High Court dismisses murder charges after ruling outnumbered man fought to defend his brother and himself

Tuku ange 'e he Fakamaau'anga Lahi 'a 'Aokalani' 'a Joshua Tongia mei hano faka'ilo ia ki he hia ko e fakapō 'o pehē na'a' ne fakahoko 'a e hoka hele' he 'uhinga ke malu'i hono sino mo hono tokoua'

The New Zealand High Court has dismissed charges of murder that arose from a fight between two groups in Auckland in December 2018.

Joshua Tongia was charged with murder and attempted murder.

In his summing up of the case Judge Edwards said that Joshua Tongia had been found unfit to stand trial.

Joshua 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.  He 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 was no suggestion that Joshua’s disability was connected to the offending in any way.

A finding of unfitness meant the court had to determine whether he was involved in acts that led to murder or attempted murder.

The fight that led to the charges took place after 11pm on December 7, 2018.  It involved two groups, the Siu group and the Tongia group.  The Siu group comprised six men, including Rima, who had been drinking all afternoon at the Lovelock Community Centre car park were quite drunk.

The Tongia group comprised Joshua and his brother, Misi,  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.

Two of the Siu group, brothers David and Taufa, drove from the Community Centre back towards their home.  They pulled up and began yelling out to Misi.

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.  The altercation caused a neighbour to call the police.

The Siu brothers returned to the Community Centre and gathered the others before returning to the Tongia house. Misi came out and smashed in the front passenger window of one car with a baseball bat.  The Siu group got out of both cars.  One fled and the others  rushed to Misi and punched him  to the ground.  At any one time there were at least three, and up to five men beating Misi.

Kalina dragged one of the men off Misi.  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 beating Misi and cradled Rima in his arms.

Taufa was stabbed while he was beating Misi.  After being stabbed, he drove home in one of the cars. One of the Siu group grabbed the baseball bat and used it to smash up Kalina’s car.

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.

The court found that Joshua stabbed both Rima and Taufa.

When Joshua came out of the house holding a kitchen knife, his brother Misi was being kicked and punched. The judge described it as a vicious and potentially life-threatening attack.

The judge said there was no dispute that Taufa was beating Misi on the ground at the time he was stabbed.

“Joshua was outnumbered,” the judge said.

“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.”

Judge Edwards found that Joshua was acting to defend his brother, and himself, from the attack.  It 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,” the judge said.

“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.”

The defence of self-defence applied to both charges. It was therefore found that Joshua was not involved in the acts that formed the basis of the charges of murder and attempted murder and the charges against him were dismissed.

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