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R v Kapeli [2002] TongaLawRp 17; [2002] Tonga LR 105 (21 May 2002)

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

Cr 110/2001

R

v

Kapeli

Ward CJ
23-25 April 2002; 21 May 2002

Criminal law – indecent assault – evaluation of evidence – convicted

The accused was 62 years old and lived in a large house and he was in the habit of showing new visitors around. He frequently held kava parties in the house and, although there frequently were only three or four people, they almost invariably included the accused's friend Liku Pole. It was he who would generally buy and mix the kava and he who often arranged a girl as tou'a. The complainant was related to Liku and, on a previous occasion, he had asked her mother if the complainant could go to act as tou'a. It was agreed and she did so. On that occasion she was shown round the house when she first arrived and, the next day, was paid $40 for her work. Her mother did not want her to go again and so, when a short time later her close friend Manu was asked to go to serve kava, the complainant agreed to go with her but did not tell her mother the true reason for going out that evening. On 12 June 2001 the two girls arrived at the accused's house. Manu was then shown around the house by the accused. The kava was then mixed and the accused and Liku drank that while the women drank some other alcoholic mixture. The complainant said that when she went to leave the accused asked her to stay but she said they must go. He then grabbed her hands and started to pull her along the passageway. She said that he then indecently assaulted her and then gave her some money to keep quiet. The accused was charged with alternative counts of indecent assault and common assault. The violence particularised in the second count was part of the first count and it was clear the charge was effectively indecent assault. If the Crown could not prove that, the alternative offence must fail also.

Held:

1. The court found the complainant was a careful and compelling witness. However, while corroboration was not required it was important to seek confirmation of her evidence in the evidence of other witnesses.

2. In cases of serious sexual offences the police are under a duty to carry out a proper investigation and in appropriate cases the prosecution will be expected to produce medical evidence.

3. The court was satisfied beyond reasonable doubt that the complainant's account was true and that the accused used force on the complainant and performed the indecencies described by her. He was convicted on count 1 and therefore there was no verdict on the second count.

Counsel for prosecution: Mr Pouono
Counsel for accused: Mr Tu'utafaiva

Judgment

I have ordered that the name of the complainant in this case shall not be disclosed in any report of the case nor should she be identified in any other way.

The accused is charged with alternative counts of indecent assault and common assault. Both relate to the same incident on 12 June 2001. The violence particularised in the second count is part of the first count and it is clear the charge is effectively indecent assault. If the Crown cannot prove that, the alternative offence must fail also.

The accused is 62 years old and has lived much of his life in America. He now lives in a large house in Kolomotu'a. It is a house of which he is plainly proud. He told the court it has 20 rooms and no less that 9 bathrooms and it was clear that he was in the habit of showing new visitors around.

He frequently held kava parties in the house and, although there frequently were only three or four people, they almost invariably included the accused's friend Liku Pole. It was he who would generally buy and mix the kava and he who often arranged a girl as tou'a.

The complainant is related to Liku and, on a previous occasion, he had asked her mother if the complainant could go to act as tou'a. It was agreed and she did so. On that occasion she was shown round the house when she first arrived and, the next day, was paid $40 for her work. It appears her mother did not want her to go again and so, when a short time later her close friend Manu was asked to go to serve kava, the complainant agreed to go with her but did not tell her mother the true reason for going out that evening. That was the visit which led to the present charges.

There is no dispute that both girls arrived at about 9 to 10 pm in a taxi driven by a friend of them both, Ma'ake. The accused paid the taxi fare but, only having a $20 note, Ma'ake and the complainant went to the filling station to obtain change. The change would have been about $15.

The two young women were then shown into the dining room where there was some food and invited by the accused to eat. The accused did not eat with them. It appears the dining room is just inside the entrance to the house on one side of the passageway and the kitchen is opposite it on the other side.

Manu had not been to the house before. She finished eating first and was then shown around by the accused while the complainant finished her meal.

When they had both finished eating, Manu asked the accused if there was any drink and the accused told them there was a one and half litre Coca Cola bottle in the refrigerator already mixed. The women took the bottle upstairs with them to where the faikava was to be held. The accused also told them to help themselves to anything they wanted from the refrigerator.

Shortly after this Liku arrived, the kava was mixed and the two men started to drink it. The women did not, preferring the alcoholic mixture in the bottle which they consumed entirely between themselves. The men only drank kava. There was a stereo playing and the two women were dancing while they drank. As they did so, the men took a video of them. The complainant told the court she was happy but did not feel drunk.

When the bottle of mixed drink was finished, Manu asked the accused if there was any more and he brought out a full bottle of Jim Beam whiskey. The women started drinking that but, when they had consumed it down to the shoulder of the bottle, the complainant decided she had had enough and stopped drinking.

When they had first arrived, the women had arranged for Ma'ake to return with the taxi to collect them and it was at his stage that the complainant saw the taxi outside the house. She went downstairs and told him she would go back and fetch Manu. In the taxi were Ma'ake and a friend of his, Sione.

There are some differences between the prosecution and defence cases up to that point. I need only refer to one but after that point there is a stark conflict between the accounts of the complainant and of the accused.

The earlier difference I must refer to arises from the evidence of Manu. She told the court that, when the accused showed her round the house whilst the complainant was still eating, she was shown a number of rooms but she was surprised that, whilst looking at the room just behind the dining room, the accused shut the door and said, "Let's do it just once". She understood he was referring to sexual intercourse and refused. She was able to open the door and rejoin her companion in the dining room. She was not frightened as she felt he was joking and she did not tell the complainant. That incident is totally denied by the accused. Whilst he agrees he showed her around the house, he told the court the rest of her account is totally fabricated.

From the time the taxi returned to pick up the two young women, it is necessary to go into the complainant's evidence in some detail because the defence relies on a number of inconsistencies between that and the evidence of the other witnesses in the case.

The complainant told the court that, when she re-entered the house after speaking to Ma'ake, the accused was in the kitchen. As she came in, he asked her to stay but she said they must go. He then grabbed her hands and started to pull her along the passageway a distance of 15-20 feet towards the room behind the dining room.

She realised he was intending to force her but, at that stage, did not shout or call out. She explained in cross examination that she did not realise immediately that he was going to pull her into the room and was sure she could free her hands. However, he pulled her into the room, shut and locked the door and turned out the light. The complainant asked him to turn it on again and the accused did so but, as he turned back from doing that, he slapped her on the side of the head.

She was angry, swearing and shouting then and they struggled. He punched her on her side and pushed her onto a bed that was in the room. She tried to get up but he held her pushing her head down and covering her mouth with his hand. One blow was to the back of the complainant's head and she was aware it knocked off her hairgrip.

He told her to be quiet and, at one stage, produced a pocketknife and pointed it at her face repeating his order that she be quiet.

The complainant was wearing a pair of trousers and when the accused started to unzip them, she tried to discourage him by saying that no one had done that to her before. It was not successful and he was able to hold her down with one hand on her neck and insert his thumb into her vagina followed successively later by two fingers. The complainant told the court it hurt and that she told the accused and asked him not to do it. He continued regardless and managed to pull her pants down to one side. She was having a period at that time and he removed her sanitary pad, threw it to one side and then licked her vagina.

During all this the complainant was screaming and pleading with him not to do it. The accused told her it was because he loved her and so she told him to stand up so they could go upstairs to prevent the others wondering where they were. This was done in order to effect her release and she told him she loved him. At that he put his hand into his pocket and gave her some money saying it was $100. He told her to use it but not to say anything to anyone else. She did not count it but simply put it in her pocket.

She tidied her hair by tying it into a bun at the back without recovering the hairgrip and she went upstairs where she sat for a while by Manu. The accused followed her upstairs and rejoined Liku at the kava bowl.

Manu had also seen the taxi arrive and the complainant go down to see the driver. She had also noticed the accused go downstairs shortly after the complainant. When her friend did not re-appear for a long time, Manu decided to go and look for her. She went down and spoke to Ma'ake who told her the complainant had gone back inside to fetch her, Manu. Ma'ake confirmed this incident in his evidence.

Manu recalled that, about 10 minutes after she had returned upstairs, the complainant returned. She mentioned that, when the complainant sat by her, the accused had provided cheese for them and, when the complainant sat beside her, she noticed she held the cheese knife. When the accused came upstairs a little after the complainant, he came across and took the knife from her.

No other witness referred to this incident.

The complainant then went down to the taxi which was still waiting. Whilst she was outside downstairs, she called up to ask Liku to bring Manu home and then told the taxi to drive off immediately. She explained to the court that she had not told Manu because she wanted to tell he family first and then to go to the police. She said she never told Manu and one of the inconsistencies between the evidence of the two women was that Manu told the court she had been told about it the next day.

When they drove off, the complainant first told the taxi driver to take her to the Central Police Station but, when they reached the Queen Salote Memorial Hall, changed her mind and decided to go first to her brother's house at Tofoa. She then told Ma'ake that she needed a beer and one was bought for her from a shop near the hospital.

During the drive, she was distressed and crying. Ma'ake confirmed that he noticed this and asked her what was wrong but was told simply, "It is how drunken people behave".

Her brother told the court she was crying and said she had been forced by a man and he had given her money to shut her up. He formed the distinct impression she was hoping he and her other brothers would go and attack the accused. Wisely he told her to go instead to speak to her mother and accompanied her there.

At her mother's house, the complainant, still crying, said she wanted her brothers to go and do something to the accused because he had taken her virginity by forcing her and fondling her. Her mother told her they would go to the police station but the complainant said she was in too much pain and the brothers should do something to the accused. Her mother insisted and she was taken to the police station.

On her arrival, she was questioned by Inspector Fusimalohi. He made no notes of her answers but the account he gave to the court differed in a number of aspects from the complainant's account to the court. The Inspector recounted how she was so distressed on her arrival that he had to allow her some time to compose herself.

His recollection was that she said the accused had forced her to take off her pants with a knife at her throat. She had pleaded with him because she was having her period but he had forced her onto the bed, had taken off the sanitary pad, thrown it aside and started licking her vagina. He had then pushed his fingers into her vagina.

He asked a woman police constable to take the complainant to the hospital to be examined.

Remarkably, the only evidence of what occurred there is the complainant's account. She told the court that, when a doctor arrived to examine her, she was too sore and struggled. The doctor advised that she should rest before she was examined. Defence counsel adduced evidence that there was a note in the station diary written by the WPC suggesting the reason she needed to rest was because the doctor thought she was drunk. No evidence was called of that. It is opinion unsupported by reasons and is double hearsay. I cannot consider it.

In the meantime, the Inspector had gone to the accused's house and taken the accused to the police station where he denied anything improper had happened. He was released and the Inspector returned to the hospital and asked to take the complainant to the accused's house. At that time, he confirmed that the complainant had not been examined and he was told it was because it had hurt and she had struggled too much.

On the way to the house, the Inspector asked her to try and think if there was anything she had overlooked in her earlier account to him. She recalled that she had lost her hairgrip and it had fallen beside the bed.

Once at the house, the Inspector advised his officers to look for the bed cover, in case it was stained, the sanitary pad and the hairgrip. The complainant noticed the room had been tidied and the bed cover was no longer there. The Inspector confirmed that there was no cover on the bed when they went into the room. His officers were unable to find anything in the room until they lifted the bed from the wall and found the hairgrip. The complainant identified it as hers although she agreed it was a very common form of hairgrip.

The hairgrip has not been produced because the Inspector advised the officers to leave it there. It was, by then, nearing the end of his shift and he considered the fingerprint officers might wish to visit the scene. They never did and the hairgrip was, it appears, never recovered.

The complainant's evidence, as has been stated, was that the room had been tidied and the bed cover and, presumably, the sanitary pad removed. No search was made for either in the rest of the house or outside. The Inspector explained that the failure to look outside was because the police had no torches! Worse still, it appears the officers who took over the investigation failed to make any search once it was daylight.

The finding of the hairgrip was sufficient to warrant the arrest of the accused and he was taken to the police station. He was interviewed at length and made a clear and repeated denial of the allegations.

The complainant was returned to the hospital where she was examined. No medical report or other evidence of that examination has been produced.

In court, the accused gave evidence consistent with his statements to the police. He was a married man and he explained that his wife, since deceased, was in America at the time of this incident. He recalled the complainant had been tou'a at a previous faikava.

On this occasion he asked Manu to come and she said she would ask the complainant to come as well. He recalled that, after Manu had finished eating, she had commented on the size of the house and he pointed out the rooms but he denied he went into any room with her. He explained he simply opened the door of each room and turned on the light so she could see in.

Once they were all upstairs, they had asked him to turn on the stereo which he did and the women had then danced. He did not notice when the complainant left but Liku told him she had asked him to take Manu home.

He denied he ever went into the room with the complainant. He did not slap her nor push her onto the bed nor use a knife nor give her any money. She had, he insisted to the court as he had to the police, made it all up. He had no idea if she had been wearing a hairgrip and he had no idea from where the grip found in the room had come. It was the room most commonly used by visitors and his daughter habitually used it in the daytime when she visited from the United States. He denied the bed cover had been removed when the police arrived. It was on the bed at that time as usual.

The accused also called Liku who told the court about the first time he took the complainant to the accused's house. He said that, on the way to the house, she had asked him if the accused was rich. She also asked how she could get some money from him. Liku said that he had replied with the suggestion that she should speak directly to him but also that, if she could get him to touch her, she could then bring charges. He was asked in court why he made such a suggestion and said it was because she was a relative of his and he only told her to protect her.

On the night in question, he arrived to find the women already drinking and the complainant asked him not to tell her oldest brother she was drinking. He reassured her it was none of his business whether she drank or not. Although he knew the women had been told to use the toilet upstairs, he did notice the complainant go downstairs two or three times. He did not know why. He recalled her calling up to him that he should take Manu home because the complainant was leaving.

I found the complainant a careful and compelling witness. During a lengthy cross-examination, she gave her evidence in a controlled manner and when she did break down, recovered herself very quickly.

However, in cases such as this, whilst corroboration is not required, it is important to seek confirmation of her evidence in the evidence of other witnesses. Mr Tu'utafaiva, for the accused, in a detailed and careful address, suggested that, far from confirming her evidence, the other witnesses reveal significant inconsistencies.

The importance of the surrounding evidence is, as so often in such a case, that there is no independent evidence of the actual indecent assault. Mr Tu'utafaiva pointed out that she failed to complain at the first two opportunities, namely to Manu and to Ma'ake both of whom were close friends. The complainant said she had not done so because she wanted to tell her family first. When she had the opportunity to do so, in particular to her mother, although events were fresh in her mind, she failed to say anything about the knife or the blows that were struck. This omission is made all the more significant because she did mention those things to the officer, Fusimalohi, shortly afterwards.

At the first opportunity minutes after the attack on her, Manu noticed no signs even of distress. At the second, Ma'ake actually enquired when he noticed she was crying and was effectively given a dismissive reply.

When she saw her brother and her mother subsequently, she was more concerned to persuade them to do something to harm the accused.

In the same way, he refers to her evidence that she was sore. At the accused's house there was no sign of it. When she left the taxi to speak to her brother, there was no indication she was sore and yet, at her mother's, it was so bad she did not want to get up. By the time she was at the hospital, it was sufficient to impede the doctor's examination but she was then able to go to the accused's house with the inspector.

Mr Tu'utafaiva suggests that she appeared to suggest to the inspector that she only submitted because the knife was to her throat. In the witness box, she suggested it was pointed at her face but did not stop her screaming and shouting.

He also points to the fact her shouts were not heard by the others upstairs. It is true there was a stereo playing but, as he points out, Manu must have been very near the door to the room at one point without hearing anything. Yet, later, Liku heard the complainant call to him from downstairs to take Manu home and also heard the police knocking on the door some time later.

He asks why, as she told her mother she had lost her virginity, there was no mention of bleeding beyond her menstrual flow. The pants she was wearing at the time were exhibited but there was no evidence that they had been examined for blood or menstrual staining.

The pants she was wearing were in fact mens' pants. They appeared to be black nylon and very brief. Mr Tu'utafaiva suggests some significance in the fact that she gave no reason why she was wearing men's pants. I see no significance in that point.

Finally Mr Tu'utafaiva suggests three possible motives that might have caused her to fabricate this incident.

The first is that she was worried that she had disobeyed her mother by going to this house and the second that she was drunk. In either or both cases he suggests she would have motive to try and cover up for her conduct. I find little weight in those. Had either or both been worrying her, the very fact of making such a complaint ensured her mother knew – something that may well have been avoided of she had simply gone home quietly at the end of the faikava.

The third arises from the evidence of Liku that she wanted to extract money from the accused. Apart from the complainant's recollection that Liku had volunteered the information that the accused was rich, that conversation was denied by the complainant. I did not find Liku an impressive witness. As far as that part of his evidence is concerned, I do not believe him. The explanation he gave for having offered such advice was totally unconvincing. If he was telling her how to obtain money, he was betraying his friend. If he was saying it to protect her because she was a relative, it suggests he considered it a possibility that accused might touch her. If that was the case, the best protection he could have given would have been to stop her going in the first place.

I accept there are inconsistencies between the prosecution witnesses including other smaller matters I have not set out.

I do not consider the inconsistencies in the account the inspector repeated to the court are significant. I was not impressed with the manner in which this officer gave his evidence. It was littered with stock phrases and given in a manner that was condescending to the complainant. Although he asked to refer to his notebook, he used it only for the date and time. Thereafter, he gave his evidence from memory. It is significant that the inconsistencies relate to omission of some of the detail the complainant gave in evidence and to the order of events. Both were, I am satisfied, the result of time on his memory. I do not consider the difference between his recollection that the knife was pointed at her throat and the complainant's evidence that it was pointed at her face is significant. Again I am satisfied his recollection is faulty.

The lack of medical evidence in a case such as this is most unfortunate. Counsel for the prosecution was able to give the name of a doctor but he was not called. It could have been of the utmost importance. In the light of the complainants' allegations of force, loss of virginity and consequent pain, evidence that there was no injury would have strongly supported the defence case. On the other hand, evidence of almost any injury to the vaginal region would, in view of the accused's total denial of the incident, have given support to the complainant. Prosecution counsel should know that such evidence should be brought whichever way it points in the case even if only to make it available to the defence.

It is appropriate at this stage perhaps also to mention the failure by the police to search the premises after the initial search of the bedroom. This was an allegation of a serious offence and important both to the complainant and the accused. The police had a duty to investigate it properly and, in this case, they failed to do so.

I have considered all the submissions by both counsel. On the evidence before me, I must be satisfied beyond reasonable doubt that the prosecution has proved all the elements of the charge before I can convict.

As I have said, I found the complainant a credible witness as I did Manu and Ma'ake. I did not consider the accused or, as I have already stated, Liku to be truthful.

It is certainly worthy of comment, as Mr Tu'utafaiva did, that no one heard the complainant's screams and shouts. However, there was evidence from the complainant and undisputed by the accused, that the room had no window and was like a strong room. I accept that sound from there could have been masked in the upstairs room where the stereo was playing whereas knocking on the front door into the passage way and a call from outside and heard through a window would be more easily heard.

I am satisfied beyond reasonable doubt that the evidence of Manu and Ma'ake of the length of time which elapsed from the departure of the complainant downstairs to speak to the taxi driver was true. It was long enough to cause Manu to go down and look for the complainant. I accept it is true and again Ma'ake confirms it.

Mr Tu'utafaiva suggests that the incident in which the accused took the cheese knife from the complainant's hand may have been the trigger to the story of knife in the assault. I do not accept that. The significance of that incident is that there is no normal reason why a host who has supplied cheese for his guests to eat should take the cheese knife from the hand of one of his guests. I am satisfied this was a reaction to seeing a person he had recently forced, holding a knife immediately afterwards.

I am satisfied two other matters in the evidence also help to confirm the complainant's account. The first is the hairgrip. It is most unfortunate that it was never taken by the police and I accept it was a very common type as the complainant acknowledged. What I consider significant is that, if the complainant's account was complete fabrication, she would have had no way of knowing a hair grip of any type was in the room, hidden as it was by the bed. It was found by the police only because she had told them before entering the room with them that it was behind the bed where the officers found it.

I also accept the evidence of the Inspector and the complainant that the bed cover had been renewed by the time the police arrived.

The second is the money that the complainant claimed was given to her by the accused. He denied giving any money at all although he pointed out that he was not given the change from the initial taxi fare. The manner in which the complainant gave the money to her mother supports her account. I consider it unlikely she would have carried such a sum to a faikava where no money was needed and it was agreed beforehand that even her taxi fare would be paid by her host.

Her evidence was that the accused said it was $100. Had that been part of a fabricated story and obtained in advance to support it, I am satisfied the complainant would have ensured the sum was correct. Her evidence is that, when she was given it, she did not count it and the evidence of her mother demonstrated it was, in fact, less than $100.

Bearing all the evidence in mind and considering anxiously the submissions of counsel, I am satisfied beyond reasonable doubt that the complainant's account is true. I am satisfied to that standard that the accused used force on the complainant and performed the indecencies described by her. He is convicted on count 1. I therefore give no verdict on the second count.