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Vaka v R [2025] TOCA 14; AC 25 of 2024 (16 May 2025)

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

AC 25 of 2024
[CR 36 of 2024]

BETWEEN
HAUSIA VAKA
Appellant

AND
REX
Respondent

Hearing:
6 May 2025

Court:
Randerson, Harrison and Morrison JJ

Counsel:
David Corbett for the Appellant
James Lutui, Director of Public Prosecutions for the Respondent

Judgment:
16 May 2025

JUDGMENT OF THE COURT

Background

[1] On 23 June 2022, after a trial before Cooper J, the appellant was convicted on one count of grievous bodily harm contrary to s 106(1) and (2)(b) of the Criminal Offences Act. On 21 July 2022 he was sentenced to seven and a-half years’ imprisonment, with the last year suspended on conditions.
[2] The charge arose out of an incident on 22 November 2021, where the appellant attacked the complainant with a machete.
[3] The appellant challenges both his conviction and sentence.
[4] The grounds of appeal in respect of the conviction are that there has been a miscarriage of justice for four connected reasons :
(a) self-defence was not considered or accepted because there was no medical report before the court and therefore no evidence going to self-defence;
(b) the appellant gave evidence that he was speared by the complainant, in the left chest, by a metal pole; the appellant tried to show the mark on his chest to the learned trial judge but the learned trial judge wrongly said that was not necessary;
(c) self-defence was denied because of the conduct of the appellant’s Counsel, in that he was instructed to get a medical report and did not do so;
(d) the learned judge erred in his sentencing remarks when referring to proportionality as between the use of a machete versus a pole.

• [5] Even though the Notice of Appeal challenges the sentence, no separate ground has been raised in respect of that issue.

The findings in the Court below

[6] The sentencing remarks reveal the findings by the learned trial judge:
(a) on 22 November 2021 the complainant went to his allotment to find that his pineapple plants had been destroyed; they were trampled on and hacked by some sort of bladed instrument;
(b) the next door plot is that of the appellant; he had a fale there, land that he attended and a roadside market;
(c) the appellant came to his land after the complainant and his father were already in possession of their plot; there had been tension between them;
(d) the complainant asked the appellant if he had destroyed the pineapple crop; the appellant responded to the effect that he (the appellant) was the “baddest” guy in the village;
(e) the appellant was holding a machete; he challenged the complainant to a fight;
(f) the complainant told him to throw the machete aside if he wanted to fight; the complainant then turned to leave;
(g) at that point the appellant hit the complainant using the flat of the machete blade, knocking him to the ground;
(h) the complainant turned to his side, but the appellant hacked at him with the machete; the complainant instinctively tried to ward off the blows using his left arm;
(i) the machete tore open his left hand; and
(j) despite treatment in hospital the complainant lost all use of the fingers on his left hand and his left thumb was amputated.

• [7] The appellant gave evidence as to his version of the events, and specifically as to being attacked first with a pole. As to that, the sentencing remarks reveal the findings of the learned trial judge:

“12. At trial, [the appellant] indulged in a pretence that he was attacked first by [the complainant] with a pole.

13. Even had this been the case, his actions were all out of proportion in resorting to a machete attack.
14. But in point of fact I found that account to be untrue and dishonest. I note he clings to it now, which does him no credit.
15. What he did was attack a defenceless man on the ground and aimed a machete blow at his head, which in turn caused life changing injuries.”

The appellant’s submissions

[8] The central contention in respect of the conviction is that:
(a) the appellant was acting in self-defence at the time of the offending conduct; he had been attacked first when the complainant “speared the appellant with a metal pole that deeply penetrated his left breast just missing his heart”;
(b) the appellant used the machete to ward off the complainant’s attack;
(c) the appellant instructed his Counsel to obtain a medical report for the trial, but that was not done;
(d) consequently there was no medical report as to the appellant’s chest wound at the trial;
(e) the appellant attempted to show the mark on his chest to the trial judge but was told that was not necessary;
(f) the learned trial judge’s findings on credibility show that it was important that the chest mark be seen; it was an error not to do so; and
(g) if self-defence was denied to the appellant an acquittal should follow.

• [9] Separately, the appellant contends:

(a) the learned sentencing judge referred to proportionality when dealing with the fact that a machete was used to respond to an attack with a pole;
(b) there is no separate legal requirement that the force used must be proportionate to the attack^[1]

Consideration

[10] In our view, there are significant difficulties confronting the appeal.
[11] First, the evidence concerning self-defence came solely from the appellant. There were only two eye witnesses, one being the appellant and the other, the complainant.
[12] It simply cannot be said that the learned trial judge was unaware that self-defence was being relied on. His Honour referred to the appellant’s evidence that he had been attacked first, with a metal pole, and that his use of the machete was to ward off that attack.
[13] Secondly, his Honour effectively dealt with that defence in his findings of fact. The appellant’s account was rejected as “untrue and dishonest”. The true account was, his Honour found, that the appellant had attacked a defenceless man on the ground, causing him serious injuries with the machete.
[14] Thirdly, those findings were made after the two competing accounts were given in evidence. The learned trial judge had the undoubted benefit of being able to see and hear the witnesses. This Court does not have that benefit.
[15] Plainly the learned trial judge accepted the complainant’s account and rejected the appellant’s account as dishonest. In such a case, any mark that might have been seen on the appellant’s chest, seven months after the incident, was highly unlikely to have made a difference, especially when the learned trial judge had rejected the account of how it came to be there in the first place. We cannot conclude that viewing the mark would have affected the evidence otherwise, or cast such a doubt on the complainant’s evidence as to lead to its rejection.
[16] Fourthly, given those matters, the appeal can only succeed if it can be demonstrated that the factual findings were affected by error of the type referred to in House v The King.^[2] No such case is mounted beyond the assertion that learned rial judge declined to look at the mark on the appellant’s chest, which, in the circumstances, was not an error of consequence.
[17] This ground fails.
[18] The remaining ground of appeal is that the sentencing judge erred when referring to proportionality as between the use of a machete versus a pole. The learned judge’s comments are set out in paragraph [7] above. In context the impugned comment was not determinative of the issue that was being referred to. So much is made clear by the next paragraph: “But in point of fact I found that account to be untrue and dishonest”. That finding was decisive against the appellant’s defence.
[19] We add that Mr Corbett’s submission suggests that some clarification is required on the elements of the defence of self-defence applicable in Tongan law. The common law principles must apply in the absence of a codified defence.
[20] While it is correct that in Fusikata^[3] Whitten LCJ observed that there is “..there is now no separate requirement that the force used must be proportionate to the attack ..”, its context is critical. The Judge immediately qualified this observation by stating that “..such proportionality is only one of the several factors to be considered in deciding whether the accused’s conduct was reasonably necessary in self -defence” This latter reference to reasonableness emphasises the requirement for an objective appraisal of the totality of the relevant evidence. The Judge’s correct application of this test is reflected in his rejection of the defence in that case . He expressly found that the accused’s actions were “.. an unreasonable and unnecessary response to defend himself^[4].
[21] Mr Lutui referred us to this Court’s decision in Azuelo, ^[5] cited by Whitten LCJ in Fusikata ^[6]. In that case the Court allowed an appeal against conviction. It held that the trial Judge sitting alone without a jury had misdirected himself in stating that the defence of self-defence would fail if the accused used “..more force than is really necessary to defend himself then the force used would not be reasonable”^[7]. To the extent that this statement reflects the law of self defence in Tonga, it should not now be followed.

[22] In Azuelo ^[8] this Court had cited a passage from the then current edition of Halsbury’s Laws of England 4^th ed, reissue vol 11 (1) stating in part that :

“... a genuine belief in facts which would justify the accused using force in self defence may be relied upon even if there are no reasonable grounds for the belief and it results in the use of force which is in fact unreasonable” (our emphasis).

[23] We are satisfied that the highlighted part of this passage does not correctly represent the current state of the law. The ultimate question is always whether the force used in self defence was reasonable in all the circumstances^[9]. The answer requires a three stage hybrid subjective/objective inquiry of this nature:

[a] what were the circumstances as the accused believed them to be at the time? ;

[b] did the accused have a genuine belief that the use of force was necessary in his defence?; and

[c] was the force used reasonable in those circumstances?

[24] The first two stages are subjective, and are often amalgamated. The third is objective. Judges correctly express the inquiry at this stage in various ways. Examples are whether the force used was “really necessary”, as stated by Whitten LCJ in Fusikata, or by the trial Judge in Azuelo, or “grossly excessive” or “ grossly disproportionate”^[10]. All expressions are designed to address the same question - was the nature and degree of force used reasonable in the circumstances: the objective measure. When self-defence is raised or there is an arguable narrative to support its availability, the onus is on the prosecution to exclude self-defence beyond reasonable doubt.

[25] In the United Kingdom self defence is now partially codified^[11]and confirms that the degree of force must be reasonable in the circumstances the defendant believed them to be. At common law, a person is entitled to use such force as is reasonably necessary to protect himself or herself^[12].The entitlement to use such force as is reasonably necessary was confirmed in what has been described as the classic statement of Lord Morris in the Privy Council’s decision in Palmer v. Queen^[13].

[26] As we have noted, the defence failed here because the Judge rejected the appellant’s account. But if that was wrong, he was entitled to find that the defence failed on the separate ground that the appellant’s use of a machete was in all the circumstances out of all proportion to his victim’s actions and therefore unreasonable. As well, there was no evidence that the appellant believed the use of the machete was reasonable to defend himself.

[27] We record that we allowed the appellant to produce on appeal the brief medical report of an examination conducted at the hospital four days after the attack. This referred to bruising and an abrasion on the appellant’s left breast. In his police statement the appellant referred to being hit by a pole on his left shoulder. We are not persuaded that this report would have materially assisted the appellant if it had been produced at trial.

[28] None of the grounds of appeal are made out.

Result

1. The appeal against conviction and sentence is dismissed.

Randerson J

Harrison J

Morrison J

^[1] Citing r v Fusikata CR 313 of 2020
^[2] House v The King (1936) 55 CLR 499, [1936] HCA 40.
^[3] Fusikata at fn 1 above
^[4] At para 106
^[5] Azuelo v R AC 09 of 2009
^[6] At fn 1 above at para 86
^[7] Azuelo at [17]
^[8] Azuelo at [14]

^[9] Archbold : Criminal Pleading, Evidence and Practice 2025/ His Honour Judge Mark Lucraft KC at para 19-40
^[10] See the Crown Court Compendium , Part 1 Jury Management and Summing Up , Issued July 2024 by the United Kingdom Judicial College
^[11] Section 76 of the Criminal Justice and Immigration Act 2008.
^[12] R v. Duffy [1967] 1 Q.B. 63.
^[13] Palmer v. Queen [1970] UKPC 2; [1971] AC 814; at pp 831-832 cited in Archbold (supra) at 19-46. In Azuelo this Court, at [15], cited only part of Lord Morris’s statement