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R v Fakatava [2001] TongaLawRp 13; [2001] Tonga LR 76 (26 April 2001)

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

Cr 90-93/2000

R

v

Fakatava

Ford J
5-8 March, 17 April 2001; 26 April 2001

Criminal law – joint enterprise – common intention gauged from conduct

On the night of Sunday 12 December 1999 the complainant, Toka'one Kolo, who was 20 years of age, was out walking around Ma'ufanga with a couple of friends. He noticed another group of Ma'ufanga youths sitting around drinking methylated spirits behind Luia Fakatova's shop and he approached them and asked for some cigarettes. He was not given any cigarettes but he ended up in a scuffle and punches were thrown. The complainant decided that he was outnumbered and so he and his friends then ran off but they returned a short time later and threw stones at the drinking group. In the meantime, the drinkers had been joined by some other boys who had been at the Catholic Church choir practice and some girls who were also caught up in the stone throwing. The boys from the choir practice then invited the drinkers to go with them and find Toka'one and beat him up. It is unclear exactly how many went off in pursuit of Toka'one but certainly the four accused were willing and active participants in the venture and there were probably up to four others involved. The pursuers eventually tracked Toka'one down and he was violently assaulted. The complainant had multiple lacerations including a laceration of the scalp which had resulted in blood loss and required stitching, a deep laceration above the right eye which also required stitches, another laceration on the right leg between the knee and the ankle, a fractured hand and various swellings. He was discharged from hospital after two and a half days. It was not possible to determine from the evidence which of the accused caused the particular wounds to the complainant and the appellants contended that, therefore, each of them was entitled to be acquitted.

Held:

1. The Court was satisfied that all four accused took an active role in the attack on the complainant on the ground.

2. When the four accused set out together to look for the complainant they embarked on a "joint enterprise". The objective was to catch the complainant and beat him up. It was not necessary that there should be any kind of elaborate pre-arrangement to constitute a joint enterprise but the assailants must share a common purpose to cause harm to the victim and make it clear by their actions to the other that that was their common intention. The common intention or agreement was gauged from their conduct.

3. Each party to the joint enterprise was equally liable for the consequences of acts done in pursuance thereof. Each of the accused was guilty of the crime charged and they were convicted accordingly.

Cases considered: