IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY

NO.CR.103/2001

BETWEEN:

REX
Prosecution

AND:

PETULIKI FILISE
Accused

BEFORE THE HON MR JUSTICE FORD

COUNSEL: Mr Fusitu'a for the Crown and
Mr 'Etika for the Accused.

Date of Hearing: 29 & 30 November, 2001.
Date of Judgment: 3 December, 2001

JUDGMENT

The accused is charged with one count of indecent assault. The particulars in the indictment allege that on the 14th of April 2001 at Kolofo'ou he indecently assaulted the complainant by touching her vaginal area and other parts of her body without her consent.

The assault is alleged to have taken place outside the Molisi Tonga store in Kolofo'ou opposite the Talamahu market. The Crown's case was that sometime between 6:30 p.m. and 7 p.m. on the evening of 14 April, which was a Saturday, the 22 year old complainant, who is an employee at the Molisi store, was standing out on the raised concrete ramp in front of the store waiting for someone. At the same time the accused was walking along the footpath towards the ramp area with a friend. It is alleged that as he reached the complainant, who was standing on the raised ramp above him leaning on the safety rail, the accused dragged his left hand across the complainant's thighs and vaginal area.

The complainant gave evidence and basically confirmed what Crown counsel had said in his opening. She said that she was leaning on the rail and it was touching her stomach. She had been talking to a young boy, Mafi Paea, whose father was in charge of security at Molisis. Mafi was also out on the deck. He was sitting on a chair facing the main entrance door to the store. He was sitting only a short distance from where the complainant was standing and he was leaning back against the safety rails.

The complainant said that she was standing facing towards the market area across the road and she had noticed the two boys on the footpath approaching from her right. She then looked around towards her left and next thing she recalled was suddenly feeling someone's hand sliding across her right thigh, her genital area and then her left thigh. She was wearing a uniform top and skirt and the hand was on the outside of her skirt.

The complainant told the court that she immediately looked down and saw the face of the person, who she identified as the accused, and she slapped him on the back of his head. She said that she felt shocked and disgusted over what had happened but the accused immediately became aggressive and climbed the ramp chasing her into the shop swearing and threatening her. A security guard eventually forced the accused outside the store and the complainant, who was also outside again at that stage, was able to wave down a passing policeman who proceeded to take the accused into custody. The investigating police officer told the court that the accused was later charged with indecent assault and drunkenness, but the latter charge is not before this Court.

The Crown accepted that, as in any criminal case, it has the onus of establishing every element of the charge beyond reasonable doubt. There is no obligation on an accused to make any statement or to give evidence on his own behalf but in this particular case the accused elected to give evidence and he also made a statement to the police which was produced by the investigating officer. In his statement to the police the accused said that he had earlier been drinking alcohol with some Kolofo'ou kids and then he and his friend Viliami had curry at the curry store in front of the Polynesian airline office before proceeding to walk into town along the footpath running in front of Molisi's store. The accused told the police that he and Viliami were both in a drunken state but he noticed the complainant standing outside the store on the concrete ramp. He then went on to say that when he saw the girl he dragged his left hand along the rail and it came in contact with the girl's vagina and suddenly he felt a slap on the back of his head. He was asked by the police officer whether he knew that his hand would come into contact with the complainant's vaginal area and he answered, "yes, I already knew that my hand would hit ....(and he names the complainant) vagina."

In his evidence in this Court the accused, who is a 28 year old baker with Cowley's Bakery, said that he was dragging his left hand along the rail and his other hand was hanging on to his friend Viliami. He demonstrated how he had been "dragging his hand". His hand was horizontal, face down on the top of the rail. He said that he had not noticed the complainant and the first time he realised that his hand had come into contact with her was when he received the slap on the back of the head. He said that all he had felt with his hand as he walked past was her clothing.

The Crown called Mafi Paea, the 14-year-old schoolboy who had been sitting in a chair on the concrete ramp outside Molisis when the incident occurred. Paea said that he had heard the boys approaching and he had looked around and was watching them. He said that they changed places as they approached the end of the ramp and the accused moved to the side of the pavement closest to the ramp. He said that he saw the accused then drag his hand along the top of the safety rail and his hand was open in a vertical position facing the direction of his travel with his fingers slightly apart. The witness said that at the same time the complainant, who was between him and the approaching boys, was leaning on the rail and her contact point with the rail was around about her private parts. He said that the complainant was looking across the road towards the market and he then described how the accused did not take his hand off the rail but he dragged it across the front of the complainant's thighs and her private parts.

The witness was cross-examined in some detail about the complainant's point of contact with the rail and the point of contact made by the accused's hand. In cross-examination he conceded that if the complainant had said in her evidence that the rail was about up to her stomach then her evidence was most likely correct. The witness demonstrated to the court his recollection of where the rail came to and where the accused's hand had dragged across the complainant's body. He indicated in his demonstration that the rail had come up to just above the complainant's stomach and that the accused had dragged his hand across her body slightly lower down, in her lower stomach area.

Mafi Paea was the only independent witness and the Crown obviously regarded his evidence as significant. On the Crown's application, the court agreed to take quite a lengthy adjournment on the first day of the hearing when Paea failed to appear so that the Crown could ascertain his whereabouts. In his evidence in chief, Paea agreed that he had been an eyewitness to the whole incident.

One part of Mafi Paea's evidence, which he was quite adamant about, was that he had seen the accused dragging his open hand in a vertical position along the top of the rail and when he reached the complainant he did not move his hand away but he continued to drag it along the top of the rail, touching her body as he did so, until the point where the complainant slapped him across the back of his head. The significance of this evidence emerged at the end of the trial when the court was invited by counsel to take a view of the scene. This involved an inspection of the ramp area outside Molisi's store.

Although the complainant was not present at that stage, there were a number of other people around the ramp area and what clearly emerged from the scene inspection was that if the complainant, who is a reasonably short person and certainly of no more than average height, was standing on the flat area at the top of the ramp leaning against the top safety rail as she claimed, then there is no way that the accused could have dragged his open hand, whether in a horizontal or vertical position, along the rail so that it came in contact with her vaginal area. The only way that the accused's hand could have made contact with the complainant's private parts was if he had lowered it below the rail and although the complainant had indicated in cross-examination that that is what had happened, it is not what the independent Crown witness told the court he had seen and I am accordingly left with a very real doubt about that aspect of the complainant's evidence. The accused must be given the benefit of any such doubt.

The accused was asked in cross-examination why he had said in his statement to the police that he "hit the girl's vagina". He said that he could not recall it but that is what the policeman told him had happened and the policeman had said that if he did not agree with the statement being included then he would be held longer at the police station. Normally, I would have placed little reliance on this evidence because the allegation had not been put to the police officer for his comments, but the point came up in cross-examination - not in the accused's evidence in chief and, given my conclusions following the scene inspection, I am inclined to accept what the accused says about this matter.

On the evidence, therefore, of the independent witness, who appeared to me to be doing his best to give the court his honest recollection of what had happened, I cannot accept that the touching was in the complainant's vaginal area as alleged.

That is not the end of the matter, however. Counsel for the accused accepted that the evidence disclosed that there had been an assault on the complainant and that she had not consented to what had occurred. The question then arises as to whether that assault was indecent even though I have found on the evidence that the touching was not in the complainant's vaginal area.

In most indecent assault cases that come before this Court the factual circumstances of the alleged assault are inherently indecent. If, for example, in this case I had concluded that the accused had intentionally touched the complainant's vagina then that act would have undoubtedly been indecent and so long as I was satisfied that the complainant had not consented and that the accused had not honestly believed that she had consented then guilt would have been established.

The situation is different, however, where the actions that are alleged to have made up the indecent assault are equivocal. In those circumstances it is necessary to then go on to consider the accused's motive or intent. The Crown must be able to establish that the accused knew that the touching was indecent and that he intended to do it.

That principle arises out of the decision of the House of Lords in Regina v Court [1989] 1 A.C. 28. Commenting on that decision and the subsequent decision of the English Court of Appeal Criminal Division in R v C [1992] Crim L.R. 642, Professor Smith, on page 643 of the publication, accurately in my respectful view, sums up the current legal position in the following terms:

"Indecent assault (meaning battery) is a single offence but since Court it has been established that it takes two forms. (i) Where the manner or circumstances of the assault are unambiguously indecent the assault is an indecent assault whether the offender has an indecent purpose or not, provided only that he is aware that the elements of indecency exist, or may exist. (ii) Where the manner or circumstances of an assault are ambiguous, the assault is an indecent assault only if the offender has an indecent purpose . . . Where it is alleged that an ambiguous act is an indecent assault the prosecution must prove an indecent purpose. In the absence of that purpose the only offence that has been committed is a common assault."

In the present case there was one particular aspect of the evidence which counsel for the accused highlighted in his helpful written submissions as being relevant to ascertaining the intention of the accused. It is the evidence of his reaction after the complainant slapped him across the back of the head. The complainant said in her evidence that he all of a sudden became angry. He climbed up on to the ramp and chased her into the shop swearing and abusing her. Counsel submitted that this particularly aggressive reaction was consistent with the indignation one would expect from an innocent person rather than one with a guilty mind. Another explanation, of course, is that it may simply have been an arrogant aggressive reaction from a person under the influence of alcohol.

Defence counsel submitted that the accused did not have any intention to indecently assault the complainant but the touching was done accidentally or recklessly while he walked past her dragging his hand along the safety rail. Having considered that aspect of the evidence carefully and having observed the accused giving his evidence, I am inclined to accept counsel's submission as being the most likely scenario. In any event, there is no obligation on an accused to have to prove that he did not have the requisite intention. It is for the Crown to prove that the accused intended to commit an indecent assault. In my judgment, for the reasons I have expressed, regrettably at some length, it has failed to do so.

The accused is accordingly acquitted.

NUKU'ALOFA: 3 DECEMBER 2001.

JUDGE