IN THE HIGH COURT OF TUVALU
CRIMINAL JURISDICTION

CASE NO: 236/06

R

v

LOPATI IAKOPO

Apinelu for the prosecution
Duckworth for the accused

Hearing: 12 August 2002
Judgment: 13 August 2002

JUDGMENT

The accused is indicted on one count of Indecent Assault on a Female, contrary to section 133 (1) of the Penal Code. The alleged victim is now 7 years old and, at the request of counsel, the case was heard in camera.

The general evidence of the events surrounding the actual offence is not disputed and the defence is a denial of indecency or assault.

The prosecution case is that the complainant was with her brothers and sister at about midday on the 24 April 2002 when the accused arrived on his motorcycle and offered to give them a ride. He is a close neighbour of the complainant's family and knows the children well. The complainant's 8 year old sister was also called for the prosecution and agreed that the children had been to the accused's house to watch videos. She told the court that the accused told them to hop on the bike for a ride adding that only the girls should hop on, not the boys.

The accused lifted the complainant onto the bicycle at the front and her younger brother was seated on the back. The older sister had initially got on but she alighted before the vehicle moved off.

The complainant told the court that the accused drove them to the end of the road at the southern end of the island. He stopped the bicycle and they all got off. The accused sat at the side of the road and called the little girl to come over. She did so and sat down. He then lifted her dress, put his hands inside her pants and touched her vagina with this finger. He then put the same finger in his mouth.

After that they all got back onto the cycle - again with the girl in front of the accused and the little boy on the back. On the way back, the accused lost control of the machine and they crashed. The complainant told the court that the reason for the crash was that the accused had only one hand on the controls of the bicycle because the other hand was inside her clothes touching her vagina.

After the crash, they all got back onto the bicycle and the accused drove them into town where he left them and went back to pick up the other two children.

Later in the evening of the same day, the complainant told her grandfather what had happened. The grandfather gave evidence that he had seen the children near the library sitting under the streetlight at about or after 7.0 that evening and had told them to go with him. He noticed the complainant was limping and asked her why. She explained she had had a crash on a bike and, when asked, told him it was Lopati’s bike. He asked her how she had done that and she told him the accused had asked her to hop on. She said that he then took her to the end of the road where he put his finger through her pants and touched her vagina. On hearing this, the grandfather took her to the police station and an officer later took her home.

The accused elected to give sworn evidence and told the court he had been drinking at the Matagi bar and decided to go for a drive down the island. He had no particular reason but often did that. On his way he saw the children and they called to him. He knew them and said that they often go to his house because they watch videos and sometimes eat there. The accused has children of the same age.

He stopped and they asked him to take them to the Vaiaku Falekaupule because there was to be a wedding there. Instead of taking them there he told them he was going for a ride to the end of the island. Two children got on the bike and they went to the end of the road. Once there he needed to relieve himself and, having done so, put the children back on the bicycle and started back to the falekaupule. On both these journeys he confirmed that the girl sat just in front of him in the space between the petrol tank and the saddle.

The reason for the crash on the way back was, he said, that the tyre slipped on some leaves on the road. He saw the girl was scratched but they continued back.

He saw the other two children by the Governor General's house and, after dropping the first two off he went and collected them.

Both the children were too young to give sworn evidence and I warn myself of the dangers of such evidence both on account of the very young age of the witnesses and because it is unsworn. The experience in the courts over many years is that very young children can be unreliable and sometimes even fanciful.

The complainant gave her evidence in a hesitant manner at first but, as she was questioned, became more relaxed. I was concerned to see if there was any evidence that she had been schooled in her evidence. Had she been I would have expected her to give all the details as she gave her account. I noticed that, on the contrary, it was often only after a number of questions that she would come out with further details she had not mentioned at first. This applied both to matters which were directly relevant to the allegations and also to other matters. Some of the latter were confirmed by her older sister and the other witnesses.

I also note the recent complaint to her grandfather. He agreed that she did not volunteer the evidence until he had asked her about what had happened and I accept that reduces the significance of the complaint. However, the importance of evidence of recent complaint is that it may demonstrate consistency. The account her grandfather repeated to the court was undoubtedly consistent with her evidence.

Measured against the evidence as a whole, I am satisfied that she was a truthful and accurate witness. Her sister also gave clear evidence and there was no challenge of her statement that the accused had said that only girls could ride on his bike.

The accused's account was not convincing and I am satisfied beyond reasonable doubt that he was not telling the truth. He agreed with counsel for the prosecution that he knew the children lived near to the place where he picked them up. He said he did not mention it to the parents because the children told him both parents were working. Having crashed his bicycle on the way back and knowing the girl was injured, albeit slightly, he did nothing to advise the parents.

I am satisfied beyond any doubt that the account given by the complainant was truthful. I am equally satisfied that the accused did touch the girl in the way described both at the end of the road and on the way back on the motorcycle.

That is indecent assault and he is convicted as charged.

Dated this 13th day of August 2002

Gordon Ward
Chief Justice of Tuvalu