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R v Azuelo [2009] TOLawRp 14; [2009] Tonga LR 140 (18 March 2009)

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

CR 361/2007

R

v

Azuelo

Shuster J
17 and 18 March 2009; 18 March 2009

Criminal law – grievous bodily harm – defence of self-defence rejected – accused found guilty

A number of people were cruising around the town of Nuku'alofa, during the early hours of 3rd November 2007 and were in the accused's wife's car. At some stage the accused and the victim met and were standing together. The victim was stabbed twice and was taken to hospital. The accused was charged with the offence of grievous bodily harm. He claimed self-defence as a defence to the charge.

Held:

1. Circumstantial evidence could be powerful evidence, but it was important that it was examined with care, and the Court had to consider whether the evidence upon which the prosecution relied in proof of its case was reliable and whether it did in fact prove guilt. Furthermore, and before convicting on circumstantial evidence the Court should consider also whether it revealed any other circumstances which were of sufficient reliability and strength to weaken or to destroy the prosecution case.

2. The Court must consider the matter of self-defence in the light of the situation which the defendant honestly believed he faced at the material time.

3. The Court found that after stabbing the victim twice the accused ran away. Running away was evidence of guilty knowledge.

4. The accused's assertion of self defence was rejected as the force used by the accused was unreasonable and unlawful.

5. The accused was found guilty of causing grievous bodily harm.

Cases considered:

Fagan v the Metropolitan Police Commissioner [1968] 1 QB 439

R v Fa'aoso [1996] Tonga LR 36

Statute considered:

Criminal Offences Act (Cap 18)

Counsel for the Crown : Miss Tupou
Counsel for the accused : Mr Pounou

Extemporaneous judgment

The Defendant

The defendant was arraigned on 15th January 2008 before FORD CJ and pleaded Not Guilty to a single count indictment alleging an offence of grievous bodily harm; as is his legal right.

The defendant elected to be tried by a Judge sitting alone. The matter was adjourned on several occasions and, was finally set down for trial on Tuesday 17th March 2009. Delays in this case were primarily due to the absence of a material witness- the complainant- who we were told is currently overseas in New Zealand.

Count One:

GBH contrary to section 106 (1) and 2 (b) of the Criminal Offences Act (Cap 18) particulars of which are: -

VIC JAVELOSA AZUELO - on or about the 3rd November 2007 at KOLOMOTU'A you did wilfully and without lawful justification caused grievous harm to PITA TAVAKE:- when you stabbed him in the stomach with a hunting knife.

The Brief Facts

The Crown alleges that in the early morning of the 3rd November 2007 the defendant was standing next to the victim in Kolomotu'a when he stabbed the victim twice- in the stomach. The Crown says the defendant then ran off to his home.

The Crown says - the defendant was angry at the time he committed this offence - because his wife had been out all night, with others- consuming alcohol and cruising around town.

The victim collapsed at the scene of the assault and was taken to the Vaiola hospital where he was operated on for his injuries found to be two stab wounds. He was detained and treated at the hospital for his injuries and subsequently released a number of days later and treated as an outpatient.

The doctor's medical report details the victim's treatment at the hospital. The victim lost three pints of blood and received a blood transfusion, but he did subsequently recover from his injuries.

The defendant was subsequently arrested by the police and interviewed under caution. He was then charged with the offence of Grievous Bodily Harm with which he appears in court today. In his defence the defendant claims self-defence; which if proved- is of course a complete defence to the charge.

The Burden of Proof

In this case the prosecution must prove the defendant is guilty.

• A defendant does not have to prove his/her innocence.

• In a criminal trial the burden of proving the defendant's guilt is, and always remains, on the prosecution throughout the trial

The Standard of Proof

How does the prosecution succeed in proving the defendant's guilt? The answer is - by making me sure of it, nothing less than that will do.

• So, if after considering all the evidence I am sure that the defendant is guilty, then I must return a verdict of 'GUILTY'.

• If I am not sure then my verdict must one of 'NOT GUILTY'.

Circumstantial Evidence

Sometimes a judge and / or a jury- are asked to, find some fact proved by direct evidence. For example, if there is reliable evidence from a witness who actually saw a defendant commit a crime; or if there is a video recording of the incident which plainly demonstrates his guilt; or, if there is reliable evidence of the defendant himself having admitted the offence, these would all be good examples of direct evidence against him-her.

On the other hand, it is often the case that direct evidence of a crime is not available, and the prosecution relies upon circumstantial evidence to prove guilt. That simply means that the prosecution is relying upon evidence of various circumstances relating to the crime, and of the defendant; which they say when taken together will lead you to the sure conclusion that it was the defendant or defendants who committed the crime.

It is not necessary for the evidence to provide an answer to all the questions raised in a case. You may think it would be an unusual case indeed in which a judge or a jury can say 'We now know everything there is to know about this case'. But the evidence must lead to the sure conclusion that the charge which the defendants face is proved against him.

Circumstantial evidence can be powerful evidence, but it is important that it is examined with care, and I have to consider whether the evidence upon which the prosecution relies in proof of its case is reliable and whether it does in fact prove guilt. Furthermore, and before convicting on circumstantial evidence I should consider also whether it reveals any other circumstances which are or may be of sufficient reliability and strength to weaken or to destroy the prosecution case.

I should also be careful to distinguish between arriving at conclusions based on reliable circumstantial evidence, and mere speculation. Speculating in a case amounts to no more than guessing, or making up theories without good evidence to support them, neither the prosecution the defence nor I, should do that.

The Elements of the Offence of GBH s 106 Cap 18

To find the Accused Guilty of an offence alleging Grievous Bodily Harm under section 106 of the Criminal Offences Act-the prosecution must prove each of the essential elements of the offence. In layman's terms and in a nutshell the essential elements are-

Every person who

• Wilfully and without lawful justification

• Causes grievous harm to any person

• In any manner or by any means whatsoever- commits an offence

Grievous harm means-

In layman's terms it means - really serious bodily harm

a) Its any harm endangering life

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

Does GBH also means there was an assault

The term assault is frequently used to include both an assault-and-a battery; Strictly speaking an assault is an independent offence and a court should always treat it as such Fagan v the Metropolitan Police Commissioner [1968] 1 QB 439.

So an assault is an act- [and not a mere omission to act]

By which a person

• intentionally or

• recklessly

• causes another person to apprehend-[that is to say to fear]

• immediate unlawful violence

So an assault involves a hostile intent.

It is settled law the use of a weapon in order to carry out an assault- is an aggravating feature to any offence. For example the use of a person's feet and or a head butt, have been defined by Higher Appellant Courts - as the use of a weapon. A knife can become an offensive weapon, whenever it has been used unlawfully, but that is dependent upon the actual-circumstances of the case.

SELF-DEFENCE

The defendant via his counsel and via his voluntary caution statement to the police says that he was acting in self-defence; if that statement is true- then the defendant is entitled to be acquitted.

1 Because the prosecution must prove the defendant's guilt

2 It is for the prosecution to prove that the defendant was not acting in lawful self-defence,

3 It is not for the defendant to establish that he was,

4 As a judge I must consider the matter of self-defence in the light of the situation which the defendant honestly believed he faced at the material time.

I must first ask myself whether the defendant honestly believed that it was necessary to use force to defend himself- at all. I must also ask myself could the defendant- have simply walked away.

Further it is settled law, the defendant cannot benefit from an acquittal for self defence, if he the defendant was the aggressor, or, if he acted in revenge, or, if he knew he did not need to resort to violence.

• If I am sure the defendant did not honestly believe that it was necessary to use force to defend himself, then he cannot have been acting in lawful self-defence, and I need consider the matter no further.

• But what if I thought that the defendant did in fact honestly believe, or may honestly have believed that it was necessary to use force to defend himself?

• Is he entitled to be acquitted? Or must he tell me it was necessary for him to use force, in his own words by direct evidence or, via his VCS as here?

• If he does tell me he had to use force to defend himself- then it is settled law that I must also decide whether the type and the amount of force the defendant used was reasonable.

• Obviously, a person who is under attack may react on the spur of the moment, and he cannot be expected to work out exactly how much force he needs to use to defend himself.

• On the other hand, if the defendant goes over the top, and he uses force out of all proportion to the anticipated attack on himself; or he uses more force than is really necessary to defend himself, then the force used- would not be reasonable.

So in this case I must take into account both the nature of the attack on the victim and what the defendant then did. Did he assist the victim? Did he call for help, or did he run?

The Medical Evidence

Dr Veronique LALOE testified that PITA TAVAKE was admitted as an emergency patient on the 3rd November 2007 at 6.30am after having been allegedly stabbed with a knife.

On examination there were two stab wounds on the upper abdomen, one 2cm-long a SUPRA UMBILICAL wound, and a 3cm-long SUBCOSTAL wound on the left side of the upper abdomen. The patient was pale, and shocked upon arrival with blood coming out of the NASTROGASIC tube.

He was taken to the operating theatre for an emergency LAPAROTOMY after resuscitation. The surgery revealed a 2 cm-long traumatic laceration of the greater curvature of the stomach with active and severe bleeding from the posterior gastric vessels into the lesser sac.

In excess of 3 litres of fresh blood and clots were sucked out from the abdominal cavity. The bleeding was arrested by sutures and ligatures, and the perforation sutured. The patient received six units of blood as a transfusion and the wounds were consistent with a history of STABBING.

The patient has made a good postoperative recovery and was discharged from the surgical ward on the 9th November 2007. He was treated as an outpatient on 14th November 2007. On the 15th November he returned to the outpatient clinic with abdominal pain, he was admitted overnight but discharged the next day.

The Oral Evidence

PW1 AILA KATA gave evidence that on the night in question the 3rd November 2007, she went out clubbing with the wife of the accused, who drove the car- and the victim PITA TAVAKE and another passenger.

PW1 testified the occupants of the car had all been drinking. In cross examination she admitted there came a point in time when they met up with the defendant who tried to stop the car to speak to his wife, twice, and the defendant's wife swerved out of the way- to avoid hitting or colliding with him.

Just after dawn- the vehicle arrived back home, PW1 testified they were met by the defendant, and there was some type of confrontation. PW1 says she did not see the stabbing, and she also said she did not hear the victim arguing with the defendant.

She said- "No one was paying attention, we did not know what he (Vic) was being angry about"

PW1 said in evidence the victim Pita was going out with a niece of hers.

PW1 described how she was standing at the gate of the property with the gate closed talking to the two persons who were still inside the vehicle. She testified the defendant went to the back of the vehicle and she said,

"I noticed he was fumbling with some rope. I saw him tying the rope, he came from the back of the car (boot) and then he came up to Pita and he was saying something. Pita was saying what is the Philipino saying- why is he angry. I was surprised to hear he (Pita) was dropping down to the ground, saying he was injured.

PW1 testified Pita did not fight with the defendant. She testified in examination in chief that Pita had stab wounds to his stomach so they took him to the hospital by car. She also testified the defendant ran from the scene, when asked where he ran- she said into the house.

PW1 was cross examined at length. She admitted her group were cruising around town, and that they had all been drinking alcohol but she was evasive about how much alcohol they had consumed or what type of alcohol they had consumed.

She consistently maintained under cross examination that there was no argument or words said between the defendant and the complainant. The defence questioned her intently about her view of the scene of the crime and what she was doing at the time of this alleged crime. She confirmed she was talking to the passengers in the car and she confirmed she was drunk.

The Defendant's VCS

The defendants VCS and charge statement were read into evidence and were admitted as evidence by consent.

THE LAW SAYS: - I am required to carefully consider the defendant's voluntary record of interview, and also his charge statement, to see if they voluntary; or not, in the true sense of the word.

In relation to that, it is my duty to decide two issues in relation to the statements and to any alleged confession.

• First I must decide if the defendant actually made them

• Second but only if I am sure that he did make them, I have to consider whether or not what he said was true.

In determining that I should take into consideration all the circumstances in which I find it was, or may have been made. If for whatever reason I am not sure whether the confession was made, or I am not sure whether it was true, then I must disregard it.

If on the other hand I am sure both that it was made and is true, I may rely upon it--- even if it was or may have been made by oppression or by other improper circumstances.

In this particular case the evidence reveals the defendant wrote in his own handwriting all the answers to the police questions which totaled some 16 questions in all, and he hand wrote his reply to the charge statement. Besides which, these documents were admitted by consent.

In Rex v Fa'aoso [1996] Tonga LR 36 it was held, "a confession alone can be sufficient to justify a conviction where the jury is satisfied that the confession-is reliable and it is cogent evidence.

Finding of Fact

Exhibits one and two admitted by consent were voluntary in the true sense of the word.

Analysis

The evidence adduced for the prosecution and the defendant reveals the following:-

• A number of people were cruising around the town of Nuku'alofa, during the early hours of 3rd November 2007 and were in the defendant's wife's car.

• At a point in time the defendant and the victim in this case met, and were standing together and in close proximity in Kotomotu'a on the morning of the 3rd November 2007.

• At that time the defendant did not know the identity of the victim- according to the defendant's VCS.

• At the time of this meeting the defendant was carrying a knife- the victim did not have a knife on him.

• PW1 says the victim did not argue with the defendant- though she said the victim had been drinking.

• The witness PW1 says the defendant came from the boot of his wife's car, with a rope on his hands, and he was standing in close proximity to the victim face to face.

• PW1 said she heard the victim says he was injured, and then he fell on the ground.

• PW1 saw blood and she formed the opinion the victim Pita had been stabbed.

• PW1 said the defendants ran away into the house.

• Via his charge statement the defendant admits, "I just make sure defence, because he is aggressive to attack me for survival times, so that's how I stab, I used my knife".

• The defendant says in his VCS he was punched- but the evidence of PW1 says she did not see- or hear that.

• The defendant in his VCS says the victim was drunk, he just wanted to talk to his wife about family matters; he said in his VCS the victim would not go away.

• PW1 on the other hand says the defendant was angry.

• The defendant says he went to the police about 8.00am and told the police he had stabbed "one Tongan".

• The hospital say the victim Pita, was admitted at 06.30 am — so why was there a time delay in reporting the crime by the defendant to the police?

Findings of Fact

• I find as a fact that on the 3rd November 2007 at Kolomotu'a the defendant stabbed the victim Pita TAVEKA- not once-- but twice.

• I find as a fact upon hearing the evidence that after stabbing the victim twice-the defendant ran away.-

• That running away- is also evidence of guilty knowledge; and is part of the res gestae? Authority - DPP v Anderson & R v B (infers guilty knowledge)

• I believe the evidence of PW1 who although she admitted she was drunk- (is and was capable of giving evidence) that there was no altercation on the part of Pita TAVEKA towards the defendant.

• I find the aggressor in this case to be the defendant a man who admitted he carried a knife, and he admitted he used it.

• There is no doubt in my mind, the defendant was angry at his wife ostensively for going out in her car, transporting others that night, and the defendant took out his frustrations on a man he did not know in the manner described to this court.

• I find as a fact the stabbing was in anger.

• This was an extremely serious offence, as the doctor indicated because- it was life threatening.

• I reject the defendants assertion of self defence, I am sure the force used by this defendant was unreasonable and UNLAWFUL.

• Accordingly I find as a fact the defendant cannot have been acting in lawful self-defence.

I find the defendant guilty of causing grievous bodily harm by unlawfully stabbing PITA TAVEKA on the 3rd November 2007.