Apera v Crown [2001] CKCA 1; CA No 4 of 2000 (15 November 2001)

IN THE COURT OF APPEAL OF THE COOK ISLANDS
HELD AT RAROTONGA
CA. 4/2000

BETWEEN

TOMMY APERA
Appellant

AND

THE CROWN
Respondent

Coram: Greig CJ
Henry J
Hingston J

Mr. Mitchell for Appellant
Mr. Elikana for Respondent
Dates of Hearing: 14, 15 November 2001
Date of Decision: 15 November 2001

JUDGMENT OF THE COURT OF APPEAL
Delivered by Henry J

Tommy Apera was found guilty following a trial in the High Court before a Judge alone on one count of indecent assault of a girl under 12 years of age, and on 25 May 2000 he was sentenced to 5 years imprisonment. He now appeals that conviction.

The sole ground of appeal propounded is that the prosecution had not proved to the necessary standard that the complainant was at the time of the alleged offending under the age of 12 years. Unfortunately a record of the evidence given at trial is not now available, the tape recordings having been damaged as a result of a flood, thereby preventing transcription.

Counsel however have been able to provide the Court with an adequate summary of the relevant evidence compiled from the notes and recollections of counsel involved at the trial. Mr Mitchell for the Appellant responsibly accepts that the Court can proceed to determine the appeal on that basis. The alternative of course would have been to allow the appeal and but to order a new trial.

At the conclusion of the prosecution case, counsel for the appellant sought an acquittal on the ground that a necessary element of the charge, namely the age of the complainant had not been properly established. The then Chief Justice rejected the submission and following evidence from the appellant and the co-accused entered the conviction now under challenge.

Mr Mitchell rightly emphasised the importance of this element and the corresponding need for proper proof. We therefore turn to the trial process. The Chief Justice did not allow the complainant to be sworn but satisfied himself that she was fit to give evidence and obtained from her a promise to tell the truth. That procedure is appropriate for a witness under the age of 12 years.

The complainant stated that she was 8 years of age and gave the name of her school, a primary school, and her class. Her grandmother also gave evidence, stating that the girl was then 8 years old and under cross examination stated that she the grandmother had looked after the girl since she was a baby. In giving his decision dismissing the "no case" application, the Chief Justice referred to the evidence and to the girl's demeanour when giving evidence, and in particular to details of her physical appearance.

In this Court Mr Mitchell submitted that the evidence was insufficient. He relied in particular on The Queen v Forest and Forest [1970] NZLR 545, and the reference in that judgment to the desirability of adducing the best evidence when age is an issue. He emphasised that there was no evidence from the mother and the absence of production of a birth certificate.

We do not see Forest as of much assistance in the present case. It was concerned with the lack of evidence to identify the person in a birth certificate with the complainant. As President North said at p. 547, when referring to the earlier case of Smith v Police [1969] NZLR 856-

"In some circumstances the evidence of a person as to his own age, even if founded on what he had been told by his parents and others, may be accepted as an exception to the hearsay rule. In our opinion every case must be dealt with on its own facts."

The statements of general principle in the various texts as to the need for and the means of proof of age are no more than that. In each case it would be a question of the adequacy of the proof in the circumstances of the case.

Mr. Mitchell also criticized the use made by the Chief Justice of his own observations of the complainant. But it is clear and indeed common sense, that such an observation may be of assistance to the tribunal of fact. In Smith Justice McCarthy so held, following English authority to the same effect.

Unlike Forest, exactitude in establishing age was not here critical. There the complainant was on her own evidence some 15 years and 4 months of age at the time of the offending. The Crown had to establish she was under the age of 16 years. Here by way of contrast the only requirement is that the complainant was under the age of 12 years, when the evidence tendered showed a substantially younger age. When that is taken into account, we are satisfied that the evidence to which we have referred in its totality and the absence of any other evidence to raise some reasonable possibility that the girl was in fact some years older than the evidence and her appearance indicated, established this element of the charge beyond reasonable doubt.

The appeal against conviction is therefore dismissed, as is the appeal against sentence which was not pursued.

CHIEF JUSTICE
COURT OF APPEAL