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Niu v Crown [2014] TVHC 7; Criminal Appeal 06.2013 (21 February 2014)

In The High Court of Tuvalu
HC. Crim. App. case no. 6/13
At Funafuti

Criminal Appellate Jurisdiction

Between:
Julian Niu
Appellant

v

Crown
Respondent

BEFORE THE JUDGE

Ms. Nele Semu for the appellant.
Mr. Efren Jogia for the respondent.

The appellant, a young man (he was 14 at the time of the incident in September 2009) was jointly with Tasesa Togabiri, charged with attempted rape. Togabiri pleaded guilty. The present appellant pleaded not guilty.

After a trial by the learned Senior Magistrate, the appellant was convicted. The gist of the evidence was that he held the victim's hands down while Togabiri got on top of her and attempted intercourse. In his judgment the learned Senior Magistrate said:

"... Niu did assist the co-accused in holding the victim's hands while the co-accused went on top of the victim and attempted to have sexual intercourse with her."

The appellant clearly, on this finding, was an accomplice of Togabiri and accordingly equally guilty with him of attempted rape.

By way of analogy, I am reminded of a number of cases some years ago in Australia when banks were being held up by gangs of two or three. Two would enter the bank, hold up the tellers, demand and receive money, leave the bank, run round the corner to a car (usually stolen) in which a driver was waiting. All would drive off. The driver was equally guilty of bank robbery as were those who went into the bank. He was an accomplice.

The appellant was rightly convicted, The appeal against conviction is dismissed.

Having convicted the appellant the learned Senior Magistrate sentenced him to six months imprisonment suspended on the appellant being of good behaviour for one year

There is no appeal against sentence. I simply remark that it is an entirely appropriate one.

Date 21st day of February 2014.

Hon. Robin Millhouse QC
JUDGE OF THE HIGH COURT OF TUVALU