R v 'Uhila [2025] TOSC 70; CR 69 & 70 of 2024 (26 August 2025)

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

CR69 &70 of 2024

BETWEEN:
REX
-Prosecution

AND
[1] SIMIONE ‘UHILA
[2] MOSA’ATI ‘UHILA
-Accused

VERDICT AND REASONS

BEFORE: HON. JUSTICE GARLICK KC

Appearances: Ms. E Lui for the Prosecution
Ms. Aleamotu’a for both the Defendants

Date(s) of Trial: 20, 21, 22 and 25 August, 2025

The charges

1. The defendants, Mr. Simione ‘Uhila and Mr. Mosa’ati ‘Uhila (who, for convenience, I shall refer to as “D1” and “D2”, respectively) are charged with offences of causing serious bodily harm and common assault on Mr. Siu Ki Tu’a Tonga (whom I shall refer to as “Helu”). The counts alleging common assault (counts 2 and 4) are charged in the alternative to the counts alleging causing serious bodily harm (counts 1 and 3).
2. In coming to my verdicts in the case, I have considered the evidence which has been adduced on behalf of the prosecution. I have also had regard to the submissions made by counsel in their closing submissions. I do not have to resolve every issue in the case, only those issues that I consider necessary to determine whether the prosecution has, or has not, proved the case against each defendant. I am entitled to draw reasonable inferences from the evidence that I have heard, but only if I am sure that it is proper and fair to draw such inferences. Of course, I must not speculate on evidence that might have been called. In that regard, I make it clear that I have not drawn any adverse inference against the defendants, solely from their decision not to give evidence on their own behalf in this case.
   

Burden and Standard of Proof

3. It is for the prosecution to prove each element of the offence against each of the defendants. The defendants do not have to prove anything. How then does the prosecution prove the case against the defendants? The answer is that the prosecution must satisfy me, beyond any reasonable doubt, that it has proved each element of the offence(s) alleged against each defendant. Put another way, in more modern terminology, the prosecution must, on all the evidence in the case, make me “sure” that it has established each element of the offence. These expressions of the burden and standard of proof amount to the same thing. Any reference by me in this judgment to being “satisfied”, or “not satisfied” should be construed accordingly.
   

The circumstances surrounding the alleged offences

4. This case concerns the events that took place at Sopu, in the early hours of 28^th January, 2024. To say that what took place on that occasion was not the finest hour for the Tonga Police Department is a complete understatement. Each one of the police officers who gave evidence on behalf of the prosecution admitted in their evidence that they had been drinking excessively on the evening of 27^th January, and continued to do so into the early hours of 28^th January, 2024, in Sopu, which is a public place at which the police officers should not have been drinking. One of the police officers admitted to me that he had been driving a motor vehicle at a time when he was completely unfit to do so by reason of the amount of drink that he had consumed. Each police officer was asked to opine on a scale of 1 to 10, how drunk he was (where 1 is the equivalent of sober and 10 is the equivalent of completely drunk). The complainant accepted that he was 10 on the scale. Other police officers acknowledged that they were between 5 and 7 on the scale. One police officer admitted to me that he had drunk about 24 bottles of beer at the Reload Bar. This is the equivalent of 12 litres of beer, which is indicative of the state of the police officers when they left the Reload bar. I find this fact of great significance when assessing the accuracy and reliability of the prosecution witnesses. As to the complainant, (‘Helu”), he was the witness who accepted that he was completely drunk (being 10 on the scale).
5. The prosecution’s case is that on the evening of 27 January 2024, Helu and some of his fellow police officers were drinking alcohol at a dinner celebration at Popua Park. Later, they went to the “Reload Bar” in Nuku’alofa, where they continued to drink alcohol until the bar closed at about midnight. They then drove to Sopu for what has been euphemistically described as a “drink up”. In my judgment, this is merely a euphemism for getting even more drunk.
6. I note that there was no evidence that either of the defendants, who had not been involved in the events prior to being at Sopu, was drunk.
7. It is impossible to say how the events at Sopu turned from a “drink up” into a violent incident. Reluctantly, I am driven to make a finding of fact that I cannot rely upon the evidence of any of the police officers as accurate or reliable. I have reached this conclusion for three reasons. First, it is abundantly clear that they were all completely incapacitated as a result of the amount of alcohol they had consumed. Secondly, I cannot be sure that their evidence is fair and unbiased, rather than being based upon their concern to justify their conduct and to support their colleague who was injured in the drunken melee that blew up into an incident which was undoubtedly fuelled by alcohol, together with an abandonment of the sort of conduct that one would rightly expect of police officers, whether on duty or off-duty. Finally, I find that the evidence of the prosecution witnesses, both the police witnesses and the civilian witnesses is riddled with inconsistencies, such as to demonstrate that the accounts are not accurate or reliable. In her written closing submissions, Counsel for the defendants argued that “there are just too many discrepancies and inconsistencies in the Crown's evidence, and seeds of doubt have been sowed”. She submits that the prosecution evidence relation to both Defendants is too unreliable to safely convict. I agree with those submissions.
   

What the prosecution must prove in this case

8. In relation to count 1 (D1) and count 3 (D2), the prosecution must make me sure of the following matters:
   1. That D1 and/or D2 inflicted bodily force upon Helu.
   2. That the bodily force caused serious bodily harm to Helu.
   100. That the bodily force was not used by the defendant(s) in lawful self-defence of themselves, or a third party.
9. In relation to count 2 (D1) and count 4 (D2), the prosecution must make me sure of the following matters:
   1. That D1 and/or D2 inflicted violence on Helu, or made him think he was going to be physically attacked.
   2. That D1 and/or D2, in so doing, were not acting in self-defence of themselves, or a third party.
      

Lawful self-defence

10. The defence of self-defence may be available in a case where D’s explanation for their use of force is that they believed it was necessary to do so to protect themselves or others. The defence takes slightly different forms in different contexts, but these overlap substantially. All share the same basic structure with two crucial limbs:
    1. Did D believe, or may D have believed, that it was necessary to use force to defend themselves from an attack, or imminent attack, on them or others, or to protect property or prevent crime? (This is a subjective question); and
    2. Was the amount of force D used reasonable in the circumstances, including the danger as D believed it to be? (This is an objective question.)
11. The defence of self-defence is for the prosecution to disprove to the criminal standard once sufficient evidence has been raised. Where there is evidence which, if accepted, could raise a prima facie case of self-defence, this should be left to the Court (either a judge alone, or a jury) even if the accused has not formally relied upon self-defence.
12. The evidence of Helu makes it absolutely clear that in the second part of the fight, he intended to attack D1 and, to use the words of Helu, to “fight to the death”. I am satisfied that the issue of self-defence has been raised in this case by both D1 and D2. In the case of D1, based on the genuinely perceived threat that Helu was going to attack him, and “fight him to the death”. In the case of D2, based on the genuinely perceived threat that Helu was going to injure D1.
13. Accordingly, in the cases of both D1 and D2, the burden of proof is upon the prosecution to make me sure that D1 and D2 were not acting in self-defence when they used force upon Helu. Even if the prosecution can make me sure that D1 commenced the second fight, nevertheless, there came a time when Helu (by his own admission) was not merely defending himself, but rather attacking D1; and from that moment in time, D1 was entitled to use reasonable force to defend himself.
    

Causation

14. As to counts 1 and 3, the prosecution must also prove, not only that the particular defendant caused the serious bodily harm, but also that it was caused at a time when either or both defendants were not acting in lawful self-defence.
15. The prosecution, as part of its closing submissions, argued that serious bodily harm (a broken jaw) was inflicted upon Helu by D1 in the first fight, before any issue of self-defence arose to be considered. I cannot agree with that submission, as there is no clear evidence as to the moment in time when Helu’s jaw was broken. I find as a fact that I cannot be sure that Helu’s jaw was broken in the first fight, and that it is possible that it was broken in the second fight, at a time when D1 may have been acting in self-defence.
16. At the end of the prosecution’s case, D2 submitted no case to answer in relation to D2 on count 3. Having heard from counsel for the defence and prosecution, I allowed that submission and I recorded a verdict of not guilty in the case of D2 on count 3. I allowed the submission of no case to answer on the basis that no reasonable jury could be satisfied that D2 was part of a joint enterprise to attack Helu in the second fight, at the time that his jaw was broken. I find that there was no evidence at all that D2 was a party to a joint enterprise to attack Helu at the time that his jaw was broken.
17. Having considered all the evidence (including the agreed expert medical evidence), I make the following findings of facts.
    
    1. On the completely unsatisfactory and unreliable state of the evidence of the prosecution witnesses, I cannot be sure how or what caused the first fight to commence. Additionally, I cannot be sure that either D1 or D2 assaulted Helu, other than in lawful self-defence.
    2. On the evidence that has been adduced, I cannot be sure that either D1 or D2 inflicted serious bodily harm on Helu at a time when they were not acting in lawful self-defence, either of themselves, or (in the case of D2) in lawful self-defence of D1.
18. Accordingly, I find the prosecution has not discharged its burden to prove its case against either defendant on any of the counts that they face.
    

Verdicts

19. For the reasons set out above, I find the defendants not guilty of the offences charged against them in counts 1 to 4 of this indictment.
20. Defendant’s passports shall be made available for collection.
21. Each of the defendants will be taken off the “no-fly” list.
    

NUKU’ALOFA	HON. PAUL GARLICK KC
26 August 2025	JUDGE