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

CASE NO. CR. 416/2003

BETWEEN:

REX
Prosecution

AND:

SAI ONE KULITAPA
Accused

BEFORE THE HON MR JUSTICE McELREA

Counsel: Mr Kefu for Prosecution
Ms Mangisi for the Accused

Dates of trial: 30 September and 1 October 2004
Date of judgment: 8 October 2004

JUDGMENT

The charges

The accused in this case is charged with manslaughter, and in the alternative bodily harm or common assault. The particulars of the manslaughter count state that accused caused the death of Senita Pohahau (hereafter "the deceased") when he punched him in the face with his left fist causing a cut to his upper left lip and a bruise on his nose, and he lost consciousness and fell to the ground, and this caused him to inhale blood, which made his breathing difficult, and thus caused his death. It is not alleged that the accused intended to cause the death of the deceased.

The brief facts

On the day in question, 13 September 2003, at ma'ufanga, the accused and his friends were drinking under a tree near the road. The deceased, and his friends drove up in a van. They saw the party under the tree and gone out to join them. The deceased had had a lot to drink and was very intoxicated. He was immediately very aggressive. However it is not said that he was staggering. It is not clear that the accused would have known he was very drunk. When the accused reached the group under the tree, he was offered a drink, but even so, he challenged to the accused to a fight and asked him whether he wanted to have his jaw broken. He also asked the accused whether he wanted to fight one of his (the deceased's) friends. The accused got to his feet as the deceased ca e towards them. The two men appear to have been of the same or similar height - about 180 centimetres - but the deceased was estimated to weigh 130 kilograms and would have been considerably heavier than the accused. He was also heavily tattooed and (as appears from the photographs) had a warrior-type haircut. The deceased swung a punch at and the accused, but the punch fell short of its target by so e 30 to 40 centimetres.

Although the particulars of count one referred to only one punch, it is clear on the evidence that the accused swung two punches at the deceased in quick succession, one with each fist. I prefer the evidence of the second eyewitness who said that the deceased immediately fell backwards, twisting his body to the side as he fell, and his head hit the ground. (The second eyewitness, Tevita Finau, had had much less to drink than the first eyewitness, Poto toTu'ulau, who thought that the deceased had fallen flat on his face.) The accused, then kicked the side of the deceased's body, but there is no evidence that this kick caused any harm. After a short scuffle between the accused and one of the deceased's friends, the accused's mother (who was nearby) told the group and to hurry and get the deceased to the hospital. The accused at this point was unconscious, and there was blood coming from his mouth and nose. He was lifted by his friends into their vehicle, and taken to the hospital after a brief call at his own ho e. He was found to be dead on arrival at the hospital. Is unlikely that the short break in the journey (to visit the deceased's home) made any difference to the outcome.

Cause of death

The doctor who performed at the post-mortem concluded that the deceased had died from asphyxiation due to bloodstained fluid in his lungs. It is very likely that the punches delivered by the accused caused the bleeding and were a substantial cause of the accused's death. There were, however other possible contributing causes - e.g. his intoxication (which may have inhibited the reflex actions that might have cleared the fluid from his breathing passages), and positional asphyxiation (for example, if his head was slumped forward for any period of time after he hit the ground or when he was being transported to hospital).

Elements of manslaughter

To commit manslaughter is (inter alia) to cause the death of another person by an unlawful act. Causation has been proved beyond reasonable doubt. The unlawful act is said to be the punch or punches delivered by the accused. They have also been proved beyond reasonable doubt, but whether they are unlawful depends on the whether the accused acted in self defence. The Crown has to prove beyond reasonable doubt that self defence does not apply in this case.

Self defence

For the Crown, Mr Kefu submitted that this was not a case of self defence because the accused's response was disproportionate to the threat which he faced. Mr Kefu argued that the accused was obviously drunk and was unable to land a punch on the accused. He said the accused could have stepped away from the fight rather than joining it.

For the defence, Ms Mangisi argued that the accused would have been fearful when faced with a much bigger person taking an aggressive stance towards him, and that he acted reflexively when the accused tried to punch him. I am not sure that a reflex action on the part of an accused is necessarily a good defence. For self defence to apply, an accused must use no more force than is reasonable (judged objectively) in the circumstances as the accused believed them to be. Or, as it was put by Ford J of this Court only last week, an accused  ay not "retaliate with force that is clearly excessive given what he believed was happening at the time" – see R v Makafilia (Nuku'alofa, CR70/2002, 1 October 2004, at p 10.) This is an application of what was said by the Privy Council in Beckford v R [1987] 3 All ER 425 at 432:

"... the test to be applied for self defence was that a person could use such force in defence of himself or another as was reasonable in the circumstances as he honestly believed them to be".

Finding on self defence

In this case, the Crown has not established beyond reasonable doubt that the accused acted other than in self defence. There is no doubt that the deceased acted as the aggressor. He was looking for a fight. He taunted the accused with his threat to break his jaw. He tried to punch the accused, but missed. There was no indication that he would stop at one punch. Mr Kefu submitted that the fact that the deceased reeled back when punched, showed that the punches were very heavy. That is true, but by the same token the accused was dealing with a very heavy man, and lightweight punches would not be expected to make much impact on him. The accused was perfectly justified in responding so as to protect himself from what seemed to be an imminent attack. I do not consider that two punches to the jaw were an excessive use of force in the circumstances.

The accused is accordingly found Not Guilty of manslaughter and also of the alternative charges, as self defence is a good defence to all three charges.

Mens rea in manslaughter cases involving self defence.

Although it is not strictly speaking necessary to do so in view of this finding on self defence, I should go on to deal with the only point of any legal difficulty which arose from this hearing, namely the subject of mens rea. It was Mr Kefu's submission at the trial that the mens rea element for manslaughter requires that the accused know that his action was unlawful. When the alleged unlawful action is a series of punches delivered purportedly in self defence, the issue then must be whether the accused must realise that his actions do not constitute self defence, i.e. are not lawful. I asked for submissions from counsel on this point. I felt that perhaps it was not knowledge but intention that was the mental element of manslaughter: i.e. did the accused act intentionally in punching the deceased? Because Crown counsel has been so good as to file submissions on the point I owe him the courtesy of a response to them.

The position is not as simple as I initially thought. On the one hand, in DPP v Newbury [1976] 2 All ER 365 at 367, Lord Lawson put the legal position in a way that stressed intention. He said the law was

(a) that an accused is guilty of manslaughter if it is proved that he intentionally did an act which was unlawful and dangerous and that that act inadvertently caused death, and

(b) that it is unnecessary to prove that the accused knew that the act was unlawful or dangerous. This is one of the reasons why cases of manslaughter vary so infinitely in their gravity. They may amount to little more than pure inadvertence, and sometimes to little less than murder.

That case, however, does not deal with self defence. I am obliged to Mr Kefu for his helpful written submissions prepared whilst he has been engaged in a subsequent trial. Under the heading "mens rea where self defence is relied upon" Mr Kefu provides some very helpful authorities.

In R v Williams [1987] 3 All ER 411 Lord Lane CJ said at 414:

The mental element necessary to constitute guilt is the intent to apply unlawful force to the victim. We do not believe that the mental element can be substantiated by simply showing an intent to apply force and no more.

And at page 415:

 ....In a case of self defence, … if the jury come to the conclusion that the defendant believed, or may have believed, that he was being attacked ... and that force was necessary to protect himself.... then the prosecution have not proved the case.

However in R v Scarlett [1993] 4 All ER 629 Beldam LJ in giving the judgment of the Court of Appeal said at p 636:

...provided he believed the circumstances called for the degree of force used, he is not to be convicted even if his belief was unreasonable.

Admittedly I have selected only portions of the judgments Mr Kefu has cited, but I believe they are the relevant portions. I therefore must disagree with the way he summarises the test for mens rea with self defence. He submits that the question is:

(a) what are the circumstances as believed by the accused (the subjective test);

(b) based on those circumstances as understood by the accused, whether the degree of force used was justified.

That proposition is precisely the test for self defence. It does not deal with the issue of mens rea in manslaughter where self defence is raised, and it would seem to be contradicted by the passages I have cited from Williams and from Scarlett.

The only comment I would add is that I prefer the way the matter is expressed in Scarlett to the way it is expressed in Williams. If one took literally the above extract from Williams, the accused would be not guilty even if he used far  ore force than he knew was necessary to protect hi self. This cannot be what was meant by the Court of Appeal on that occasion. 

Applying therefore what was said in Scarlett, the question is whether the accused believed that the circumstances called for the degree of force which he used. Understood in this way, what Mr Kefu submitted at trial is quite correct - the mens rea element for manslaughter requires that the accused knows that his action is unlawful, i.e. that the force he is using is excessive. In the end, it does co e down to a question of knowledge rather than one of intention, and my initial view was wrong.

My conclusion is that the Crown has failed to prove beyond reasonable doubt that the accused knew his action was unlawful, i.e. that he was using excessive force. For this alternative reason the verdict must be one of Not Guilty.

In case it should be thought that this approach to the matter removes the objective element from the dual subjective/objective test for self defence, it must be remembered that what is addressed here is not self defence as such, but the mens rea element in manslaughter where the Crown relies on an unlawful act.

NUKU’ALOFA: 8 October 2004

JUDGE