R v Tongia

[2020] NZHC 2381

ORDER PROHIBITING PUBLICATION OF ADDRESSES OF WITNESSES PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-004-011143

[2020] NZHC 2381

THE QUEEN

v

JOSHUA SIO TONGIA

Hearing:

6–10 July, and 6 August 2020

Counsel:

D G Johnstone and S T L Teppett for the Crown L O Smith and P K Hamlin for the Defendant

(together with J Wright), Speech-Language Therapist and Court- appointed Communication Assistant)

Judgment:

14 September 2020

(ORAL) JUDGMENT OF EDWARDS J

[re Summary of s 10 Involvement Hearing]

Counsel:     L O Smith, Auckland

P K Hamlin, Auckland

Solicitors:    Meredith Connell (Office of the Crown Solicitor), Auckland

R v TONGIA [2020] NZHC 2381 [14 September 2020]

[1]        Late at night on 7 December 2018, there was a fight on a road in a residential area of Auckland. Rima Sikei was stabbed and, tragically, died at the scene. Taufa Siu was also stabbed but survived. Joshua Tongia is charged with murder and attempted murder. Because there were two sets of siblings involved in the fight, I will refer to each of the witnesses involved by their first or preferred names. I mean no disrespect in doing so.

[2]       Before I go on, I want to take a moment to acknowledge the friends and the family of Rima Sikei, and pay my respects to the deceased. As my role requires, I have approached the decision I must make objectively, independently, and dispassionately. But that does not mean that I am blind to the emotional pain suffered by those who lose a loved one. Some of what I say today might be hard for you to hear. You might not want to hear it at all. But I hope the delivery of this judgment today will bring you some closure, so you may move forwards with your lives.

Nature of involvement hearing

[3]        Let me turn now to explain what the judgment I am delivering today is all about.

[4]        Joshua was found unfit to stand trial. He was assessed as having an extremely low intellect and other cognitive difficulties which meant he could not give instructions to his counsel or effectively participate in the trial process. Joshua also suffers from paranoid schizophrenia which was diagnosed some time ago. His condition has been successfully treated with medication for a number of years. There is no suggestion that Joshua’s disability was connected to the offending in any way.

[5]        A finding of unfitness is the first step in the process prescribed by the Criminal Procedure (Mentally Impaired Persons) Act 2003. The judgment I am delivering today concerns the next step in that process which is the determination of “involvement”. Before making a finding of involvement, I must be satisfied, on the balance of probabilities, that the evidence against Joshua is sufficient to establish that he caused the act or omission that forms the basis of murder and attempted murder.

[6]       The nature of Joshua’s disability means it is unlikely that he will ever be fit to stand trial, and a jury will not get the opportunity to return a verdict on the charges. The involvement hearing, then, is the next closest thing. That is important for the families of Rima and Taufa and for the public at large. And, for Joshua, it is the only opportunity he has to defend the charges on the grounds of self-defence and defence of another.

[7]       Determining involvement in these circumstances raises an issue about the standard of proof. In a jury trial the Crown must prove murder and attempted murder beyond reasonable doubt. But the determination of involvement only requires a court to be satisfied to the lesser standard of the balance of probabilities. That has the potential to operate in a way that unfairly discriminates against people in Joshua’s position, who are unlikely to go to trial. One of the recommendations I make in the judgment is for the scope of the involvement hearing, and the standard of proof, to receive urgent legislative attention.

What happened?

[8]       So, what happened? What I set out now is a summary of my factual findings. My full factual findings, and my reasons for the involvement determination, are set out in a comprehensive written judgment which will be delivered following this hearing.

[9]       The altercation  that  lead  to  the  stabbings  took  place  after  11.00 pm  on  7 December 2018. It involved two groups which I shall refer to as the Siu group and the Tongia group. The Siu group comprised six males, including Rima. They had been drinking all afternoon at the Lovelock Community Centre car park, and, by their own admission, were quite drunk.

[10]     The Tongia group comprised two males and two females. The two males were Joshua and his brother, Misi. The two females were Joshua’s sister, Emily, and Misi’s partner, Kalina. They were at home with two children asleep in one of the rooms. The two women were having a few drinks in a carport at the front of the property. Joshua was in his room, and Misi was around the front of the property having just purchased a pair of shoes.

[11]     Two of the Siu group, brothers David and Taufa,  drove  from  the Community Centre back towards their home. They drove down William Blofield Ave, and up the driveway to Wesley Intermediate. That driveway runs alongside the Tongia home. They pulled up on that driveway beside a gap in the hedge on the boundary of the Tongia home. They were yelling out to Misi that they owned William Blofield, that they knew where he lived, and they were calling him out for a fight. There had been fights in this area before, but there is no suggestion that the two groups had fought each other previously.

[12]     The Siu brothers then parked on the side of the road, opposite the Tongia home. An altercation between the two sets of brothers then followed. One of the Siu brothers had a screwdriver, but it was not used to inflict any injuries. Kalina and Emily were standing on the edge of the Tongia property yelling at the Siu brothers to leave. Kalina was waving a baseball bat around that she had fetched from the back of her car. The altercation caused a nearby neighbour to call police. The Siu brothers then left, one of them saying that they would “blow your fucking head off”.

[13]     The Siu brothers returned to the Community Centre and gathered the others who were keen for a fight. All six men then travelled in two cars back to the Tongia address on William Blofield Ave. The two cars parked on the same side of the road as the Tongia home, partially across the Wesley Intermediate driveway, and opposite number 16 William Blofield Ave.

[14]     Misi came out from the Tongia home carrying a baseball bat. He smashed in the front passenger window of one car, and caused damage to the other. The Siu group got out of both cars. One took off up the street, not wanting to be involved. The others rushed Misi, who hit out with the bat, but soon lost it as he was punched to the ground. At any one time there were at least three, and up to five men, involved in beating Misi. The attack on Misi involved punches and kicks to the head. There is insufficient evidence for me to conclude that it also involved being hit with the baseball bat, but its presence added to the threat of violence.

[15]     Kalina dragged one of the men, probably David, off Misi. They ended up in a struggle over the baseball bat. This happened close by to the driveway of

16 William Blofield Ave. Kalina saw Rima lying on the driveway. He had been stabbed by this time. She called out to the Siu group to stop fighting and look after him. One of them stopped the beating on Misi and cradled Rima in his arms.

[16]     Taufa was also stabbed during this altercation. He was beating Misi at the time. After being stabbed, he drove home in one of the cars. In the meantime, another one of the Siu group, who had moved the other car, returned to the fray armed with an umbrella. He grabbed the baseball bat and used it to smash up Kalina’s car which was parked in the driveway of the Tongia home.

[17]     The police arrived shortly afterwards. Joshua was not located at the house but returned early the next morning and was spoken to by police. He directed police to the knife which was found in his room and told police he was trying to protect his brother. He said he was waving the knife all around in the dark and that he had been fighting.

Findings

[18]I turn now to the key findings.

[19]     I find that Joshua was the one who stabbed both Rima and Taufa. Joshua was positively identified by Taufa as the man who stabbed him. The blood of both Rima and Taufa was found on one of the knives in Joshua’s room, indicating that whoever stabbed Taufa also stabbed Rima. Shoes and clothing located in Joshua’s room had Rima’s blood on them. The man holding the knife was identified as coming out of  19 William Blofield Ave, and the only other man at the address that night was Misi, who was being beaten at the time.

[20]     The next issue is whether Joshua stabbed one or both men in self-defence. When Joshua came out of the house holding a kitchen knife, his brother Misi was getting beaten by at least three men, if not four or five. Misi was getting kicked and punched, including blows to the head. It was a vicious and potentially life-threatening attack.

[21]     The evidence suggests that Rima was involved in the fight, and not just a bystander. That flows from Rima’s participation in a group that was up for a fight; the forensic evidence placing the likely location of the beating close to where Rima was stabbed; the presence of Rima’s DNA found on Misi’s cap; Rima’s blood found on the end of the baseball bat; and the statements made to police by the Siu witnesses to the effect that Rima “had” the guy with the knife. As for Taufa, there is no dispute that he was beating Misi on the ground at the time he was stabbed.

[22]     Joshua waved the knife around to try and stop the attack. Misi was on the ground and unable to fight back. Kalina was there but was soon engaged in a struggle with David over the baseball bat. Joshua was outnumbered. Using his fists and pulling off one man at a time was neither a realistic nor effective alternative for stopping the attack. Retreating to the house and calling the police was not an option either. Waving the knife around did not stop the attack, and it took four stabs to Taufa’s back and head before he stopped the attack on Misi and turned around.

[23]     I find that Joshua was acting to defend his brother, and himself, from the attack. This was not a pre-meditated stabbing with an intent to kill. Nothing I say should be understood as condoning the use of a lethal weapon, such as a knife, in a fight. But in the particular circumstances that existed that night, I consider the way Joshua used that knife was proportionate to the existence and threat of very serious harm.

[24]     The defence of self-defence is made out to both charges. As a result, I find that Joshua was not involved in the acts that form the basis of the charges of murder and attempted murder. Given those findings, I am required by the law to dismiss the charges, which I now do.

[25]     I will ask the guards to take Joshua down to a meeting room in the cells where he will meet the communication assistant and his counsel to explain to Joshua the effect of the determination that I have now made. Unless there are any matters that counsel wish to see me in Chambers about, I will retire.

Edwards J