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R v Fanua [2005] TongaLawRp 13; [2005] Tonga LR 264 (9 May 2005)

IN THE SUPREME COURT OF TONGA

R

v

Fanua anor

Supreme Court, Nuku'alofa
Ford Acting CJ
CR 3-4/2004

6 April and 6 May 2005; 9 May 2005

Criminal law – grievous bodily harm – meaning of "severe wound" – acquitted Criminal law – grievous bodily harm – self defence -acquitted

The two accused were each charged with grievous bodily harm. On Monday 20 October 2003 the complainant, Tipeti, was drinking liquor at his home. He was looking for his wife to get him some food and was yelling and swearing. His neighbour, the second accused Moneata, asked him to stop making noise. Tipeti, in his drunken and belligerent state proceeded to assault her. He slapped her face and punched her on the chest and breast. Moneata fell backwards onto the ground. Tipeti then started dragging her along the ground and at one point he started choking her by the neck. He also stood over her with his legs apart lifting her by the shoulders and dropping her head back and forth onto the ground. The first accused, Va'enuku, was Moneata's de facto husband. He ran over to where Tipeti was standing astride his wife assaulting her. He pushed him away and Tipeti faced up to him and started to challenge him to a fight. At that point Va'enuku punched Tipeti on the right jaw breaking his jaw and dislodging one of his teeth. This formed the basis of the grievous bodily harm charge against the first accused. After the fight was broken up and everyone was walking back to their homes, Moneata suddenly struck Tipeti on the top of the head with a length of PVC hollow plastic piping that had been used as a clothesline support. The blow from the PVC pipe caused a laceration to the top of the complainant's head. That blow to the head formed the basis of the grievous bodily harm charge against the second accused, Moneata.

Held:

1. The defence raised on behalf of the first accused was that he acted reasonably in defence of his de facto wife. The Court was satisfied that the defence was made out. The attack by the drunken Tipeti was vicious and if the first accused had not intervened when he did then the Court was satisfied that Moneata would have sustained severe injuries. The first accused was acquitted.

2. The Court was satisfied that the blow struck by Moneata was not struck in self-defence. The fight had by that point in time broken up. The blow was struck in anger.

3. The Crown had to prove beyond reasonable doubt that the blow from the plastic pipe caused "grievous harm" to the complainant. The definition of grievous harm was "any severe wound". The Crown failed to establish that the laceration to the top of the complainant's head was a severe wound.