Police v Ielome [2016] NZDC 17736 (9 September 2016)

Last Updated: 8 February 2017

EDITORIAL NOTE: PERSONAL/COMMERCIAL DETAILS ONLY HAVE BEEN DELETED.

IN THE DISTRICT COURT AT AUCKLAND

CRI-2016-004-000703 [2016] NZDC 17736

NEW ZEALAND POLICE

Prosecutor

v

LUKA IELOME

_Defendant

Hearing:	19 & 22 August 2016
Appearances:	S Lowery for the Prosecutor M Scherb for the Defendant
Judgment:	9 September 2016

_{RESERVED JUDGMENT OF JUDGE D J SHARP}

Introduction

[1] On 21 January 2016, a group of young Tongan men set out to obtain redress for wrongs they believed to have been done to some younger Tongan friends or relations of theirs. As a result of them going to the address of the defendant, [address deleted], the defendant a 62 year old man, with no prior convictions, is charged with assault using a metal pole as a weapon.

[2] Issue: when the defendant struck Aminiasi Latu with a metal pole, was he:

_{a) Acting in defence of himself and another; and}

NEW ZEALAND POLICE v LUKA IELOME [2016] NZDC 17736 [9 September 2016]

b) Was the force used reasonable in the circumstances as he believed them to be.

[3] In the issue of self-defence, the defence must raise an evidential foundation for self-defence to be engaged.

[4] On the defence raising a sufficient evidential basis, the prosecution must prove that the defendant was not acting in defence of himself or another for the charge to be made out.

[5] The prosecution position is that the defence of self-defence is unavailable because:

(a) What the defendant did was not an act of self-defence, but resulted from his anger at the actions of Mr Latu and others. If the prosecution were able to establish this beyond reasonable doubt, self-defence could not be made out.

(b) Secondly, prosecution take the position that, even if the prosecution were unable to rule out the defendant acting in defence of himself or another, when the degree of force that he used is examined it was not proportionate to any threat which existed and the force used was unreasonable in the circumstances as the defendant perceived them to be on an objective assessment.

[6] Section 48 Crimes Act 1961 requires me to consider the situation as the defendant saw it.

[7] The defendant would not be acting in self-defence if he acted out of anger or vengeance or had a motivating desire other than the protection of himself or another person.

[8] If I find that the prosecution are not able to rule out the defendant acting in defence of himself or some other person beyond reasonable doubt, then I have to

measure, in the circumstances as the defendant believed them to be, whether the force used was reasonable.

[9] If this position is reached, I must not finely measure the reasonableness of the force used. The assessment must take into account the fact that the defendant was required to act on the instant with little opportunity for the kind of hindsight or debate which can take place months afterwards in Court. In the circumstances here, the defendant’s response should not be weighed “to a nicety”.

[10] Factors that I must take into account are:

(a) The seriousness of the threat. The proportionality between the force used and to consider in commonsense weigh the balance between the two; and

(b) The availability of alternative courses of action.

The evidence

[11] The factors which I list below are in common between the prosecution and the defence.

(a) On 21 January 2016, Mr Latu collected five young friends of a broadly similar age to himself;

(b) They travelled in a motor vehicle to [address deleted];

(c) They went to the [address deleted] address because younger people had contacted Mr Latu indicating that there was trouble. Mr Latu said that he was told “there’s these guys here trying to smash us”;

(d) An exchange, which I will consider as part of the contested evidence, took place in the driveway of the [address deleted] address;

(e) The defendant came out of the [address deleted] address. He had with him a garden rake. He was said to have collected the garden rake from outside the address, he unscrewed the rake, leaving him in possession of a metal pole. The metal pole was about a metre in length and was shown in photographs;

(f) The defendant came out onto the street and as Mr Latu and others went from the address, the defendant pursued them. At one point, the defendant threw the metal pole at the people outside the address. Having thrown the metal pole, the defendant retrieved it;

(g) The defendant and other persons either from the [address deleted] address or the surrounding neighbourhood and Mr Latu were in a physical altercation further down the road by a fence;

(h) While the defendant and Mr Latu were at the fence, the defendant struck Mr Latu over the head with the metal pole;

(i) Laceration to Mr Latu’s forehead just above his left eyebrow was caused by the blow from the metal pole. The injury is shown in photographs that were produced;

(j) The police came to the scene. There was general fighting on the street when they arrived. A person wearing a blue and white basketball singlet was arrested for disorderly behaviour and backup police were called for because of the fighting that was occurring. The police were required to deal with a situation which might be termed a riot.

The prosecution case

[12] The prosecution called Mr Latu, Mr Tutuila and Mr Taufasi. All of these witnesses described the defendant striking Mr Latu. Mr Latu said that he was up against the fence, crouched over, being beaten by two men. He said that he was

blocking their punches, but then an older man had come in and swung the metal pole, the first blow being blocked with his forearm and the second blow hit him really hard on the head. He said the pole landed flush on his eyebrow.

[13] Mr Latu said that after he had been hit, he had tried to fight the people that were around him, including the older man who had hit him with the pole.

[14] Mr Latu rejected suggestions in cross-examination that he had gone to the address to start a fight. He rejected threatening any person at the [address deleted] address and he maintained that his discussions were calm and he had wanted to take the young people who had got into trouble away from the situation.

[15] Mr Latu denied trying to punch the defendant, to have threatened him or any other person prior to being struck with the metal pole.

[16] Mr Tutuila agreed that he had gone with five others in a motor vehicle to the

[address deleted] address. He said, “We all squashed in the car”.

[17] He said that they had collected other people because the people at [address deleted] “had more numbers”.

[18] He also said that he knew that “something was going to happen”.

[19] He agreed that Mr Latu was talking loud when he was speaking with the occupants of the [address deleted] address. He said that he was 5-6 metres apart from the people to whom he was speaking with. He denied any physical contact between Mr Latu and the men he was speaking with. He described an old man running out of the house with a metal pole and chasing the group that he was with. He said that the man was speaking Samoan, that the tone of his voice was angry.

[20] Mr Tutuila said that when they saw the man coming out they ran from the address. He said that they had run to corner of the church and that he had seen Mr Latu “the older man was chasing another two”. He said that he just saw one hit, that Mr Latu had been hit across the eyebrow with the metal pole. He said the strike with the pole was “full power”. Mr Tutuila also said that prior to being hit with the

pole, Mr Latu was “getting rushed from two other people or two or three other people”. By getting rushed he meant “getting smashed or getting punches”. He said that Mr Latu was blocking the punches with his arms and knees. He said that Mr Latu started threatening after he got hit with the metal pole, but before that, he was not throwing punches or trying to fight.

[21] In cross-examination, Mr Tutuila recognised a thin person who had been making an inquiry as to why some of the younger Tongan people who had been near the address had “tried to steal their bikes”. He denied there was yelling before the old man came out of the house and he denied that there was loud swearing from his group. He did accept that after the older man had come out there was yelling. He said that he did not know what the defendant had been saying because he was speaking in Samoan.

[22] Mr Tutuila agreed with Mr Scherb that he could not rule out that the defendant may have been telling them to get off his driveway. He agreed that he did not know if the other people, who had chased him and the other Samoan men down the street, were associated with the defendant. He said that there were three men giving Mr Latu a hiding up against the fence.

[23] Mr Scherb put to Mr Tutuila that in a prior statement he had said that Mr Latu had grabbed the older man around the throat and held him up against the fence. Mr Tutuila agreed that that was true. He said that was because he got hit. Mr Scherb put it that it was not right that after being punched several times by three people and being hit at least once by a metal pole, Mr Latu was able to restrain and grab and attempt to punch the defendant. Mr Tutuila said “Yeah. That’s what I saw with my own eyes”.

[24] Mr Taufasi gave evidence. He said that they had gone to the [address deleted] address because his friends were in trouble there. He said that they were hoping to have a talk, but worse things happened and a fight broke out. He said he had no choice but to run because an old man had come out chasing him with a pole. He said that the old man had taken a swing at him with the pole and let go of the

pole but missed him. Mr Taufasi said, “As I was going to turn around and pick it up, he was already there”.

[25] Mr Taufasi said that he was not fighting anyone. He also said that Mr Latu was cornered at the church and there were about 4-5 guys on him. He said at this time he ran through someone’s property to get away. He said, “As I looked back all the four or five guys was on Amini”. He said that they were throwing hooks, swings, and jabs at Mr Latu. He said Mr Latu was standing up, but crouched over trying to block punches. Mr Taufasi said Mr Latu was trying to fight his way out, but that the four or five guys were winning. He said that when the older man reached the group he swung at Mr Latu, that he heard the pole crack on Mr Latu’s head. He said that he saw the first strike come off, then he saw the second strike connect with his eye. He said he thought the first strike hit him on the forearm and the second blow hit him straight on the eyebrow. His evidence was that these blows came when Mr Latu was already under attack. He said it ended after Mr Latu was hit. He said the older man then backed off with his sons. “We were all swearing at each other.”

[26] Mr Taufasi said Mr Latu’s cousin dropped them off and they went to A&E. Mr Taufasi agreed that in the street there was a lot of yelling and swearing and that it escalated. He also agreed that he could not hear everything because he was seated in the car when this was happening.

[27] In cross examination he confirmed to Mr Scherb that none of the group he was with had brought weapons with them. Mr Taufasi said that he might know the grandson of the defendant, but the reason that he started running was that he was being chased by a man who had a metal pole. He agreed he was a large person who played sport, but he said “We don’t play sport with weapons”. He said that no one in his group had touched anyone until they had been chased. He had it put to him that Mr Latu was punching the defendant before he was hit with the pole. Mr Taufasi said that he never saw that. Mr Taufasi said that he saw two hits: one on the forearm and one on the eyebrow. He said that although he knew the defendant’s son, he was not sure whether he was involved in the fight and that Mr Taufasi had seen him at the back of the pack.

[28] The prosecution called evidence (largely by hand up briefs of evidence) from Constable Paratainga, Constable Samuels, Constable Kumar, Constable Taua and Constable King. The police were called to a situation in which two groups were vigorously throwing punches and fighting with each other. Constable Paratainga said “there was chaos all over the road and a number of youths joining in this riot situation”. He detailed Constable Taua who entered the house at [address deleted] and seized clothing and the metal pole. Constable Samuels took photographs of the visual facial injuries on Mr Latu and accompanied Mr Latu to hospital where he was given an examination.

[29] Constable King was called to the scene and assisted Constable Paratainga. She endeavoured to stop the defendant leaving the address. His leaving the address was for purposes connected with uplifting his wife from work and there is no point to be taken against him in the sense of leaving the scene of the alleged offending. Further, the defendant could not be questioned effectively, given his need to be communicated with in Samoan.

[30] When the defendant received legal advice, he elected not to make any statement. This in no way adds to the case against the defendant as it is a position he is entitled in law to take.

[31] The prosecutor makes the submission that the combined evidence of Mr Latu, Mr Tutuila and Mr Taufasi is consistent and compelling regarding the pursuit by the defendant and the blows that he acknowledges striking.

[32] Notwithstanding concerns as to what the complainant and his associates where doing by going to the address, the prosecution case is that the defendant became enraged at their conduct and what he perceived as rudeness and he carried out an attack on them, not for the purposes of self-defence, but in order to clear away people he did not want near his address.

[33] In the alternative, the prosecution maintain that, in a situation where a number of people were punching the complainant, the striking of the complainant in the head area and striking him with a metal pole was inconsistent with any

reasonable use of force even if the defendant had a belief that he needed to protect himself or another.

The defence case

[34] The defendant chose to give evidence. The defendant maintained that he was endeavouring to protect his grandson and that his grandson was under attack at the time he struck Mr Latu. If I were to accept the evidence of the defendant, then I would find that he was acting in self-defence. If I did not accept his evidence in its entirety but it might be correct, then I would have a doubt on the issue of whether he was acting in self-defence and the prosecution could not negative self defence. If I did not accept the evidence of the defendant, then I would not go on to find that the defendant was not acting in self-defence. I would put the evidence that he had given to one side and consider the other evidence available, to do other than that would be to require the defendant to prove his defence.

[35] If I found the defendant was acting in defence of himself or another, then I must go on to examine the circumstances as the defendant believed them to be. On making this examination, I have to consider whether on an objective standard what the defendant did could be established by the prosecution as an unreasonable response in the circumstances as Mr Ielome believed them to be.

[36] The defendant said that he went out into the street in a situation where there were many Tongan boys outside. He called to his grandson “Cisco” to come inside the house. The evidence is he was calling ‘sau sau’ which means ‘come’ in Samoan. He said that the Tongan boys who were outside had formed a barrier so Cisco could not come into the house.

[37] He said what he did was to “pull out this pole and try to scare these kids off to get away and let my son come in”. He said that he tried to chase them away and that after he had thrown the pole, he ran to get it because he did not want the Tongan boys to get hold of it. He said that after he had picked up the pole, he saw the Tongan boys already with Cisco. He said when he got there he tried to push one of the boys away and that he was punched. He said that he had had police called and

that he did not know if other people who were involved where from his neighbourhood. He said that “I saw the kids they were holding Cisco’s neck”. He said, “and then I went to push away these Tongan boy who was doing this to Cisco. At this point he punched me and once he punched me then I hit him”. He maintained that he had struck him only once. He said, “I didn’t see someone give Latu a hiding nothing like that happened”.

[38] In cross-examination, he agreed he was annoyed, but said that what he wanted to do was to chase them away so that there would not be a fight. He agreed that he had unscrewed the head part of the rake, but he did not accept the proposition put to him that the rake would have been more dangerous with the head part intact and that he had taken the head from it so that people would not be badly hurt if he struck them with it. He agreed that he had not chosen to swing the pole at the legs of the person he said was attacking his grandson. He chose not to swing at the body of the person he said was assaulting his grandson and he chose not to jab him or to push him away and he agreed that the force required to cause the injury shown in the photograph of Mr Latu was significant. He claimed that there was no intention to hurt him. His only intention was to push him away.

Consideration

[39] This was a relatively fast-moving situation described by the police as a riot. The presence of persons outside the address of [address deleted] was clearly heated and I do not accept the evidence from the prosecution witnesses that there was any calm discussion.

[40] This was a heated confrontation and the six young Tongan men who went to the address were all well aware that things could result in fighting.

[41] Although I am not convinced by the evidence of the defendant as far as his pursuit of the Tongan men down the roadway is concerned, I cannot reject entirely the proposition that he was out there because he had concerns for members of his family in this difficult and potentially violent situation. Accordingly, I find that the Crown cannot exclude the possibility that the defendant acted in defence of his

grandson. That, however, is not the end of the consideration. None of the people who had come to the address had weapons with them. Even if, as a 62 year old, faced with athletic, large and aggressive young Tongan men, concern was present calling for some measure of protection, striking Mr Latu in the head area with the metal pole was a high degree of force.

[42] Attempts could have been made to separate the parties and if further attack had persisted then, possibly, a need to respond with greater force may have arisen. In this instance what occurred was a strike to the head and the injuries that resulted are entirely consistent with a large degree of force being used.

[43] I have to have regard to the circumstances as the defendant himself saw them. The evidence shows Mr Latu against a fence under attack. The circumstances as the defendant saw them may have called for intervention but the force used, assessed objectively was too great, even allowing for leeway in a difficult situation. The prosecution have negated self defence beyond reasonable doubt.

[44] The circumstances as I find the circumstances as the defendant saw them do not suggest a need to use the degree of force that was used. As a consequence, given the other uncontested facts and the admissions on the part of the defendant, including striking the complainant’s head with the metal pole, the charge is made out.

D J Sharp

District Court Judge