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R v Vea [1998] TOLawRp 8; [1998] Tonga LR 63 (20 April 1998)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku’alofa

Cr 330/98

R

v

Vea

Lewis CJ
14, 15, 16, 17, 20 April 1998; 20 April 1998

Criminal law — grievous bodily harm — self-defence

The defendant and the complainant were involved in a motor vehicle collision on 24 March 1997. Instead of exchanging particulars, the complainant, with two other men attacked the defendant Vea. Vea was injured. The complainant and one of the 10 attackers, ‘Eteaki, were prosecuted and convicted of offences arising out of the incident. On 28 May 1997 the defendant and the complainant met again on a busy road. The defendant claimed that it was his intention to turn left and escape from the complainant. At the junction while waiting for the traffic to clear with his vehicle ahead of that of the complainant, the defendant said that he saw the complainant coming towards his car carrying an “iron” (translated as a wheel brace). The complainant said that he did not encounter the defendant on the road rather that the defendant saw him in his motor vehicle and challenged him to duel and generally was behaving in a very threatening way to the complainant who eventually signalled him to stop so that he could speak to the defendant about his behaviour. In each case each man claimed to have been wronged at the instance of the other. The complainant used a shop-girl as a shield from the advances of the defendant. She escaped. The defendant then seriously injured the complainant with a bush knife. The defendant was charged with grievous bodily harm.

Held:

1. All the ingredients of grievous bodily harm had been proved.

2. The court took into account the whole of the evidence in arriving at its conclusion that the Crown had proved beyond any reasonable doubt that the defendant had not been acting in self defence

3. The accused was guilty of the offence of grievous bodily harm.

Statutes considered:

Criminal Offences Act Cap 18

Counsel for prosecution: Ms Simiki
Counsel for defendant: Mr Veikoso

Judgment

The defendant stands charged with grievous bodily harm in that he on the 28th May, 1998 assaulted Siosifa Latu thereby occasioning him grievous bodily harm.

The prosecution carry the obligation of proof of each the elements of the charge beyond “any reasonable doubt”. The prosecutor must also prove the defendant was not acting in self defence.

The following narrative represents the facts I find them to be beyond any reasonable doubt from the whole of the evidence.

The two principal actors in this case the defendant and the complainant are brutal men ready to use violence rather than reason to settle differences. So much can be said immediately.

This charge has it beginnings in an incident which took place at an area near what is locally known as the flea market, on 24th March, 1997. On that day and that place their vehicles came into collision. Instead of exchanging particulars, the complainant in this case assisted by one ‘Eteaki and another mystery man, attacked the defendant Vea. Vea was injured. Since then Latu and ‘Eteaki have been prosecuted and convicted of offences arising out in this incident.

There it should have rested. However, neither man appears to have been capable of restraint at that time, and they encountered each other again by (coincidence I am prepared to find) on Wednesday 28th May, 1997 on a busy road intersection and the incident, the subject of the present charge began.

I have no doubt that menacing words were exchanged between the two, and from there with the defendant in the lead and the complainant following they travelled some little distance to a road junction at Vaha’akolo Road, Longolongo on which is situated a Falekoloa.

The defendant claims that it was his intention to turn left and escape from the complainant. At the junction while waiting for the traffic to clear with his vehicle ahead of that of the complainant, the defendant says that he heard the door of the complainant’s vehicle slam, and saw the complainant coming towards his car. Vea says that he decided to stand and defend himself fearing damage to himself or damage to property.

The defendant parked his vehicle and alighted. He saw the complainant approaching him carrying an “iron” (translated as a wheel brace). The complainant says that he did not encounter the defendant on the road rather that the defendant saw him in his motor vehicle and challenged him to duel and generally was behaving in a very threatening way to the complainant who eventually signalled him to stop so that he could speak to the defendant about his behaviour.

It is plain that the truth lies somewhere between their versions of events. I formed the opinion that both of them were telling me what-ever suited them whatever was favourable to their own position. In each case each man claimed to have been wronged at the instance of the other.

Since neither man can be relied upon to tell the truth about this matter, it has been necessary to look at other pieces of evidence which confirm in some material way (the claims) of the complainant, since the prosecution carry the burden of proof.

At the Falekoloa the complainant claims that the defendant attacked him with a bush knife. The defendant claims that he was indeed the victim since the complainant attacked him with a wheel brace, narrowly missing the defendant twice and then dropping the brace and being thrown off balance by the defendant’s manoeuvring.

The defendant says that in the light of the attack upon him by the complainant with the wheel brace he became convinced of the need to defend himself against the complainant who had already threatened to shoot him and was acting in a way consistent with that threat. The defendant then went to his vehicle and got the bush knife (Exhibit 6). The defendant says that the complainant then retreated inside the Falekoloa. As he entered the defendant says that the complainant took hold of a shop girl and held her in front of him as protection against the attack of the defendant with the knife.

The unfortunate shop girl was thereby forced in between the two while they played out their struggle for supremacy with each other. Her evidence confirms that the complainant used her as a shield.

I’m satisfied that there had been verbal exchanges and silly driving on both sides during the approach to the Falekoloa and I’m satisfied this was a consequence of the chance encounter.

The complainant and the complainant’s wife both gave evidence that the defendant had slowly driven past the complainants’ ‘api earlier that morning and that the defendant had threatened to return with people from Ha’ateiho and beat him and shoot the complainant. I doubt whether that incident ever occurred. The defendant admitted he knew the location of the ‘api of the complainant, but gave an account of his movements which clearly puts him elsewhere at 0800 — the time the complainant and his wife gave as the time of him threatening them at the complainant’s ‘api.

If the defendant did drive past the complainants ‘api and threaten him, that piece of evidence would simply add weight to the crown submission that the defendant was angry and aggressive and was not acting in self defence when he later produced the bush knife.

I cannot be satisfied from the whole of the evidence that the defendant did so drive to the ‘api and threaten the complainant. If the defendant did so drive there why did the complainant take no action? Why did his wife made no complaint? If the threat was believed by the complainant and his wife to be serious and was a death threat calling for immediate and strong action, then why did they do nothing? Why did they not report the matter to the Police?

I consider the complainant has dressed up what really happened to add weight to his version of events and for some extraordinary reason, his wife has joined him in giving the same evidence perhaps from misplaced loyalty?

I revert to the narrative. I am satisfied that the complainant produced no wheel brace. The shop-girl saw no such thing either before or after the event, what the shop-girl did see, was a man the complainant, very much afraid of what was about to happen to him. A man who was prepared to use her as a shield against the advance of the defendant. I find that the evidence of the shop-girl demonstrates that the defendant was an aggressor.

Somehow the girl was left alone for long enough to make her escape and she did so. The complainant, still retreating, is said to have seized a cardboard box and held it toward the defendant. The defendant would have the court accept that this was an act of aggression on the part of the complainant which justified his use of the bush knife. I do not think so.

What followed was that the defendant wielded the knife deliberately at the complainant and seriously injured him. It is significant that in the main the complainant’s injuries caused by the knife are in the region of his back. The position of the injuries is surely consistent with the crown case that this was not a desperate man forced by circumstances, to defend himself but rather the intentional and unlawful act of the defendant who was acting out of a sense of revenge for the behaviour of the complainant towards him on the 24th May. I so find.

The wounds are depicted in the photographs. I find those wounds were inflicted by the defendant on the complainant at the Falekoloa. The wounds are gross and are consistent with an unjustified assault by the defendant on the complainant. The wounds amount to serious bodily harm. Dr Latu says that they caused serious blood loss. In that sense I find that the wounds are life threatening, the sort of wounds that the Criminal Offences Act characterizes as “grievous”.

The Law

The Criminal Offences Act Cap 18 provides “S.106. Every person who wilfully and without justification causes grievous harm to any person in any manner or by any means whatsoever shall be liable to imprisonment etc.”

‘Grievous Harm’ means:

a) any harm endangering life

b) the destruction or permanent disabling on any external or internal organ member or sense

c) any severe wound

d) any grave permanent disfigurement

The wounds in this case I find to be wounds which fall within the provisions of Subsection (2) (a), (c) and (d). The elements of the offence for the prosecution to prove beyond any reasonable doubt are.

- that the accused, on a day and date certain

-the accused

-on a day and date certain

- intentionally and without any lawful excuse

- acted in a way which was the direct and proximate cause of grievous harm (as defined in s 106 (2) of the Act)

- was not acting in self defence that is that he had no lawful justification or excuse for inflicting the harm.

The prosecution must eliminate any reasonable possibility that the defendant did what he did while acting in his own defence. When considering that requirement in this case, the court must look to see whether the prosecution has proved beyond any reasonable doubt all the specific ingredients required of them to prove the offence. I have no doubt that all that the ingredients of the offence of grievous bodily harm have been proved in this case.

Since the defence raised the justification self defence, I turn now to the considerations surrounding the issue of whether from the whole of the evidence it is reasonably possible that the defendant was acting in self defence in using a weapon against Siosifa. It is both good sense and good law that an accused who injures another with intention of injuring or doing serious bodily harm to that other person is entitled to do so if the accused believed at the time of his action on reasonable grounds that it was necessary in self defence to do what he did.

However it must be said that an accused who does serious bodily harm to another person can hardly believe on reasonable grounds that it is necessary to do so in order to defend himself unless he genuinely believes that there is an imminent threat which calls for that response.

In assessing whether the belief of the accused is based on reasonable grounds, what the court needs to consider is whether the degree of force use by the accused was proportional to the threat offered. A threat is unlikely in many instances to call for strong response unless it causes a reasonable fear on the part of the accused of serious bodily harm to himself.

For example a terrified woman defending herself against a rapist in a dark and lonely place at night, might reasonably believe that it is necessary for her to take strong action to defend herself.

These principles have been derived from the general principle of reasonable self defence as simple and practical guidelines to be borne in mind in relation to situations that over years have become fairly common. It’s those guidelines which derive from general principle to which I now turn.

First, self defence means defence. It does not mean attacking another person. A person who is truely defending himself does not want to fight. He defends himself to avoid attack and to avoid fighting. If two persons voluntarily decide to fight one against another by common design each being and continuing to be an aggressor towards the other each are guilty of an unlawful assault.

Self defence can never be made a cover for aggression. A person who provokes another to attack him and then uses that attack really as an excuse for aggression towards the other party cannot cry self defence. That is a matter of law and common sense.

Thirdly self defence can never been called in aid to justify retaliation. If the threat of the danger has passed then the occasion for self defence is at an end. If the party originally threatened then sets out to get his own back he is not acting in self defence and his acts are unlawful.

Fourthly self defence (in the sense which I set it out), justifies a threatened person in using such measures as he or she genuinely believes on reasonable grounds to be necessary to make the situation safe. If that warrants or that requires the use of force resulting in serious bodily injury to the aggressor in order to prevent aggression from the other, he or she does not act unlawfully. Common sense suggests however, that to justify such an action the aggression must be immediately and patently about to happen.

Fifthly the possibility of retreating or evading the attack or of seeking aid close at hand must be given consideration by the person attacked. There is no fixed rule about that. It simply a question of whether the accused genuinely believed on reasonable grounds that what he did was necessary in self defence at the time or indeed whether the accused genuinely believe that he was in immediate danger.

Finally (and this is only another aspect to the notion of belief based on reasonable grounds) I must say again that the force used in the face of the threat must not be out of proportion to the necessity of the occasion. If the response of an accused person goes beyond what he believes to be reasonably necessary to defend himself or there are no reasonable grounds for that belief on his part that a response is necessary, then the occasion will not have been one which calls for self defence. If a person is frightened by a kick in the behind or a single punch to the face it might normally be difficult to envisage how he could genuinely come to believe on reasonable grounds that it’s necessary to wound with a knife.

Moreover it must be said that if it is the case that an aggressor has already effectively been subdued or is no longer on the attack there would be no right in law to hand out additional punishment or exhibit further aggression towards that person. If the threat of attack has passed or not immediately in evidence and no threat can reasonably be thought to exist, to use force perhaps by way of punishment to pay off an old score or to prevent possible future but not imminent action by another will be simple aggression. In such a case there won’t be a link with necessity of self defence.

Additionally and finally I should point out that if there has been an attack or threat of attack so that self defence is genuinely believed to be necessary common sense recognises that a person can not be expected to weigh with accuracy the exact measure of his necessary defensive action.

If the court is satisfied that the accused was acting in lawful self defence of himself then of course he must be found not guilty of the crime of wounding. The prosecution must prove beyond any reasonable doubt that he was not acting in self defence.

In this case I do not propose to labour the facts. The evidence here shows that on a number of occasions the defendant had an opportunity to leave, to go away, to call aid.

I make it clear that I do not accept that the complainant carried a wheel brace in his hand or at all. I find that the defendant followed the complainant into the Falekoloa with revenge in mind.

There is no legal principle which protects people in Tonga by enabling anyone to shoot first and talk later. I find that the defendant chose to mete out punishment. I have no doubt that the punishment he had in mind for the defendant was connected with a beating the defendant took from the complainant some four or five days before, on 24th May near the flea market, although I am prepared to accept that he thought there was a risk that the complainant may shoot at some time in the future.

I have considered carefully the evidence given by the accused in that context. I have taken into account the whole of the evidence in arriving at the conclusion that Crown has satisfied the Court beyond any reasonable doubt that the defendant was not acting in self defence by doing what he did (the wounds from which are depicted in the photographic exhibit in this Court). I find the accused guilty of the offence of grievous bodily harm.