R v Tau'alupe [2024] TOSC 71; CR-VAV 4 of 2024 (7 October 2024)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
VAVA’U REGISTRY

CR-VAV 4 of 2024

BETWEEN :

REX

- Prosecution

AND :

DAVID KENT JR TAU’ALUPE

- Accused

VERDICT

Before: Justice P. Tupou KC
Appearances: Mrs. ‘E. Lui and Mr. ‘A. Fisi’iahi for the Prosecution
Miss L. Fonua for the Accused
Trial 16 September, 2024
Date: 7 October, 2024

The Charge

1. On 10 September 2024, the Defendant pleaded not guilty to a single count of causing grievous bodily harm to ‘Alo’i Kei (Count 1), contrary to section 106 (1) and (2)(c) of the Criminal Offences Act. That section reads:
   

“(1) Every person who wilfully and without lawful justification causes grievous harm to any person in any manner or by any means whatsoever shall be liable to imprisonment for any period not exceeding 10 years.

(2) “Grievous harm” means — .....(c) any severe wound;...”

2. The particulars of the offending were that:

“Kent Junior Tau’alupe of Kameli, Vava’u on or about 9 December, 2023 at Kameli, Vava’u you did wilfully and without lawful justification stab ‘Alo’i with a knife, causing severe wound to his left upper abdomen.”

3. The Crown must prove each of the elements below for the accused to be convicted:
   
   1. that on or about 9 December, 2023 at Kameli;
   2. the Accused;
   100. wilfully;
   4. without lawful justification;
   5. caused grievous bodily harm, i.e., a severe wound;
   6. to ‘Alo’i Kei
      

Burden and standard of Proof

4. The burden of proving the allegations against the accused falls on the Crown and remains on the Crown throughout the trial. That burden must be discharged beyond any reasonable doubt. The Accused does not have to prove his innocence.
   

Documentary Evidence

5. A booklet of the Crown exhibit was admitted by consent. It consisted of:

a) photographs of the crime scene;

b) photographs of the Complainant’s injury; and

c) medical reports from Doctor Eileen Tupou on the Complainants injuries; and Medical Officer Sonasi Hu’ahulu on the Accused’s injuries.

The Facts

6. ‘Alo’i Kei (“Alo’i”), 35 years old, of Kameli, Vava’u is the complainant and David Kent Jr Tau’alupe (“Dave”), 35, also of Kameli, Vava’u is the accused. I note that Dave was also referred to by some of the witnesses as Tevita during the trial.
   
7. On the evening of 8 December, 2023, ‘Alo’i, Dave and Penitiketo Kesitoni Siale (“Kesitoni”) were having drinks at Kesitoni’s home.
   
8. Later that night, they went to the Laione Club where they continued to consume alcohol. They were seated on chairs in a circle out on the veranda of the Club building and were joined by others who were already there before them.
   
9. At some point during the night, ‘Alo’i and one Kulisi drove out in Kesitoni’s car without permission, to obtain more alcohol. Kesitoni noticed and asked about his car just as ‘Alo’i drove back into the Club. It resulted in some banter between Dave and ‘Alo’i that escalated to an argument where ‘Alo’i punched Dave. The two began to fight. Kesitoni stopped them and Dave, using a plastic chair, smashed some of the louvres at the club and left.
   
10. Dave later returned, armed with a machete. Kesitoni managed to calm the situation again and took the machete off Dave. ‘Alo’i apologised to Dave and called for a truce. Dave left the Club with the machete.
    
11. About half an hour later, Dave returned again. He immediately punched ‘Alo’i and moved down to the end of the veranda goading him into a fight. Dave was still angry and told ‘Alo’i so.
    
12. In the meantime, 18 year old Vakatapu Finau, saw Sosefo Faleolo standing between Dave and ‘Alo’i with his hand on Dave’s arm as if to stop him. He also saw that Dave’s right hand was in his pocket holding something black. He said he believed it to be a knife. When asked why he thought it was a knife, Vakatapu said, it was because he had come with a machete earlier. ‘Alo’i was still seated. Vakatapu called out to Sosefo to move back in case he got hurt and managed to pull Sosefo back.
    
13. ‘Alo’i accepted the challenge and jumped up and fought Dave. Next, ‘Alo’i heard calls for him to retreat, that he was injured and Dave had a knife. He moved back and saw his clothes were covered in blood. He leaned with his back on the wall of the Club building and slid down to the floor.
    
14. He was rushed to the hospital between the hours of 2-3am that morning, by Unitaleni Feleti who lived next door to the Club.
    
15. Nurse Sitiveni Lolohea attended to ‘Alo’i when he arrived at the Prince Ngu Hospital. He washed the wound and took photographs of it for the doctor’s report. The photographs were tendered in evidence^[1].
    
16. Doctor Eileen Tupou was the doctor who examined ‘Alo’i. Her report^[2] show she attended to ‘Alo’i at 9am that morning, 9 December, 2023. She described the wound on the left upper abdomen consisting of a 10 cm transverse laceration, 3cm deep with a minor cut on one of the 2 exposed ribs with no active bleeding. An x-ray confirmed no pneumoperitoneum.
    
17. Medical Officer Sonasi Hu’ahulu examined Dave at around 11am on even date. He found a laceration on the upper 2^nd finger on his right hand with an x-ray showing a fracture to his end distal phalanges. He described the laceration as a deep wound but there is nothing on his records to confirm how deep.
    

Amendment of particulars of indictment

18. At the end close of its evidence, the Crown sought to amend the particulars of the offending by substituting the words “with a knife” with the words “a sharp object” on the ground that the status of the evidence and that there was no prejudice to the accused. Further Doctor Tupou’s report was admitted by consent which referred to the cause as “secondary to sharp object” and therefore the defence was aware of its content. She relied on Police v Faletau where the Court allowed such an amendment.
    
19. The defence objected to the amendment on two grounds:
    1. that the questioning on behalf of the defence were prepared on the basis of the particulars being a knife; and
    2. the accused may have called witnesses on the point had it known of the amendment.
       
20. After discussing with counsel that it was open for her to call witnesses on the point and that the application was made on the Crown’s assessment of its own evidence. She withdrew her objection to the amendment.
    
21. Accordingly, I granted the amendment as well as bearing in mind the principles this Court set out the Police v Faletau^[3] that;

“At any stage of a trial (including before verdict), the court may make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendment cannot be made without injustice. Therefore, it is essential to consider with great care whether the Accused will be prejudiced by allowing the amendment.”.

Considerations

22. In her original submissions, Miss Fonua argued that the Crown had not proved its case beyond reasonable doubt. No one saw any sharp object on Dave and no one observed Sosefo with a glass bottle or said that ‘Alo’i’s injuries were caused by the broken louvres Dave smashed. As a result, she argued that a reasonable doubt existed as to how the injury was caused.
    
23. In her supplementary submissions, she further reiterated those arguments suggesting other inferences were available to the court. That is, that ‘Alo’i’s injuries were either caused by Sosefo with a glass bottle or from the broken louvres.
    
24. Respectfully, there is simply no evidence on which inferences could be drawn that Sosefo attacked ‘Alo’i with a glass bottle or the injuries were caused by the broken louvres. There was no evidence that the fight was anywhere near the broken louvres.
    
25. On the other hand, I found each of the Crown witnesses truthful in their observations and recollections of the events on the early hours of the morning of 9 December, 2023 at Laione Club. Nothing arose out of the trial that gave any of them reason to lie about what they saw that morning.
    
26. I believe ‘Alo’i’s evidence that when Dave challenged him to a fight the 3^rd time he told him he was still angry. I also believe Vakatapu saw Dave holding a black object in his right hand in his pocket which he believed to be a knife.
    
27. I find that the 3^rd altercation was solely between ‘Alo’i and Dave up to the point where ‘Alo’i moved back and realised his clothing was covered in blood from the injuries he sustained before moving back.
    
28. The fact that there was no direct evidence as to the weapon used to inflict the said injuries to ‘Alo’i’s left abdomen was subject to submissions by the parties on what inferences were available to the court on the evidence before it.
    
29. I have considered those submissions and reminded myself of the relevant principles, which the Crown helpfully provided:
    1. the need to take care when considering circumstantial evidence, to reach a conclusion of sufficient reliability and strength on the evidence and to avoid mere speculation^[4];
    2. that a court should consider whether the evidence upon which the Prosecution relies in proof of its case is reliable and if it does prove guilt, or are there any other circumstances which are, or may be, of sufficient reliability and strength to weaken or destroy the prosecution’s case^[5];
    100. in order to draw inferences, the court is required to make findings of primary facts from which the inference may be drawn^[6].
30. On the evidence and submissions before me, I am satisfied that there are no other circumstances of sufficient reliability and strength to destroy or weaken the Crown’s case.
    
31. Consequently, I find that Dave was still angry with ‘Alo’i from the earlier altercations and had returned for the 3^rd time, prepared to fight ‘Alo’i and to defeat him. With that aim, he came armed with a sharp object which he held in his right hand. It was small enough that it could be concealed in his pocket. The object was sighted by Vakatapu who was concerned enough to warn Sosefo to remove himself from the scene in case he got hurt.
    
32. The inference that a sharp object was used is supported by the nature of the said injuries as described by nurse Lolohea and Doctor Tupou’s opinion after examining ‘Alo’i at 9am that morning. I have seen the photograph of the injury myself and am convinced that a sharp object was used to exact it.
    
33. Consistent with that conclusion is the fact that Dave also sustained cuts to his right hand with which Vakatapu observed he held the black object and that ‘Alo’i’s injury was to his left upper abdomen, consistent with them facing each other while fighting.
    
34. Kesitoni intervened and stopped Dave when he came with the machete and ‘Alo’i apologised. The fighting had ended then. But Dave after half an hour came back and without provocation, challenged ‘Alo’i to a fist fight knowing ‘Alo’i was unarmed but that he himself was armed with a sharp object.
    
35. As mentioned earlier, I am satisfied that the only persons involved in the 3^rd altercation were Dave and ‘Alo’i. The defence proposed an alternative suspect in Sosefo. I reject that suggestion as there is simply no evidence to connect Sosefo to the offending. He was removed from the scene prior to ‘Alo’i taking on Dave’s challenge to fight.
    
36. As a result, I do not hesitate to find that Dave’s attack on ‘Alo’i was wilful and without lawful justification.
    
37. Lastly, I must be satisfied that ‘Alo’i’s injuries constitute a severe wound. In this case, Nurse Lolohea opined that ‘Alo’i’s injury was severe and that a life could be lost as a result. He mentioned that he cleaned the wound, obviously from the bleeding and that he was put on a drip while they waited for the doctor to see him. The wound was closed by stitching.
    
38. In R v Fanua [2005] TOSC 15, Acting Chief Justice Ford acknowledged that “severe wound” was not defined by the Act but that it needed to be something more than a trifling injury. He stated that:

“..In the context of “an attack of illness or disease, pain, suffering, loss, or the like, “Short Oxford Dictionary definition of “severe is, “attended with a maximum of pain, grievous, extreme”. I see no reason why that same definition should not also extend to cover the expression “severe wound”.

39. His Honour referred to case law that supported the interpretation. Amongst them was a New Zealand court of appeal case, Li v R (28 June 2000) CA 140/00, where a wound caused by sledging a garden slasher into the victim’s thigh, causing a laceration 7-10cm long and 4cm deep was described as a “severe wound.”
    
40. Here, the wound was described as a transverse laceration 10 cm in length and 3cm deep that reached the victim’s ribs causing a minor cut to one of the 2 ribs exposed by the wound. In line with Li v R, I am satisfied that ‘Alo’i’s injuries constituted a “severe wound”.
    
41. For the above reasons, I am satisfied that the Crown has proven each of the elements of the charge against the Accused beyond reasonable doubt and I find the Accused guilty of the charge of causing grievous bodily harm to ‘Alo’i Kei and he is convicted accordingly.

P. Tupou KC
J U D G E

Nuku’alofa: 7 October, 2024

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^[1] Tab 3, pg.12
^[2] at Tab 4, pg.13
^[3] [2020] TOSC 23 at (13-14)
^[4] Puloka v R [2021] AC 6 of 2021
^[5] R v Pohiva [2008] TOSC 20
^[6] De Gruchy v R [2002] HCA 33; (2002) 211 CLR 85 at [47]