By Linny Folau
Hausia Vaka, who was sentenced to seven and a half years imprisonment with the last year suspended for grievous bodily harm, when he attacked and severely injured his neighbour's left hand with a machete in 2022, lost his appeal against conviction and sentence.
As of background he was sentenced by Justice Cooper on 21 July 2022 at the Supreme Court in Nuku’alofa, after his conviction for the charge committed in Makapaeo.
On 22 November 2021 the defendant attacked the victim, 'Atieli Tulikihau by striking his left hand with the machete. The judge stated that Tulikihau (the victim) had gone to his allotment to find that his pineapple plants had been destroyed. They had been trampled and hacked at using some type of bladed instrument. The next-door plot is the defendant’s home. He has a fale there, land that he attends and a roadside market. There had been tension between the defendant and his neighbours.
When, the victim found his crops destroyed and saw Vaka on the neighbouring plot, he asked him if he had done this. Vaka said he had. He already had the machete in his hand and challenged Tulikihau to a fight. The victim told him to throw it aside if he wanted a fight. In the end the victim turned and started to leave. This is when Vaka hit him using the flat of the machete blade and knocked him to the ground.
Tulikihau fell face down and as he landed, turned to his side, but Vaka was upon him and hacked at him. Tulikihau thought the blow was aimed at his head, instinctively stretched out his left arm to defend himself and the machete tore open his hand, stated the trial judge.
The Appeal Court in its judgment on 16 May stated that the grounds of appeal was in respect of the conviction that there had been a miscarriage of justice for four connected reasons.
This was that the self-defence was not considered or accepted because there was no medical report before the court and therefore no evidence going to self-defence; the appellant gave evidence that he was speared by the complainant, in the left chest, by a metal pole, the appellant tried to show the mark on his chest to the trial judge but the trial judge wrongly said that was not necessary.
He also argued that his self-defence was denied because of the conduct of the appellant's counsel, in that he was instructed to get a medical report and did not do so and the judge erred in his sentencing remarks when referring to proportionality as between the use of a machete versus a pole. Even though the Notice of Appeal challenged the sentence, no separate ground had been raised in respect of that issue, stated the Appeal Court.
In addition, the appellant came to his land after the complainant and his father were already in possession of their plot, there had been tension between them, the complainant asked the appellant if he had destroyed the pineapple crop and the appellant responded to the effect that he was the baddest guy in the village and held the machete challenging the complainant to fight. The complainant told the appellant to throw the machete aside if he wanted to fight and he turned to leave, at that point the appellant hit the complainant using the flat of the machete blade, knocking him to the ground.
Despite treatment in hospital the complainant lost all use of the fingers on his left hand and his left thumb was amputated.
The Appeal Court stated that the central contention in respect of the conviction was that the appellant was acting in self-defence at the time of the offending conduct, he had been attacked first when the complainant speared the appellant with the metal pole that deeply penetrated his left breast just missing his heart and the appellant used the machete to ward off the complainant's attack, among others.
In their view, there were significant difficulties confronting the appeal. Firstly, the evidence concerning self-defence came solely from the appellant and there were only two eye witnesses, one being the appellant and the other, the complainant.
"It simply cannot be said that the learned trial judge was unaware that self-defence was being relied on. His Honour referred to the appellant's evidence that he had been attacked first, with the metal pole, and that his use of the machete was to ward off that attack. Secondly, his Honour effectively dealt with that defence in his findings of fact. The appellant's account was rejected as untrue and dishonest, and the true account was as his Honour found, that the appellant had attacked a defenceless man on the ground, causing him serious injuries with the machete."
The Appeal Court stated that thirdly those findings were made after the two competing accounts were given in evidence. The trial judge had the undoubted benefit of being able to see and hear the witnesses and they did not have that benefit.
"Plainly the learned trial judge accepted the complainant's account and rejected the appellant's account as dishonest. In such a case, any mark that might have been seen on the appellant's chest, seven months after the incident, was highly unlikely to have made a difference, especially when the learned trial judge had rejected the account of how it came to be there in the first place. We cannot conclude that viewing the mark would have affected the evidence otherwise, or cast such a doubt on the complainant's evidence as to lead to its rejection."
The Appeal Court found that this ground failed.
"While, the remaining ground of appeal was that the sentencing judge erred when refering to proportionality as between the use of a machete versus a pole. ...In context the impugned comment was not determinative of the issue that was being referred to. So much is made clear by the next paragraph: ‘But in point of fact I found that account to be untrue and dishonest.’ That finding was decisive against the appellant's defence.
“As we have noted, the defence failed here because the judge rejected the appellant’s account. But if that was wrong, ... there was no evidence that the appellant believed the use of the machete was reasonable to defend himself, stated the Appeal Court.
“We record that we allowed the appellant to produce on appeal the brief medical report of an examination conducted at the hospital four days after the attack. This referred to bruising and an abrasion on the appellant's left breast. In his police statement the appellant referred to being hit by a pole on his left shoulder."
The Appeal Court after hearing all ruled that it was not persuaded that this report would have materially assisted the appellant if it had been produced at trial and found that none of the grounds of appeal were made out This resulted in the appeal against conviction and sentence dismissed.
