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R v Baldi [2003] TOLawRp 10; [2003] Tonga LR 56 (14 March 2003)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

Cr 76/2001

R

v

Baldi

Ford J
3 and 4 February 2003; 14 March 2003

Criminal law – assault charge – more than mere words – conviction

The 61-year-old accused, Glauco Baldi, was a Swedish citizen of Italian birth. He came to Tonga in 1992 and was married to a Tongan and has two young children. The accused faced three charges. He pleaded guilty to two of the counts relating to offences under the Arms and Ammunition Act (Cap 39) but he pleaded not guilty to the third count of common assault by threat under section 112(g) of the Criminal Offences Act (Cap 18). The accused relied on the defence of lawful justification and then, secondly, he submitted that the Crown had failed to prove that the complainant had reasonable grounds for believing that the accused had the ability at the time to carry out his threat.

Held:

1. For a threat to amount to an assault, it required more than mere words. It must be accompanied by some act or gesture which constituted the threat or reinforced the words that were used. The accused must also have had the ability at the time to actually carry out the threat, or cause the other person to believe, on reasonable grounds, that he had that ability. As with any criminal case, the onus lay on the Crown throughout to prove each element of the charge beyond reasonable doubt.

2. The crown proved that the complainant treated the accused's remarks as more than a simple threat.

3. The crown found that no threats were made to the accused's wife and therefore the defence of lawful justification was not available.

4. The crown proved the charge beyond reasonable doubt and the accused was convicted.

Statutes considered:

Arms and Ammunition Act (Cap 39)

Criminal Offences Act (Cap 18)

Counsel for the Crown: Ms Simiki
Counsel for the accused: Mr Tu'utafaiva

Judgment

The 61-year-old accused, Glauco Baldi, is a Swedish citizen of Italian birth. He told the court that he is a retired station manager for an airline cargo system. He came to Tonga in 1992. He is now married to a Tongan and they have two young children. The accused faces three charges. He has pleaded guilty to two of the counts relating to offences under the Arms and Ammunition Act (Cap 39) but he pleaded not guilty to the third count of common assault and that matter duly proceeded to trial.

The particulars for the third count allege that on 10 March 2001 at Sopu the accused did wilfully and without lawful justification assault Tevita Sinoti Tomu by threatening to kill him with a Smith & Wesson Magnum .357 calibre revolver.

The complainant, Mr Tomu, is a pastor in the Salvation Army. He told the court that back in March 2001, he was leader of the church youth in his village of Vaini. Another witness, Vili Talalima, explained in evidence how on the day in question, which was a Saturday, the Salvation Army youth from Vaini, Nuku'alofa and Lapaha had got together for a combined social gathering at the Salvation Army church property in Sopu. He said that the group was made up of girls and boys of various ages and throughout the day they participated in volleyball, ping-pong and other social activities. There is apparently a large concrete yard area on the side of the church property closest to the immediate neighbouring allotment which was then owned by the accused, Mr Baldi. The volleyball was played on that open concrete area. The Baldi's house is only a short distance away from the boundary wall. The boundary wall itself is constructed of concrete blocks some three to four feet in height.

The complainant, Mr Tomu, recounted the events giving rise to the charges faced by the accused. He said that the social gathering had begun sometime between 9 and 10am and it had then continued all day until approximately 5pm. The incident happened some 5 to 10 minutes after the volleyball game had ended for the day. Some of the young people had already left for home but there was still a group of 20 or more waiting by the church building for transport. It seems that while this group was waiting by the church, two of the boys from Vaini, named only as Fanguna and 'Amalani, were sitting out on the concrete area joking among themselves. Rather unfortunately, neither of these boys was called to give evidence. I say that because exactly what they were joking about assumed some significance in the case. I will need to come back to this point.

Mr Tomu said that at one point his attention was attracted by the accused's wife calling out. In evidence in chief he said that she was swearing but he could not recall the words she used. In cross-examination, he admitted that he was not sure whether she had, in fact, been swearing or not. What he did recall, however, and what I accept, is that he could see that Mrs Baldi was upset and she was accusing the two boys sitting on the concrete yard of mocking her or teasing her while she was hanging out the washing. Mr Tomu said that he had not heard anything like that but he immediately walked over and asked the boys if they were mocking the lady and they denied it. He then walked over to the boundary wall and asked Mrs Baldi why she was unhappy and she replied that the kids were mocking her. He told her that they were not mocking her but they were just teasing each other and pretending that they were at a Tongan kava party.

Mr Tomu said that at that point, Mr Baldi came out of the house with a gun. He pointed the gun directly at him and came up to the boundary wall saying, "go away or I'll shoot you." The complainant said that he was not afraid of the accused at that particular stage but then the accused pointed the gun directly at his head and he told him that he was going to blow his brains out. Mr Tomu said that when the accused made that remark he did feel afraid because, in his assessment, the accused was the type of person who meant what he said. Mr Tomu was fearful that if the accused did shoot him then the bullet may hit the young people who he knew were standing further back behind him and so he moved away from the wall around to the side of the property. He said that his thinking was that if the accused was going to pull the trigger then it was best that he got hurt on his own rather than involve the others. Mr Tomu told the accused that he was going to report him to the police and the accused simply responded, "go ahead".

The accused is charged with assault by threat under section 112(g) of the Criminal Offences Act (Cap 18). As a matter of law, for a threat to amount to an assault, it requires more than mere words. It must be accompanied by some act or gesture which constitutes the threat or reinforces the words that were used. The accused must also have had the ability at the time to actually carry out the threat, or cause the other person to believe, on reasonable grounds, that he has that ability. As with any criminal case, the onus lies on the Crown throughout to prove each element of the charge beyond reasonable doubt.

The accused and his wife elected to give evidence. Mr Baldi told the court that he completed building his home at Sopu at the end of 1999. He said that he is a peaceful man and he expected the Salvation Army to be good neighbours but it did not turn out that way. He has now moved to another village. The accused recounted incidents where youth groups using the premises at Sopu had allegedly made excessive noise; thrown rubbish onto his property and entered upon his land without permission in order to retrieve volleyballs. He said that he had never complained to the police about any of these matters but he had talked to a Salvation Army official on one occasion and the official had apologised.

On the day in question, Mr Baldi said that his wife and children had gone to visit her mother's. He had a painful back and at one stage when he was sitting outside he could hear the volleyball youngsters laughing in the background provocatively referring to the "palangi man". After his wife had arrived home, she proceeded to hang out some washing while he was feeding a small piglet that they had. Mr Baldi said that he was inside the house with the piglet and suddenly his wife ran inside and told him that one of the Salvation Army men was coming to beat her. Mr Baldi said that upon hearing this he got his gun and walked outside and he saw the complainant with his hand on the boundary wall. He explained that his intention was only to scare the complainant and he had no bullets in the gun. He continued:

"I stepped down. I told him to go away, one, two, three times. He did not move at all. So I took two steps over and said, "go away otherwise I'll blow your brains out."

Mrs Baldi also gave evidence and said that while she was hanging out the washing she heard the two boys sitting on the concrete mocking her. She said that they were pretending to be at a Tongan kava ceremony and one of them would say, "the kava is ready" and the other would say things like, "give it to the man feeding the piglets" and "give it to the wife hanging out the washing."

Mrs Baldi said that she went over to the boundary wall and told the boys that they should be acting like Christian people. She went on to say that at that point the complainant suddenly came up to the fence. She said that he was angry and she wasn't sure where he had come from or what he was saying but he started swearing at her and said that he was going to jump over the wall and hit her. The witness said that she was scared and she went into the house and told her husband what the complainant had said to her. She then went outside again and the next thing she heard was her husband shouting at the complainant to go away. She said that her husband was standing in the doorway of their house with his gun facing down beside him. He repeated that order three times and then he walked forward a couple of feet and made the threat to the complainant to blow his brains out.

In cross-examination, Mrs Baldi said that she had never seen the gun before but she was not afraid of it because she knew that it did not contain any bullets. She was asked to handle the gun, which had been produced as an exhibit, in the witness box and demonstrate to the court how she was able to be sure that it contained no bullets. She was unable to demonstrate the assertion she had made but she said that she was able to tell because she had been standing close to her husband at the time. I found her answer totally unconvincing and I did not believe her.

As neither of the two boys who had been sitting in the concrete yard were called to give evidence, I am prepared to accept that they were making the remarks attributed to them by Mrs Baldi. I accept that she would have found the remarks offensive. However, I simply do not believe the rest of her story about the alleged swearing and threats made by the complainant.

Although I do not accept that evidence called by the defence, it is, nevertheless, still necessary for me to go back and ask myself whether the Crown has established all the elements of the charge against the accused to the required standard of proof.

In written submissions, counsel for the accused raised two main issues. First, he relied on the defence of lawful justification and then, secondly, he submitted that the Crown had failed to prove that the complainant had reasonable grounds for believing that the accused had the ability at the time to carry out his threat.

I can dispose of the second submission quite briefly. It is a factual matter. I find that the Crown has certainly proved this element of the offence. The evidence of the complainant was that he walked away from the boundary wall so that the young people standing behind him would not get hurt when the accused pulled the trigger. I accept that evidence. It shows, in a rather dramatic way, that the complainant was not treating the accused's remarks as simply an idle threat.

The other submission made by counsel was that the accused's actions were justified in order to protect his wife who was in imminent danger of being beaten up by the complainant. Defence of others is a justified defence. If an assault is threatened, a person may use such force as is reasonable in the circumstances to repel it; an honest, even if unreasonable, belief in the existence of facts which, if they existed, would render the use of such force reasonable, is a defence -- Halsbury, 4th edition, vol 11(1), para 498. As Halsbury also makes clear, in deciding whether the force used in any given situation was reasonable, all the circumstances are to be considered including the accused's opportunity to retreat.

I have already held that there were, in fact, no threats made to the accused's wife. I found the complainant to be a credible witness and his evidence was supported to a large extent by his Salvation Army colleague, Vili Talalima. Not only do I find that no threats were made to Mrs Baldi but I do not believe that she ever told the accused that the complainant was coming to beat her. In any event, even had there been some threat made of the type alleged by the accused, which I stress I do not accept, I would have held that the accused could and should have simply retreated indoors and his response in threatening the complainant with a firearm in the way that he did was totally unreasonable.

I am satisfied that the Crown has proved the charge beyond reasonable doubt and the accused is convicted accordingly.