R v Lisiate [2024] TOSC 83; CR 40-47 of 2024 (22 October 2024)

BETWEEN:
R E X
-Prosecution

AND:
[1] TEVITA LISIATE
[2] MAFUA ‘I VAHA PALU
[3] MESUILAME FINAU
[4] MOANA MASIMA
[5] RICHARD ERVIN VEA
[6] SALAMANI FILITONGA
[7] SOSIFA VATUVEI
[8] VILIAMI TONGAMANA
- Defendants

JUDGEMENT

BEFORE: LORD CHIEF JUSTICE MALCOLM BISHOP KC

Appearances: Mr J Fifita for the Crown Prosecution
Ms A Kafoa for Mr Lisiate, Mr Finau, Mr Vea & Mr Filitonga
Mrs S Fa’otusia for Mr Vatuvei, Mr Palu & Mr Tongamana
Mr Masima in Person
Date: 22 October 2024

1. This trial is concerned with what has been rightly described as a brawl which occurred in the centre of Nuku’alofa in the early hours of the 17 September 2023. Part, though not all of the events of that night were captured on CCTV. I do not consider it helpful to go through the commentary clip by clip, because it is not complete.
2. Part of the events obviously took place off screen and those which are depicted are not always clear because of the fast-moving events, the limitations of light and the confusion of the scene generally. In broad terms this was a confrontation between two groups of opposing young men one group from the village of Ha’ateiho and the other from the village of Pahu. There appear to have been 2 confrontations followed by a disengagement and then a resumption. I am satisfied so that I am sure on the evidence that each member of the group participated in the fighting to a greater or lesser extent.
3. That is the broad backdrop, I now turn to the indictment.
   

1. THE CHARGES

4. In this indictment these 8 accused face a total of 24 counts
   

CR 42 of 2024 – Mesuilame Finau

5. In count 1 the accused Mesuilame Finau is charged together with the other accused persons that he willfully and without lawful justification caused grievous harm to the victim when he repeatedly hit his head with a sii branch causing him brain injury that endangered his life
6. In count 2 it is alleged that he it caused grievous bodily harm by repeatedly hitting the head of the deceased with a sii branch causing him brain injury which endangered his life. But that count alleges he behaved in this way on his own, in other word he was not part of a joint enterprise.
7. Count 3 charges Mesuilame Finau with willfully and without lawful justification repeatedly hit the victim's head with the sii branch causing him an injury to his right elbow eyebrow. In other words, common assault.
   

CR 40 of 2024 – Tevita Lisiate

8. Count 4 is laid against the accused Tevita Lisiate. In this count it is alleged that in concert with the other accused he also caused grievous bodily harm to the victim. In his case by punching and kicking the victims the victim's head causing him a brain injury that endangered his life
9. Count 5 alleges he did this but not jointly with the others.
10. Count 6 is common assault alleging that he punched and kicked the victim to his body (not his head). He pleads guilty to this count.
    

CR 43 of 2024 – Moana Masima

11. Moana Masima in count 7 is similarly charged in a joint count with the others in that he punched and kicked the victim’s head causing a brain injury that endangered his life.
12. Count 8 in the alternative alleges that he acted alone and punched and kicked the victim’s head causing him an injury to his right eyebrow.
13. Count 9 is a charge of common assault to which the defendant has pleaded not guilty.
    

CR 44 of 2024 – Richard Ervin Vea

14. Richard Evin Vea at count 10 faces the same joint count on the basis that he punched and kicked the victim's head causing a brain injury which endangered his life.
15. Alternatively in count 11 he is charged alone, the allegation being that he punched and kicked the victim's head causing him an injury to his right eyebrow.
16. Count 12 common assault to which he has already pleaded guilty.
    

CR 41 of 2024 – Mafua ‘I Vaha Palu

17. Mafua Palu again in count 13 is charged jointly with the others in that he punched and kicked the victim's head causing him a brain injury that endangered his life.
18. Alternatively in count 14 he acted alone and punched and kicked the victim's head causing him injury to his right eyebrow.
19. Alternatively, in count 15 is common assault to which he has already pleaded guilty.
    

CR 46 of 2024 – Sosifa Vatuvei

20. Siosifa Vatuvei again in count 16 is charged jointly with the others in that he punched and kicked the complainant head causing a brain injury that endangered his life.
21. Alternatively in count 17 acting alone he punched and kicked the complainant's head causing him an injury to his right eyebrow.
22. Alternatively in count 18 common assault to which he has pleaded guilty.
    

CR 47 of 2024 – Viliami Tongamana

23. Viliami Tongamana in count 19 is alleged that with the others that he caused grievous bodily harm to the victim in that he punched and kicked his head causing a brain injury that endangered his life.
24. Alternatively count 20 alleges that he acted alone and caused harm to the victim when he punched and kicked his head causing him an injury to his right eyebrow.
25. Common assault is alleged in count 21 to which this accused pleaded guilty.
    

CR 45 of 2024 – Salamani Filitonga

26. Count 22 charges Salamani Filitonga that with the others he caused grievous bodily harm, his part being that he punched and kicked the victim's head causing him a brain injury that endangered his life.
27. Count 23 is an alternative acting alone it is alleged that he caused harm to the victim by punching and kicking his head causing an injury to his right eyebrow.
28. Again, in count 24 is the alternative of common assault and to this he has pleaded guilty.
    
29. The indictment is framed in descending orders of seriousness and that convictions on the joint offence of causing grievous bodily harm does not require verdicts on the other counts.
    

2. THE EXHIBITS

1. The following was submitted by the Crown as exhibits in this proceeding:
2. Exhibit 1 Sketch Map A – Page 74 of Court Book
3. Exhibit 2 Sketch Map B – Page 74 of Court Book
4. Exhibit 3 Scene Photos (night and day)– Page 31 to 54 of Court Book
5. Exhibit 4 Demonstration Photos – Page 55 to 73 of Court Book
6. Exhibit 5 Exhibit Photos – Pages 76 to 95 of Court Book
7. Exhibit 6a Photo – Autopsy of Victim
8. Exhibit 6b Photo – Head Injury of Victim
9. Exhibit 7a ROI Tongan – Mesuilame Finau
10. Exhibit 7b ROI English Translantion – Mesuilame Finau
11. Exhibit 8a ROI Tongan – Tevita Lisiate
12. Exhibit 8b ROI English Translation – Tevita Lisiate
13. Exhibit 9 Tree Branch Stick
14. Exhibit 10a ROI Tongan – Richard Vea
15. Exhibit 10b ROI English Translation – Richard Vea
16. Exhibit 11a Pink Hoodie – Tevita Lisiate
17. Exhibit 11b Purple Shoes – Tevita Lisiate
18. Exhibit 12a ROI Tongan – Mafua Palu
19. Exhibit 12b ROI English Translation – Mafua Palu
20. Exhibit 13a Yellow Hoodie – Sosifa Vatuvei
21. Exhibit 13b Red Shoes – Sosifa Vatuvei
22. Exhibit 14 Atele Shirt – Moana Masima
23. Exhibit 15 Black Hoodie – Viliami Tongamana
24. Exhibit 16a Grey T-Shirt – Mesuilame Finau
25. Exhibit 16b White Shoes – Mesuilame Finau
26. Exhibit 17 Wooden Plank
27. Exhibit 18 CCTV Footage
28. Exhibit 19a ROI Tongan – Viliami Tongamana
29. Exhibit 19b ROI English Translation – Viliami Tongamana
30. Exhibit 20a ROI Tongan – Moana Masima
31. Exhibit 20b ROI English Translation – Moana Masima
32. Exhibit 21a ROI Tongan – Salamani Filitonga
33. Exhibit 21b ROI English Translation – Salamani Filitonga p277
34. Exhibit 22a ROI Tongan – Sosifa Vatuvei
35. Exhibit 22b ROI English Translation – Sosifa Vatuvei p232
36. Exhibit 23 Autopsy Report Page 283 of Court Book
    

100. DISCUSSION

37. These allegations arose out of a brawl which you occurred in the centre of Nuku’alofa on the 17^th of September 2023. Most of the accused hail from the village of Ha’ateiho, but the Accused Finau is from the village of Fo’ui while Palu comes from the village of Pahu and Filikitonga from ‘Utulangivaka, Vava’u. They all appear to be supporters of their local rugby team. On the day in question after drinking together locally they came to the center of town where they continued drinking and when the bars closed, they started to walk home and eventually reached the Hala Holomui ‘o e Pato Road.
38. Now the previous week this group or some of them had encountered another group of young men who hailed from the village of Pahu, or who at least had allegiance to that area, or its rugby team. That encounter resulted in a confrontation and a “brawl” ensued.
39. It is claimed that the Pahu contingent prevailed in that brawl and got the better of their opponents from Ha’ateiho village. The allegation is that the accused were aggrieved at what had happened the previous week and were determined to exact revenge. The brawl itself was of relatively short duration. Both sides exchanged blows and, in short all were full and indeed enthusiastic participants in the ensuing fight. Tragically one of the those involved from Pahu suffered injuries and died shortly afterwards.
40. It is asserted, and not challenged, that the deceased died of a preexisting condition and that the injuries he sustained did not cause or contribute to his death. That strikes me as an extraordinarily surprising conclusion but that is the unchallenged medical evidence, and I must deal with the case as it is presented. It goes without saying that had there been evidence that the blows and kicks which the deceased suffered was a substantial cause of death then far more serious allegations would have been made.
41. In broad terms each of the accused made statements under caution. Most were accompanied by a responsible adult while others indicated they had no such need of an adult. I am quite satisfied that the interviews were properly conducted, this is important because during those interviews each of the accused made admissions about their part in what happened. They also implicated some or all of the other accused but, as I explained during the course of the evidence particularly to the three defendants who were unrepresented at the commencement of the trial, (apart from Masima) gained representation while the evidence was being given unrepresented, I put out of my mind what a particular accused said about another alleged participant and concentrate solely on the admissions made by that accused himself.
42. Two of the defendants made what is known as voluntary statements, both of them having been charged and answering to the charge by saying that they would “wait for a lawyer.” Despite this, these two defendants were invited to make voluntary statements in which they expressed remorse for what had happened. In my view those voluntary statements were irregularly obtained and contrary section 150 of the Police Act which states as follows;

s150 Person’s right to remain silent not affected
“A police officer shall not question or continue to question a person if that person, his lawyer or someone whose presence is required during the questioning of that person indicates to the police officer that the person does not want to answer questions or any further questions.”

43. These statements therefore are in breach of that provision, and I must disregard them at this stage of my deliberations although they may or may not be of assistance should mitigation arise.
    
44. Let me say at once that as this is a criminal trial. The burden of establishing the guilt of the particular accused whose case I am considering rests upon the prosecution. Guilt must be established on the evidence, and by that, I mean the admissible evidence so that I am sure of guilt. Nothing less than being sure will suffice.
45. I next remind myself that I must consider the evidence against each accused individually. I must discard all hearsay evidence and put out of mind any sentiments I may or may not have about the disorder which occurred. Some of the evidence was given by what may be described as the Pahu party. They were by their own admission criminal participants in the brawl, they each had their own interests to serve by seeking to implicate the accused persons. I have decided that the overall fairness of the trial compels me to disregard their evidence in its entirety. I do so.
    

4. JOINT ENTERPRISE

30. I now deal with the issue of the joint charges as alleged in count 1, 4, 5, 7, 8, 10,11,13,14, 16, 17, 19, 20, 22 and 23. I must be satisfied to the criminal standard so that I am sure than each of the accused named in the preceding counts was party to a joint enterprise.
31. I direct myself that in as respect the accused whose case I am considering it is necessary to prove so that I am sure of participation in that enterprise. This means that I must be satisfied so that I am sure, first of all that there was a joint plan or agreement to cause the harm which occurred, that this was intended by the accused I am considering and that the harm in question was such as would endanger life (see Criminal Offences Act section 106(1)).
32. Next, I must consider whether the particular defendant participated in this joint plan or agreement. I remind myself that a plan or agreement does not mean that there has to be any formality about it and that an agreement to commit an offence may arise on the spur of the moment. Nor is it necessary to establish that words were spoken or that encouragement in the form of a wink or a knowing look occurred. An agreement can be inferred from the behavior of the parties without any such communication.
33. I remind myself that the essence of joint responsibility for a criminal offence is that each accused shared the intention to commit the offence and took some part in it however great or small so as to achieve that aim.
34. So, the question for me is was there a joint plan and did the accused whose case I am considering participate in such a plan or agreement with the intention of furthering its aim. Some participants may have been more involved than others; some may have inflicted greater harm than others, but if they were all complicit in the enterprise they are all, criminally responsible for the consequences which flow therefrom.
35. So, the first question is, was there an agreement? I find on the evidence so that I am sure that there was in an agreement to attack the Pahu boys either in revenge for what happened the previous week or because they were antagonists.
36. I am not satisfied on the evidence that this agreement was conceived when the accused were at their home village or that they came to town to carry it out. It seems to me that their purpose in coming to the centre of town was to watch the rugby match and afterwards to enjoy the celebrations, but as soon as the presence of the Pahu boys was known then the intent to get even by attacking them was formed and it was to further this aim that each of the accused behaved as they admit they did.
37. This means that the individual concerned is responsible in law not only for what he himself physically did but what the others also did in furtherance of this common design.
38. Some kicked, another used a branch to strike, others punched the same victim. But to suggest that all this happened in such a short space of time within such a confined area because 8 separate accused behaved independently of each other or with different intent to each other is fanciful and I reject it.
39. This means that since all the accused admitted taking an individual and physical part in what happened, I find so that I am sure that they were each adherent to the common enterprise and are responsible in law for the totality of the foreseeable harm caused (in this case to endanger life) even though some played a lesser part.
    

5. VOLUNTARY INTOXICATION

40. I next deal with the question of voluntary intoxication. All the defendants had been drinking and as I find drinking heavily, and some indeed continued drinking from their own supply after the bars had closed. I direct myself as follows. I must be satisfied so that I am sure that the accused whose case I am considering when he did the act alleged, intended to participate in a joint enterprise, the purpose of which was to cause grievous bodily harm which endangered life.
41. In considering whether he intended this to occur I take into account that the accused whose case I am considering was drunk at the relevant time and that if by reason of his intoxication he did not or may not have intended cause the serious harm with that intent he is to be acquitted, however if, despite his drunkenness, he intended to bring about this eventuality then the case is proved against that individual.
42. A drunken intent is still an intent. I am satisfied that the accused in question are well able to say that he would not have behaved in this way had he not been drunk but that of course is not a defence.
43. My conclusion is that each of the accused, although affected by drink, still had the requisite intent to do what happened with the specific intent required. I say this for the following reasons. The video shows that they were able to stand, run and jump and were in full control of their bodies and its physical functions. Each of them were able to make good their getaway and in some cases to either hide near the scene when the police arrived or to obtain transport to take them home. In my judgment, none of the accused can claim that they were unable and did not form the necessary intent because they were drunk.
44. I pause to remind myself that although on the evidence there may well have been some provocation by the Pahu contingent, indeed there is evidence that they initiated the challenge, or at least one of them, that is not a defence to the charges before me although of course it goes to mitigation.
45. In the upshot I have concluded on plain evidence that each of the defendants acted as a principal and did so to further the collective punishment of the Pahu boys either because of what happened previously or because of inter village or inter rugby team rivalry. This means that in considering the case of each accused I concentrate on what they themselves admitted doing and consider whether that amounts to participation in the joint enterprise I have already found existed.
    

6. SELF-DEFENCE

46. Next, I consider whether any and if so who which of the accused may be said to have acted in lawful self-defense. It is important to bear in mind that the burden of disproving self defence rests upon the prosecution. If an accused acted in lawful self defence he is not guilty. And it is for the prosecution to prove otherwise. I must consider the issue of self defence in relation to the situation that the accused whose case I am considering believed he faced.
47. It follows of course that if I find that the accused in question was either the aggressor, or that he acted in revenge or that he willingly participated in a violent confrontation which he took no steps to avoid when he could have done so, then the prosecution will have established that what he did was not in self defence.
48. Here I am satisfied that these two groups when they met each other acted in response to a challenge. It is not easy on the evidence to decide who offered the first challenge but in fairness to the accused I proceed on the basis that it was the Pahu contingent who did so.
49. Nevertheless, it seems to me beyond question that the accused’s group accepted the challenge and set about it with enthusiasm. I therefore reject the suggestion of self defence because I am satisfied so that I am sure that the prosecution have established that that was not what happened here.
    

7. THE ACCUSED

50. I deal with each accused in the order of the indictment.
    

CR 42 of 2024 – Mesuilame Finau

51. Mesuilame Finau was interviewed on the 12th of October at 12:35 hours. Each of the accused were interviewed in the Tongan language, obviously and I have been provided with translations, not all of which were accurate, but the inaccuracies fortunately do not bear on the essential evidence. The signature of each accused is at the end of each answer. Finau, this accused made the following admissions which he signed:
52. In answer to question 68 “What caused this brawl?” He answered: “so we were walking past Fifita House and one individual called us wanting to fight. SIFA FETUANI ran to him, so we followed ‘Evini then he held us back and told us to go back. ‘Evini and Moana were walking further at the front. We then noticed people running from the road behind Ti’oto. Sifa was not fast enough so the Pahu boys beat him up and he fell to the ground. Sifa was shouting for us to help. We ran to him, it was myself, ‘Atoa and Ti. I then ran to the road and called out to ‘Evini and Moana to come back so we fought the boys from Pahu at the area when we they had beaten up Sifa. The boys from Pahu ran away but we were able to get one of them and we beaten him up before he managed to escape. We then headed back to Ha’ateiho.”
53. He was asked what was the reason for the brawl and answer 70 so far as relevant is as follows:“ the brawl in which Toni died, the boys from Pahu were already waiting for us at Fifita House and there were many of them. As we were approaching, they withdrew into the darkness. They then called out wanting to fight us. There was an individual from our side that exchanged swear words with the person from theirs. A person from their side then attacked us so Ti Lisiate fought him during this I joined in fighting him too. Our boys also joined but I could not tell who was who. I saw Moana get one of the boys from Pahu, I could easily tell apart Moana as he was wearing an atele shirt. I did not know who punched this guy and held him, but I could tell it was Moana and he held him before he escaped them....I chased them [meaning the Pahu boys] down and one of them threw a stick at me, I ducked but the stick hit my back I took up this stick and I thought it was a tanetane branch. I then ran back and noticed an individual being beaten up. When I approached him, they ran. Toni was still lying on the ground so I hit him and he guarded this hit. I'm not sure where that hit landed because he was lying on his side. He let his guard down and I hit him twice and landed on his head.”
54. He was asked to look at a video of the scene and to identify himself and at answer 92 he says “there holding the stick.”
55. He was asked what that is stick and at answer 93 he said, “that is the stick I used to hit Toni with.”
56. The stick or branch in question has been adduced in evidence at exhibit 9 it is 1.10 meters long weighing by 1.717 kilograms. In other words, a heavy piece of wood containing not only part of the stump of the tree but also as the witness said it answer 96 “it's many branches.” It seems the stick or branch in question had earlier been thrown at this accused by the Pahu boys but as he put it in answer 99, “I ducked and it hit my back.”
57. This accused picked up the stick and used it in the way I've already described so the case against him is that after the initial attack by the Pahu boys he used the stick which they had thrown at him and which he retrieved and hit the victim twice and it landed on his head.
58. I accept that what this accused says he was doing was in retaliation for an attack on him nevertheless there cannot be characterized as self defence because there is nothing to prevent the accused leaving the scene or indicating that he did not wish to fight. On the contrary he seized the opportunity of the branch which missed him to use it to cause damage to the deceased's head which in my judgment and on the medical evidence was obviously an act which endangered life.
59. For these reasons I find that this accused is guilty of count 1. There is, therefore, no need to consider the alterative counts.
    

CR 40 of 27 – Tevita Lisiate

60. I now turn to consider the case against Tevita Lisiate or Ti as he has been referred to in the evidence. He was also interviewed on the 12th of October at 14:26 he makes the following admissions.
61. In answer 9 he says “Moana and the boys from Pahu were cussing each other. We then reached the streetlight and the boys from Pahu challenged us to a fight. I then turned to them and fought with the individual who walked over first. The boys from Pahu ran away and we managed to get one of their boys before he managed to escape. We withdrew to under the streetlight and proceeded again. This time we got Toni [the deceased] and I kicked him then retreated back before the rest followed as well. We continued to head back, I walked further in front with the girl before I noticed the boys from Pahu at the road, so the others returned to fight them. I was about to return too but the girl stopped me, so I waited until our boys returned. I noticed the police chasing them, so I continued to walk with the girl to hitch a ride back to Ha’ateiho.”
62. He was asked how he knew where the Pahu boys came from and his answer is significant he said at answer 11 “because we had fought before.” This I conclude was a reference to the incident to the previous week where the Pahu boys appeared to have got the better of this group.
63. At question 41 he was asked “when you returned to Toni what did you do to him?”, his answer at answer 41 was “kicked him.”
64. The questioning continued, question 42 when you kicked Toni did you know he was injured, answer 42 “no.”
65. Question 43, “look at these shoes whether you notice anything on it” answer 43, “yes I see blood.”
66. At question 51 he was asked, “when you kicked Toni was anyone punching Toni at this time” answer 51 “only kicks which was Evini and Moana.”
67. Question 52 “at this time where was Toni?” Answer 42 “he was lying on the ground.”
68. On this evidence I find that this accused admitted kicking the defendant and in the absence of any other explanation for the blood on his shoes I conclude that the blood occurred because it was a result of this accused kicking the deceased to his head which is the only part of his body to draw blood as shown in the postmortem photo [exhibit 6b].
69. As a result, I accordingly conclude so that I am sure that this accused participated in the joint enterprise that he joined in to the extent that he kicked the victim when he was lying on the ground and that his kick drew blood as I understand the autopsy the only wound on the deceased which drew blood was that to his head it therefore follows in my view that this accused is responsible for kicking him to the head and accordingly I find that amounted to harm which endangered life and that he did so with the intent of so endangering the life of the victim.
70. Accordingly, he is guilty of count 4. There is no need to consider the alternative counts.
    

CR 43 of 2024 – Moana Masima

71. Moana Masima is charged with Counts 7 -9. He was also interviewed on the 12^th of October at 14:27 among his answers he said the following:
72. Answer 21 “the boys from Pahu were challenging us and we exchanged words, suddenly Ti and the others walked over to them and fought them I ran and joined the brawl. There was one individual in which we had already got so I've pulled his T-shirt and punched him before he managed to escape. I turned around they had already started beating Toni so I joined in on attacking him. I bowed down and punched Toni. The rest were kicking Toni and some of those kicks hit me I stood up and joined kicking Toni.”
73. At question 41 he was asked, “according to your answer to question 18 you said it was the boy's from Pahu that were challenging you and the others to a fight. How did you know they were from Pahu?” Answer 41, “after the brawl police took me to prison and I had a hunch that they were the same boys we had a brawl with the week before.”
74. At answer 56 he says, “the brawl started I don't remember when I joined the brawl, but I remember we had already started beating one of their boys. I joined in and pulled his T-shirt and punched him, but it slipped, and he was able to flee. I felt someone pulling my trousers, I was later told by Sifa Vatuvei that it was him who pulled my trousers as he almost fell. I looked and saw that they also had beaten another one of their boys. This individual was already lying on the ground and was getting beatings. I ran over and bowed down and punched the individual lying on the ground. The others were kicking him and one of those kicks hit me. I got up and joined kicking him.”
75. At answer 61 he says, “an approximation of my kicks was around 5 to 6 kicks probably 15 seconds we kicked him. I then shouted at Richie that it was enough and for us to run away which I then noticed Sifa behind this street light beside Fifita House so I went to him while Richie ran towards Mangaia. When we fled with Richie there were still people beating up Toni but we noticed Toni still holding up his guard.”
76. At question 62 he is asked which part of Toni's body did you kick his answer was “Richie and I were kicking his head but Toni was guarding using his hands so I hit his hands.”
77. At question 66 he is asked, do you remember what he said to you guys the answer was, “I think he was begging for mercy that’s why I shouted to the rest that he was enough, and I ran with Richie.”
78. He was asked about what he had said in the video clip and his answer at answer 92 was “Sui we beat them and died in the middle of the road”, I take “Sui” to be that is a translation of the Tongan.
79. He was asked at question 93 “do you remember why you said these words”, his answer was, “I know that we kicked the person that was lying on the road.” He insisted that Toni was alive and guarding his head with his hands when he left the scene.
80. It follows that this accused admits joining in the attack which had already started and that he joined in as he put it, “I bowed down and punched Tony the rest were kicking Toni and some of the kicks hit me I stood up and joined kicking Toni” so he admits both hitting the deceased and kicking him while she was lying on the ground he says he inflicted about 5 to 6 kicks in about 15 seconds [I entirely disregard his calculation of time which is notoriously difficult ]. He then appears to have relented and said to Richie that was enough and for them to leave.
81. On this evidence which has not been challenged I accept that this accused participated in the joint enterprise that he did so intending to cause grievous harm and that although he himself may not have done so he was complicit in the overall attack of which he was a participant and satisfied that the harm which was caused, endangered the deceased’s life that it was done with that intent.
82. Accordingly, this accused is guilty in my judgment of count 7 of the indictment. Count 9 and 10 are alternatives
    

CR 44 of 2024 – Richard Ervin Vea

83. I now pass to Count 10 which concerns the Accused, Richard Ervin Vea. He was interviewed on the 11^th of October at 17:48 hours. He was asked at question 22; “I have information stating that the Saturday the week before you were attacked by the boys from Pahu at the same place that Toni died. What do you say about this?” Answer,“yes that is correct.”
84. At answer 23 after explaining what had happened shortly before he says this “we called the boys from Pahu to come to the light so they can fight there. We fought with them, and they got one of us, but I do not know who. After chasing them down, when I returned my boys were beating up one of the boys from Pahu. I joined and punched him, my hand hurt, so I use my knees on him, they were then picked up by a vehicle and headed back home.”
85. He was asked about the beginning of the fight and said this at answer 27, “I remember that when we reached the turn someone shouted at us and Ti Lisiate was the first person to run towards the boys from Pahu. I could not tell how many they were before I got to Toni. I think I saw Toni collide with someone while running away. I ran towards Toni, he was already getting beaten up and I joined beating him. I punched him once and I'm not sure where that punch landed on his body. So I then continued to kick Toni to the chest to head area, I was wearing closed shoes. Moana and I kicked Toni before Moana said enough it is my turn...”
86. So I find on the basis of his own admissions that this accused was aware of the previous incident involving the Pahu boys, that he was one of the group which called to the boys from Pahu to come to light so they can fight there, that he joined in the fight and punched the deceased with such force that as he put it “my hand hurt so I used my knee on him.” He later says at answer 27 “I ran towards Toni who was already getting beaten up and I joined beating him. I punched him once and I'm not sure where that punch landed on his body. So, I then continued to kick Toni at the chest to head area as I was wearing closed shoes.”
87. So, he admits joining in a fight that was already taking place, punching the deceased and using his (as he put it) his knee to do so and was wearing closed shoes kicked him in the “chest to head area.” Bearing in mind what I have already found in relation to the existence of a joint enterprise I am satisfied so that I am sure that this accused was sufficiently participatory of the attack, by kicking the he victim and later kneeing him. He did so with the necessary intent and so he is also guilty of Count 10. Counts 11 and 12 are alternatives.
    

CR 41 of 2024 – Mafua ‘I Vaha Palu

88. I now pass to the accused Mafua Palu in Counts 13-15. He was interviewed on the 12^th of October 2023 at 12:35. He was asked in question 35, “can you explain what happened in the fight ?” Answer 35 “so we fought them and managed to get one of their boys before they all ran away. The second time was when we got Toni and beat him while he was down.”
89. At answer 43 he said, “I then went over and joined punching and kicking Toni.”
90. At question 53 he was asked, “Which parts of Toni’s you think the hits landed on?” Answer 53, “Chest to head area.”
91. At question 54, “So the hits landed on his chest area?”Answer 54 “Im not sure”
92. He was asked at question 79 “I put it to you that the reason you came in a large group that the night Tony died was to fight the boys from Pahu his answer was, “yes.”
93. At question 91 he was asked when you were standing at Ciora, it was already known that there would be a fight with the boys from Pahu. His answer was, “yes.”
94. So, in this interview this accused admits the existence of a plan to fight the boys from Pahu and that in furtherance of that plan he joined in the kicking and punching of Toni, the deceased.
95. That in my judgment amounts to participation in the plan the purpose of which was to wreak vengeance on the boys from Pahu as a result of what happened the previous week and that in furtherance of that plan this accused kicked and punched the deceased intending that with what he and the others were inflicting would endanger the victim’s life and so he is guilty of Count 13. Counts 14 and 15 are alternatives
    

CR 46 of 2024 – Siosifa Vatuvei

96. I next pass to the accused Siosifa Vatuvei and count 16 of the indictment. He was interviewed on the 12th of October at 11:30. He was asked why did he think he had been arrested his reply was at answer 8 “because of a brawl we had with the boys from Pahu.”
97. He says at answer 15 “we came to enjoy and celebrate after our rugby match” but he accepted that he had been drunk and denied that he and the boys were planning to fight the boys from Pahu.
98. At answer 12 he says “We were walking heading back home trying to hitch a ride until we met them and they challenged us hence why we fought.”
99. He was asked at question 23 to explain how this fight happened and says that his group was sworn at by the opposing faction, he was asked what did you do then and his answer at 24 was, “We shouted at them to come to the light so they came and the fight started.”
100. He denied that the purpose of coming to town was to fight with the boys from Pahu. He said at answer 32 that “he was too drunk and could not recall whether or not he had been shouting.” He was asked at question 36 who else joined the attack on the deceased person his answer was “I was fighting someone else before he ran away, and I chased him. When I turned back, I saw the deceased already on the ground, so I returned and joined kicking him”
101. The evidence against this accused therefore is shouting to the Pahu contingent to come to the light where the fight started and when he saw the deceased already on the ground in his own words“so I returned and joined kicking him.” On his own admissions, accordingly, he joined in kicking him while he was already on the ground.
102. This in my view must mean, and I so find, that he participated in the common enterprise by kicking the deceased whilst he was on the ground and did so with the necessary intent to cause him harm which would endanger his life and in fact did so I therefore find him guilty of Count 16. Counts 17 and 18 are alternatives.
     

CR 47 of 2024 – Viliami Tongamana

103. Count 19 is laid against Viliami Tongamana. He was interviewed on the 11^th of October at 12:35. In this interview the accused accepts that he knew that there had been a fight the previous Saturday involving the boys from Pahu but denied that that was the reason they had turned up in town on the day in question.
104. He further adds that he denies that they were talking about a fight or that anyone intended to participate in a fight however at answer 35 he says; “when they ran I saw that Salamani had joined in punching Toni and I walked and punched Toni 2 times and kicked him 2 times whilst he had his guard up and asked for forgiveness and then I stopped my punching.”
105. Although his physical involvement in the brawl was limited to two punches and kicks bearing in mind that he says at at answer 40 that whilst the deceased was lying down on the road “I also went over and joined in punching and kicking Toni” that seems to me to be direct participation in the joint enterprise as part of it and with the necessary intent.
106. And so, I find him guilty of Count 19. Counts 20 and 21 are alternatives
     

CR 45 of 2024 – Salamani Filikitonga

107. Finally, I consider the charge against the accused Salamani Filikitonga. He was interviewed on the 12th of October 2023 at 14:32. He was asked about his group and explained that they were at school together and played together in the Ha’ateiho rugby team.
108. After drinking at the Ciora bar with his companions they noticed the boys from Pahu calling over to them, in other words challenging them, and he continued at answer 20, “And the boys from Pahu called and we turned in and threw punches and we got someone that was in a white shirt and we punched him then he got away and ran and then we started returning but then the boys from Pahu came back so then we fought again and then myself Sifa and Moana caught the same individual again who was in a shirt and then he got away again and then we turned away and Toni was on the ground and there were 3 individuals that attacked him but I only knew ‘Evini and then we also turned and started kicking him and then Tevita Lisiate came and also attacked.”
109. So, what he is saying is that another of the Pahu group, [not the deceased] was first attacked and that when the deceased was on the ground together with three others, he participated in kicking him. He said at answer 28, “I kicked him to his head, but he had his guard up and it hit his hand, but I was wearing slipper, I was not wear wearing shoes.”
110. Again, the evidence against him is limited to kicking the deceased whilst he was on the ground to the area of his head although he claims the deceased was protecting himself. Looking at the overall picture I find first, that there was a joint enterprise secondly, that the defendant whose case I am now considering, knew of the joint enterprise and that he joined in and played a physical part in its execution and he did so with the requisite intent of causing grievous harm in the sense that such that the blows and kicks taken as a whole and taken together were sufficiently serious to endanger life as in fact they did.
111. I therefore find him guilty of Count 22. Count 23 and 24 are alternatives.
112. As I have already indicated these joint accounts are laid as alternatives to the other counts in the indictment and in view of my decisions on them it is not necessary to consider those alternatives.
     

8. FINAL RESULT

113. MESUILAME FINAU on count 1 I find you guilty of jointly with the other accused causing grievous bodily harm contrary to section 106(1) and (2(a) of the Criminal Offences Act. Counts 2 and 3 are alternatives and no verdict is required. I take into account your early guilty plea to Count 3.
114. TEVITA LISIATE, I find you guilty in count 4 of jointly with the other accused of causing grievous bodily contrary to section 106(1) and (2(a) of the Criminal Offences Act. Count 5 is an alternative and you have already pleaded guilty to count 6, common assault and I will take that onto consideration when I sentence you.
115. MOANA MASIMA, I find you guilty of count 7 jointly with the other accused of causing grievous bodily contrary to section 106(1) and (2) (a) of the Criminal Offences Act. In your case count 8 is an alternative and you have already pleaded guilty in count 9 to common assault and again I will take that into consideration.
116. RICHARD ERVIN VEA I find you guilty of count 10 jointly with the other accused of causing grievous bodily contrary to section 106(1) and (2) (a) of the Criminal Offences Act. In your case also count 11 is an alternative and you have already pleaded guilty in count 12, common assault and again I will take that into consideration.
117. MAFUA ‘I VAHA PALU I find you guilty of count 13 jointly with the other accused of causing grievous bodily contrary to section 106(1) and (2) (a) of the Criminal Offences Act. In your case also count 14 an alternative and you have already pleaded guilty in count 15, common assault and again I will take that into consideration
118. SIOSIFA VATUVEI I find you guilty of count 16 jointly with the other accused of causing grievous bodily contrary to section 106(1) and (2) (a) of the Criminal Offences Act. In your case also count 17 s an alternative and you have already pleaded guilty in count 18, common assault and again I will take that into consideration.
119. VILIAMI TONGAMANA I find you guilty of count 19 jointly with the other accused of causing grievous bodily contrary to section 106(1) and (2) (a) of the Criminal Offences Act. In your case also count 20 is an alternative and you have already pleaded guilty in count 21, common assault and again I will take that into consideration.
120. SALAMANI FILIKITONGA, I find you guilty of count 22 jointly with the other accused of causing grievous bodily harm contrary to section 106(1) and (2) (a) of the Criminal Offences Act. In your case also count 23 is an alternative and you have already pleaded guilty to count 24, common assault and again I will take that into consideration as I do for all Accused who have asked me to.
     

NUKU’ALOFA HON. MALCOLM BISHOP KC 22 October 2024 LORD CHIEF JUSTICE