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Vea v R [1998] TOLawRp 19; [1998] Tonga LR 136 (7 August 1998)

IN THE COURT OF APPEAL OF TONGA
Court of Appeal, Nuku’alofa

CA 8/98

Vea

v

R

Burchett, Tompkins, Beaumont JJ
31 July 1998; 7 August 1998

Criminal law ⎯ grievous harm ⎯ requisite intent

Grievous harm ⎯ mitigating factors

The appellant was tried and convicted by the Supreme Court upon prosecution for the offence of causing grievous harm against s 106 of the Criminal Offences Act (Cap 18). The trial Judge sentenced the appellant to three years’ imprisonment, but suspended that sentence upon completion of six months’ imprisonment. The appellant appealed against both his conviction and his sentence on the grounds that when regard was had to the whole of the surrounding circumstances, in particular the appellant’s fear of the victim, his Honour could not have been satisfied, beyond any reasonable doubt, that the appellant had the requisite criminal intent.

Held:

1. The evidence established beyond any reasonable doubt that the appellant acted “wilfully” within the meaning of s 106(1); and “without any lawful justification” for the purposes of that provision.

2. The appeal against conviction was dismissed.

3. In sentencing, the trial judge properly took into account several mitigating factors and also had regard to the violent nature of the crime; there was no basis for interfering with the sentence.

Statutes considered:

Criminal Offences Act Cap 18

Counsel for appellant: Mr Veikoso
Counsel for Crown: Ms Simiki

Judgment

Introduction

The appellant was tried and convicted by the Supreme Court upon prosecution for the offence of causing grievous harm against s 106 of the Criminal Offences Act. Section 106 provides:

“(1) Every person who wilfully and without lawful justification causes grievous harm to any person in any manner or by any means whatsoever shall be liable to imprisonment for any period not exceeding 10 years.

(2) ‘Grievous harm’ means —

(a) any harm endangering life; or

(b) the destruction or permanent disabling of any external or internal organ, member or sense; or

(c) any severe wound; or

(d) any grave permanent disfigurement.”

The trial Judge sentenced the appellant to three years’ imprisonment, but suspended that sentence upon completion of six months’ imprisonment. The appellant now appeals against both his conviction and his sentence.

The Appeal against Conviction

(a) The Findings of the Trial Judge

His Honour made these findings:

The offence charged had its “beginnings” in a collision a few months earlier between a vehicle driven by a member of the appellant’s family and one driven by Siosifa Latu, who was to become the victim of the offence charged. After the collision Latu, assisted by others, attacked and injured the appellant. For this Latu, and one other, were subsequently prosecuted and convicted.

A few days later, the appellant and Latu again encountered each other at a busy road intersection. Menacing words were exchanged. The appellant’s car moved off, followed by Latu. There was some “silly driving” by both, and some “verbal exchanges”. They reached another intersection, where the appellant proposed to turn. Whilst both vehicles were stationary waiting for the traffic to clear, Latu and the appellant left their vehicles. An incident then occurred between them. But in their evidence, each man gave a different version of what happened.

His Honour said:

“It is plain that the truth lies somewhere between their versions of events. I formed the opinion that both of them were telling me whatever suited them, whatever was favourable to their own position. In each case each man claimed to have been wronged at the instance of the other.”

The trial Judge went on to describe the appellant’s version of the incident as follows:

“At [a] Falekoloa [opposite the intersection at which the vehicles had stopped] [Latu] claims that the [appellant] attacked him with a bush knife. The [appellant] claims that he was indeed the victim since [Latu] attacked him with a wheel brace, narrowly missing the [appellant] twice and then dropping the brace and being thrown off balance by the [appellant’s] manoeuvring.

The [appellant] says that in the light of the attack upon him by [Latu] with the wheel brace, he became convinced of the need to defend himself against [Latu], who had already threatened to shoot him and was acting in a way consistent with that threat. The [appellant] then went to his vehicle and got the bush knife. The [appellant] says that [Latu] then retreated inside the Falekoloa. As he entered, the [appellant] says that [Latu] took hold of a shop girl and held her in front of him as protection against the attack of the [appellant] with the knife.

The unfortunate shop girl was thereby forced in between the two while they played out their struggle for supremacy with each other. Her evidence confirms that [Latu] used her as a shield.”

His Honour then made this finding:

“I am satisfied that [Latu] produced no wheel brace. The shop-girl saw no such thing either before or after the event, what the shop-girl did see, was a man [Latu], very much afraid of what was about to happen to him. A man who was prepared to use her as a shield against the advance of the [appellant]. I find that the evidence of the shop-girl demonstrates that the [appellant] was an aggressor”.

The primary Judge proceeded to make this finding:

“What followed was that the [appellant] wielded the knife deliberately at [Latu] and seriously injured him. It is significant that in the main [his] injuries caused by the knife are in the region of his back. The position of the injuries is surely consistent with the Crown case that this was not a desperate man forced by circumstances to defend himself but rather the intentional and unlawful act of the [appellant] who was acting out of a sense of revenge for the [earlier] behaviour of [Latu] towards him ... . I so find.”

In rejecting the possibility of a reasonable act of self-defence on the part of the appellant, his Honour said:

“I find that the [appellant] followed [Latu] into the Falekoloa with revenge in mind.”

(b) The Grounds of the Appeal

On behalf of the appellant it is submitted, in essence, that when regard is had to the whole of the surrounding circumstances, in particular the appellant’s fear of Latu, his Honour could not have been satisfied, beyond any reasonable doubt, that the appellant had the requisite criminal intent.

(c) Conclusions on this Aspect of the Appeal

In our view, the appeal against conviction must fail.

In his evidence in chief, the appellant gave this version of the incident:

“As I was waiting for a break in the traffic I heard a banging at the door of my car and as I looked back I saw [Latu] with an iron used for unscrewing nuts for vehicles.

I then understood that that was why [Latu] chased me — he was going to beat me up with the iron. Then my mouth and back were still injured [from the previous encounter] and my wounds had not healed and I was afraid I did not know what else to do. I knew that if I had accelerated he would have broken the window of the vehicle, so I quickly jumped out of the car. [Latu] went to strike me with the iron on the head as we were facing each other. I ducked and he missed twice. On the second strike he used both hands on the wheel brace to hit me. I ducked and because of the force he fell towards me and I used my left elbow to hit him in the eye. [Latu] fell on his back. He lost hold of his iron. I ran to my car and got out the bush knife. [Emphasis added]

I felt strange. I was stunned. It was the best I could think of was to use the bush knife against this person. [Latu] turned and he ran at the time he saw the bush knife. I stepped over and hit his back with the side of the knife. [Latu] ran into the shop and jumped over the counter. I entered the shop and I saw him holding the shop assistant in front of him. I said to him ‘Leave the girl she might get injured’. [Latu] said something to me. I said ‘have not you had enough of beating me up you did it on Saturday and I was injured.’ [Emphasis added]

I swung the knife at [Latu] and the shop assistant where they were standing in front of me. No-one was hit. The shop assistant went outside. I knew he and I were left. [Latu] ran to the north side of the shop. A freezer was there. I walked towards him. He picked up a box. I do not know what was inside it. He was holding it and pushing it towards me. I hit him with the knife when he was pushing the box at me. When I was striking I knew he was injured when I saw the blood on the different parts of his body.” [Emphasis added]

This evidence, in our opinion, establishes beyond any reasonable doubt that the appellant acted “wilfully” within the meaning of s 106(1); and that the appellant acted “without any lawful justification” for the purposes of that provision.

On the question whether the requisite criminal intent for wilful action existed, the appellant’s own evidence we have cited establishes, to the standard of satisfaction required, the Crown case, that the appellant actually intended to wound Latu with his bush knife.

As to any “lawful justification” of his action, on no view of the appellant’s own version of events could it be said that any question of legitimate provocation needed to be considered by the trial Judge. However, his Honour did, as we have noted, consider whether there might have been an act of reasonable self-defence. Yet, on the appellant’s own version of what happened, we agree with his Honour that the prosecution case proved, beyond any reasonable doubt, that the appellant’s acts exceeded any reasonable act of self-defence.

Four matters of importance in this connection emerge from the appellant’s testimony: (1) the appellant went back to his car to get the bush knife; (2) Latu had already dropped the brace; (3) the appellant, then armed, followed Latu, then unarmed, into the shop and began to pursue Latu within the shop; (4) the appellant continued to pursue Latu, even after Latu had taken hold of the shop assistant and attempted to use her as a shield to ward off any attack by the appellant.

There was thus ample evidence to support his Honour’s findings. The appeal against conviction should be dismissed.

The Appeal against Sentence

We can dispose of this aspect of the appeal briefly.

In his remarks on sentence, the trial Judge properly took into account several mitigating factors. They included the appellant’s family responsibilities and his excellent service to his Church. But his Honour also, again correctly, had regard to the violent nature of the crime which put at grave risk of serious injury not only Latu, but also an innocent bystander. The sentence, including as it did a term of six months’ immediate imprisonment, was we think clearly within the limits of the primary Judge’s discretion. We see no basis for interference with it.

Orders

The appeal is dismissed.