By Linny Folau
Eight young men were found guilty on charges relating to a brawl in central Nuku’alofa between two opposing groups from Ha‘ateiho and Paho last year. The charges included jointly causing grievous bodily harm to a victim from Pahu, who suffered life-endangering injuries. Seven of the accused punched and kicked the victim’s head, while another repeatedly hit the victim’s head with a sii branch, causing brain injury. The victim, died shortly afterwards.
At the Supreme Court in Nuku’alofa, Lord Chief Justice Bishop expressed his surprise that the medical evidence asserting the deceased died from “a pre-existing condition”, was not challenged.
"It was asserted, and not challenged, that the deceased died of a pre-existing condition and that the injuries he sustained did not cause or contribute to his death. That strikes me as an extraordinarily surprising conclusion but that is the unchallenged medical evidence, and I must deal with the case as it is presented. It goes without saying that had there been evidence that the blows and kicks which the deceased suffered was a substantial cause of death, then far more serious allegations would have been made.”
The judge found there was intent to commit the offences the accused were charged with.
The victim, who was not named in the judgement, was identified only as “Toni” in the evidence of interviews given by some of the accused.
The LCJ dealt with the case as presented and convicted the eight men of the charges on 22 October.
In 16 pages judgement, he stated that this trial was concerned with what was rightly described as a brawl which occurred in the centre of Nuku’alofa in the early hours of 17 September 2023. Part, though not all, of the events of that night were captured on CCTV.
“In broad terms this was a confrontation between two groups of opposing young men, one group from the village of Ha'ateiho and the other from the village of Pahu and it appeared to have been two confrontations followed by a disengagement and then a resumption,” he stated.
He was satisfied on the evidence that each member of the group participated in the fighting to a greater or lesser extent.
Mesuilame Finau was found guilty on the charge of jointly with the other accused persons that he caused grievous harm to the victim when he repeatedly hit his head with a sii branch causing him brain injury that endangered his life. He pleaded guilty to a common assault charge, when he repeatedly hit the victim's head with the sii branch causing him an injury to his right eyebrow.
Tevita Lisiate was found guilty that in concert with the other accused he caused grievous bodily harm to the victim, when punched and kicked the victim's head causing him a brain injury that endangered his life. He pleaded guilty to another count of common assault when he punched and kicked the victim to his body (not his head).
Moana Masima was found guilty that jointly with the other accused of causing grievous bodily when he punched and kicked the victim's head causing a brain injury that endangered his life. He had already pleaded guilty on another count of common assault.
Richard Vea was found guilty of count 10 when he jointly faced the same joint count on the basis that he punched and kicked the victim's head causing a brain injury which endangered his life. He pleaded guilty to common assault.
Mafua Palu was found guilty of count 13 jointly with the other accused of causing grievous bodily when jointly with the others he punched and kicked the victim's head causing him a brain injury that endangered his life. He pleaded guilty to another count of common assault.
Siosifa Vatuvei was found guilty of count 16 jointly with the other accused of causing grievous bodily, when he jointly with the others punched and kicked the [vicitmhead causing a brain injury that endangered his life. He also pleaded guilty to another count of common assault.
Viliami Tongamana was found guilty of jointly with the other accused of causing grievous bodily alleged that with the others that he caused grievous bodily harm to the victim in that he punched and kicked his head causing a brain injury that endangered his life. He also pleaded guilty to common assault.
Salamani Filikitonga was guilty of jointly with the other accused of causing grievous bodily harm he caused grievous bodily harm, his part being that he punched and kicked the victim's head causing him a brain injury that endangered his life. Again, in the alternative of common assault, he too pleaded guilty.
Brawl
The LCJ stated that these allegations arose out of the brawl, with most of the accused hail from Ha'ateiho, but the accused Finau is from the village of Fo’ui, while Palu comes from Pahu and Filikitonga from ‘Utulangivaka, Vava'u.
T“hey all appeared to be supporters of their local rugby team. On the day in question after drinking together locally they came to the center of town where they continued drinking and when the bars closed, they started to walk home and eventually reached the Hala Holomui ‘o e Pato Road. Now the previous week this group or some of them had encountered another group of young men from Pahu, or who at least had allegiance to that area, or its rugby team. That encounter resulted in a confrontation and the brawl ensued,” he stated.
Meanwhile, it was claimed that the Pahu contingent prevailed in that brawl and got the better of their opponents from Ha’ateiho village.
The LCJ stated that the allegation was that the accused were aggrieved at what had happened the previous week and were determined to exact revenge.
“The brawl itself was of relatively short duration. Both sides exchanged blows and, in short all were full and indeed enthusiastic participants in the ensuing fight. Tragically one of those involved from Pahu suffered injuries and died shortly afterwards.
Extraordinarily surprising conclusion
"It was asserted, and not challenged, that the deceased died of a pre-existing condition and that the injuries he sustained did not cause or contribute to his death. That strikes me as an extraordinarily surprising conclusion but that is the unchallenged medical evidence, and I must deal with the case as it is presented. It goes without saying that had there been evidence that the blows and kicks which the deceased suffered was a substantial cause of death then far more serious allegations would have been made.”
He stated that the accused made statements under caution, as most were accompanied by a responsible adult while others indicated they had no such need of an adult.
“I am quite satisfied that the interviews were properly conducted, this is important because during those interviews each of the accused made admissions about their part in what happened. They also implicated some or all of the other accused but, as I explained during the course of the evidence particularly to the three defendants who were unrepresented at the start of the trial, (apart from Masima) gained representation while the evidence was being given unrepresented, I put out of my mind what a particular accused said about another alleged participant and concentrate solely on the admissions made by that accused himself.
“Two of the defendants made what was known as voluntary statements, both of them having been charged and answering to the charge by saying that they would “wait for a lawyer.” Despite this, these two defendants were invited to make voluntary statements in which they expressed remorse for what had happened. These statements therefore are in breach of that provision, and I must disregard them at this stage of my deliberations although they may or may not be of assistance should mitigation arise.
“Let me say, at once, that as this is a criminal trial. The burden of establishing the guilt of the particular accused whose case I am considering rests upon the prosecution. Guilt must be established on the evidence, and by that, I mean the admissible evidence so that I am sure of guilt. Nothing less than being sure will suffice. Some of the evidence was given by what may be described as the Pahu party. They were by their own admission criminal participants in the brawl, they each had their own interests to serve by seeking to implicate the accused persons. I have decided that the overall fairness of the trial compels me to disregard their evidence in its entirety. I do so,” he stated.
The LCJ added that the essence of joint responsibility for a criminal offence was that each accused shared the intention to commit the offence and took some part in it however great or small so as to achieve that aim.
"So, the question for me was there a joint plan and did the accused whose case I am considering participate in such aplan or agreement with the intention of furthering its aim. Some participants may have been more involved than others; some may have inflicted greater harm than others, but if they were all complicit in the enterprise they are all, criminally responsible for the consequences which flow therefrom.
“I am not satisfied on the evidence that this agreement was conceived when the accused were at their home village or that they came to town to carry it out. It seems to me that their purpose in coming to the centre of town was to watch the rugby match and afterwards to enjoy the celebrations, but as soon as the presence of the Pahu boys was known then the intent to get even by attacking them was formed and it was to further this aim that each of the accused behaved as they admit they did.”
All guilty
The LCJ stated that this meant that the individual concerned is responsible in law not only for what he himself physically did but what the others also did in furtherance of this common design.
"Some kicked, another used a branch to strike, and others punched the same victim. But to suggest that all this happened in such a short space of time within such a confined area because eight separate accused behaved independently of each other or with different intent to each other is fanciful and I reject it.
“This means that since all the accused admitted taking an individual and physical part in what happened, I find so that I am sure that they were each adherent to the common enterprise and are responsible in law for the totality of the foreseeable harm caused (in this case to endanger life) even though some played a lesser part. My conclusion is that each of the accused, although affected by drink, still had the requisite intent to do what happened with the specific intent required. I say this for the following reasons.
“The video shows that they were able to stand, run and jump and were in full control of their bodies and its physical functions. Each of them were able to make good their getaway and in some cases to either hide near the scene when the police arrived or to obtain transport to take them home. In my judgment, none of the accused can claim that they were unable and did not form the necessary intent because they were drunk," the LCJ stated.
“Meanwhile, in regards to provocation by the Pahu contingent, there was evidence that they initiated the challenge, or at least one of them, that is not a defence to the charges before me although of course it goes to mitigation.
“In the upshot, I have concluded on plain evidence that each of the defendants acted as a principal and did so to further the collective punishment of the Pahu boys either because of what happened previously or because of inter village or inter rugby team rivalry. This means that in considering the case of each accused I concentrate on what they themselves admitted doing and consider whether that amounts to participation in the joint enterprise I have already found existed.
“Nevertheless, it seems to me beyond question that the accused's group accepted the challenge and set about it with enthusiasm. I therefore reject the suggestion of self-defence because I am satisfied so that I am sure that the prosecution have established that that was not what happened here,” ruled the LCJ.
The group will be sentenced on 4 December.
Mr J. Fifita appeared for the Crown Prosecution
Counsel for the accused were, Ms A. Kafoa for Lisiate, Finau, Vea and Filitonga. Mrs S. Fa'otusia appeared for Vatuvei, Palu, Tongamana and Masima.
