Viliami Halalilo and Tukumo’ui Havea have been found guilty of common assault each when they punched and kicked a 21-year-old victim in Neiafu, Vava’u.

Hon. Mr Justice Cooper in a judgment on 28 October in the Vava’u Court Registry found both men guilty of the offences committed on the victim, Liuaki Fainu, on 12 June 2021.

Halalilo was acquitted of serious causing bodily harm. 

The Crown’s summary of facts was that on 12 June 2021, the complainant’s wife, Mrs Fainu called the Police and reported that the complainant was drunk and destroying things at their house in Ha’alaufuli.

Mrs Fainu in her evidence in court said she had a misunderstanding with her husband.

He took a mop and threw it at the verandah, breaking two louvres. She was upset and called the police so they would put him in jail as she understood this was a familiar way of resolving matters.

The court also heard from Nafetalaai Sila who said, he saw with his own eyes a person assaulted and kicked by two officers on 12 June 2021.

Sila said, he was standing there when he saw Viliami punch and kick this person, then stand up and use his knee to hit him to his head. This was around 5:00pm and it was still light outside.

He saw the police officer chasing a person he did not know. He left his house and went outside to see what was happening. He also named the two officers and recognized the defendants.

The victim lodged a complaint with the Police and the doctor stated that she saw the victim, and he complained that he was assaulted.

He was missing a front upper tooth despite having no record of any extractions or fillings in the past 12-months. There was also superficial laceration to the left buccal muscosa, which is the top inside left tissue lining the mouth.

She stated the injury to the socket was not recent and estimated it could have been more than 24-hours before, as bleeding had stopped.

Evidence

The judge said there was distinct conflict between the account of the three police officers and that of Mr. Sila and Mr. Fainu.

He noted that Mr. Sila was independent. There was no evidence of any connection between him and Mr. Fainu.

"Against that there were aspects to the police evidence that were doubtful and have led me to dismiss their accounts as untrue. .."

The judge did not accept the assertion that Mr. Sila was not present until the end, so did not see the events.

“Next, the suggestion that Mr. Fainu was injured later in the police station, as suggested by Mr. Halalilo is also unconvincing. He suggested that another detainee assaulted Mr. Fainu and the suggestion is that was he lost his tooth.

“Yet, on Mr Halalilo's word when he got Mr. Fainu out of the cell and asked him how he was, he replied he was alright. That is most unlikely if he had just lost a tooth.

“Then his account was that Mr. Fainu wanted to fight his assailant and urged the police to let him.

“This is inherently unlikely since why would he tell the officer he was alright if in fact that he was so upset at the assault that he wanted to fight the assailant. That did not make sense. It did not ring true.

“One also wonders why the officer did not arrest this assailant, cause a record of this incident to be made and at least have a name of who this other person was Though, in fairness, none of those questions were put to him, thus those points being untested, I take no heed of,” he said.

The judge asked, “why would Mr. Fainu blame two police officers if someone else had assaulted him? That is also inherently unlikely. And, why two, and not simply one if it was just all invented by Mr. Fainu?

“Further, if he knew who his assailant was, as the defendant Mr. Halalilo claimed, there would be no reason in the world to make up that it was two police officers.”

Officer Latu's account of arriving at the scene did not match what the defendants said. Both gave evidence that Officer Latu was hot in pursuit.

"Therefore, in assessing the evidence of the officers, I conclude that they were not reliable. Their accounts were inherently unlikely and contradicted one another and contained implausible suggestions.

“Accordingly, I conclude they have put their heads together and concocted a version of events to present a scenario to try to draw attention away from what really happened.

“I reject the contention that Mr. Sila was drunk or that he was not present in the way he described. For the reasons above, I accept his evidence as being reliable.

“Because the evidence of Mr. Sila and Mr. Fainu chimed on such telling details and given Mr. Sila was totally independent, I am absolutely sure that their accounts are the correct and honest version of what took place."

Unlawful act

The judge then said that punching and kicking a detainee who has fled police custody and has fallen to the ground and is prone, not putting up any resistance is plainly not a lawful act.

It could never be said to be in keeping with the lawful duty of a police officer. There was quite clearly no lawful justification in what either officer did. Both witnesses are quite clear that it was both Mr. Halalilo and Mr. Havea punched and kicked Mr. Fainu on the ground.

The judge said each element that related to common assault have been proved, separately as against each defendant. There was the clearest evidence that both defendants assaulted Mr.Fainu.

"They indulged in sheer hooliganism and behaviour and not keeping with the dignity and high standards of the Tongan Police Force," he said.

“First Mr. Halalilo assaulted Mr. Fainu. He chased him down and when Mr. Fainu fell, punched and kicked him. At one point pulled him to his feet and then slammed his head down and thrust his knee in to it.

“As already noted, whilst Mr. Fainu did not give evidence of this happening, Mr. Sila did. That event was before Mr. Fainu's tooth was knocked out and happened, in the sequence of events Mr. Fainu gave evidence of, when he was momentairily knocked unconscious.

Taking those points all together and that Mr. Sila was best placed to see exactly, what happened I am quite sure that took place. He continued to kick and punch Mr. Fainu after Mr. Havea arrived, also kicking and punching the hapless Mr. Fainu.

The two were then convicted of common assault. They will be sentenced on a date to be confirmed.