Siu ‘i Vahanoa Tu’ipulotu (48) has been found guilty of serious housebreaking and robbery at a store in Ma'ufanga, where he punched the complainant several times, before stealing goods.

Lord Chief Justice M.H Whitten QC found him guilty on October 13, after a trial at the Nuku'alofa Supreme Court.

The offending was on December 18, 2019 at Ma'ufanga when the accused entered the store of the complainant, Xiu Ming Zhou as a trespasser, and committed a crime.

The Prosecution case was that the accused took a can of corned beef, a packet of milo, a mobile phone and a driver’s licence, from the complainant, by using violence when he repeatedly punched the complainant, which put him in fear.

The Chief Justice said, on February 26 this year the accused appeared before the court and explained that he was unable to appear on the first occasion because he was then an inpatient of the psychiatric ward at the Vaiola hospital.

When asked why he was there, the accused said that it was because "they think I'm crazy", he said.

The Chief Justice ordered that a mental health assessment was required, before the accused was arraigned to ascertain whether he was mentally fit to plead to the charges, and if so, whether he was legally insane at the time of the commission of the alleged offences

On March 25, Dr Puloka a Psychiatric Specialist, reported that the accused was fit to plead, and that on the date of the alleged offending, he was unlikely to have been legally insane, he said.

Violence

The complainant's evidence was that on the day in question, he went to get new stock for his store from a nearby bakery.

He locked the front door of his store but not the back door because he knew he would only be away for a few minutes. When he returned, he opened the front door and entered the store. He noticed the accused standing in an area near the back door, taking corned beef cans and other items from the shelves. The complainant was surprised and yelled to the accused words to the effect, "what are you doing, get out." He did not respond.

The shopkeepr tried to chase the accused away but the accused turned and came towards him. He could smell alcohol on the accused and described him as intoxicated. The complainant tried to push the accused away when the accused punched the complainant on his face, around his eye area.

The complainant fell to the floor and the accused continued punching him. He tried to defend himself whilst being beaten on the floor. He estimated that the accused landed six or seven punches. He saw the accused go back over to the shelves and take more goods and the complainant's mobile phone.

After the complainant reported the matter to police, he was taken for medical treatment.

Guilty

In his verdict, the Chief Justice said he accepted the evidence of the Crown's witnesses without reservation.

He said it was equally apparent that the accused did not seriously challenge any of their evidence.

"There was no evidence that the complainant used or threatened to use the knife on the accused. He gestured with it as he was telling the accused to leave the store as a means of trying to scare the accused away."

The Chief Justice accepted that the only physical contact applied by the complainant was when he tried to push the accused out of the store, which, in his view, was reasonable force he was entitled to apply.

"The accused attacked him in the manner described, including multiple punches to the face, which continued after the complainant had fallen to the ground. The knife played no active part in the assault."

“At the same time, his unsworn statements at the end of the trial also amounted to an admission of the relevant facts for each charge. To the extent that any account given by the accused differed from that given by the complainant and the other Crown witnesses, I prefer the latter,” he said.

The Chief Justice said the accused was not truthful with them nor has he been entirely or timeously truthful with this court.

“The prosecutor correctly identified that he only potential issue the accused raised was one of self-defence, that is, that he struck the complainant in order to defend himself from a possible attack by the complainant holding the knife,” he said.

"
I am not satisfied on the evidence that the accused applied force to the complainant as a means of defending himself from any perceived threat of attack by the complainant with the knife. The accused had already demonstrated an intention to steal from the store."

The Chief Justice was then satisfied beyond reasonable doubt that the prosecution have proven each of the elements of both charges and convicted the accused.

He will sentence him on November 18.