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

CR 33/2008

R

v

Kakala

Shuster J 
16 May 2008; 13 June 2008 

Criminal law – indecent assault on 3 year old – early complaint – case proved 

The accused was charged with one count of indecent assault on a three-year-old child contrary to section 125(1) of the Criminal Offences Act (Cap 18). The evidence was that on 17 February 2007 the child's mother had driven her vehicle to a Chinese store when she was accosted by the accused and other men who asked her for money to buy alcohol. When she refused to give the accused any money, he banged on the top of the vehicle with his fists and then reached inside the van and intentionally assaulted the three-year-old sleeping child by groping her private parts in the area of her vagina. The child's mother telephoned the police and reported the incident and the accused was arrested on 7 March 2007. He denied the allegation of indecent assault. 

Held: 

1. In order to convict a person of the crime of indecent assault, or of any other sexual crime, the court ought to look for some form of corroboration, but it was not bound to do so. In other words, the court should look for some corroboration of the evidence of the complainant, and a judge (or jury) should be warned of the danger of acting without corroboration. This was true of all cases of sexual offences, irrespective of the age, or the sex of the complainant or of any other party involved even if the only issue was that of the identity of the person alleged to have committed the offence. 

2. The fact that the child's mother made early complaint of sexual assault to the police authorities was admissible in evidence and may help to tend to corroborate the Crown's version of events.

3. The prosecution had proved its case beyond reasonable doubt and the accused was convicted accordingly. 

Cases considered: 
R v Andrews [1986] AC 40; [1987] 1 All ER 513 
R v Evans 1925 18 CAR 
R v Gammon 1959 43 CAR 

Statute considered: 
Criminal Offences Act (Cap 18) 

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

Judgment

[1] The accused KELEPI VAKA'UTA KAKALA was charged with an offence, alleging on 17th February 2007 at KOLOMOTU'A he committed an indecent assault on ANGELA FAKATOU (aged 3 years)

[2] The Crown allege the accused continuously groped Angela between her legs thereby committing the offence of Indecent Assault. If that allegation is true then that would indeed amount to an indecent assault. 

[3] The accused first appeared before the Supreme Court in Nuku'alofa on the 4th March 2008 for arraignment. He pleaded not guilty to the charge before Hon Justice Andrew J as is his right. 

[4] A trial date was set for the 16th May 2008 the accused elected trial by Judge alone. On the trial date Friday 16th May 2008 the Crown asked for permission to amend the Indictment. The original charge before the court alleges an offence of Indecent Assault contrary to section 125(1)(b) of the Criminal Offences Act (Cap 18) The Crown asked for permission to delete the reference to subsection (b) of the act; because subsection (b) does not exist. The court allowed the amendment to the indictment there being no objection from the learned defence counsel. The amended indictment was re-put. 

[5] The accused pleaded not guilty to the charge of indecent assault contrary to section 125 (1) of the Criminal Offences Act (Cap 18) as is his right, and the trial commenced that same day before me. 

THE BRIEF FACTS. The victim Angela Fakatou is the adopted child of the complainant, PHILIMILOSE FAKATOU. On the 17th February 2007 at about 10.30 pm the mother of the victim (hereinafter known as PW1) drove her vehicle (a van) to the Chinese store in Kolomotua. The van contained the victim ANGELA who was lying on the front seat of the vehicle. When PW1 got to the store she saw and recognised the accused together with other men. The Crown alleges the accused approached the vehicle and asked PW1 for some money to buy alcohol. The complainant refused to give the accused any money. The Crown say the accused then banged on the top of PW1's van three times with his fists, and stared at her. PW1 formed the impression by his actions that the accused had been drinking. The Crown say the accused then reached inside the van and intentionally indecently assaulted the three-year old sleeping child; by groping her private parts in the area of her vagina. PW1 told the court the accused also intentionally shook her child. The court heard the child was wearing a diaper and pyjamas at the time of the alleged offence. PW1 said as a result of this incident she was in tears. Just after the incident and whilst she was still at the scene PW1 testified she shouted for the phone number of the police. That telephone number was supplied to PW1 by PW1's sister, who coincidentally was out shopping at the same store. That witness is travelling abroad at the date of trial and consequently is unavailable to give evidence to this court.

[6] PW1 testified she phoned the police to report the incident. The duty police officer told PW1 officers could not attend at the scene due to a shortage of a vehicle. As a result of her conversation with the police PW1 drove her vehicle to the police station where she reported the alleged crime to Police Inspector Kava (PW2) 

[7] The accused was arrested by the police on the 7th March 2007 and interviewed under caution. During his cautionary interview he denied the allegation of indecent assault. 

[8]- Police Inspector Kava testified in court it was evident to her that PW1 had been crying when she arrived at the police station to make her complaint. [9] This piece of evidence was never challenged by the defence. It is important as it is part of the Res Gestae of the offence. 

[10] In accordance with my duty and as required by law, I remind myself an accused person is innocent until proven guilty beyond reasonable doubt, so that I am sure he committed the crime with which he is charged. The accused does not have to prove anything in his defence to this or to any other charge. 

[11] In law, a child aged three years cannot consent to an act of indecent assault. I find as a fact upon hearing the evidence of the complainant's adopted mother PW1, the child Angela FAKATOU was three years of age at the time of the alleged offence. 

[12] In order to convict a person of the crime of Indecent Assault, or of any other sexual crime, the court ought to look for some form of corroboration, but it is not bound to do so. In other words the court should look for some corroboration of the evidence of the complainant, and a judge [or jury] should be warned of the danger of acting without it. [corroboration] 

[13] This is true of all cases of sexual offences, irrespective of the age, or the sex of the complainant or of any other party involved even if the only issue is that of the identity of the person alleged to have committed the offence. In R v Gammon 1959 43 CAR it was held evidence of a complaint made by a girl or a woman made shortly afterwards in a sexual case, is not in law corroboration since it did not come from an independent source. R v Evans 1925 18 CAR.

[14] It is often the case that a young child or, indeed any other person might be traumatised or frightened in some way or other; and will not find it easy to tell another person in public what happened or; the child or (other person) might delay doing so. This is often because of fear or guilt on the child's or the other persons behalf. 

[15] The evidence in this trial reveals the witness PW1 told the authorities what she said happened at the time in question; firstly on the telephone, and then in person, very shortly after the time of the alleged offence they report the matter to a senior police officer. 

[16] It is testimony given in open court which concerns me; and will lead me to find either the guilt or innocence of the accused. 

[17] I find as a fact the child's adopted mother PW1 made an allegation of early complaint of a sexual assault to the police authorities on her child. This observation by the mother is part of the Res Gestae of this case see R v Andrews [1986] AC 40; [1987] 1 All ER 513 it is admissible in evidence and may help to tend to corroborate the Crown's version of events, if I care to believe the testimony of the witness PW1. 

[18] It is also important for me to consider the evidence of Police Inspector Kava who testified, it was evident to her that PW1 had been crying when she arrived at the station to make her complaint. That piece of evidence was never challenged by the defence.

[19] PW1 also testified she identified and recognised the accused as someone who lives in the same vicinity as herself. She knew the accused and she named him to the police authorities. She also told me in court it was the accused who assaulted her child on the 17th February 2006. PW1 clearly identified the defendant to me in open court and she confirmed she knew him well. 

[20] In accordance with my duty to the court, I certify I have reminded myself of the dangers surrounding identification evidence. I have taken into account the well-established Turnbull guidelines and apply them to this case in arriving at this my judgment. 

[21] This case also depends upon recognition evidence and in particular who I believe. Recognition may be more reliable than an identification of a stranger; even when a witness is purporting to recognise someone whom he/she knows; the judge/jury should always be reminded that mistakes in recognition of even close relatives and friends are sometimes made. These matters go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused's case, the danger of a mistaken identification is lessened; but the poorer the quality the greater the danger and here we are talking about close neighbours. 

[22] I certify as a fact I found the witness PW1 to be a persuasive and in fact a very honest witness. PW1 was unshaken in her evidence even after lengthy cross examination by a learned, and, an experienced defence counsel.

[23] The defence case is one of a complete denial. The defendant admits he was at the scene at the time in question; he gave evidence on oath that no assault took place on the child as has been alleged by the Crown. He testified he was at the scene and that he did ask the complainant for money to buy liquor, but he testified he did not assault the child. 

[24] The defendant brought a witness in his defence, DW2. I found him to be an evasive individual. He was a first cousin of the accused. He said in evidence that naturally he did not want the accused to be convicted. In essence, DW2's evidence did not tend to corroborate the evidence of the defendant. In fact, his evidence often contradicted the evidence of DW1 and as a result I chose to mostly disregard DW2's evidence.

Conclusion

[25] I have listened carefully to all the evidence in this case, both for the prosecution and for the defence. PW1 gave evidence the accused KELEPI KAKALA committed an offence of indecent assault contrary to section 125(1) of the Criminal offences Act (Cap 18) by or towards a child of 3 years on the date in question. Upon hearing all the evidence and considering the elements the prosecution has to prove in such a case; I find the prosecution has proved its case beyond any reasonable doubt so that I am sure that KELEPI KAKALA committed the offence of indecent assault by or towards a child aged three, on the date in question and as shown in the Indictment.

[26] Accordingly I find the accused Guilty as charged. I thank counsel for their attention in this matter.