Father and sons convicted of common assault [1]
Thursday, September 14, 2023 - 21:55. Updated on Friday, September 15, 2023 - 13:50.
By Linny Folau
Kali Malupo (57) was found guilty of grievous bodily harm, when he struck a 24-year-old man on the head using a machete at Manuka. His two sons were convicted of common assault for punching the complainant. The judge said they should have been charged with attempted murder.
In a judgement handed down on 11 September, Hon. Mr Justice Cooper convicted Kali of the offence to Filihia Li, at the Supreme Court in Nuku’alofa.
Although, his sons Sione and Siaosi were found not guilty of grievous bodily harm, they were both found guilty of the alternative counts of common assault.
Attempted murder
The judge made two observations about the trial.
“Firstly, from the foregoing it will be entirely obvious to anyone that all defendants should have been charged with attempted murder. No explanation has been offered as to why this was not so.
“Secondly, the medical evidence plainly needed expanding upon, rather than simply a one-page note and a photo. Ultimately, it did not stop and clear finding by the Court, but it was crying out for expert evidence as to how this was caused, from what height and angle; when spelt out may have concentrated the defendant's minds on arraignment. Both these points should have been picked up in any proper case review.”
Offence
“Meanwhile, what was agreed for by the parties was that the incident that led to this injury occurred on 31 October 2022, in the early evening, outside the Filihia's father's family home.
“It was caused by Kali with a machete, after there had been a confrontation between Filihia, who was drunk and standing in the road, and Kali in his vehicle. Kali had moved his vehicle towards Filihia and he (Filihia) had punched and smashed a front headlight.
“Kali then produced a machete and struck Filihia with it causing the injury. Filihia was unarmed and there is no suggestion he ever had a weapon or any person thought he may have had one.
“In his vehicle from the start was Kali, his wife, and son. By the time the wounded Filihia was led into his father's fale, a number of other people were also present. Those were Filihai’s step mother, Kalonikakala Li, and ‘Otukolo Malupo, also Siaosi Malupo.”
Kali
The judge said when considering (exhibit 2) both the photograph and the report, it is quite clear the objective evidence did not support the defendants' version.
Kali’s account was that Filihai Li was so close to his vehicle his left thigh was actually touching the driver's side door when Filihia punched at him twice through the open window.
Kali then injured him with the machete. The mechanism that Kali and his co-defendants and his witnesses stated was the cause, is substantially undermined by the injury being to the very top of the head, he said.
"A thrust of a machete horizontally out through the window would very likely to have caused an injury to anyone at the driver's side door, which is where the defence suggests Filihia was, yet there was none. On the other hand, that objective evidence supports the version the Crown rely on, that is to say, Kali himself left his vehicle, he and Filihia Li were then standing more or less face to face, there was a strike down, made by Kali Malupo aimed at the head of Filihia, who had tried to move out of its way but was struck, despite his father tackling Kali Malupo."
“Kalonikakala corroborated both Melikiola Li and Otukolo Malupo; their accounts were of three strikes each aimed at the head. All the while Melikiola Li trying to stop Kali from attacking and having to dodge these blows too.
“Kalonikakala stood close by, a matter of just a few feet, the area well let by a nearby street light and the house lights,” he said.
“In my mind it is significant the admission by Kali Malupo that he caused the injury with his machete on an unarmed man, so there would be no reason for any of the Crown's witnesses to concoct an untrue version of events.
“If it is thought, or argued, that the Crown witnesses wanted to minimise and give untrue answers to cover the fact that Filihia was the aggressor in that he threw punches at Kali at his vehicle's window, I totally discount that version for the following reasons.”
He said, firstly the Crown's witnesses were all candid that Filihia was drunk, troublesome and had smashed the headlight of Kali’s vehicle; none gave any hint they might wish to minimise any of those facts.
“Secondly, given the way the vehicle of Kali was driven towards Filihia in the road, they each could have characterised that as some threatening act by Kali that justified Filihia in punching the head light. None of them did; from which I conclude they were not given to exaggerating their accounts. Thirdly, to react against the use of fists with a machete is so plainly disproportionate, it defies logic for the Crown witnesses to need to minimise the role played by Filihia Li had he approached light up to the driver's door.
“Malupo aimed at the head of Filihia Li, who had tried to move out of its way but was struck, despite his father tackling Kali Malupo, he said.
“The defence account is unbelievable, and when I consider the Crown's allegation of a strike from above that is entirely supported by the evidence. I also note that the defence case, predicated on Filihia Li being at the car door to attacking Kali Malupo, was said to involve a tussle after the punches were thrown. Kali Malupo said it involved the smashing of the plastic cover to the top of the car door.
“Precisely what this part of the vehicle was never made entirely clear. But, it was noteworthy there was not produced any evidence of this by the defence, whereas a photograph of that damage would have been so simple to have put before the Court. Also, one may have expected there to have been injuries associated with such force and damage. Yet none were said to have been inflicted.
“That account did not have the ring of truth, so tended to undermine the defence case on that point and generally.
“I conclude the defence witnesses have put their heads together and concocted a vversion of events as to how the head injury was caused. Consequently their evidence as to lead-up to that injury becomes, itself, highly questionable."
He said as against the defence account, the Crown witnesses (i) had no reason to lie (ii) their accounts were not shaken by cross examination (iii), and their narrative was entirely realistic as to the build up to the injury to Filihia's head.
Attack
The judge said the attack by Kali Malupo consisted first in his showing the machete out the window of his car in retaliation to the smashing of his headlight. Filihia Li approached the vehicle but not so as far as the driver's side window. He fell back at the sight of the machete.
Kali Malupo left his car armed with the machete, pursuing Filihia Li into the grounds of his father's 'api then wounding him just by the pole of the car port. The injury intended was worse than that caused by Melikiola Li. I find he tackled Kali Malupo at the critical moment.
The blow aimed squarely at Filihia Li's head he partly diverted by taking this action, though not enough to escape the injury suffered. I accept Melikiola Li's account that had he not done this, Filiahi Li's head would have been, in his words, split in two, he said.
“From the foregoing there can be no question of self-defence or defence of property on the part of Kali Malupo.”
Sons
Meanwhile, both Sione and Siaosi face allegations of causing grievous bodily harm by jointly participating in the attack on Filihia Li. They were acquitted of this but were found guilty on alternative counts of common assault.
The judge said Sione Malupo plainly lied when he gave an account of Filihia Li injured by the side of the car.
“I am quite sure that even if Siaosi Malupo was not in the car with the rest of his family, he was very quick at the scene and attacked Filihia Li. The Crown's witnesses were all clear on that and nothing undermined those accounts.
“Given that the defence case was that Filihia Li had been so close to the door his left thigh was touching the vehicle's door, any cross-examination needed to put precisely that degree of proximity, he said.
“When viewed against the defence case, the lone question put as to how close Filihia Li got to Kali Malupo in his vehicle was inadequate. I am quite sure that both Sione Malupo and Siaosi Malupo did not act to protect their father nor in defence of property; simply out of furious vengeance. Their attacks, both in tandem, as they were and lasting as long as they did, reveals levels of anger and violence going beyond self-defence.
“I am also quite sure they continued to attack Filihia Li after he was grievously injured. This is strong evidence of their state of mind from the start; that they were determined upon violently dealing with Filihia Li for violence's sake and did so.”
The judge then found Kali guilty of grievous bodily harm, and the other two guilty of common assault. They will be sentenced on 5 October.
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