R v Tuifua [2024] NSWDC 246

District Court New South Wales

Medium Neutral Citation: R v Tuifua [2024] NSWDC 246 Hearing dates: 27, 28 and 30 May, 3, 4, 5 and 6 June 2024 Decision date: 12 June 2024 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Not Guilty of the Count on Indictment and the statutory alternative Count. Catchwords: CRIME - Judge Alone Trial - wound with intent to cause grievous bodily harm - recklessly causing grievous bodily harm Legislation Cited: Crimes Act 1990 (NSW), s33(1)(a) and s35(4); Evidence Act 1995 (NSW), s191 Category: Principal judgment Parties: Rex (Crown)

Malia Tuifua Representation: Mr Christoff (Crown Prosecutor)

Mr Eurell (Counsel for the Accused) File Number(s): 2022/262378 Publication restriction: Nil

Judgment 1. On 27 May 2024, I arraigned Malia Tuifua on indictment 7.2. Upon that arraignment, Ms Tuifua pleaded not guilty. 2. In the judge‑alone trial which commenced upon that arraignment, the Crown was represented by a Crown Prosecutor and the accused was represented by Mr Eurell of counsel. 3. There was only one count on the indictment. The count was that: "On or about 30 July 2022, at Blackett in the State of New South Wales, [Malia Tuifua] wounded Opeta Tielu with intent to cause grievous bodily harm." 4. The count on the indictment concerns an alleged breach of s 33(1)(a) of the Crimes Act 1990 (NSW). 5. Although the indictment contained only one count, there is an available alternative statutory count if I found Ms Tuifua not guilty of the count on the indictment, which the Crown Prosecutor referred to in his opening - that is, recklessly causing grievous bodily harm (cf s 35(4) of the Crimes Act). 6. In order for the Court to find Ms Tuifua guilty of the count on the indictment, the Crown must prove, beyond reasonable doubt, each of the elements of that count. It is, therefore, not for Ms Tuifua to prove her innocence, but for the Crown to prove her guilt to the high standard I have referred to. 7. "Beyond reasonable doubt" are ordinary everyday words, and that is how I shall apply them. 8. The two elements of the offence on the indictment are that: 1. Ms Tuifua wounded Opeta Tielu. In this context, "wound" is an injury involving the breaking or cutting of the interior layer of the skin (the dermis) - the breaking of the outer layer (the epidermis) is not sufficient; and 2. At the time of the wounding, Ms Tuifua intended to cause grievous bodily harm to Opeta Tielu. In this context, intention can be implied if it is the only rational inference in the circumstances; and in considering whether there was such an intention, regard may be had to any weapon used or the means employed to inflict the harm. 1. As the evidence in the trial developed, it is only the first element which requires close attention. 2. I shall determine all relevant issues of fact according to the evidence: that is, the oral testimony of witnesses; and the contents of exhibits. 3. In considering the oral evidence of a witness, I have to consider whether the witness gave an honest account and whether that witness gave an accurate account. 4. In this context, I am not obliged to accept or reject the totality of the evidence of any one witness. If there is a good reason, I can accept parts and reject parts of the same witness's evidence. 5. The oral evidence in the trial consisted of the testimony of: Detective Senior Constable Matthew Salvador (the officer‑in‑charge); Mr Opeta Tielu (the complainant); Mr Alfred Uelese; Mr Kapeli Uelese; Senior Constable Scott Williamson, Ms Anatasia Mateai; and Constable Lee Pobega. 6. I shall, for ease of reference only, refer to each of Messrs Uelese by his first name; no disrespect is intended. 7. In addition to the oral testimony of the witnesses I have identified, the Crown tendered 16 exhibits, including a statement of agreed facts dated 30 May 2024 made pursuant to s 191 of the Evidence Act 1995 (NSW), (exhibit A) and a statement by Mr David Misi dated 12 August 2022 (exhibit O). 8. Ms Tuifua did not give direct oral evidence in the trial. She exercised her right to silence in that regard. No adverse inference will be drawn against her because she did not give sworn evidence. Her silence in the trial will not be used against her in any way. 9. Ms Tuifua did, however, voluntarily participate in an electronically recorded interview, which was played during the trial (exhibit L - the agreed transcript of the interview being MFI 12.). That evidence will be assessed in the same way as that of all the other witnesses - with the following qualification. 10. If Ms Tuifua's version in that interview is positively believed, she must be acquitted. If her version is difficult to accept, but nevertheless as a matter of a reasonable possibility be true, she must be acquitted. If Ms Tuifua's evidence in that interview is positively disbelieved, then it should be put to one side and not used against her in any way. But the question will still remain: has the Crown, upon the evidence that is accepted, proved Ms Tuifua's guilt beyond reasonable doubt in relation to the count on the indictment (or, if necessary, the statutory alternative)? 11. During the course of the trial, reference was made to Raparthi Uelese, the nephew of Alfred and Kapeli. As I shall later explain, he was a witness who might have been expected to be called and to give evidence on certain matters, but he was not called by the Crown to give evidence. I can take the fact that there was no evidence from that witness into account (without speculating about what he might have said if called) in deciding whether the Crown has proved the guilt of the accused. 12. Insofar as Alfred, Kapeli and Ms Mateai are concerned, each of them is a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to this trial. The evidence of each of them may, therefore, be unreliable, and I must exercise caution in determining the evidence of each of them and the weight to be given to that evidence. 13. It is necessary for me to make factual findings in connection with the facts on the indictment before ultimately deciding whether the Crown has discharged the high onus of proof which it bears. 14. To a significant degree, those facts are not in dispute between the Crown and Ms Tuifua. However, there are areas of significant disagreement or dispute, and I shall resolve them in the course of the narrative that now follows. 15. Unless otherwise indicated, I am satisfied of the following facts. 16. As at July 2022: Mr Opeta Tielu lived in the granny flat constructed at the rear of premises known as 25 Lang Crescent, Blackett ("25"); the granny flat was known as 25A Lang Crescent ("25A"); access to 25A was gained from Lang Crescent by means of a driveway which, as viewed from Lang Crescent, went up the right‑hand side of 25; Mr Misi lived at 25; to the rear of 25A and 25 (that is, over a back fence) were the premises known as 221A Popondetta Road, Blackett ("221A"); and Kapeli lived at 221A. 17. During the evening of 29 July 2022, Kapeli hosted a party at 221A to celebrate the 18th birthday of his nephew Raparthi Uelese. Those present at the party included Alfred and his then partner (Ms Mateai); Kapeli and his then partner; at least one other brother of Alfred and Kapeli (Raparthi Uelese); the son of that brother (who shared his father's name) whose birthday was being celebrated; and Ms Tuifua and her partner (Ms Peta Fattai). Neither Ms Tuifua nor Ms Fattai were blood relations of the Uelese family, although Ms Fattai was the former partner of Kapeli. There was also at least one young child present, the son of Kapeli. 18. At about the same time as the party was taking place at 221A, Mr Tielu was also hosting a social event at 25A. Present at that event (apart from Mr Tielu) were his wife, a niece and nephew, and Mr Misi. 19. The party at 221A started at those premises (following on from an earlier meal at a restaurant) at about 7pm. It was still underway at about 2am on 30 July 2022. Some of its attendees were drinking alcohol; some were consuming illicit drugs (cocaine and/or cannabis); and some were consuming both. The party was noisy. 20. The noise emanating from 221A annoyed Mr Tielu. However, instead of calling out for the music to be turned down, or taking some other appropriate step, he took the highly reprehensible step (without warning or in any way checking) of throwing planks of wood and bricks over the fence into the rear yard of 221A. One of those bricks landed on a small trampoline where, only a short time before, Kapeli's young son had been playing. Another brick hit the leg of Kapeli's partner. 21. This highly irresponsible and dangerous conduct on the part of Mr Tielu enraged at least some of the attendees at the birthday party function. 22. A group left that function on foot and made their way to the front yard of 25. The group from 221A included, at least, Alfred, Kapeli, Ms Mateai and Ms Tuifua. Kapeli and Ms Mateai, at least, were each armed with a pole (which had been part of the trampoline at 221A). 23. However, there is a significant factual dispute as to whether the group was limited to those four people. 24. As a result of what subsequently transpired (and which is the subject matter of the count on the indictment), the police attended 25 in the early hours of 30 July 2022. They subsequently took a statement from Mr Misi, who said the group consisted of five people; and, in an interview, Mr Tielu said the group consisted of ten people. 25. The police found two poles and other items of interest in the front yard of 25. Subsequent DNA analysis of the various items of interest revealed the DNA profiles of four men: Mr Tielu, Alfred and Kapeli - and a fourth male (but that fourth male was not Mr Misi). 26. In these circumstances, the Crown has not excluded the reasonable possibility that the group which left 221A and made its way to 25 was not less than five (and included, at least, three males.). 27. The group from 221A confronted Mr Tielu and Mr Misi in the front yard of 25. Mr Tielu was armed with a sledgehammer. 28. In the initial stage of this confrontation, Mr Tielu brandished the sledgehammer and was swinging it wildly before he threw it in the direction of Ms Tuifua - but it did not connect with her. 29. After throwing the sledgehammer, Mr Tielu armed himself with a plank of wood, with which he then confronted Alfred - who defended himself by deploying a red or orange metal trolley which had been lying on the ground near the driveway. 30. This initial phase of the confrontation between the two groups was briefly interrupted when Mr Tielu and Mr Misi ran into the backyard of 25A - before Mr Tielu returned wildly brandishing another plank of wood at Alfred, who, in the process of defending himself, struck Mr Tielu somewhere to his body ‑ that is, Mr Tielu's body ‑ using the trolley I earlier referred to. The Crown has not excluded the reasonable possibility that, in so doing, Alfred struck Mr Tielu to the head. 31. At about this time, Kapeli tackled Mr Tielu to the ground and then, sitting on him, delivered two punches to Mr Tielu's head - after which the group from 221A left the area - and not necessarily at the same time, all together, or by going in the same direction. 32. At some point in this melee, Ms Mateai struck Mr Tielu to the head with the pole that she had brought with her from 221A. The Crown has not excluded the reasonable possibility that either Kapeli or the unknown third male, or both, also struck Mr Tielu to the head with another pole. 33. At about the time that the group from 221A variously left the front yard of 25, Mr Tielu was lying on the ground in the vicinity of what became marker 12 in the subsequent police investigation. At some point, Mr Tielu got up from that position and staggered to either 25 or 25A, following which, with the assistance of Mr Misi, he ended up being taken by ambulance to the intensive care unit of Westmead Hospital with the injuries set out in [6] of exhibit A. It is agreed between the parties that the injuries at [6(a)] and [6(b)] of exhibit A amount to "wounds". Mr Tielu was discharged from that hospital on 31 July 2022. 34. The Crown's case against Ms Tuifua in this trial, as opened by the Crown Prosecutor, is that those wounds were caused by her when she picked up a rusty steel rim (approximately 10 kilograms in weight) whilst Mr Tielu was lying on his back on the ground and "…struck him to the head several times... the number of times is something which I expect there'll be some conflict in the evidence." I pause to observe that, in his closing address, the Crown Prosecutor significantly moved away from that quite specific opening to a position that the accused dropped the tyre rim on Mr Tielu's head (thereby implicitly hitting him only once). 35. The Crown's case against Ms Tuifua is a combination of direct evidence (particularly the oral evidence of Alfred, Kapeli and Ms Mateai) and inferences drawn from proven facts. I pause to observe that neither Mr Tielu nor Mr Misi gave evidence to support the Crown's contention that the undoubted injuries which Mr Tielu sustained in the early hours of 30 July 2022 were caused by him being struck by the rusty tyre rim (as opposed to at least one of the two poles found in the front yard of 25, or the metal trolley found near the driveway from Lang Crescent leading to 25A); or that he was so struck by Ms Tuifua. 36. Insofar as inferences are concerned, I can only draw an inference adverse to Ms Tuifua from proven facts if it is the only rational inference in the circumstances. 37. I now turn to the oral evidence of each of Alfred, Kapeli and Ms Mateai. The oral evidence that each of them gave in the trial was very substantially unreliable insofar as advancing the Crown case was concerned. And that was frankly and properly conceded by the Crown Prosecutor in his very capable closing address. 38. However, the Crown Prosecutor directed attention, not to that unreliable evidence (or, as he described it, "appalling" evidence) in June 2024, but to what each of them said to police in 2022 - or, more correctly, some of what each of them said to police at that time. 39. Before turning to what each of them said to police in 2022, I pose this question: if the evidence of each of them were so unreliable (to put it kindly) in 2024 - and when each of them was on oath - why would they be more reliable in 2022 and in circumstances where they were not on oath, and in circumstances where, at that time, each of them was facing the immediate prospect of being the person charged with inflicting the serious injuries on Mr Tielu? The answer is: they would not. 40. Turning to the contemporaneous statements of Alfred, Kapeli and Ms Mateai, having re‑read the entirety of the transcript, I can deal with them in general terms, without needing to rehearse the details of the evidence. 41. Each of Alfred, Kapeli and Ms Mateai, initially in their various interviews with police, denied seeing Ms Tuifua strike Mr Tielu with the tyre rim or - indeed, any object. However, after some highly questionable conduct by police, each did (for a time) make inculpatory allegations against Ms Tuifua. 42. The following general observations seem to me to be appropriate. 43. First, and not insignificantly, each of these people, in the trial, recanted from those inculpatory statements, on their oaths. As I have said, I am entitled to accept and reject parts of the same witness's evidence, if there is a good reason for doing so. Evidence on oath must be afforded the seriousness it deserves. And in the case of each of these witnesses, there was no apparent motive for any of them, on this topic, perverting the promise he or she had taken. In the result, I am unable to reject the sworn evidence of each of those witnesses as to why it was he or she changed from giving exculpatory to inculpatory evidence concerning Ms Tuifua. 44. Secondly, the changes in the statements to police, and the circumstances in which that occurred, gives, of itself, rise to a real concern about the reliability of that inculpatory "evidence" - even if it had not been recanted under oath. 45. Thirdly, there are substantial and significant differences in the contemporaneous inculpatory versions put forward by Alfred and Kapeli. Alfred said that Ms Tuifua struck Mr Tielu to the head with the tyre rim three to five times (that is, the "several times" in the Crown's opening); whereas Kapeli said Ms Tuifua dropped the tyre rim (and he did not say more than once) on to Mr Tielu's head (i.e. the significantly different Crown closing). 46. Fourthly, the physical location at which Alfred said he saw Ms Tuifua strike the head of Mr Tielu was such as to make it improbable, if not impossible, for him to have seen what he said he saw. 47. The evidence of these three witnesses, therefore, poses considerable difficulties for the Crown case. 48. Can those difficulties be supported by the indirect evidence relied upon by the Crown? 49. In relation to that indirect evidence, the following observations seem appropriate. 50. First, there is no expert evidence in the Crown case that the injuries sustained by Mr Tielu were consistent with him being struck "several times" (or three to five times) to the head by an object such as a steel tyre rim with an assumed weight of 10 kilograms, in circumstances where the assailant was standing over Mr Tielu whilst he was lying on the ground. As a matter of common sense and common experience, such a scenario would more likely produce much more catastrophic injuries than the relatively minor ones that kept Mr Tielu for only one day in the hospital. 51. Secondly, there is no expert evidence in the Crown case that the injuries sustained by Mr Tielu were consistent with him being struck once to the head by an object such as a steel tyre rim with an assumed weight of 10 kilograms, in circumstances where the assailant was standing over Mr Tielu whilst he was lying on the ground. I make the same qualification, but with less certainty, as in the preceding paragraph as to the likely expected injuries in that scenario. 52. Thirdly, as I have already indicated, the DNA of an unknown man was on one of the poles found, and treated as an item of interest, by police in the front yard of 25. There was also evidence that, at some point, Kapeli and Ms Mateai were each in possession of a pole during the melee. 53. Fourthly, and relatedly, there is no expert evidence in the Crown case that the injuries sustained by Mr Tielu are inconsistent with him being struck to the head by a pole once or more than once - and whether or not he was standing or lying on his back on the ground at the time. 54. Fifthly, the tyre rim found near marker 12 had Mr Tielu's blood on it. There is no expert evidence as to the quantity of the blood, or whether the location and quantity of the blood is consistent or inconsistent with the first and/or second considerations I have just referred to. Nor has the Crown excluded the reasonable possibility that Mr Tielu himself may have come into contact with the tyre rim in circumstances other than being struck to the head by it, before or after the event which led him to being on the ground in the driveway of 25. 55. Sixthly, apart from the DNA of Mr Tielu (which would have been on the tyre rim found near marker 12 by virtue of his blood being on that tyre rim) the DNA of no other person was detected on that rim; nor were fingerprints. There is no suggestion in the evidence that Ms Tuifua was wearing gloves. 56. Seventhly, Mr Tielu's blood and Alfred's DNA were found on the trolley - and in circumstances where Alfred (well affected by alcohol, cocaine and cannabis; and in the dark and in the general confusion) was not certain which part of Mr Tielu's upper anatomy he undoubtedly struck with that trolley. 57. Finally, and relatedly, there was no expert evidence in the Crown case that the injuries sustained by Mr Tielu were inconsistent with being struck to the head by a single blow by that trolley. 58. Given that I am unable to give any meaningful weight to those inculpatory statements made to police by Alfred, Kapeli and Ms Mateai inculpating Ms Tuifua; and given the problematic (for the Crown) matters concerning the lack of relevant expert evidence and related considerations I have just discussed, at the very least, the second limb of the Liberato direction (if not the first) is meaningfully engaged. 59. To summarise, for the various reasons I have noted throughout this judgment: 1. first, I am not satisfied beyond reasonable doubt that the injuries undoubtedly sustained by Mr Tielu were inflicted upon him by being struck by the tyre rim; and 2. secondly, even if I were wrong about that first conclusion, I am not satisfied beyond reasonable doubt that it was Ms Tuifua who struck Mr Tielu with the tyre rim - or by any other object - so as to cause those injuries. 1. I am, therefore, not satisfied beyond reasonable doubt that the Crown has proved either of the two elements of the count on the indictment. 2. I, therefore, find Ms Tuifua not guilty of that count. 3. And because the Crown has not proved beyond reasonable doubt the first element of the count on the indictment, it cannot prove beyond reasonable doubt the statutory alternative count. To the extent necessary, I also find Ms Tuifua not guilty of that alternative count. 4. CROWN PROSECUTOR: Your Honour, there's a 166 matter. 5. HIS HONOUR: ‑‑address, there was some reference to 166 certificates, about which I, as the tribunal of fact, know nothing. 6. CROWN PROSECUTOR: Your Honour, sequence 4 is a charge of intentionally or recklessly destroy or damage property. It relates to the— 7. HIS HONOUR: Is that the shed? 8. CROWN PROSECUTOR: ‑‑accused climbing on to the shed with Ms Mateai. The evidence for that is a line in the ERISP interview, where the accused ‑ I'll say admitted ‑ but gave a version where she climbed over the fence and fell through the roof of the shed. I can take your Honour to the section of the ERISP, but I don't propose to make any further submissions on that. 9. HIS HONOUR: I don't think it proves damage. If all it proves she fell through the roof, she might have fallen through an opening in the roof which was already there. 10. CROWN PROSECUTOR: I don't seek to persuade your Honour otherwise. 11. HIS HONOUR: Yes. The Section 166 certificate matter is dismissed.