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The trial of five accused policemen charged with manslaughter in relation to the death of New Zealand Police officer Kali Fungavaka in 2012 began today, Tuesday, April 8 at the Supreme Court in Nuku’alofa.

Police Inspector Kelepi Hala‘ufia and Police Constables Salesi Maile, Tevita Vakalahi, Manu Tu’ivai, Fatai Faletau who elected to be tried by judge alone this morning pleaded not guilty to manslaughter with an alternative charge of grievous bodily harm before Mr Justice Charles Cato.

Before the trial began, the judge suppressed photography or video filming of witnesses or the accused going to or coming from the court room or in the precincts of the court. The Judge stated that identification was likely to be an issue in this case.

However, still photographs were permitted inside the courtroom before the accused were arraigned, but these did not include any photographs of the five accused.

Joint-enterprise

The Crown Prosecutor  'Aminiasi Kefu said it was their case that the accused acted in joint enterprise and caused bodily harm to the deceased because he was resisting arrest and detainment, and in doing so they caused substantial injuries which lead to his death on August 23, 2012.

He said there was a separate accused Semisi Kalisitiane Manu charged with the same offence of causing substantial injuries that led to the death of the deceased.

Kali was a young Tongan-born man serving in the New Zealand Police who came to Tonga for the funeral of his grandfather. After the funeral he went out socialising and drinking on the night of August 17, 2012 where he consumed a substantial amount of alcohol. Around midnight Kali and his cousin Tavake Paea came out of the Time Out Bar located on Taufa'ahau Road in central Nuku‘alofa.

The Crown alleged that Kali was seen falling on the sidewalk due to his intoxication. At this time the accused were part of a Police Tactical Response Unit group tasked with patrolling Nuku‘alofa to arrest persons drunk in public places and those who were committing crimes on the night. They arrived and got out of a police vehicle in front of the bar. One of the witnesses said Kali was drunk so they moved to arrest him but he resisted the arrest and questioned why he was being arrested.

The court was told that police officers Maile and Faletau then apprehended Kali and moved him to the police vehicle parked outside the bar. They tried to put him in through the rear side but he resisted. They were not able to get him into the vehicle so they decided to walk him down to the police station, which was nearby on the corner of Salote Road.

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The two accused were said to have held both Kali's arms upwards while leading him on foot to the station, where two witnesses were sitting inside a vehicle parked in front of Friends Café. One of them said she saw the accused Maile hit Kali with what appeared to be a hard blunt object causing him to fall on the ground and both kicked him. She said the policemen picked him up and continued walking him down to the station.

The prosecutor said the two accused took Kali into the charge office and threw him on the foor, where he fell leaning on the wall. He swearing and was still questioning why he was being arrested. They then removed him to the watch house to prepare to put him into a prison cell.

At this time four witnesses, who were watching from inside the cells, said they watched what happened inside the watch house, while another two witnesses a police officer and another man who was inside the charge office said that Hala‘ufia hit the deceased on the top of the head with what seemed to have been torch and poked him in the chest with it.

Inside the watch house Tu‘ivai and Vakalahi stood over Kali, with Maile and Faletau, and applied punches on the accused. At this same time Kali was still resisting the arrest and swearing at the accused police officers and witnesses said they saw Hala‘ufia grab and choke Kali's neck causing him to loose consciousness and they said he started to turn purple.

He was then dragged to cell number 7 by Maile and Faletau and when they got to cell one, Maile was seen stomping on the back of Kali's head and knocked him out and they left him lying on the floor. The duty officer at the watch house was called to take him to cell 7. Kali was dragged to cell 7 where other detainees were kept for public drunkenness. Kali was lying on the floor for some time before regaining consciousness. When he did regain consciousness he observed what happened to him and started to swear and challenged others to fight.

The other accused (a civilian) told him to stop swearing and they got into an argument. The accused punched Kali causing him to fall hard on the floor and he lost consciousness. A short while later the detainees in the cell called the police to take him, fearing he was badly hurt. The police officers on duty at the watch house moved him to cell 6 where another detainee was present.

This detainee said he said he tried to help Kali as he noticed he was coughing blood and his head started to swell quickly. He called to the police officer at the watch house to take him to hospital but the police did not take him until 5:00am the next morning of Saturday, August 18, the court was told.

The prosecutor said Kali was admitted to the intensive care unit under the care of Dr Viliami Tangi, the specialist surgeon at Vaiola Hospital. It was clear to him the serious injuries he had sustained, but it was not obvious to him at the time that the top of his head was severely fractured because there was no scanner equipment to identify the fractured skill.

He said a few-days later Dr Tangi operated on Kali's head to drain fluid from his brain to relieve pressure. There was an indication that he started to recover but then on August 23 it was evident that his health deteriorated and he passed away, he said.

Fractured skull

The court was told that Kali's body was taken back to New Zealand where a post-mortem was carried out by a pathologist who identified two significant injures he believed contributed to Kali's death.

The prosecutor said one was a skull-fracture on the top of the head that was consistent with the injury of being hit by a hard blunt object on top of head, and the other was subdural hemorrhage at the bottom of his brain consistent with hard force inflicted on his head causing the brain to jolt violently rubbing against the skull that caused massive internal bleeding to the bottom of the brain.

Crown case

He said that it is the Crown's case that the deceased was hit hard by a blunt object by Maile, and Hala‘ufia caused a fracture on top of the skull. It is the Crown’s case that the other three accused Falevai, Tu‘ivai and Vakalahi compounded to the effect of the skull fracture by causing severe bleeding of the brain causing it swell, which slowly closed down his body functions.

The Crown's case is that these two significant injures caused Kali's death.

“At the end of the case we will submit that the accused did act in a joint enterprise to cause bodily harm to Kali because he was resisting arrest and was swearing making them very upset. The joint enterprise is alleged by to have started from Friends Café where they led him to station up the putting him in the cell,” he said.

The Crown will call 30 witnesses and anticipates to end their case on April 16. The first witness was called this morning.

The accused's counsel are Palu Taufateau for Hala’ufia, ‘Ofa Pouono for Vakalahi, Tu’ivai and Maile with Faletau represented by Siaosi Fifita.

The Solicitor-General is assisted by Marina Moa and Joan Puloka.

Kali's family, including his parents and wife Audra, were in present in court today.