By Linny Folau
David Kent Jr Tau’alupe (35) was found guilty of causing grievous bodily harm to ‘Alo’i Kei, when he stabbed him with a sharp object, causing a severe wound to his left upper abdomen, during a drink up altercation at the Laione Club in Vava’u.
Justice P. Tupou KC in her verdict on 7 October found him guilty of the single count at the Supreme Court Vava’u Registry, after a trial. He will be sentenced on 25 November.
The court heard that on the evening of 8 December, 2023, 'Alo'i (also 35), David “Tevita” and Penitiketo Kesitoni Siale were having drinks at Kesitoni's home. Later that night, they went to the Laione Club where they continued to consume alcohol. They were seated on chairs in a circle out on the veranda of the club building and were joined by others who were already there before them.
At some point during the night, 'Alo'i and another person “Kulisi” drove out in Kesitoni's car without permission, to get more alcohol. Kesitoni noticed and asked about his car just as 'Alo'i drove back into the club. It resulted in some banter between David and 'Alo'i that escalated to an argument where 'Alo'i punched David. The two began to fight. Kesitoni stopped them and David, using a plastic chair, smashed some of the louvers at the club and left.
The accused later returned, armed with a machete. Kesitoni managed to calm the situation again and took the machete off the accused. 'Alo'i apologised to David and called for a truce. David left the club with the machete. About half an hour later, David returned again. He immediately punched 'Alo'i and moved down to the end of the veranda goading him into a fight. The accused was still angry and told 'Alo'i so.
In the meantime, Vakatapu Finau (18) saw Sosefo Faleolo standing between David and 'Alo'i with his hand on David's arm as if to stop him. He also saw that David's right hand was in his pocket holding something black. He said he believed it to be a knife. When asked why he thought it was a knife, Vakatapu said, it was because he had come with a machete earlier. 'Alo'i was still seated.
The judge stated that Vakatapu then called out to Sosefo to move back in case he got hurt and managed to pull Sosefo back. 'Alo'i accepted the challenge and jumped up and fought Dave. Next, 'Alo'i heard calls for him to retreat, that he was injured and Dave had a knife. He moved back and saw his clothes were covered in blood. He leaned with his back on the wall of the club building and slid down to the floor.
The victim was then rushed to the hospital between the hours of 2-3:00am by a neighbour. The doctor’s report described the wound on the left upper abdomen consisting of a 10 cm transverse laceration, 3 cm deep with a minor cut on one of the two exposed ribs, with no active bleeding.
The judge stated that at the closing of its evidence, the Crown sought to amend the particulars of offending by substituting the words "with a knife" with the words "a sharp object" on the ground that the status of the evidence and that there was no prejudice to the accused.
Further Dr Tupou’s report was admitted by consent which referred to the cause as "secondary to sharp object" and therefore the defence was aware of its content. The defence objected but then withdrew her objection to the amendment and the judge granted it.
Guilty
Meanwhile, in the defence counsel original submissions, she argued that the Crown had not proved its case beyond reasonable doubt. No one saw any sharp object on the accussed and no one observed Sosefo with a glass bottle or said that 'Alo'i's injuries were caused by the broken louvres David smashed.
As a result, she argued that a reasonable doubt existed as to how the injury was caused. In her supplementary submissions, she further reiterated those arguments suggesting other inferences were available to the court. That is, that 'Alo'i's injuries were either caused by Sosefo with a glass bottle or from the broken louvres.
The judge stated that there was simply no evidence on which inferences could be drawn that Sosefo attacked 'Alo'i with a glass bottle or the injuries were caused by the broken louvres.
“There was no evidence that the fight was anywhere near the broken louvres. On the other hand, I found each of the Crown witnesses truthful in their observations and recollections of the events on the early hours of the morning of 9 December, 2023 at Laione Club. Nothing arose out of the trial that gave any of them reason to lie about what they saw that morning.
“I believe 'Alo'i's evidence that when Dave challenged him to a fight, he told him he was still angry. I also believe Vakatapu saw Dave holding a black object in his right hand in his pocket which he believed to be a knife.
“I find that the 3rd altercation was solely between 'Alo'i and Dave up to the point where 'Alo'i moved back and realised his clothing was covered in blood from the injuries he sustained before moving back. The fact that there was no direct evidence as to the weapon used to inflict the said injuries to 'Alo'i's left abdomen was subject to submissions by the parties on what inferences were available to the court on the evidence before it,” she said.
“Moreover, the inference that a sharp object was used is supported by the nature of the said injuries as described by nurse Lolohea and Dr Tupou's opinion, after examining 'Alo'i at 9:00am that morning.
“I have seen the photograph of the injury myself and am convinced that a sharp object was used to exact it. Consistent with that conclusion is the fact that Dave also sustained cuts to his right hand with which Vakatapu observed he held the black object and that 'Alo'i's injury was to his left upper abdomen, consistent with them facing each other while fighting. Kesitoni intervened and stopped Dave when he came with the machete and 'Alo'i apologised. The fighting had ended then.
“But Dave after half an hour came back and without provocation, challenged 'Alo'i to a fist fight knowing 'Alo'i was unarmed but that he himself was armed with a sharp object. As mentioned earlier, I am satisfied that the only persons involved in the 3rd altercation were Dave and 'Alo'i. The defence proposed an alternative suspect in Sosefo.
“I reject that suggestion as there is simply no evidence to connect Sosefo to the offending. He was removed from the scene prior to 'Alo'i taking on Dave's challenge to fight. As a result, I do not hesitate to find that Dave's attack on 'Alo'i was wilful and without lawful justification.”
The wound was described as a transverse laceration 10 cm in length and 3 cm deep that reached the victim's ribs causing a minor cut to one of the two ribs exposed by the wound.
The judge stated she was satisfied that ‘Alo‘i’s injuries constituted a “severe wound.”
“For the above reasons, I am satisfied that the Crown has proven each of the elements of the charge against the accused beyond reasonable doubt and I find the Accused guilty of the charge of causing grievous bodily harm to 'Alo'i Kei and he is convicted accordingly.”
