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

NO.CR.21/2001

BETWEEN:

REX
Prosecution

AND:

RYAN WALKER TAU'AIKA
Accused

BEFORE THE HON CHIEF JUSTICE WARD

Counsel: Ms Sela Tupou for prosecution
Mr Siosifa Tu'utafaiva for accused

Hearing: 8, 9 and 12 November 2001
Judgment: 15 November 2001

JUDGMENT

The accused is charged in an indictment containing, after amendment, three counts; count 1: Grievous bodily harm, contrary to section 106; count 2: Assaulting a government servant, contrary to section 55 and count 3: Bodily harm, contrary to section 107, all of the Criminal Offences Act.

The alleged victim in all the counts, Vai Koaneti, is an enforcement officer in the Customs Service. Much of the prosecution evidence related to events before the involvement of the accused. The relevance to the case against this accused was that it set the scene, as it were, for the later events and, from the defence point of view, suggested a reason for Mr Koaneti to assault the accused, an assault from which the defence assert he was obliged to defend himself.

I do not need to go into those earlier events in detail. It is clear that there was a dispute between the enforcement officer and another Customs officer about the clearance, from Queen Salote Wharf, of a container belonging to a businessman, Sione Filipe, for whom the accused works. Mr Koaneti suspected that there were uncustomed or prohibited goods in the container and refused to allow it to be removed from the wharf until it had been inspected. Rather surprisingly, his colleague took serious objection to this course of action and went to extreme lengths to allow the two containers to go to Mr Filipe's yard to be opened and inspected there instead of on the wharf. Even though Mr Koaneti held the papers required for clearance, the containers were eventually released without them. It was suggested to Mr Koaneti that he was very angry about this. He agreed he was both angry and upset and I accept that was the case.

Once the containers were allowed off the wharf, he and another enforcement officer went to look for the containers and found them at a yard in Sopu. There were two Customs officers already there to inspect the contents once the containers were opened but they were waiting for Mr Filipe to come with his key.

Whilst waiting the officers were sitting near the containers on a concrete slab which was apparently the base of a building previously there. There were also five or six of Mr Filipe's workers waiting to help unload the container. Mr Filipe arrived and opened the container and then drove his car to the place where Mr Koaneti was sitting. He stated that, if Mr Koaneti had not been surrounded by customs officers, he would have assaulted him. He then told him to go back to the wharf and one day he would do something to him. This was said in a threatening manner and a loud voice.

The container was then emptied and the officers started checking the contents. Mr Koaneti was not directly involved in the inspection but stayed sitting on the concrete slab observing and making occasional notes.

He did not know the accused but he told the court he noticed him speaking to Mr Filipe and that he then came to where the Customs officer was sitting.

The prosecution case against the accused is that he stood on Mr Koaneti's left side and asked how he was. Mr Koaneti turned his head and looked upwards at the speaker and replied that he was all right. At that moment he was struck a heavy blow to the left side of his head. It was of sufficient force to knock him off the slab and he fell into a pit or depression much lower than the ground around the rest of the slab. He landed face down and the accused rained a number of blows on him to his face, head and back. They were very heavy blows and he told the court he was able to do nothing to stop them. He estimated the attack to have continued up to eight minutes. I cannot accept that is accurate but I accept that he felt it continued for a very long time. When it stopped he saw his other officers there. He was able only to stagger and crawl to his car and drive off. He noticed that his right shoe was off and picked it up before he went to his car.

He first went to the police station but they suggested he should go to hospital and he was seen there by a doctor. The injuries described by the doctor were very unpleasant but none was particularly serious. There was a nasty cut and broad area of skin loss to the side of the left eye, there was haematoma to the left eye and cheek, tenderness to the jaws and haematoma and tender swellings on three areas of the back of the head. All those amount to bodily harm but could not be considered sufficient to amount to grievous harm. The count charging that relates to an injury to Mr Koaneti's right foot.

He is a diabetic and he was not conscious of any pain to this foot after the assault. However, two days later, after he had been in bed for that time, he started noticing pain in his right foot. The foot became swollen and discoloured and, some time later, after serious sepsis had set in, was considered sufficiently life threatening to require amputation of much of the foot. The prosecution case is that this was the result of the attack by the accused.

The other enforcement officer was by the container watching the unloading when he heard a female voice shout, "Walker, stop it!". He looked across to the concrete slab and saw the accused punching the complainant. He was standing over Mr Koaneti who was kneeling with his head on the ground whilst he was being attacked. The customs officers and others ran across to help and the accused ran away at their approach.

Another customs officer also described hearing the shout to the accused to stop and saw him on the ground with the accused standing over him punching him on the face, mouth and upper part of his body.

The accused was seen by the police a few days later. He explained that he had heard Mr Filipe complain to Mr Koaneti. The accused had later gone across to speak to the complainant and asked why he had not allowed the release of the container. He said they were fed up with waiting. At that, the complainant grabbed the accused by his shirtfront, pulled the accused to him and tried to punch him. He missed and the accused then punched him. The complainant tried to pick up a rock and so the accused had to punch him again at which he then tried to grab a bottle from the ground again causing the accused to have to hit him.

In court, the accused elected not to give evidence but he called one witness who was also there that day. He worked with the company which owned the containers and was there waiting for the container to be emptied in order to check on a report that the container had a leak in the top. He saw the accused go and sit on the right side of the complainant. Suddenly he saw Mr Koaneti grab the accused's t-shirt and try to punch him. He saw the accused then punch him so he fell down on the platform. He described how the complainant tried to pick up something from the platform when he was punched and again fell to the ground. He tried to get up and was again punched to the ground.

As in all criminal charges, the burden of proving every aspect of the charge lies on the prosecution and they must be proved beyond reasonable doubt. The defendant does not have to prove anything. I also bear in mind that the accused is not obliged to give evidence and the court should read nothing significant into his choice to remain silent.

I deal first with the events at Sopu. I accept that the complainant was upset about the incident at the wharf but I am satisfied beyond any doubt that, at Sopu, he was simply doing his duty and watching the unloading of the container. The evidence of how the incident started depends on the view I take of the evidence of the complainant himself and of that defence witness. I also note in the accused's favour that he gave an explanation to the police consistent with that of his witness only a few days after the incident.

I found the complainant a credible and impressive witness. I am satisfied beyond reasonable doubt that he gave a truthful account of the start of the attack. I do not accept he did start, or would have been likely to consider starting, a violent attack in the circumstances in which he then was. I equally am satisfied that the defence witness was lying about that part of the events on that day. I have absolutely no doubt that he was tailoring his evidence to suit the case of the accused.

I am satisfied beyond any doubt this was an unprovoked attack on the customs officer by the accused and I am equally satisfied the complainant made no attempt to pick up anything after the first blow.

Even if I had found that the incident may have started in the way described by the accused to the police, I am satisfied that the remainder of the incident was not self-defence. Any man is entitled to use reasonable force to defend himself but he is not entitled to continue to take the attack to his erstwhile assailant and I am satisfied that the blows struck by the accused were far in excess of anything needed for self defence in the circumstances at that time. It has not been established on the evidence who was the female who shouted to the accused to stop but I have no doubt that she would not have needed to shout such a comment if the accused had simply been defending himself.

However, as I have stated, I do not accept the complainant started this incident. I have no doubt at all that it started in the manner described by Mr Koaneti and that it continued for some time. I am satisfied this was a violent and forceful attack that never allowed the victim time even to defend himself and which was continued whilst he lay or knelt on the ground. It stopped only when the accused saw that he was likely to be outnumbered by those who ran to the aid of his victim.

There has been no challenge to the fact that the injuries seen by the doctor at Vaiola that same day were the result of this incident. They were wounds which undoubtedly amount to bodily harm in the terms of section 107. They were caused by the accused without any justification. He is convicted of causing bodily harm in count 3.

The evidence was that the officer was in full uniform. That was admitted by the accused to the police and not challenged in court. He agreed he realised Mr Koaneti was a customs officer but did not realise he was a government servant. It is hard to believe that anyone in Tonga does not realise a customs officer is a government servant but the prosecution does not have to prove the actual knowledge of that by the accused. I am satisfied on the evidence that he was a government servant and the accused is convicted of assaulting a government servant in count 2.

The grievous harm charge causes me greater difficulty. The medical evidence was that a diabetic is not only very susceptible to infection of even minor wounds but the nervous system may be affected to the extent that such a person may be unaware he has been injured. I accept that, in such a case, the victim may not realise he has been injured for some time and then only because of the discomfort of a resultant infection. The prosecution suggests that is exactly what happened here. The complainant spoke of finding his right shoe had come off in the attack indicating that there had been force to that foot. It is of note that, whilst each of the other customs officer who gave evidence described how they noticed their colleague picking up papers after the attack, neither saw him pick up his shoe. Thus the only evidence of force that might have injured his foot is from the victim himself and that is based entirely on the fact that his shoe had come off. I am satisfied that, whilst the victim would have remembered such an incident, the others may well have failed to notice. However, the difficulty does not end there.

The doctor who performed the operation to amputate Mr Koaneti's foot gave evidence. I am bound to say that his evidence was far from satisfactory. He produced a report that had needed to be corrected because the reference throughout was to the left foot. Although the report stated that the complainant was first admitted to hospital on 19 January the doctor told the court that he first saw the complainant in February. He later changed that and said he did not recall when he first saw the patient. However, by the time he saw him, the patient, had already undergone one or two operations to try and get rid of the infection. He was not able to tell what those entailed beyond the statement that the foot had been opened in the process. He was unable to give any indication of when the amputation was performed.

In cross examination, he agreed that such an infection might be suffered by a diabetic without any injury and that he was unable to give any indication of the cause of this one or the nature of any injury that may have caused it.

Having accepted, as I do, the loss of this man's right shoe in the attack and his evidence that the pain started two days later, there is clearly a suspicion that the assault lead to the infection and there is no doubt that the infection was the cause of the amputation. However, in a criminal case suspicion is not enough. I cannot be satisfied beyond reasonable doubt on the evidence I have heard that the foot was actually injured at that time, that it was not injured at any subsequent time and that the infection started as a result of that injury or, indeed, from any injury.

In those circumstances, the accused is acquitted of causing grievous harm on count 1.

NUKU'ALOFA: 15 November 2001

CHIEF JUSTICE