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R v Kula [1996] TOLawRp 14; [1996] Tonga LR 20 (15 January 1996)

[1996] Tonga LR 20

TONGA LAW REPORTS

R

v

Kula

Supreme Court, Nuku'alofa
Hampton CJ
Cr 940/95

8, 9, 10, 11 & 15 January 1996

Criminal law - judge alone - evidence
Criminal law - rape - recent complaint - corroboration
Evidence - inferences - recent complaint - corroboration

The accused was indicted for rape, indecent assault, detention with the intention of normally knowing the complainant, and common assault. He was tried by judge alone, and convicted on the first three courts, and acquitted on the assault charge.

Held:

1. (Obiter) Common assault is an offence punishable "on summary conviction" and doubt expressed as to whether s.5 of the Supreme Court Act ("all the powers of the Magistrates' Court") could give the Supreme Court jurisdiction in summary criminal matters as argued.
2. On the court of indecent assault consent could not be a defence as the complainant was proved as being 14 years of age.
3. Inferences, if drawn, were drawn on the basis of them being reasonable and fair deductions which the court was satisfied logically followed from other facts found satisfactorily established. The court was not indulging in guesswork or speculation.
4. Evidence of recent complaint would not and could not be used as being in any way corroborative of the alleged occurrence or as evidence that the alleged occurrence happened or as to how it happened. The only relevence of such evidence is that it may show that the complainant's conduct after the alleged events was consistent with her evidence about those events.
5. The court would also look to see, when considering the facts, if there is any evidence, independent of the complainant, which might support her account of events. Although not necessary as a matter of law, the court would be reluctant to act on the complainant's account if it were not supported in some independent way.

[Note - an appeal against conviction and sentence was dismissed and is reported in this volume immediately following].
Statutes considered : Criminal Offences Act

Cousel for Crown : Mrs Taumoepeau
Counsel for accused : Mr Niu

Judgment

The Accused was indicted on 4 counts, all of those counts relating to allegations arising out of, in effect, the same incident which occurred in the early hours of the morning of Saturday 10 June 1995 at Hufangalupe Beach, near Vaini, Tongatapu. That incident involved just 2 parties, the then 14 year old school girl complainant and the then 31 year old Accused. I add here, because it is of some relevance, that the Accused is a man of some experience, education and intelligence who had held significant positions within the Civil Service of Tonga and who is married with a number of children.

The 4 counts are in this order in the indictment; rape (sec. 118(1) Criminal Offences Act Cap.18) indecent assault, (sec. 124(1) & (2)), abduction (or rather a forcible detention), (sec. 128) and common assault (sec. 112(b)); although chronologically the allegations should run as follows: the assault, the abduction (or detention), the indecent assault and the rape.

During the course of final submissions I raised with counsel one aspect of the common assault count and, as a result, the Crown elected not to seek a verdict on that count taking the (sensible) view that the assault allegation was factually a part of, and effectively subsurmed in, the abduction/detention charge. I did not then, but I do now, enter a formal verdict of not guilty on that count, if that is indeed necessary and appropriate in view of the reservation which I raised and which I set out below.

Sec. 112 creates an offence of common assault which is punishable "on summary conviction". How then can such a charge appear in an indictment, presented after a preliminary inquiry before a Magistrate? Historically, I am told, this has been done and often. That does not make it correct. The one possible way for this Court to have jurisdiction in such a summary matter, it was argued before me, was through the provisions of sec.5 of the Supreme Court Act (Cap.10) which provides that this Court "shall have power to .... exercise all the powers of the Magistrate's Court ". I have some doubt as to whether that provision could or should give this Court jurisdiction in summary criminal matters. However because of the stance taken by the Crown the matter was not fully argued before me and I do not purport to make any definitive ruling on it.

I can also say at this juncture that another of the counts, count 2 - the indecent assault - was effectively disposed of at the time of counsels' final submissions. That count was founded on subsects 1 & 2 of sect 124. Subsect 1 creates an offence of indecent assault on a female; and subsect. 2 provides that a girl under 16 years of age "cannot in law give any consent which would prevent an act being an indecent assault for the purposes of this section".

The complainant's age was proved as being 14, she being born on the 19 September 1989. Mr. Niu, in closing, conceded that there was and could be, no defence to this charge in the circumstances here involving, factually, the Accused touching and licking the complainant's vaginal area. Both the complainant and the Accused agreed that this occurred. I propose entering a verdict of guilty on this count and then to say no more about it until I get to the narrative of the facts later in this judgment.

That leaves the detention and the rape counts for determination.

I say at the outset that I am well aware of both (i) the onus of proof being on the Crown throughout this trial (and unchanging despite the Accused giving evidence himself and calling other witnesses) and (ii) the standard of proof required of the Crown on each count, and on every constituent element, or essential ingredient of each count, being an unchanging beyond reasonable doubt. If that standard is not met by the Crown then the charge to which such failure relates must also fail. If I am left with a reasonable doubt in relation to a count or a constituent element of a count then the Accused must be given the benefit of such doubt and an acquittal must result. Whenever in this judgment I refer to a matter having been found proved that has been done by me on the basis of both the onus and the standard as just discussed.

In some instances I have been asked by the Crown, and indeed on behalf of the Accused, to draw inferences. If in this judgment I do draw an inference it is done on the basis of it being a reasonable and fair deduction which I am satisfied follows logically from other facts which I have found satisfactorily established before me. If I do draw an inference I am not indulging in guess work or speculation.

Amongst the evidence which I have heard from the Crown has been evidence which falls within the category of being evidence of recent complaint, by the complainant. I will refer to such evidence in the narrative of events and may make comment on it. But I will not be using that type of complaint evidence as being in any way corroborative of the alleged occurrence or as being evidence that the alleged occurrence happened, as to how it happened. The only relevance of the complaint evidence, and this is how I will treat it, is that it may show that the complainant's conduct after the alleged events was consistent with her evidence about the events.

I have also had placed in front of me evidence as to oral and written statements by the Accused. Those are part of the materials for me to consider and I will comment on my view of the truthfulness, accuracy and weight of those statements in due course.

In particular I will do so in relation to the evidence which I heard from the Accused. As I have said, by his giving evidence he does not undertake anything. I will discuss his evidence, my view of it and the effects (if any) of it when I come to the narrative.

Another general matter before I commence that narrative. Reference was made by Mr Niu to intoxication - not as a defence (i.e. a complete absence of intent,) in itself, but as to the effect which intoxication may have on a persons state of mind, and in particular here, whether the Accused had the necessary guilty intent at the time of these 2 alleged offences. The onus of proof of intent lies on the Crown. When I come to states of mind and intent I will take into account as appropriate, the evidence which I have heard as to drinking and intoxication (on the part, I add, not only of the Accused but also the complainant and various other prosecution and defence witnesses).

I have given myself these general reminders before I go on to consider the facts, as I am sitting and deciding the facts in this case instead of a jury; and it is cautionary to remind myself of matters such as these, as a jury would be. I also will look to see, when giving consideration to the facts, if there is any evidence, independent of the complainant, which might support her account of events. Although not necessary as a matter of law, I would be reluctant to act on the complainant's account if it were not supported in some independent way.

I turn to the first of the 2 counts i.e. the rape charge. In this case the essential elements for proof by the Crown in the way the evidence has been presented, are that -

(i) the Accused carnally knew the complainant (complete on proof of penetration)
(ii) against her will
(iii) the Accused knowing at the time of the sexual intercourse that the complainant did not consent; or
(iv) the Accused being reckless at the time of the sexual intercourse as to whether the complainant consented to that intercourse or not.

As to that matter of consent or not, or recklessness as to consent or not, I am aware of the provisions of subsect 4 of sect. 118 which provides that on a rape trial if the jury (here, in fact myself, in lieu of the jury) has to consider whether an Accused believed the complainant was consenting to sexual intercourse, the presence or absence of reasonable grounds for such belief is a matter for which I am to have regard in conjunction with any other relevant matters in considering whether the Accused so believed. I will bear that matter in mind, and apply it as necessary, when I come to that relevant part of this judgment. I add that the real issue on the rape charge is the matter of consent or otherwise and/or recklessness. The proof of lack of consent, (or recklessness) is with the Crown. As to the second count for my consideration i.e. the detention charge, the essential elements for proof by the Crown are the following:-

(i) the Accused by force detaining a woman
(ii) with intent to carnally know her

The real issue on the detention charge is the question of intent. Again the proof lies on the Crown.

As to the facts. First a general remark or two. Undoubtedly both the complainant and the Accused acted foolishly on this night of 9 and 10 June 1995. Both, undoubtedly, were under the influence of liquor to some extent.

Between the accounts of the complainant and of the Accused as to the generality of events there is very little difference or conflict, except essentially as at the actual time of the acts of alleged detention, indecency and intercourse; and even as to the alleged detention there is very little difference in essence between the two accounts.

(The Court then considered the evidence in detail, made findings of fact and continued as follows):

I conclude therefore, and find proved that the Accused knew full well that what he had done had been done without the consent of the complainant i.e. that he had not only held her back, struggled with her, touched her, partially unclothed and licked her against her will but also that he had sexual intercourse (carnal knowledge) with her against her will. He was not only reckless at the time of sexual intercourse (as he had been at earlier times of holding her back and indecent assault, and as I have already commented on) as to whether she consented or not (and I find that recklessness proved beyond reasonable doubt) but he also knew that she was not consenting (and I find that proved beyond reasonable doubt). I therefore find the charge of rape, count 1, proved beyond reasonable doubt and enter a verdict of guilty to that count, accordingly.

Which then leaves the detention count, count 3. In view of the factual findings I have made along the way I find, beyond reasonable doubt, that the Accused did detain the complainant by using physical force. He admits as much. As to the question of intent I find, again relying on the factual findings I have already made, that such detention of her was for the purpose or with the intent of carnally knowing her. No other logical deduction can properly be drawn, in my view, from the facts which I have found proved. The Accused's explanation in evidence is neither credible nor consistent with all that had preceded the detention, the detention itself, or all that succeeded the detention. Beyond reasonable doubt, I find count 3 proved and enter a verdict of guilty accordingly.