By Linny Folau

Tevita Lisiate (23) of Ha’ateiho was found not guilty of causing grievous bodily harm, due to insufficient evidence. It was alleged that he threw a stone that caused permanent blindness in a young woman’s right eye, 

Hon. Mr Justice Cooper found the defendant not guilty at the Supreme Court in Nuku’alofa. This was after a trial from 7-8 September.

The offence was alleged to have been committed on 7 October 2022, at Ha'ateiho to the victim, Lupe Tafuna (22).

A stone was thrown that hit her face, causing permanent blindness in her right eye.

LDS dance

It was alleged that on the day, the complainant was leaving a dance of the LDS chapel in Pea. She was with her brother, Folau, and friends, and they were walking towards the vehicle they were to return home in. 

There was a group of boys walking on the other side of the road. One young man from that group came and confronted Folau. There was an altercation. Lupe got involved to the extent of telling this boy to stop fighting. 

The boy who had approached Folau turned to go and walked back to the other side of the road. Around about this time, there was more shouting from that other group, challenging Lupe's friends to a fight. 

“Lupe and those she was with were nearing the car when she turned, and that is when, as she said in her evidence a rock landed on her face. She didn't see who had thrown it,” said the judge.

The judge said the medical evidence was not disputed. 

“She had, essentially, been blinded in her right eye. She could no longer, for example, read any text message on her mobile phone using that eye. She only had an awareness of brightness in her peripheral vision to that eye.”

The judge said her brother gave evidence, and his account was much as his sister's, save to say that he named somebody called "Tevita", who had approached him and challenged him to a fight. 

His account was that it was this same boy, Tevita, who threw the stone that hit his sister, causing the devastating injury, he said.

“This being a judge only trial l have reminded myself the Crown need to prove all essential elements beyond a reasonable doubt. That not every matter raised needs to be resolved only so much as to answer the question whether they have proved their case.”

No evidence

The judge said this was the height of the evidence against Tevita Lisiate. No one had named him as the person who threw the rock. 

“There was no identification procedure and there was no forensic evidence to link him to the rock. 

“No evidence was adduced as to the circumstances in which Tevita Lisiate was arrested. How the investigation led to his being identified was highly relevant. If anything significant had been said on being cautioned and on arrest, that was never adduced. Quite simply put, that part of the continuity of the evidence was non-existent. 

“There was insufficient evidence for the me to be sure, beyond reasonable doubt, that it was this defendant, Tevita Lisiate, who was the one who had thrown the stone.”

“In addition, the evidence was that someone called Tevita or "Ti" had been the person to challenge Folau Tafuna to a fight and that a "Tevita Lisiate" was amongst the group of boys that then ran from the scene. That was it. 

“It is to be noted that from time to time the prosecution witnesses attempted to point out Tevita Lisiate in court,” said the judge.

At the same time, the Crown's case was predicated on transferred malice. 

He said it follows that the Crown had to establish that the rock was aimed at one person and that instead it hit the victim. Was the harm done that which was intended to another? The foundation for a case of transferred malice was never properly made out.

In addition, Tevita Lisiate was not called to give evidence, the Crown having been put to strict proof failed to discharge their burden of proving the allegation.

Victims of crime denied a voice

“In every case before this Court there must be evidence of the arrest, the caution and the reply to caution. Where identification may be in issue, there must always be an identification procedure carried out. 

“If these observations on basic trial preparation are ignored, then victims of crime will continue to be denied a voice in the Criminal Justice System. In this case young Miss Lupe Tafuna, tragically suffered lite changing injuries.”

As a result, the judge acquitted Tevita on the single count he faced.