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

CR 119 & 121 of 2017

BETWEEN:				R E X				  - Prosecution

AND:                     1. HALAHONE TALIAI		
	2. SIONE VEA			  - Defendants

Before The Hon. JUSTICE CATO

Counsel:	Mr J. Lutui & Ms L. Fakatou for the Prosecution
Mr C. Edwards SC for the Defendants

R U L I N G

VEA and TALIAI

1.	As a consequence of the Crown presenting two indictments with which Mr Edwards took issue and I expressed doubt about, I adjourned the second day of the trial before arraignment to consider the indictment and make this ruling. As a consequence of a desire to commence the trial and not keep the Jury waiting longer, they having been empanelled, my consideration has been shortened. 

2.	However, I have considered the case as I understand the Crown intends to proceed. I understand the Crown accepts the person responsible for the victim’s death by machete wounds is the accused, Mr Taliai, who had a machete. During the course of what I understand will be evidence of a concerted attack, the accused, Mr Vea, used a hammer to also effect injury but not any fatal injury. 

	TALIAI

3.	It is accepted as I have said by the Crown that Taliai caused the injuries that lead to the death of the victim. I understand the medical evidence supports this view. 

4.	The Crown alleges against Mr Taliai four alternative counts of murder; 

1.	The first under section 87(1) (a) that is intentional killing;

2.	The second under section 87(1) (a) which provides that if the offender intended to cause to the person killed any bodily injury  which the offender knew was likely to cause death and was reckless whether death ensued or not;

3.	Murder contrary to section 87(1) (a); 

4.	Murder contrary to sections 87 (1) (b). 

5.	Counts 3 and 4 in my view are unnecessary, and should not be proceeded with. I do not see any reason for a second count of murder either. As framed the first count of murder encapsulates the essence of the case which charges both accused in a joint enterprise or a  concerted attack which I understand the case to concern. 

6.	The Jury may convict Mr Talia of murder in the first count if they find that he had either of the two murderous intents and that he caused the death (that is the actus of the crime of murder). The Jury do not have to be unanimous on whether 87(1) (a) or 1(b) is established. Some may choose the route of (a) and others (b). They must unanimously, however, agree that murder for either reason has been committed. The danger of the present indictment of multiple murder counts is that it is confusing and may cause the Jury difficulty in arriving at unanimous verdicts which would be required under the provisions set out that is under section 87(1) (a) or 1 (b). If they cannot agree on murder then the verdict in these circumstances should be one of manslaughter so long as they are unanimous that the victim‘s death was attributable to Mr Taliai’s actions.  Count 5 manslaughter is accordingly acceptable. 

7.	Count 6 is in order allegedly plainly attributable to the act of the machete, as an alternative to manslaughter. 

	To summarise 

8.	If the Jury are not satisfied beyond reasonable doubt that Taliai is guilty of murder on these grounds that is 87(1) (a) or (1) (b) then he must be acquitted.

9.	He will, however, be guilty of manslaughter if the Jury are satisfied he caused the death of the victim by deliberately  committing an unlawful act that resulted in death and fell short of murder. 

10.	If they acquit also of manslaughter, then they proceed to consider whether he did wilfully and without lawful justification cause grievous bodily harm when he struck the victim with a machete on the arm and the leg, causing serious wounds to his arm and leg. 

	VEA

11.	The Crown case against Mr Vea as I understand it, is that he did commit murder by being part of a joint unlawful enterprise in that he joined in a concerted  attack on the victim with Mr Taliai, Mr Vea  having a hammer and using it to attack the victim, at or about the same time. 
 
12.	The Crown alleges in doing so that he intentionally aided and encouraged Mr Taliai to commit murder by intending to support Mr Taliai in an attack in which Mr Taliai intended to cause the death of the victim or Mr Taliai intended to cause the victim any bodily injury which Mr Taliai knew was likely to cause death and was reckless whether death ensued or not. 

13.	If the Jury do not consider beyond reasonable doubt that Mr Vea intended to support Taliai to commit murder in the sense above then if they are satisfied beyond reasonable doubt that he intended to embark upon an attack where violence was occasioned by he and Mr Taliai and death resulted falling short of murder he would be guilty of manslaughter.  

14.	If the Jury acquitted of murder and manslaughter then they would go on to consider whether his use of the hammer occasioned serious bodily harm.

15.	Having regard to the indictment relating to Mr Vea it seems that count one is misconceived. The Crown accept that his actions did not cause the death of the victim. He bled to death from the machete wounds; likewise with count 2. 

16.	Count 3 and 4 are identical. I consider that count 3, reflects the case of Vea’s involvement in murder based on his aiding and abetting the principal in the murder of the victim, during what I understood was a concerted attack on the victim and is in order; likewise, counts 5 and 6 are in order as alternatives. 

17.	In this case it seems to me whether advanced as a case of common unlawful purpose or aiding and abetting is academic. The essence as I understand the case is concerted action by both men on the victim that is aiding and abetting by Vea in a concerted attack with a hammer (Vea) and a machete (Taliai). The case for the Crown in relation to Vea is whether he gave knowing assistance to Talia, and intended to encourage his confederate to bring about the victim’s murder, that is an intentional death or one where Talia intended to cause harm  likely to cause death and was reckless whether death followed or not. His intention and whether he intended to support Taliai to murder or commit manslaughter, if at all will be a matter of inference to be drawn from all the circumstances.    

18.	Section 8 of the Criminal Offences Act in my view does not create a crime or a discrete offence of abetment. All that it does, as section 8 of the Accessories and Abettors Act 1861 (UK) does, is to create a basis for complicity in the offending by somebody else aiding and abetting and common purpose (joint principals) in this case murder or manslaughter, as he case may be. Whether it be a common purpose or traditional aiding and abetting as in a concerted attack alleged here seems to me on these facts as I have said to be academic. All that the Crown prosecutor has to do is to include either section 8 or 15 or both in the particulars for murder and manslaughter and in my view the indictment is acceptable. The Crown will fill out to the Jury in opening what it says or submits is the basis of complicity either under common purpose or aiding and abetting in concerted action or both but as I see it, there is little if any difference in these circumstances, that is aiding and abetting in this case would be sufficient to properly reflect the case. I consider that it is wrong to separately indict for several counts of murder for the reasons I have given, and also because it may raise estoppel issues if there is an early acquittal.   

19.	That means each accused should face one count of murder, manslaughter as an alternative and a lesser offence, grievous bodily harm or serious harm as an alternative to manslaughter. 

20.	For reasons which I have given I consider that the present counts in the indictment may give rise to confusion, error in principle, and also there is an element as Mr Edwards complained of prejudice occasioned by an unnecessarily prolix indictment and several counts in relation to each man of murder. 

21.	I observe that I have read R v Jogee 18th February 2016 in the Supreme Court of the UK, and note para 95 where it is said; 

“In cases where there is more or less a spontaneous outbreak of multi- handed violence, the evidence may be too nebulous for the Jury to find that there was some form of  agreement, express or tacit. But, as we have said, liability as an aider and abettor does not necessarily depend on there being some form of agreement between the defendants; it depends on proof of intentional assistance or encouragement, conditional or otherwise. If D2 joins with a group which he realises is out to cause serious injury, the Jury may well infer that he intended to encourage or assist the deliberate infliction of serious bodily injury/ and or intended that should happen if necessary. In that case if D1 acts with intent to cause serious bodily injury and death results, D1 and D2 will each be guilty of murder.“

21.	The definition of homicide is different in the UK from Tonga; however, the principles are the same for complicity. Jogee suggests that in para 90 that the test for an aider and abettor to be complicit in the principal’s act is that he intended to assist the principal to act with the intent required for the principal to commit the offence in this case murder. That of course is an intent that may be inferred from all the circumstances, see Jogee at para 90. 

“The second issue is likely to be whether the accessory intended to encourage or assist D1… to commit the crime, acting with whatever mental element the offence requires of D!. If the crime requires a particular intent, D2 must intend (it may be conditionally) to assist D1 to act with intent. “

22.	Jogee involved aiding and abetting where there was a common purpose and a discussion of whether foresight of consequences or intent was the appropriate standard to judge accessorial liability. The Court came firmly down on the side of intent, rejecting previous authority that favoured foresight of risk.

										C. B. Cato
DATED: 01 AUGUST 2018				     	 J U D G E