Home | Databases | WorldLII | Search | Feedback High Court of Tuvalu

Crown v Heamasi [2014] TVHC 1; Criminal Case 01.2013 (19 February 2014)

In The High Court of Tuvalu
HC. Crim. Case no. 1/13
At Funafuti

Criminal Jurisdiction

Between:

Crown

v

Tali Vi Heamasi
Accused

BEFORE THE JUDGE

Ms. Nele Semu for the prosecution.
Isala T Isala for the accused.

Reasons for Judgment

The accused is charged on four counts, two of wounding with intent and two of causing grievous harm. The charges relate to brutal attacks on a husband and wife, keepers of the Ivy shop during the evening of Saturday 1st December 2012.

The Ivy shop was due to close at 10 o'clock. Sometime within the half hour before 10 o'clock the attacks occurred. Estimates of time differ slightly from witness to witness and I am not able to come to an exact time for the attacks. Certain the attacks occurred but as the defences are "mis-identification" (Mr. Isala's word) and alibi, the exact time doesn't matter.

Ms. Huan Chan Luo, the wife (generally known as "Sim" as I shall call her) gave evidence which was clear and definite. I reject Mr. Isala's argument that the victim has lost her memory because her injuries and therefore her account is inaccurate. Her husband, Mr. Jia Wei Liu did not give evidence as he is in China.

Sim gave evidence, all of which I accept beyond reasonable doubt, that in the week preceding the incident the accused had, on the evenings of Monday, Tuesday, Wednesday and Friday spent twenty minutes or so in the shop before closing. On the Saturday night, she went into the kitchen (a room adjoining the shop) at ten to ten. Her husband was in the shop watching television.

A next door neighbour, Hemanaia Teuea, came with his three year old grand child to buy a mosquito coil. As the front door of the shop was already closed he spoke to Sim at the kitchen side window.

"-- told him (husband) still in shop. Turn off light in kitchen – went to shop. Accused was there in shop: said 'close'. He was wearing a black T/shirt (identifies accused). Light still on in shop. I saw his hand up (lifts her right arm at right angles). I do not know what happened after that. ---[Cross-examination] --- I saw Tali standing in the shop. I know it was this guy. [Repeats her evidence].

I noticed that at all times in court the accused was dressed in black. All witnesses described a man wearing either all black or a black t/shirt. For example

Hemanaia Teuea:

At shop lady cleaning dishes in kitchen. Front door closed I went back to lady who said shop not closed yet. Went to main door: saw someone inside: I crouched as child pointing. Person wearing black – skinny: stayed there a few seconds ---(cross-examination) Person in full black, not sure if t/shirt. Didn't see face.

Alaineta Homasi:

We lived above Ivy shop. On way home saw motor bike parked by bushes. It was green. Saw Hemanaia and grand child: asked Sim if shop closed or not. Still open. Hemanaia called me to come as injured person in shop. I went to main door. Person bleeding and a person about to disappear into kitchen and wearing black . Saw Tali just behind me inside banana plantation. He asked me what had happened – Tali wearing black shirt: he went towards the green motor bike. (cross examination) – saw Tali there. Didn't see him in shop – could see clearly Tali in black and motor bike green."

Likewise Ms. Mataiaea Faalinga saw the accused outside the Ivy shop and he was wearing a black t/shirt: he told her he did not know what had happened.

The witnesses Hemanaia, Alaineta and Mataiaea Faalinga all confirm to a greater or lesser extent the evidence of Sim.

Apart from this strong identification of the accused there is other evidence leading beyond reasonable doubt to the accused being the man who attacked the victims.

Dr. Samson Mesol, Consultant Surgeon at the Princess Margaret Hospital, gave evidence of the victims' injuries and expressed the opinion both in his written reports and in his oral evidence that they were caused by "a blunt object such as the back of an axe".

The male victim suffered:

"1. A rugged laceration over his left forehead going upwards measuring about 14-15cm in length.

2. A large depressed skull fracture under that wound with multiple fragments noted. It was obvious that this injury was a result of more than one single hit to that area. There was a lot of brain tissue exuding fron the wound.

3. Rugged wound measuring about 8-9 cm over his left parietal region.

4. Depressed fracture of 5-6cm in diameter under the left parietal wound. Brain tissue was also noted to be exuding from this wound.

Mr Liu's wounds were cleaned, debrided and depressed fragments removed. Alldead tissues were cut out, wounds irrigated with Saline and sutured. It was obvious that Mr Liu would need further surgery in a well equipped hospital with CT scan facilities.

CONCLUSION:

1). From the patern of injury and fractures produced, we can conclude that the weapon used was most likely to be a blunt instrucment, such as that of a back of a hammer or the back of an axe.

2). The left frntal wound had to be a result of at least two (2) blows in the same area.

3). If Mr Liu was facing his assailent, the assailent would most probably have to right handed to produce the described injuries."

The female victim suffered:

"1. Rugged scalp wound measuring about 8-9cm over the fronto temporal area.

2. Depressed, communited skull fracture measuring about 5-6cm in diameter under the wound.

Ms Luo's wounds was cleaned, debrided and the dead tissue excised. The depress fragements of bones were elevated and removed and wound sutured.

Fortunately, Ms Luo made an uneventful recovery.

CONCLUSION:

1). The patern of injury was that of from a blunt object such as the back of a hammer or the back of an axe.

2). If Ms. Luo was facing her assailent, the assailent would most probably be right handed."

When the police arrested the accused about midnight he had in his bag a hammer (Exhibit P 6).

Dr. Mesol was shown the hammer. He said the injuries were consistent with blows from that hammer.

Although the accused denied to the police that he owned such a hammer, his neighbour Ms. Fenua Matagofie said she had seen that hammer or one like it at the accused's house and had on occasion borrowed it. I accept this lady's evidence.

I reject Mr. Isala's arguments that the police planted the hammer on the accused at the time they arrested him or that the hammer happened to be lying about on the building site, left there by a workman at the very spot where the police had the accused. Such possibilities are fanciful.

At the close of the Crown case Mr. Isala applied for an adjournment: he wanted to call three extra witnesses one of whom is in New Zealand studying, another in Fiji and third somewhere else overseas. I refused the application. Any application for adjournment should and could have been made well before trial.

The accused gave evidence. In it he acknowledged that he had been that night in the vicinity of the Ivy shop.

"Drove on way to bingo. Saw people outside Ivy shop: parked motor bike outside land lord's house. I asked what was going on. Many people there. Didn't find out. Parked bike and went to bingo: about 400 metres from Ivy shop."

In his caution statement (Exhibit P 5) taken the night after the incident, the accused made no mention of having visited and having been in the vicinity of the Ivy shop that evening.

This first statement was followed by another in the form of questions (by the police officer) and answers. Each time he was asked anything to do with the Ivy shop and what had happened there, he replied "had nothing to state"

I discount the evidence of the other two witnesses for the defence. The first of them was Benuel Vi, the 17 year old son of the accused. He acknowledged in cross-examination that he would do anything he could to save his father. A most natural sentiment. In any case his evidence did not amount to an alibi for his father.

The last witness was Ms. Tinei Sakiusa, a close friend of Sim. Sim on one occasion said she "saw somebody but not sure". This was not put in cross-examination to Sim as it should have been. I cannot give it any weight.

The case against the accused is a very strong one, both on identifying him as the person in the Ivy shop who attacked the victims and also because of his having in his possession the hammer, a blunt instrument which could have caused the injuries. Unless for some sinister object why should a man have in his possession a hammer when going to play bingo?

I find the accused guilty of the two counts of wounding with intent. One does not hit another about the head with a hammer unless with intent to do grievous harm and grievous harm was certainly done to each victim.

The counts of grievous harm are of lesser offences then wounding with intent. They are subsumed in the greater offences. There is no need to enter verdicts on them.

Date 19th day of February 2014.

Hon. Robin Millhouse QC
JUDGE OF THE HIGH COURT OF TUVALU