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Giles v Police [1999] TongaLawRp 20; [1999] Tonga LR 102 (15 June 1999)

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

Cr App 355/99

Giles

v

Police

Ward CJ
11 June 1999; 15 June 1999

Criminal law — common law defence to assault — available in Tonga
Criminal procedure — Magistrate’s finding of fact — appellate court only interfere in exceptional circumstances

The appellant appeared in the magistrates’ court and pleaded not guilty to a charge of assault. The evidence was that the complainant came on to the property where the appellant had a workshop in order to speak to the appellant about a water bill he claimed the appellant was liable to pay. It appeared the appellant had previously occupied the complainant’s property. The complainant’s account of what happened was that, as they argued about the bill, the appellant suddenly punched the complainant in the mouth. They then struggled. He said that the appellant asked him to leave his property about three times but that only occurred after the initial punch had been thrown. The appellant gave evidence that he asked the complainant three times to leave and sort it out with the Water Board. After the final request, the complainant said he would take the appellant to court. The appellant walked away but when the complainant again shouted at him, he turned and hit him in the mouth and they struggled. Two others separated them and the complainant left. Counsel for the defence argued that this was a case of lawful defence of property. He suggested the evidence showed the appellant had asked the complainant to leave three times. He had refused and the punch was necessary force to remove him. The magistrate did not accept such a defence was available in Tonga. It was against that ruling that the appeal was directed. The appellant argued that the common law right to use reasonable force in protection of ones property existed in Tonga and could therefore provide a defence to a charge of assault. The respondent conceded that such a defence existed under Tongan law but opposed the appeal on the basis that the magistrate’s finding of fact ruled out such a defence in any event.

Held:

1. The magistrate erred when he held that the common law defence was not available in Tonga. The law had always recognised a reasonable right to self defence as a form of lawful justification of the force used. Defence of property may similarly amount to lawful justification.