Two policemen convicted of manslaughter in Kali Fungavaka’s death [1]
Friday, June 6, 2014 - 14:02. Updated on Friday, June 6, 2014 - 17:06.
Police Inspector Kelepi Hala’ufia and Police Constable Salesi Maile were this morning convicted of manslaughter for the death of New Zealand Police officer Kali Fungavaka in Nuku’alofa in 2012. They are remanded in custody for sentencing on July 1.
Mr Justice Cato delivered a synoposis of his 66 page verdict to a full courtroom that included the family of the deceased at the Supreme Court in Nuku'alofa.
He found the third accused Police Constable Fatai Faletau guilty of assault, after acquitting him of manslaughter and the alternative charge of grievous bodily harm.
The judge acquitted the two other accused Police Constables Tevita Vakalahi and Manu Tu’ivai on both charges of manslaughter and grievous bodily harm.
Tears
When the guilty verdict was delivered on the two accused policemen of manslaughter tears were shed by members of Fungavaka’s family. His mother Rosemary, wife Audra, and ex-wife Cally Letalu-Ruahe the mother of the victim's five children, and other members of his extended family were present to hear the verdict.
The judge said he did not find beyond reasonable doubt that the assaults by the policemen had a common purpose.
The Crown had submitted they were in a joint enterprise because the victim resisted arrest and in various ways the accused assaulted him starting from when he was led on foot from the bar to the police station.
He told the court he had heard a great deal of evidence in four-weeks of trial but did not infer beyond reasonable doubt that it was such a common purpose and passed his verdict based on their individual acts.
Brain trauma
Justice Cato found beyond any reasonable doubt that Hala’ufia was responsible for causing the skull fracture and brain trauma with a torch together with secondary trauma caused by the act of strangulation.
“I have no reasonable doubt that his deliberate act of hitting Fungavaka with the torch with such force that it fractured his skull, with a lethal blow and was a very material and indeed a substantial cause of his death.”
He said the strangulation was a further trauma that disrupted the blood flow and oxygen to his brain being a secondary factor also materially contributing to his death. “During this incident he broke a bone in Fungavaka's throat in an effort to control and subdue the latter.”
“There can be no lawful excuse for these actions or any justifications of them.”
For Maile, the judge also found him guilty beyond any reasonable doubt of manslaughter.
“He deliberately stomped on Fungavaka’s head with considerable force with his face uppermost and off the ground so that his head impacted with the floor in the passage way to the cells with sufficient force to cause him further serious head and brain trauma and indeed a substantial additional cause of Fungavaka’s death.
“I want to impose here that I did not find beyond reasonable doubt that a torch was used by Maile outside Friends cafe. The witness herself who saw this was not sure whether it was to the back or to the head,” the court heard.
Meanwhile, the accused Faletau who was the other arresting officer with Maile was acquitted of manslaughter and the alternative of grievous bodily harm.
The judge found him guilty of assault on the basis that his actions beyond any reasonable doubt involved punching of Fungavaka outside Langafonua Centre and his act of applying downwards force with his foot to the genital area during the search in the watch house.
Acquittal
The judge acquitted police constables Tu’ivai and Vakalahi on both manslaughter and causing grievous bodily harm. He said the quality of the identification evidence did not meet the standard for prosecution.
“In their cases, I do not find beyond any reasonable doubt any other alternative charge established and they are both acquitted and discharged,” said the judge.
Justice Cato ordered for the two convicted policemen to be remanded in custody, while Faletau remained on bail for sentencing on July 1.
Two months
The manslaughter trial comes to an end after nearly two-months of sitting starting from the first judge alone trial for the five accused policemen in April followed by the jury trial for the civilian Semisi Kalisitiane Manu.
Manu who was in prison cell 7 with the deceased, whom he punched, was convicted by jurors of grievous bodily harm on May 30.
Kali Fungavaka sustained multiple skull fractures, subdural hemorrhage and contusions to his brain after he was fatally injured in police custody. He later died at Vaiola Hospital on August 23, 2012.
He was arrested with a relative outside a Nuku'alofa bar following a drinking episode after the funeral of his grandfather. The judge said that Mr Fungavaka did not make this fact known to the Tongan police. He also said that not much is known from the evidence as to why they were arrested or what led up to their arrest.