got to him, Sikuvea jumped up and tried to disarm him of the machete. He was struck by the machete before he could get a hold of the Accused’s hands. He was unaware of his injuries at that point.
12. He recalled Mateaki joined him in trying to get the knife off the Accused. He said he was already injured then and the Accused was still holding the helepelu. When he was finally able to disarm the Accused and the machete fell to the ground, Mateaki had already left them for the main road.
13. When he realised he was injured, he ran down the path^[4] leading towards the main road where he collapsed. He woke up at the hospital the next morning. A photograph^[5] of him at the hospital here in Vava’u was produced and confirmed.
14. He was evacuated to Vaiola Hospital in Nuku’alofa where he was given further treatment. He said his injuries weakened his right arm to the point he is unable to lift anything heavy with it. He is unable to spread or open his right hand, in particular, the three fingers from his middle finger to his little finger on that arm.

Cross examination

15. An alternative account was put to Sikuvea, that when the Accused came looking for him, he jumped up and punched him causing the Accused to black out and lose control of the machete. Sikuvea then got hold of the machete and proceeded to attack Mateaki with it. Sikuvea rejected the account.

Mateaki Hafoka

16. Mateaki’s evidence confirmed most of Sikuvea’s evidence. I will refer only to where it differed. In the second fight, Mateaki said that Sione was also involved and the he and Sikuvea attacked the Accused. He punched Sione and chased after him around the house.
17. When he returned to where they were drinking, no one was there. Then he saw Sikuvea and the Accused wrestling outside of the fence. He threw himself between the two and felt a strike to his right arm. He could not separate them and stood back. He flung himself at them again and saw his arm was hanging off him. He felt his face and shirt were wet. He moved back to the light and saw he was severely injured.
18. He went out to the main road and called out to the Accused that he was severely injured. He recalled thinking to go to Peni’s house as he had vehicles. The next thing he knew was becoming conscious at the hospital in Vava’u.
19. He was evacuated to Nuku’alofa for further treatment and was discharged in December.
20. As a result of his injuries, he has lost total use of his right arm. He is a bricklayer by trade and is now unable to do that or any other tasks he used to do before.
21. Under cross examination, Mateaki denied sitting down and having a conversation with Sikuvea although he said that they did have a conversation after the second fight. He did not recall seeing anyone with a machete that night or during the last fight between Sikuvea and the Accused outside of the fence.
22. The first time he saw a machete was Sikuvea holding one in his hand after the last fight with the Accused. At that point, he was on the road and he called out to the Accused that he was seriously injured.
23. He said no one else was involved in that last fight, it was just the 3 of them. He confirmed that he knew the Accused and that they were friends.

Heamasi Latu

24. Heamasi is 44 and lives at Talau. He is also known by the name Lamipuli. His home was where the offending occurred. He confirmed what the others had said about the people that were drinking at his home in the early hours of 21 October, 2023.
25. He said he ran away because he was scared. Nothing else in his evidence was relevant.

Constable Taniela Mahe

26. Constable Mahe had been employed in the police force for 8 years. He worked in the complaints unit of the police department in Neiafu for 3 years.
27. He was on duty the night of the offending. They received a report of persons with serious injuries from Talau. He, together with police officers Samani Sateki and Simione Latu responded to the call.
28. When they arrived, Peni was holding the two men’s arms. They could not stand and it was obvious that there was a lot of blood lost. They quickly bound their arms with pieces of cloth and transported them to the hospital. He identified them as Mateaki Hafoka and Vea. They were both weak and exhausted.
29. He identified the person on Tab 2, pg.11 and pg.14 as Vea. Under the same Tab, on pg. 13, he identified the person on the photo as Mateaki. When they arrived at the hospital, he said, they were helped onto beds and the doctor was contacted.
30. He and Officer Latu returned to the crime scene. There, they followed the blood trail to the fence where they found a machete. They photographed the machete and its location and took it to the police station.
31. Then they returned to the hospital to the patients. They met the Accused also at the hospital, needing to see a doctor. The Accused told Constable Mahe that his hand was injured at the drink up with the others.

Police Officer Samani Sateki

32. Police Officer Sateki had been in the police force for 3 years and 5 months. He is now with the investigation unit but on 21 October 2023, he was posted with the complaints unit. He recalled having received the call for help from Talau and was part of the group that responded. The others were Simi Latu and Taniela Mahe.
33. There, they found two men with serious injuries and took them to the hospital. One was fainting but the one with the surname Fifita was still talking. He was asking for help as he was in pain. At the hospital, he was laid on the bed and Sateki stayed with him.
34. Sateki said that between 2am-4am, the Accused showed up at the hospital to get his injured hand treated. He knew him and asked why he was there. The Accused told him he came to get his hand treated. Sateki had a look at his right hand. It was tied up with a piece of cloth. He said there was a small cut that was not bleeding at the time.
35. The Accused told him, that he hurt his hand when he was drinking with the two men, nodding towards the complainants.
36. At that point, Sikuvea slowly propped himself up and said “that is the guy that struck us causing our injuries.” The Accused kept apologising and became quiet. Sateki stayed with the complainants up until his shift ended at 8am.
37. Under cross examination, he explained that the two Complainants were on beds in the hallway not far from the waiting area where the Accused was waiting to see the doctor.
    

Police Officer Sione ‘Atoa

38. Sione ‘Atoa is 53 year of age and had been in the police force for 33 years. He was posted with the investigation unit for 20 years. He resides at Holonga, Vava’u.
39. He recalled being on duty on 26 October, 2023. He was in his office when Police Officer Penisoni informed him that the Accused requested to talk to him. He went to the Accused’s prison cell. There, the Accused told him that he felt guilty because he caused the two men’s injuries. ‘Atoa recorded the conversation in his notebook which was produced at Tab 6, pg.20. He and the Accused both signed his note. This was also recorded in the diary of action produced at Tab 1 – entry 30-31. The Officer then informed him that he was charged with the present offences and was read his rights.
40. Under cross examination, it was suggested to the officer that;
    1. The Accused was being kept on remand to encourage a confession;
    2. The Accused was released only after he confessed;
    100. Officer ‘Atoa encouraged the accused to plead guilty;
    4. Visiting time with his sister was short;
    5. He failed to caution the Accused when he saw him on 26 October, 2023.
41. Officer ‘Atoa said that the Accused was arrested and kept in custody for the police to carry out the necessary work on the case. He was released when that work was completed. He denied encouraging the Accused to confess. In terms of visitations, he said that in general, persons in custody are not allowed visitors. In the Accused’s case, he permitted his sister to visit him. He explained that his discussion with the Accused on 26 October, 2023 was at the Accused’s request and he had no prior warning that the Accused was about to admit the crime to him.

Doctor Tatafu Tatila

42. Doctor Tatila has been a doctor for 7 years. He served at the hospital in Vava’u for 4 years prior to working in Vava’u. He says he has dealt with a lot of serious injuries in his role. He confirmed that he attended to Sikuvea Fifita and Mateaki Hafoka on 21 October, 2023 and spoke to his report of the injuries and treatment in tab 3 at pages 17 and 18 of the Prosecutions Exhibits booklet.
43. The report described the injuries to Sikuvea Fifita as:
    1. A 5cm deep and 12-15cm long wound to the right forearm, from the lateral to medial at the proximal half of forearm anterior aspect;
    2. 6-7 muscles severed, few arteries and veins, not sure with the nerves;
    100. Can flex thumb, index and middle fingers, not the rest; and
    4. Blood loss estimated to be about 1 litre.
44. He opined that the deep wound was likely from a big sharp blade, likely a cane knife.
45. In his viva voce evidence, Doctor Tatila said that although the surface area of the injury was small, it was serious as major veins were severed. The bleeding was stopped easily with the closure of the wound.
46. He said it was important that he learn of the background of the injuries to assess the treatment. The information he received was that alcohol was involved and the patient was struck with a machete. That helped him understand he had to clean the wound thoroughly prior to sewing it closed.
47. For Mateaki Hafoka, the report stated that:
    1. a slash wound to the anterior aspect right arm;
    2. length of wound about the full width of arm and depth- close to the humerus bone;
    100. cuts to the bicep muscle; and
    4. a big artery and the brachialis (muscle);
    5. bone not exposed’
    6. blood loss about 2 litres or more;
    7. no sensation felt at the wrist and hand could not move;
    8. would have lost life if not brought to hospital.
48. The doctor said this patient’s injuries were severe. A delay over an hour of his treatment would have been fatal. In this case, on the scene, he said the priority was to stop the bleeding. They tried to pack his veins and it did not work. The next option was to attempt to tie the blood vessels. It took them hours before they successfully stopped the bleeding.
49. They could not stop the bleeding until about 4am in the morning. Doctor Tatila explained that torn muscles are difficult to repair and severed veins cannot be repaired locally. A major vein was severed and was impossible to repair.
50. He explained that the biceps controlled the movement and folding of the arms. These two muscles cushion the veins that travel to the heart. That vein was cut and they needed to bind it to stop the bleeding. The arm was no longer moving and was beginning to discolour.
51. He observed, the patient was already weak, his blood pressure was down and there was not enough blood to keep him alive. His assessment was to focus on saving his life. His arm may be amputated later. He was transfused with 3-5 packs of blood to sufficiently stabilise him to be evacuated to Tongatapu. A lot of time and resources went towards his treatment.
52. The doctor opined that the injury could have been caused by a small but sharp knife or a big and blunt knife with force. He was shown pg. 15^[6] and said it was possible for the machete to cause the injury.

Cross-examination

53. Doctor Tatila agreed he was not an expert in dealing with serious injuries. He agreed that the injuries could have been caused by an aluminium sheet. He admitted he did not see a machete but that is what he was told caused the injuries.
54. At the close of the Prosecution’s case, the Accused elected not to give evidence.

Submissions

55. It was submitted for the Accused that the Prosecution failed to prove that the Accused caused the injuries to both the Complainants or at all to the required standard. In making this submission, Counsel challenged the evidence of the Crown witnesses.
56. It was argued against Sikuvea’ s evidence when he heard Mateaki say “helepelu” was inconsistent with a sworn statement he made to the police on 24 October, 2023 where he was supposed to have said he heard the Accused say “he is going into the house to come out with a helepelu”. The sworn statement was not tendered and is therefore not before the court. However, it does not matter who he heard say the word “helepelu”, what is clear is that someone mentioned the word which alerted Sikuvea to leave the area.
57. Points were made to highlight Sikuvea’s description of the alcohol drunk that night as “punch”, that he was inebriated, that he did not recall whether the “fence” was closed or not that night, whether the offending occurred inside or outside of the fence, where the machete was dropped, when and where the Accused disappeared after they were injured and that he looked for his phone before he went onto the road. Respectfully, none of these points are relevant to proving the essential elements of the offending.
58. Similarly, it was emphasised that Officer Mahe did not prove with accuracy where the machete was after the offending.
59. It was submitted that the Crown’s case against the Accused relied on Officer Sateki’s evidence that the Accused’s hand was cut presumably from the machete. I did not understand that to be the Crown’s case.
60. Officer ‘Atoka’s evidence was criticised for the length of visitation he permitted for the Accused and his sister and that the Accused’s admission to the offending should be ignored for three reasons;
    1. That the Accused had denied the allegations and opted to remain silent on his interview with the police;
    2. The Prosecution admitted they did not rely on the record of interview because it did not contain an admission; and
    3. On the test applied in R v Fa’aoso, 1996 TLR 36, 42.
61. As for Doctor Tatila’ s evidence, it was argued that he was not an expert in treating grievous injuries and that he was unable to identify what exactly caused the injuries he treated. The possibilities were open as to a machete, a small sharp knife or a sheet of aluminium iron.

Crown’s submissions

62. The Crown submitted it discharged its burden of proving its case against the Accused in respect of Sikuvea Fifita.
63. There was no dispute to the time of offending or that the Accused was at the crime scene. The remaining elements for it to prove were;
    1. The Accused;
    2. Assaulted Sikuvea;
    100. Causing him injuries;
    4. Unlawfully.
64. The Crown relied on Sikuvea’s evidence that after the relevant altercation which the Accused started by attacking him, the Accused went inside the house and Mateaki said there was a machete. He ran and hid from the Accused but the Accused followed him holding the machete over his head. He jumped up to disarm him and got struck in the right arm before he could reach the Accused’s hands.
65. It was submitted that the Accused intention to cause grievous bodily harm to Sikuvea is reflected by him going inside the house after the altercation with Sikuvea and obtained a machete, followed Sikuvea and struck him with it.
66. The Crown relied on Doctor Tatila’ s medical report and evidence of Sikuvea’ s injuries and say those injuries amount to grievous bodily harm.
67. It was further submitted that the Accused’s confession to Officer ‘Atoa that he had caused the injuries to the Complainants is consistent with his guilt but that the Crown was not solely relying on that admission to prove its case.
68. As against Mateaki Hafoka, the Crown submitted it discharged its burden of proving its case against the Accused to the required standard of proof.
69. Again, it relied on Sikuvea’ s evidence that when Mateaki intervened, the Accused still held the knife and that he was unable to disarm him of it until after Mateaki had left them.
70. The Crown says it was unlawful as bringing a machete to what had been fist fights was unjustified.
71. As for intention, the Crown relies on the principle of transferred malice as described in Archbold 2023^[7] which states:

“It is well established that if someone by mistake, or, e.g., by bad aim, causes injury to a person or property other than the person or property which they intended to attack, they are guilty of a crime of the same degree as if they had achieved their object. For example, if someone shoots at A with intent to kill A, and kills B by mistake, it is murder: Fost.261; Hale (1) 438 at 441. The harm done however must be of the same kind as the harm intended, e.g. a person who throws a stone at another and by mistake breaks a window without realising that this is probable consequence of their action is guilty of no offence: see Premblition(1874)L.R”

72. The Accused’s intention was to strike Sikuvea but Mateaki got in the way and was severely injured. In applying the principles of transferred malice, the Accused was therefore liable for Mateaki’s injuries as well.
73. Doctor Tatila’s report describes the gravity of Mateaki’s injuries and emphasised that had he not been brought to the hospital it would have cost him his life.

Considerations

Burden of Proof

74. The onus of proof lays with the Prosecution to prove beyond reasonable doubt that the Accused is guilty. That burden remains on the Prosecution throughout the trial. An Accused does not have to prove his innocence.

Finding of Facts

75. Firstly, it must be noted that throughout the case, the Accused was referred to interchangeably as Tevita and Matangi or both. Similarly, Lamipuli was also referred to as Heamasi.
76. Secondly, there was no issue with the identification of either the Accused or the Complainants.
77. There was no dispute that the group consisting of the Accused, Mateaki, Sikuvea, Sione, Lamipuli and two girls, were drinking in the early hours of 21 October, 2023 at Lamipuli’s residence at Talau, Vava’u.

Acceptance of Sikuvea’s evidence

78. I had listened and observed Sikuvea and Mateaki carefully in the witness box as they gave their evidence. I found Sikuvea to be a reliable witness and prefer his version of the facts. Where it clashed with Mateaki’s, I prefer his.

The machete, the intention and the attack

79. I accept Sikuvea’s evidence that the last altercation was initiated by the Accused attacking him. After Mateaki intervened, the Accused went inside the house, obtained a machete with the intention of launching an attack on Sikuvea. Sikuvea heard Mateaki mention the word helepelu and fled to hide.
80. The Accused followed only Sikuvea to where he hid. There is nothing in the evidence to show he was after anyone else in the group. When Sikuvea jumped up to disarm him of the machete, he was struck on the right arm sustaining the injuries described by Doctor Tatila. Mateaki intervened to stop them and was struck by the Accused, albeit by accident, causing his injuries.
81. At that point, both Complainants say there was no one else around, it was just the three of them.
82. Mateaki denied seeing any sharp object, a machete or otherwise during the last fight. He mentioned seeing a machete for the first time in answer to a question from the bench where he described seeing Sikuvea with the machete in his hand and walking towards him after the fight. The Crown submitted that I take into account that Mateaki was severely injured at that point and had lost a lot of blood.
83. I do not need to, because I find that part of his evidence inconsistent with him warning Sikuvea about the machete as the Accused was coming out of Lamipuli’s house. There is no reason for Sikuvea to make up that warning and act on it as he did for fear being attacked.
84. I am unable to say the same about Mateaki. As the Accused is his friend he had reason to protect him. In fact, in all three fights, the Accused was involved and initiated the attack on Sikuvea. Mateaki’s interventions during the said fights were to protect the Accused. I find that his half whispered uncertain answer that Sikuvea was holding the machete at the end of the last fight was an attempt to shift the blame to Sikuvea and save his friend, the Accused. I prefer Sikuvea’s evidence that the machete fell to the ground and that’s where the police officers found it.

The location of the machete

85. I have already indicated that I accept Sikuvea’s evidence that after he managed to disarm the Accused of the machete he went onto the road. The evidence relating to the location of the machete is consistent with Sikuvea’s evidence. A closer look at pg.15 of the Prosecution’s booklet, on the right hand corner of that photo, is a yellow object that is consistent with the yellow board just outside of the fence^[8] but directly opposite where Constable Mahe marked the location of the machete. I prefer Sikuvea and Constable Maher’s evidence on this point.
86. If Mateaki’s evidence is to be believed, the machete ought to have been located on or near the road. The evidence did not establish that.
87. At entry 6 of the diary of action, the items discovered at the scene of the offending included a telephone. That is consistent with Sikuvea’s evidence that he lost his phone and was searching for it.

Accused’s apology and admission

88. Further, there are two instances where the Accused’s conduct was consistent with guilt as opposed to innocence. Firstly, when Sikuvea openly accused him at the hospital in front of others, for striking them and causing their injuries, the Accused said he was sorry. Here was the opportunity for him to publicly deny he had a machete and that he struck them with it, he did not take the opportunity. That behaviour is inconsistent with the behaviour of someone who was innocent but consistent with behaviour of someone who felt guilt.
89. In addition, he also, out of his own free will asked to see Officer ‘Atoa and told him without warning that he felt guilty because he was the one that caused Mateaki and Sikuvea’ s injuries. Again, that is behaviour inconsistent with conduct of an innocent person but consistent with behaviour of someone with guilt.
90. Even if I were to ignore the Accused’s admission to Officer Atoa, I am satisfied that it makes no impact on the Crown’s case. As there was no evidence to dispute the officer’s evidence I am bound to accept his version. Cross examination failed to impugn his evidence.

Alternative Account

91. I now turn to the alternative account suggested by the defence, (most likely on instructions from the Accused) i.e., that as the Accused came towards Sikuvea, he jumped out and punched him causing him (the Accused) to black out and lost control of the machete. Sikuvea then got hold of the machete and attacked Mateaki with it. That suggestion is simply not supported by evidence. Nothing in the witnesses’ evidence before me, if taken together or individually would amount to such an account or conclusion.

The Investigation by Police

92. I found the conduct of the police officers involved in the early hours of 21 October, 2023 in responding to the call for help from Talau and thereafter commendable. Their prompt and thoughtful response saved the Complainants’ lives. At the same time, while in custody, the Accused was treated fairly and I found the criticism of their work unwarranted.
93. Entry 18 of the diary of action show the Accused was taken into custody on the day of the offending and was kept in custody until Monday 23 October, 2023 where he was taken into the Magistrates Court.
94. Entry 21 records that he was taken before the resident Magistrate Pahulu-Kuli on 23 October, 2023 where he was remanded to be brought back with a report.
95. Entry 28 records the Accused was taken to the Magistrate court but was told to return at 1330 hours. Before he was taken back, the Accused asked to see Officer ‘Atoa and admitted to him that he caused the Complainants’ injuries. He was released on bail by the resident Magistrate on the same day.
    

The injuries

96. I found Doctor Tatila a credible and reliable witness. The quick, sound, effective judgment calls and action on his part in treating the Complainants were nothing short of heroic. The fact that he was able to treat and stabilise the Complainants in Vava’u prior to evacuating them to Nuku’alofa is impressive.
97. I accept that Sikuvea’s injuries satisfy section 106(2) (c) of the Criminal Offences Act. The injury was about 5cm deep. It damaged 6-7 muscles, arteries and veins. The result is that Sikuvea is unable to lift any heavy objects or do any work with that dominant arm. His last three fingers are crooked and cannot fold.
98. I also find that Mateaki’s injuries were more severe and as the Doctor said, if treatment was delayed for an hour, it would have been fatal. Accordingly, they undoubtedly fall under s. 106(2)(a) of the said Act.
99. For all of the above reasons, I am satisfied that the Prosecution has proven each of the charges against the Accused beyond reasonable doubt and I find the Accused guilty on both counts on his indictment.

P. Tupou KC
J U D G E

Nuku’alofa: 30 September, 2024

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^[1] Tab 2, pg.9
^[2] Tab 2, pg.9-10
^[3] machete
^[4] Tab 2, pg.10
^[5] Tab 2, pg.14
^[6] a photo of the machete the police found at the crime scene
^[7] Chapter 17, pg.2157
^[8] See pg.10 of the Prosecution’s exhibit book