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

CR 114/2008

R

v

Anau

Shuster J 
12 September 2008 

Criminal law – bodily harm – self-defence – not reasonable reaction - convicted 
Criminal procedure – no case to answer submission – guiding observations made by court  

The accused was charged with one count of bodily harm contrary to section 107(1) and (2)(a) of the Criminal Offences Act (Cap 18).  It was alleged that on 28 September 2007 he wilfully and without lawful justification caused harm to the complainant by using a slingshot to fire a rock injuring him on his forehead.  The defendant's explanation was that he carried the slingshot on the night in question in order to defend himself against roaming dogs, in particular the complainant's dogs.  He alleged that he acted in self-defence whilst he was involved in a fist fight with the complainant.  The defence made a submission of no case to answer and observations were made about the making of such a submission and also the questioning of witnesses on prior inconsistent statements. 

Held:

1. If a defendant alleged self-defence then any reaction he took must be reasonable.  The question to be asked was "was it reasonable for the accused to fire a slingshot with a rock/stone at close range towards another human being while he was involved in a fist fight".  The action of the accused in firing the slingshot at very close range was out of all proportion to any action on the part of the complainant and was an inherently dangerous and wilful act.  The accused was not acting in self-defence at the time.  

2. The court accepted that the injury suffered by the complainant amounted to actual bodily harm caused by the actions of the accused.  The accused was convicted accordingly. 

Cases considered: 
Evans v Hughes 56 Cr App R 813 
Fagan v the Metropolitan Police Commissioner (1968) 1 QB 439 
Malnik v DPP (1989) Crim LR 451 
R v Aziz and others [1995] 2 Cr App R 478 
R v Vye, Wise and Stephenson 97 Cr App R 134 

Statutes considered: 
Criminal Offences Act (Cap 18) 
Evidence Act (Cap 15) 40 
Prevention of Crime Act 1953 (UK) 

Counsel for the Crown : Miss Finau 
Counsel for the accused : Mr Kaufusi 

Judgment

THE DEFENDANT 

The accused is charged on an Indictment filed in the Supreme Court on 20th June 2008. He is charged with an offence alleging Bodily Harm. He was arraigned on the 20th June 2008 and pleaded Not Guilty to a single count indictment as is legal right. He elected to be tried by Judge sitting alone. 

Because of the non-availability of defence counsel Mr. Kaufusi (he said) until the end of this year this matter had to be scheduled for trial on a Saturday-out of court hours the substantive trial of this matter took place on Saturday 23td August 2008. 

• Count One 

Bodily Harm contrary to section 107(1) and 2(a) of the Criminal Offences Act (Cap 18). Particulars of which are:- VILIAMI KAPENI 'ANAU on or about the 28th September 2007 at Havelu you did wilfully and without lawful justification cause harm to SAIA VEA when you use a sling shot to fire a rock at Sal Vea — injuring his forehead. 

Essential elements of the offence  

Section 107 BODILY HARM

(1) Every person who wilfully and without lawful justification causes harm to any person in any manner or by any means whatsoever shall be liable to imprisonment for any period not exceeding 5 years. 

(2) "Harm" for the purposes of this section means – 

(a) Any injury which seriously or permanently injures health or is likely so to injure health; or 

(b) Any injury involving serious damage to any external or internal organ, member or sense short of permanent disablement; or

(c) Any wound which is not severe; or 

(d) Any permanent disfigurement which is not a serious nature. 

Leading cases and policy 

In considering this my judgment I have considered and applied the following cases widely known throughout the Commonwealth. These cases are routinely applied in common law jurisdictions for offences /allegations involving cases such as this. They can be applied in Tonga. 

The term assault is frequently used to include both an assault, and a battery. Strictly speaking an assault is an independent offence and should be treated as such. See: - Fagan v the Metropolitan Police Commissioner (1968) 1 QB 439. An assault is any act- and not a mere omission to act, by which the person intentionally- or recklessly causes another person to apprehend immediate unlawful violence. So an assault involves a hostile intent. It is trite law the use of a weapon to carry out an assault- is an aggravating feature-to the offence. A sling shot can be defined as a weapon - which is made or adapted for use as a weapon dependent upon the circumstances of the case- particularly -if it is subsequently used to injure another person. (UK- Prevention of Crime Act 1953). It is trite law-a wound consists of a break in both the dermis and the epidermis- layers of the skin.

Self defence- the carrying of a weapon 

In Evans v Hughes 56 Cr App R 813 DC-Lord Widgery England's Lord Chief Justice- made the following statement of general principle:- 

"... it may be a reasonable exercise for the carrying of an offensive weapon that the carrier is in anticipation of imminent attack, and is carrying it for his own personal protection but what is abundantly clear to my mind is the Act never intended to sanction the permanent or constant carrying of an offensive weapon merely because of some constant or enduring supposed or actual threat or danger to the carrier."

In Malnik v DPP (1989) Crim LR 451 DC it was said 

"... if the defendant arms himself to repel unlawful violence which he himself is about to create (e.g.) if he visited someone whom he knows is likely to greet him with violence, he does not establish a reasonable excuse. N.B the burden of proof is on the balance of probabilities."  

Modern law says I must consider and apply to every case "a defendant's good character directive" that is to say good character cannot of itself provide a defence to a criminal charge, but it is evidence which I should take into account when I come to consider my verdict. See R v Vye, Wise and Stephenson 97 Cr App R 134: R v Aziz and others [1995] 2 Cr App R 478. 

The burden and standard of proof 

Certification: As this is a trial before a Judge sitting alone; I certify I have directed myself in accordance with the Law on the Burden and Standard of Proof in a criminal case. I have directed myself of the need to consider the evidence in respect of the charge and for the defendant separately. Where appropriate I have given the Accused the benefit of any doubt. The prosecution brings this case; they must prove the case beyond any reasonable doubt so that am sure he committed the offences. The defendant does not have to prove anything; because he is innocent until he is proven guilty.

Voluntary caution statement 

I am also required under the law to consider a defendants voluntary caution statement[s] and also his charge statement as to whether they are voluntary; or not, in the true sense of the word. 

• I find as a fact upon hearing the evidence that the confession Exhibit 1, is voluntary in the true sense of the word; 

• As is the charge statement Exhibit 2. 

• Further these documents were never challenged by the defence.

The prosecution case 

• The prosecution alleges-on Friday 28 September 2007 the defendant whilst walking past the complainant's house; either threw, or fired a rock/stone at the home of the complainant. 

• The rock/stone hit the side of the complainant's house the complainant went outside to investigate the sound but could see nothing-so he returned back inside his home. 

• A few moments later the complainant heard another sound, so he went outside again.

• This time the complainant called out and the defendant answered. 

• The complainant says the defendant approached him and pushed him in the chest with an eske which he was carrying with him. 

• The complainant admitted he then punched the defendant- and a fight ensued. 

• The Crown says at a point in time the defendant took out from his pocket and deliberately fired a sling shot- towards the complainant-which struck his body and caused an injury (a wound) to the complainant's forehead. 

• As a result of the firing of the slingshot- the complainant suffered injury to his forehead causing a wound — this was an unlawful and hostile act and it was not an accident. 

• The complainant received treatment at the hospital later that same day. 

• The defendant was arrested and interviewed by the police his VCS was recorded by the police on 22-02-2008 when the defendant went back to the CID office to enquire about the progress-or-rather the lack of progress in this particular case in his VCS the defendant claims self-defence. 

Prosecution witnesses 

PW1 is the complainant Sai Vea. He testified he was at home on the night in question watching television, when he heard the sound of something hitting the side of his house. He went outside to investigate, but could not see anything. A few moments later he heard something else so he went back outside. He said he shouted out. His shout was answered by the defendant. The complainant states he was pushed by the defendant (who is much bigger than the complainant) with an eske which the defendant was carrying. As a result of being pushed the complainant readily admits to punching the defendant-but only after he says he was pushed. A fight ensued. At a point in time the complainant says the defendant produced a sling shot from his pocket and fired it directly towards the complainant. Something struck the complainant on the head-and he described how he fell to the ground falling -crumpling up in pain. The complainant's wife gave evidence in support of her husband. She described during cross-examination- how she was frightened and afraid when the sling shot was produced and fired- primarily she says because she was pregnant. The third and fourth witnesses were police officer who interviewed and corroborated the authenticity of the VCS —and Charge Statements-which were not challenged and were tendered in evidence by consent.

Submission of no case to answer 

After hearing the prosecution case, counsel for the defendant made what he called a submission of no case to answer. Mr. Kaufusi was in my view ill prepared with his no case submission. It was evident to me counsel did not know how to properly present a submission of no case to answer.- for example-he did not know when he was asked which limb he was making his submission on, or-even how many limbs there were in a submission of no case to answer. As a result of his ill prepared submission I have decided to try to assist him- in this my judgment-and I have set out the correct procedure to follow-for a submission of no case to answer in order to try to assist him-in the future. 

SUBMISSION OF NO CASE 

The defence submit that the prosecution has failed to prove an essential element of the offence alleged - and that there is no case to answer. 

The defence argue that no evidence has been adduced to prove [here specify the element(s)] as required for the prosecution to succeed. 

THIS IS THE FIRST LIMB OF A SUBMISSION OF NO CASE TO ANSWER 

[Counsel must then summarise the defence submissions]

OR 

The defence asks the court to find that the prosecution case has been so undermined that no reasonable tribunal could convict upon the evidence as presented. 

They submit that the evidence [of key witness 'A'] is so manifestly unreliable that it cannot be relied upon. 

[Then refer to reasons provided in submissions, e.g. key witness discredited under cross-examination, witnesses providing differing versions of the event or events, contradictory evidence, and poor identification evidence].

THIS IS THE SECOND LIMB OF A SUBMISSION OF NO CASE TO ANSWER 

The prosecution, in response, argue that [summarise prosecution submissions]. 

If the court finds that no reasonable tribunal could convict upon the evidence-then the court must dismiss the case against the defendant(s)." 

Whilst it is likely- that a 'submission of no case to answer' will usually be made by the defence; the court may raise the issue of its own volition, and also act of its own motion; and should always do so; wherever a defendant is unrepresented. Having heard the prosecution case and having considering Mr Kaufusi and his "submission" the court found there was a case to answer, and the trial continued. In accordance with established tradition and case law no written reasons are required, or are ever given by a court for its reasons to find there- is a case to answer. 

Defence case 

The defendant alleges self-defence. The law says if, a defendant alleges self defence then any reaction he takes must be reasonable. The question to be asked in this trial is: 

- Was it reasonable for the defendant to fire a sling shot- with a rock/stone-at close range towards another human being whilst he was involved in a fist fight? A reasonable man judging this defendant might think not. The defendant's action-in firing a stone/rock from a sling shot at point blank range towards another man- might be considered by a reasonable member of the public- to be an inherently dangerous act. The defendant explained in court: - he carried the sling shot that night in order to defend himself- against roaming dogs in particular the complainants dogs. 

He told the court he picked up the sling shot at home and put it in his pocket: when he could not find a small walking stick, which he usually carried whenever he went past the complainant's house. Would a reasonable man reject the defendant's assertion he had to arm himself with this type of weapon as against roaming dogs? The facts-and the defendant's own admission contained in his VCS proved the defendant fired his slingshot at a human being-and not at a dog — and at very close range- because he admits this in his VCS. A reasonable man might also think the accused is not a youth - he is mature and is clearly an educated man, so ought he to have known better- (in this situation) - than to use a weapon? The defendant as is his right under the law denies the offence alleged in the indictment and put the prosecution to strict proof. He gave his explanation of his account to the police and to this court in evidence after his counsel's submission of no case to answer failed. The defendant did not call any witnesses but he tendered eight photographs of injuries to himself- which are in evidence-and-which were not challenged by the Crown. 

Prior inconsistent statements - Mr Kaufusi and his approach

It concerned me during this trial that-Mr Kaufusi during cross-examination of the prosecution witnesses-he constantly sought to question each of the witnesses about the contents of their police witness statements-statements which were not in evidence- before the court. Statements which had probably been recorded by the police months before. Statements which neither defence counsel or the prosecution had showed to any of the witnesses. Yet- Mr Kaufusi constantly and repetitively questioned each and every witness about what- he- that is Mr Kaufusi said the witness had recorded in a police statement possibly months before. If the court were to accept or adopt Mr Kaufusi- method or his approach- if there were to be any inconsistencies between the contents of what was-or may-have been contained in police statement- and-between what a witness was testifying in court on oath- then how on earth would the court ever know? Does the court have to believe or accept what Mr Kaufusi says? Mr Kaufusi is not entitled to give evidence from the bar table. 

SOLUTION- Mr Kaufusi could have simply asked the court for leave to show the witness his / her witness statement:- then ask for permission to allow the witness time to refresh his/her memory:- then cross-examine on possible inconsistencies between sworn evidence and the police statement- THIS is the procedure used in other courts and jurisdictions- then Mr Kaufusi can safely leave it to the court to decide. I have to point out to Mr Kaufusi-with all his experience- his method of cross-examining a witness on prior inconstant statement is bizarre-I will go on to say-he wasted a considerable amount of the courts time- with very basic court procedure he did not listen to me when I asked him what he was trying to achieve by his method- Mr Kaufusi will have to change his method- and get it right -if he seeks to appear before me (and my brother judges) and he attempts to question a witness on the contents of police witness statements-which are not in evidence before the court. To sum up-and recap it is trite law- it is the evidence given in open court-and on oath which goes to prove or disprove whether or not a court finds the guilt or innocence of accused person-NOT-the contents of police witness statements-which have never been produced as evidence before the court-read section 143 of the Evidence Act.  

Inferences and speculation

A court is not entitled to speculate, but it may draw inferences. There may be strong circumstantial evidence in which a court may say, when taken together will lead to the sure conclusion it was the defendant who committed the crimes. 

Circumstantial evidence can be powerful evidence, but it is equally important to examine it with care and to 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. Finally a court should be careful to distinguish between arriving at conclusions based upon reliable circumstantial evidence and mere speculation. Speculation in a case amounts to no more than guessing; or making up theories without good evidence to support them, neither the prosecution, the defence nor should I do that. 

Conclusion 

In this case the defence submits the prosecution has failed to prove their case beyond reasonable doubt, and they ask me to acquit the accused. I do not intend to rehearse the prosecution evidence in detail or the prosecutions closing, speech because in a case such as this, it is a question of whom do I believe, on the evidence placed before me. Further this was a short trial-with relatively few issues. As I have said before it is the evidence given in open court-and on oath which goes to prove whether or not I find the guilt or innocence of this particular defendant.

Accordingly:- 

Assessing the evidence given in this trial as a whole  

• I believe PW1 when he told me he was assaulted by the defendant and I believe him when he told me he was scared of him. 

• The defendant is after all a much bigger man than the complainant 

• I also believe PW3-the wife of the complainant - who whilst being cross examined by defence counsel-told me she was afraid of the defendant; particularly when he produced his sling shot and aimed it. 

• PW3 told the court during cross examination she was pregnant at the time of the offence-and she was afraid of being hit in the stomach 

• I reject the defendants assertion he was acting in self defence when he fired the sling shot at the complainant 

• On the evidence before me-I find as a fact the defendant deliberately aimed a weapon and- that he fired it at the complainant — that was a hostile and also a willful act 

• So-the defendant's use of a weapon-his sling shot firing at very close range towards another person was out of all proportions-and in my view was an inherently dangerous and a wilful act. 

• I find as a fact the defendant was not acting in self defence-on the facts of this case-at the time he fired his weapon during the course of a fist fight 

• I find as a fact the injury to the complainant was caused by a weapon fired by the defendant-which caused a wound and thus the complainant suffered actual bodily harm

• I also say the defendant was prone to exaggeration-whereas the two prosecution witnesses-the complainant PW1 and his wife PW3 were not- and I accept their evidence. 

In my view the prosecution has proved its case beyond reasonable doubt so that I am sure the defendant committed the act with which he is charged. Accordingly I convict the defendant of the crime of Assault Causing Bodily Harm charged in this indictment.