[2007] Tonga LR 90

IN THE SUPREME COURT OF TONGA

R

v

Ta'ufo'ou

Supreme Court, Nuku'alofa
Ford CJ
CR 210/2006

20 and 30 April 2007; 5 July 2007 

Criminal law – indecent assault – elements proved - convicted 

The accused was charged with one count of indecent assault on a child less than 12 years of age (aged nine years), contrary to section 125 of the Criminal Offences Act. The complainant's family had allowed the accused, who was unemployed, to live in a second house on their allotment which was joined to the main house by a verandah connection. The alleged offending took place on a Saturday morning when the complainant's father was at work in Nuku'alofa and her mother was selling umu food at a market at Fua'amotu Airport. The accused was supposed to be preparing a second lot of food to take to the mother at the market but when he failed to show up the mother caught a taxi back to the allotment to find out what was holding up delivery of the second supply. When the mother returned home the indecent assault was allegedly taking place at a cassava plantation behind the house. The accused denied that any indecent assault had taken place. He claimed that an admission made in his record of interview to the police was written by the police officer and that he was never given a chance to read the statement before he signed his name at the end of the interview. The accused provided the court from the witness box with a sample of his handwriting. 

Held: 

1. Under section 76 of the Evidence Act (Cap 15) the court was permitted to make a comparison of handwriting and having carried out such a comparison it was satisfied beyond doubt that the answers in the police record of interview were written by the accused himself. 

2. The elements the Crown must prove in order to establish a charge of indecent assault under section 125 of the Criminal Offences Act are: first, that there was an assault which was the intentional application of any degree of force; secondly, that the assault was indecent applying the standards commonly accepted in the community; thirdly, that the accused knew what he did would be indecent in that sense and he deliberately carried on with the assault in that knowledge; finally, that at the time of the offence, the complainant was aged under 12, in other words, that she was 11 or less. Consent has no relevance to a girl of that age.

3. No corroboration of the complainant's evidence was required but section 11 of the Evidence Act provides that evidence of complaint made shortly after the offence was committed may be admitted in evidence as showing that the complainant's conduct is consistent with her evidence at the trial. 

4. The Crown made out a strong case against the accused and he was convicted accordingly.

Statutes considered: 
Criminal Offences Act (Cap 18) 
Evidence Act (Cap 15) 

Counsel for the Crown : Ms Moa 
Counsel for the accused : Mr Fifita 

Judgment

The charges

[1] The 65-year-old accused is charged with one count of indecent assault on a child less than 12 years of age, contrary to section 125 of the Criminal Offences Act (Cap 18). The alleged offence took place in March 2005. The girl, who I shall refer to as the complainant", was nine years of age at the time. 

The facts 

[2] The complainant lives with her parents and two younger siblings, namely, a nine-year-old brother and seven-year-old sister in the Fua'amotu area. At the time of the incident the accused had, for approximately 6 months, been living in a second house on the same allotment which was joined to the complainants home by a veranda. The accused is not related to the complainant's family but he had known the complainant's mother's family for a long time and the complainant's family allowed him to live in the second house. He did not seem to have a regular job but, at the time of the incident, he was apparently doing some work on a neighbouring plantation and on Saturday mornings he would assist the complainant's mother preparing 'umu food for a stall which she ran at a market in the car park area at Fua'amotu International Airport. 

[3] On the Saturday morning in question, the complainant's father had gone to work in Nuku'alofa. The accused drove the mother in the family's second vehicle to the market at the airport with the first batch of 'umu food. He assisted the mother in placing a tarpaulin cover over the shelter she operated from at the market and then he drove back to the allotment to prepare the second lot of 'umu food. The arrangement was that when the accused returned with the second lot of food, he would bring with him the three children. The mother expected him to return at around 11:00 am. By 11:30 a.m. the mother had sold out of food and so she caught a taxi back to the allotment to find out what was holding up delivery of the second supply. 

[4] In the meantime, back at the allotment the events giving rise to the present prosecution were unfolding. The complainant told the court that approximately 15 minutes before the mother arrived back home, the accused asked her to go with him to a casava plantation behind the house. She told him that she did not want to go because her parents would hit her when they returned. She said that the accused told her that it was all right for her to go because he would apologise to her father. The complainant said that she then started to cry and the accused took her by the hand and led her to the plantation. He told her younger brother and sister to go around to a passionfruit tree at the side of the house and pick passionfruit and make themselves a drink. 

[5] The complainant told the court that when they reached the casava plantation, the accused told her to take off her clothes but she refused. He then took off her pants and told her to lie down on the ground. He removed his own clothes and then spread her legs and licked her genitals. That is the accusation which forms the basis of the indecent assault charge. The complainant said that a short time later while this was still going on, her mother arrived back from the market and she heard her mother calling out her name. She did not reply on the first two occasions but she said the accused told her to go to her mother and so she put her long pants back on and walked back out to the house where her mother was. She said that the accused ran off into the bushes. 

[6] The complainant's mother asked her where she had gone. The complainant told the Court that she was afraid of her mother and she started to tell her that she had been to the toilet but her mother noticed a long bit of grass sticking to the elastic band around her pants and she told her that she would hit her because she was lying. She then told her mother that the accused had led her into the bushes and done something bad. Her mother asked what the accused had done and the complainant told her that he had licked her and she explained that he had licked her private parts. The complainant said, and the mother confirmed this in her evidence, that the mother became very angry at that point and hit her all over her body. The complainant cried because of the pain and she apologised to her mother. 

[7] The mother then walked out of the house and called out to the accused who eventually appeared. The mother told the court that she was deeply upset and she started "raving" at the accused over what had happened. She said that he was silent but then he apologised and said that, "Satan was in him." The mother then remembered a letter she had found the previous day under a cushion in her home which was in the accused's handwriting and she went and got the letter and asked the accused what it was. He at first denied that it was his but she pointed out that it was in his handwriting and the accused then told her to ask her daughter about the contents. She showed the letter to the complainant. The complainant read the letter and then cried again and told her mother that nothing of the sort had happened. 

[8] The letter in question was produced as an exhibit. As translated, and with the names mentioned in the letter concealed, it reads: 

"(the mother's name) 

I would like to tell here what happened to (the complainant), she was unable to tell you and (the father). 

I found them having sexual intercourse with his cousin. As son of (the father's) sister and I asked this boy and he told me that (the complainant) led him and took his clothes and told him to have sexual intercourse and (the complainant) closed the door. 

Having sexual intercourse with the dumb. Having sexual intercourse with Sione. 

And she grabbed my hand and pulled me to lie down on top of her and I was surprised in this girls behaviour.

And I believe that the boy you stay with he will be seduced by (the complainant) as she is very good in trapping anyone who lives at home." 

[9] The mother told the court that after the verbal exchange she had with the accused regarding the letter, the accused apologised and said that he would go and get 2000 pa'anga. The mother responded, "I don't want your shitty money" and she told him to pack his things and leave the house straight away. The accused did exactly that. Later in the afternoon, when the complainant's father returned home from work, he was told about what had happened and he went in search of the accused in his car but could not locate him. After that the father dropped the mother and the complainant off at the Mu'a Police Station and a formal complaint was made. 

[10] The police told the court that they were unable to find the accused and, in fact, he was not located until September 2005. In his record of interview he denied any knowledge of the alleged indecent assault and he maintained that the complainant's allegations were untrue. 

The defence 

[11] The accused elected to give and call evidence. He told the court that when the complainant's mother called out for him, he had been husking coconuts. He said that the mother asked him why the food was taking so long and he replied because he was the only one preparing the food. He said that the mother did not put to him what the complainant alleged he had done to her in the plantation but she did become angry and asked him questions about the letter. He said the mother told him that she did not want him living there because he was giving her daughter a bad reputation. He said that he agreed to leave when asked but he denied knowing anything about the indecent assault allegation or having apologised to the mother or having offered her 2000 pa'anga. 

[12] In his examination in chief, the accused was asked by his counsel whether he had any previous serious convictions and whether he had spent time in prison. The accused answered in the affirmative although he said that he had no previous convictions for this type of offence. He was then asked by his counsel about his plea in those other cases and he said that he had always pleaded guilty. He was asked why he had pleaded "not guilty" to the present charge and he responded, "because nothing happened." 

[13] In cross-examination, the accused was challenged by Ms Moa over his statement that he did not know at the time he was being evicted about the indecent assault allegation. The prosecutor referred him to his record of interview with the police and, in particular, the following passage: 

"Q. 21 Do you know the reason why you were evicted? 

A. She (the mother) alleged that I took the girl to the bush and did something to her. Q. 22 And what you say to your 170 eviction, is it true or not? 

A. It is true." 

[14] The accused claimed that the questions and answers were written down by the police officer and he did not get a chance to read them before he signed his name at the end of the record of interview. 

[15] Again, the accused was challenged by Ms Moa over this statement and it was put to him that the police officer had said in his evidence that the accused had actually written down his own answers to each question. The accused denied that proposition and continued to claim that it was not his handwriting. 

[16] The answers to the questions in the Record of Interview appeared to me to be in a different style of handwriting from the question itself. I, therefore, asked the accused for a sample of his handwriting which he willingly provided from the witness box. Section 76 of the Evidence Act (Cap 15) allows the court to make a comparison of handwriting. It reads: 

"76. In order to ascertain whether any signature or writing is that of the person by whom it purports to have been written, any signature or writing admitted or proved to the satisfaction of the Court to have been written by that person may be compared by a witness or by the Court or the jury with the one which is to be proved, although that signature or writing would not be admissible as evidence for any other purpose." 

[17] Having carried out such a comparison, I am satisfied beyond doubt that the answers in the police Record of Interview were, in fact, handwritten by the accused himself. 

The law 

[18] The various elements the Crown must prove in order to establish the charge were not in dispute. The Crown must prove, first, that there was an assault which is the intentional application of any degree of force. Secondly, that the assault was indecent applying the standards commonly accepted in the community. Thirdly, that the accused knew what he did would be indecent in that sense and he deliberately carried on with the assault in that knowledge and finally, that at the time of the offence, the complainant was aged under 12. In other words, that she was 11 or less. Consent has no relevance to a girl of that age. 

[19] As is the typical situation in this type of case, there were no eyewitnesses to the events giving rise to the charge and so, in those circumstances, the credibility and demeanour of the witnesses becomes a crucial factor in the case. No corroboration of the complainant's evidence is required but section 11 of the Evidence Act (Cap 15) provides that evidence of complaint made shortly after the offence was committed may be admitted in evidence as showing that the complainant's conduct is consistent with her evidence at the trial.

Submissions

[20] Mr Fifita's principal submission was that from the beginning the accused did not know that there was an allegation of indecent assault being made against him. He claimed that the mother did not confront the accused about the indecent assault allegation but only over the letter. 

[21] Even if it had substance, of course, this submission would not amount to a defence. In her evidence in chief, however, referring to the incident in question, the mother said that when she confronted the accused she "raved about what had happened" and he was silent. He then apologised and said that, "Satan was in him." I accept the mother's evidence in this regard and it is consistent with the accused's answers in the Record of Interview referred to above. 

[22] Mr Fifita next submitted that the police had not taken the accused before a Magistrate. The evidence on this point was, from the defence point of view, equivocal at best. I was certainly not persuaded that the evidence established that the accused had not been taken before a magistrate. The police sergeant in charge of the case was not even cross-examined on the point. 

[23] Defence counsel then submitted that there was no corroboration of the complainant 's evidence but as I have stated above, corroboration is not an essential element of the charge. 

[24] Finally, Mr Fifita made some rather vague allegations about the failure of two police witnesses to appear and give evidence on behalf of the defence after they had been subpoenaed. If that was the situation, and counsel had wished to pursue the matter, then he was under an obligation to raise it with the Court at the time it happened -- not in written submissions sometime after the conclusion of the trial. I am not prepared to entertain the submission. 

[25] The prosecutor's submissions were consistent with the Court's conclusions.

Conclusions

[26] The accused was not a convincing witness and I did not believe his story or his denials. That is not the end of the matter, however, because before a conviction can be entered I must be satisfied that the prosecution has proved all the elements of the charge.

[27] For her part, despite her young age, the complainant was a very impressive witness. If she did not understand a particular question in examination in chief or cross-examination, she would ask for it to be repeated or clarified before she gave her answer. I found her evidence entirely credible and reliable. Her mother was also a convincing witness and, apart from one or two inconsequential details about matters like whether the mother or father later drove the complainant to the police station, the mother's evidence was entirely consistent with that given by the complainant. 

[28] In addition, there was the evidence relating to the letter which the accused admitted having written. Ms Moa submitted that, "even though the letter does not show his intention to commit the offence with which he is charged, it shows that the accused had sexual thoughts about the complainant just before the incident occurred."

[29] The mother did not say whether the letter had been a factor in her decision to catch the taxi home from the airport on the Saturday morning but, given its disturbing contents, she obviously had every reason to be concerned at that stage in the knowledge that the accused was home alone with her children. 

[30] In short, I find that the Crown has made out a strong case against the accused and I have no doubt as to his guilt. He is convicted accordingly.