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

AM 6 of 2009

BETWEEN:

1. RAYMOND MANAKOFUA
2. 'AKANESI MANAKOFUA
Appellants

AND:

POLICE
Respondent

BEFORE THE HON. JUSTICE ANDREW

Counsel: Mr Pouono for the Appellants and Ms Mafi for the Respondent.

Date of hearing: 2 June, 2009
Date of judgment: 30 June, 2009

JUDGMENT

The appellants are appealing against their conviction and sentence in the Magistrates Court on the 13th February 2009. The appellants were convicted of the offence of common assault contrary to s.112(a) of the Criminal Offences Act.

The respective sentences were as follows:

(1) RAYMOND MANAKOFUA – sentenced to pay $300 to the complainant within one month, or one month imprisonment.

(2) 'AKANESI MANAKOFUA – charged with 2 counts of assault, and sentenced to payment of $50 on each count.

I understand that only the first appellant is appealing against sentence.

APPEAL AGAINST CONVICTION

The grounds of appeal are:

(i) His worship failed to consider the defence of property as raised by the defendant in his decision and even if he did consider, he failed to give due weight to this ground of defence.

(ii) The prosecution failed to prove beyond reasonable doubt that all the allegations and particulars in summons number 25/09.

This case concerned some dispute over property or some items in a house. As I understand it, the complainant and the appellants had resided in a house. The complainant received a notice to vacate and she did so. Then the complainant's younger sister went back to the house to collect part of a shower which she claimed was theirs. There also seems to have been an argument about a Bill. A shouting match ensued, then the complainant and others came back to the house and it is said that she complained to the appellants about having shouted at her sister. The complainant was then assaulted. It appears that the first appellant (a male) punched the complaint. She was then kicked whilst she was on the ground. The second appellant (the wife of the 1st appellant) then joined in the assault.

The appellants argue that they were acting in defence of their property. Further that the complainant had been to the police and that she should have waited for the police to come rather than coming herself to the house and causing trouble by shouting at them. That behaviour, it is said, will inevitably cause an assault. The appellants, again it is said, acted naturally by responding to the shouts of the complainant by assaulting her.

I cannot accept those submissions. The defence of property does not arise on these facts. This was a male who punched and kicked a woman who maybe was shouting at him over what was really some domestic type dispute. That does not reasonably raise a defence of protection of property. Nor can it justify being punched and kicked. In any event the Magistrate heard this evidence and did not accept that defence. I think that was correct and in any event he was the one who heard the evidence and it was within his powers to reach that conclusion which is not shown to be in error. See for example GILES v POLICE [1999] TOSC 24.

I would dismiss the appeal against conviction.

SENTENCE

The 1st appellant received a fine of $300.

I do not consider this fine to be excessive. The appellant (a male) punched and kicked the complainant when she was on the ground. She received bruising to the face. Two people were assaulting her and she must have been defenceless in these circumstances. The appellant could have received a term of imprisonment as he was a first offender but that does not make the punishment included (given the nature of the assault and the circumstances in how it was inflicted) to be excessive.

I dismiss the appeal against sentence.

The appeal is dismissed.

The findings of the Magistrates Court are confirmed in all respects.

NUKU'ALOFA: 30 June 2009
JUDGE