Police Inspector Kelepi Hala'ufia and the Crown Prosecutor Sione Sisifa out side the Nuku'alofa Magistrate's Court

Three of the six men accused of manslaughter in relation to the death of New Zealand police officer Kali Fungavaka will face trial at the Supreme Court, while three others were released today in Nuku‘alofa.

Magistrate Salesi Mafi found there was insufficient and vague evidence against three of the accused policemen at the Nuku'alofa Magistrate's Court and released police constables Fatai Faletau, Tevita Vakalahi and Manu Tu'ivai.

The Magistrate delivered his ruling this afternoon after reviewing evidence produced in a Preliminary Inquiry in February. The victim, Kali Fungavaka came to Tonga for his grandfather's funeral in August 2012. He was arrested outside a Nuku‘alofa bar and was fatally injured while in police custody.

Magistrate Mafi found sufficient evidence against three other accused, Police Inspector Kelepi Hala'ufia, Police Constable Salesi Maile and a civilian, Semisi Kalisitiane Manu. Their cases will be submitted to the Supreme Court in Nuku'alofa for trial.

The Preliminary Inquiry held on February 25-28 was to decide whether there is a case for trial at the Supreme Court against the accused who are charged with manslaughter and an alternative charge of causing grievous bodily harm.

Evidence

Magistrate Mafi said in relation to Hala'ufia he found there was direct and sufficient evidence against him from witnesses during the preliminary inquiry.

He said two witnesses, Andre Manu, who was inside the complaint area inside the Nuku'alofa Police station, and another, Falevai, saw him with a torch, which confirmed there was a torch. One witness had seen him use the torch to hit the victim at the complaint area, while the other saw the accused pushed the torch down on the victim's chest inside the charge office.

For Maile, he found the evidence of Hauoli Vi sufficient. She was sitting inside her car and saw the victim being led on foot from the Timeout Bar to the police station by two officers. She saw Maile lift up something with his hand and put it down on the victim's head causing him to fall down.

With regards to Semisi Kalisitiane Manu, there were many witnesses who saw the accused punch the victim in cell number 7 and his case is submitted to Supreme Court for trial, he said.

Weak

In releasing Faletau who was one of the two arresting officers who led the victim on foot from the bar to the station, the Magistrate said there was some evidence in regards to him, but there was more evidence that said it was Maile who hit and stomped on the victim.

In regards to Tu'ivai, the evidence against him appeared later when the victim was in the station. There was no clear evidence provided against the accused that he had caused the injuries to the victim's head or neck bone.

Three witnesses had something to say about him, including prisoners who were in cell number 3. They had a piece of mirror and were able to look at what was happening at the front of the station.

"I went to look at the cell myself and it is true one can't see directly to the front from inside the cell, but you can if one had a mirror. But there was no mirror produced during the inquiry, which diminished the reliability of the evidence by these witnesses, and I release Tu'ivai," said the Magistrate.

He said for Vakalahi, there were two prisoners who were inside a cell on that night who said they used a mirror to see what was happening at the front.

The Magistrate said he questioned their evidence because it contradicted each other and they were the only two out of the 23 witnesses called by the prosecutor that had something to say about this accused. "I found the evidence weak," he said.

"The Preliminary Inquiry is only to decide whether there is a prima facie case against the accused for trial at the Supreme Court. According to law, if I find the evidence against them weak and vague in relation to the charges they face, I am bound to release them," he said.

Magistrate Mafi also told the court he did not believe that the five accused police officers were in a joint enterprise to commit manslaughter and grievous bodily harm on the victim.

Review

In the meantime, Crown Prosecutor Sione Sisifa submitted to the Magistrate that the procedure now requires that if anyone is released from charges after a Preliminary Inquiry at the lower court, he should report it to the Attorney General, who would then review the evidence. 

If the Attorney General finds there is enough evidence against those released, then he can recommend to the Chief Justice to order their arrest and have their case submitted directly to the Supreme Court for trial.

Kali Fungavaka

The victim died at Vaiola Hospital on August 23, 2012 after receiving fatal injuries while in police custody on 17 August.

During the Preliminary Inquiry, the Crown made submissions for the case to be tried at the Nuku'alofa Supreme Court after calling 23 witnesses.

Defence counsel Mele Kioa represented four of the accused, while the others were represented by 'Ofa Pouono and Palu Taufateau.