Police v Rasmussen [2021] CKHC 26; CR 458 of 2020 (10 June 2021)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)
CR NOs 458/2020
459/2020
662/2020

POLICE
v

WILKIE RASMUSSEN

Hearing commenced:	9 and 10 June 2021 (via Zoom)
Appearances:	Mr M Williams for the Crown
	Mr J Wiles and B Mason for the Defendant
Date:	10 June 2021

ORAL DECISION OF WOODHOUSE J

[1] I have just heard evidence over the last two days or so in relation to two charges against Mr Rasmussen of indecent ass lt. At the conclusion of the evidence – and there was some evidence for the defence, perhaps at a slightly earlier stage, I asked counsel if they wished to make any closing submissions to me. I think it is fair to say they were a little surprised when the Judge in a criminal proceeding, who is the Judge of fact as well as law, generally does not invite submissions. But I thought it was appropriate in all the circumstances of this case to do so, and I did receive succinct and helpful submissions, briefly on the law – although there has been no issue on that – and on the main points being advanced for the defence and for the prosecution.
[2] It has been helpful to me, and I have taken those submissions into account as well as, of course, all of the evidence which I have really heard very recently. But I do not intend to traverse all of the points made to me, even though they are taken into account; nor to traverse all of the evidence.
[3] The two charges, although they occurred sequentially in a very short space of time in terms of the factual allegations, are that on 15 July 2020, Mr Rasmussen indecentlyulted Mted Ms Roimata Hosking twice, by forcing his tongue into her mouth. Mr Rasmussen denies the acts octs occurred. The parties agree, given the area of dispute, that the charges will stand or fall on proof beyond reaso doubt, or lack of it, of the central allegation or allegations of fact; and that is essentssentially the charge: Did those alleged acts of forcing his tongue into her mouth occur?
[4] For that reason, in addition, there is no issue of consent, and the question of whether the act, if it occurred, is an indecent act has not been contested. But, for the avoidance of doubt, I do make quite clear that I proceeded on the basis that if the particular acts alleged by Ms Ho occurred, without her coer consent, they would undoubtedly be regarded as indecent by right-thinking members of the community, the usual test. Anyway, that isin issue.
[5] I will provide what I hope is a fairly brly brief factual outline of the background to the alleged offending, and what is alleged to have occurred.
[6] Ms Hosking was ageat the time.time. Mr Rasmussen well-known lawyerawyer in the Cook Islands and his age now, based on the statement he made to the Police, I think is 63. On the day of the alleged offenceJuly Mr Rasmussemussen appeared in Court on the sentencingncing of a young man named Steven Emile. Ms Hosking is Steven's aunt. Her evidence is that she was asked by Steven's mother, who was in New Zealand, to go to the Court to support Steven. At the Courtome point, and it does not matter precisely when it was, Mr Rasm asked Ms Ho60;Hos0;Hosking if suld wuld wait for him, after the hearing of Steven Emile's case, as he wanted to talk to her. Ms Hosking said she would wait.
[7] The Court prong inng Mr Emile finisfinished. Ms Hoskinted as requerequestedested, and Mr Rasmussen then asked her to go with him back to hisce, which is very near to the Court. She did so. From them the evidence of any discussion between the two of them up to that point, thernothing material that bears on an assessment of guilt or inor innocence, beyond the fact that there is no material evidence [of the purpose of Mr Rasmussen's request]; there was simply the request to wait and then a request from Mr Rasmussen to Ms Hosto g with him to his ofis office. She did not know the purpose, but did not take issue with the request and there has been somdencech I will come to, as to what she thought the purpose was.
[8] They went innt into Mrto Mr Rasmussen's office. To the extent I need to go, I will come to the physical layout of the office, the room in which he works and the entry to the office area,I will not go into it now. Ms Hg, in her evidence, says tays that there was some gene general chat between the two of them, which I do not need to go into; but it was just of a general nature. She then says that there was some discussion between them about her relationship with a young man named Jonathan Bailey. Jonathan Bailey had been Ms Hoskingrtner – certaiertainly in 2019, and I think the evidence is that the relationship came to an end in or about 2019, because of a serious breakdown in theirtionship. I do not need to go into that.
[9] It is, I s, I think, of really peripheral relevance, but part of the evidence is that Mr Rasmussen had acted f #160;Bailey in about 2019. Ms Hosking was aware of Mr Rasmussenvolvement and ther there was some evidence that she provided some useful evidence on the sentencing of Mr Bailey. But Ms Hoskievidence is she ht mett met160;Ras0;Rasmussen in any personal way prior to t to the dihe discussion in Court. They obviously knew of each other.
[10] Gettick to the events in Mr Rasmussenfice. There was was was some discussion about Mr Jonathan Bailey. Ms Hosking told Mr Raen tsat the relationship ship was at an end and it had ended some time before. She says that Mr Rasm asked her if sheat thmt thme, that is to say July 2020, in a relationship with anybody else and she said shid she wase was. The gist of her evidence, as I rect, is that it was not a strong relationship – this isis is probably the easiest way to put it. She says the question was put to her to the effect: Are you in a current relationship? This is the relevant background to her evidence. I will come to Mr Rasmussen's evidence.
[11] At about this point there is evidence from Ms Hosking that Mr&#asmussen ssen said that he wanted to put something to her, which she, in evidence and in different statements that she made, variously recorded as – at onnt, I think, 'silly'; at another point – and this is s is repeated – 'a bizarre request'. He made that observation to her, however it was precisely put, and then said, "Will you have sex with me?" And she said, "No". He said, "I will pay you", and she said, "No". There are greater and lesser degrees of elaboration in statements by Ms Hosking as to other things said at this point, including in some statements – and I am talking about statements to other people or statements in writing tice, and encompassing all the statements that have been put in evidence. These included sted statements from her that Mr Rasmusffered her money for for sex, and in some of her statements that he offered specific sums of money, $2,000, and when she rejectat, $4,000. There is evidence from a defence witness, Clare Piniata, of another sum. I wi I will come to her evidence.
[12] These advances, and I use that word in a general way, Ms Hoskiys were rejected firmlfirmly by her at all points. She says that Mr Rasmussen then – and they were facing each other, both seated, Mr Rasmussen sitting i office fice chair &#8that he moved himself towartowards her, put his hand on her bare thigh – she was wearing shorts – and then forced his tongue ier mouth. She says at different points, in effect, she wase was absolutely taken aback and pushed him off. She got up to leave. She alleges that Mr Rasmussen grabbed her by &#by – I think the evidence is by her jacket or clothing – and did the same thing. He again forced his tongue into her mouth; she pushed him off and left.
[13] I do believe I have captured the essential points. There is a lot more evidence, but that is the evidence of the central acts that have to be proved beyond reasonable doubt.
[14] There is no direct evidence from Mr Rasn in this trial. He elee elected not to give evidence as, of course, is his right. But there is a statement from him taken by a Senior Police Officer. He denied the specific allegations whe to him by the Police officofficer at the end of the written statement – as is contained, in any event, within his pleas of not guilty. There are other aspects to the statement that I will need to come to because they are part of Mr Rasmussen's positefence ande and they are evidence from him.
[15] I will deal with the defence case first. It is probably appropriate to since this is a decision by a Judge alone, that given the conventional direction that Judgesudges give to juries – and I am giving it to myself – about the assessment of positive evidence from the defence, and the need to be satisfied beyond reasonable doubt either that the defence evidence is not reliable, or not credible; unless I can move beyond that, if I am left in some reasonable doubt about that positive evidence – (I come obviously in a moment to the defence challenge to the prosecution evidence) – if a reasonable doubt remains in respect of the positive contentions advanced in evidence by the defence, in respect of Mr Rasmussen's owtention, then then I must find him not guilty.
[16] I will expand on this, but my conclusion in relation to his own evidence in his statement is that it does not, in fact, contain anything which persuades me that I cannot move to consider Ms Hosking'dence and the evideevidence that supports her.
[17] I am now looking at Mr Rasmussen's wristatement. nt. In my assessment of it I also take into account the fact that, whilst he is perfectly entitled not to give evid– that is his right – what is contained in this statement has not been subject ject to cross-examination. But what strikes me in particular about this statement, beyond the specific denials of the allegation, is that there is no explanation in that statement as to why Mr Rasn asked Ms Hosking king to go wim to h to his office. The statement is one in which Mr Rasmussed I do take into acto account that he is a mature lawyer with experience), made his own statement having voluntarily gone tak toPolice; and the dthe denials that I refer to are contained at the end in specific questionstions from the Senior Sergeant who took the statement. But the voluntary statement Mr Rasmussen made nothing as t as to why – except perhaps implicitly, and that does not take it very far – he asked Ms Hosking to go s office. He. He does not say anything beyond what Ms&#16king said. He said, "I saiI said to her 'Can I have a word with you after the break?' She said, 'Yes'."
[18] He says that theencing finished, then he sahe says, "I asked Roimata to come with me to my office. Steven stayed with Probation". And then he says they went back to the office. There is then, in the context of the entire statement – the reasonably long statement from Mr Rasmussen as to what hap baed back at the office – half-a-page in typed script. He said about 15 minutes of time was taken in a phone discussion with his daughter. It seems that he could have mistaken the length of that call with another call from his daughter, but it appears that it was probably shorter than that. But what he says was discussed is not significantly different from the sorts of things that Ms Hosking said were dsed at t at the beginning. It is sort of chit-chat: How did you get here? I came on my bike.
[19] I will read the entire statement in the context that I am now dealing with: What happat the office? No explanatlanation as to purpose.

"We got to my office. I sat at my chair desk and she sat opposite me. I logged onto my computer, checked my emails. Shortly after I received a call from my daughter, Anna, advising that Arthur Neil was trying to get in touch with me. This took at least 15 minutes of my time – and I interpolate here, obviously referring to Ms Hosking &#821ile she was sias sitting there. After the phone call I turned to her – that is Ms Hosking11; and asked her aber about Jonathan – and I interpolate, that is obviously Jonathan Bailey – and she said that the no longer together, he ran away with a friend of hers. And I asked her whether she had a ad a new partner. She said she has a Samoan partner. I asked her how did she come to Court. She said she came on a bike. Then I said, okay. I got up and she got up and we hugged and she left my office. Hang on, I think I did ask her whether she's working and she said she is on wage subsidy. I said to her it was a good thing she is not with Jonathan. She said he ran away from her – and he concludes – My attitude may have been too casual but I am always like that with people. I walked her to the main entrance and she walked to the other side and I came back to my office."

[20] It is apparent, from the time I have spent on this, I consider it is of importance – and the prosecution and defence obviously did also – that there is no statement, there is no evidence from Mr Rasmuss to why he asked thid this young woman to go back to his office. In terms of what he has said in that statement, as to what wasussed, it is the sort of thing that could have been covered in two minutes while they were were both standing on the Courthouse steps.
[21] The second strand of the positive defence case that I want to address – and it is me putting the defence case in my words – is a contention that it is implausible, given the office set up and semi-public setting, that what Ms Hosking alleges would have happened. I am unpersuaded by that and there has been quite a lot of evidence, and some questions from me of different witnesses, about the office set up. My conclusion is that it was not public; and bear in mind that this is not an element that has to be proved beyond reasonable doubt. But anyway, my conclusion is that it was not an open area.
[22] However, I also take into account the evidence of Ms Hoskingch I do in fact acce accept as reliable, and I will obviously have to come to this in dealing with the prosecution case. But her evidence as to what happened initially and then the hesitant, hen quite direct propositiosition from Mr Rasmussen – "Wil have have sex with me" – and then the further evidence from Ms Hosking of what is an escagating situation, and evidence that I accept, of some sort of offer to try and induce her. there is other evidence whie which is not effectively challenged, which I accept as reliable, of statements that he was 'horny' and that he was – I think one piece of evidence from Ms Hosking he was 'lusty', I t, I think the word was.
[23] An invitation by Mr Rasmussen to Ms ng to come to his office toce to ask her if she will have sex with him makes the setting nolausible at all. He was noas not seeking to do anything of a sexual nature on that basis, in his office. But he has, and this is my conclusion on the evidence, worked himself up, made these requests, been rebuffed by this young woman, and then – and this is my conclusion, I am coming to the end of it now, but I have a lot more ground to cover – he has sexually assaulted her in the manner that she alleges.
[24] I have dealt with, and come to that conclusion, to address the defence argument that it is implausible that the indecent assault as alleged could have taken place in a room which was accessible to other people, or could be viewed through a window. And I will say here that I did not find the defence photographs particularly helpful, because they are photographs of Mr Rasmus office – I am I am not critical of the fact that they are of this nature – but they are photographs of his office as it is now; but it is not the office as it was in July 2020. [25] The third main main element, or strand, of the defence case in terms of positive evidence, is the evidence of a witness that I heard this morning, Clare Pi. I have to say, having listened to that evidence with care care, and assessed the elements of it, I find that she is not a credible witness.
[26] The reason for calling her as a witness is evidence she gave of two discussions she had with Ms Hoskinge first, in chronoloonological sequence, she said – and Ms Hosking did not contest this – that it was a family ring of Ms Piniata to which Ms Hoskine. Ms Piniata sata said that Ms&H160;Hoskingsking made extremely serious allegations oexual nature against Mr Rasmussen; far morious thus thus than any other evidence she gave, or anything contained in any of her statem– and I do not need teed to go into that. The point of calling this evidence was to challenge Ms Hosking's evidence on a point of credibility: that she is a woman who would seek – to at least establish to a reasonable degree – that she &#8211t is to say Ms Hosking – iebody whos whose evidence simply cannot be relied on b on because she concocts fanciful stories.
[27] I do not need to expand on what Ms Piniata said because, as I have already indicated, I did not find her a credible witness; and this does not hinge on the unreliability of her recollection. She actually said, very positively in her evidence, that this discussion she is talking about occurred a year before the alleged events in question; that is to say, it occurred in 2019. Now there may be a mistake there, but she was very firm about that. But what troubled me about her evidence was other aspects of it. She was, in giving her evidence, unduly argumentative and she added detail in the course of her cross-examination quite unrelated to the questions being put to her. The essence of my conclusion in relation to Ms Piniata is that I simply cannot rely on her evidence. It does not advance the case. This applies to both pieces of evidence she gave in relation to two disons she said she had with Ms Hos
[28] The final elel element of the defence case case that I intend to traverse is a point that was raised initially in cross-examination of Ms Hosking; toessential effectffect that she, Ms Hosking – and this is putting it in my words – had been put up to this allegation by Mr Norman George, another well-known lawyer, arising ouan isetween Mr Ra60;Rasmussen and Mr e. Ie. It was given some emphasis, I believe, in then the approach of the defence in dealing in particular with the evidence of Ms Hosking. As I understood it, in Mr Wile's concise submissions and conclusion, no particular weight was being put on this point any longer.
[29] In any event, I am satisfied that there is no foundation for a propon that the allegations made made by Ms Hosking are concocted allonations to support a completely separate dispute between Mr George and Mr Rasmussen.
[30]ithstathstanding my conclusions in relation to the positive elements of the defence case, Ind myself that I need to beto be satisfied beyond reasonable doubt on the basis of the remaining evidence – and that is to say, in essence, the prosecution evidence, that the two charges are established. And for the following reasons I am. And I would say, before seeking to summarise it, that some aspects of this might also apply to the positive defence case.
[31] The first point is that there is no explanation from Mr Rasmussen as to e asked Ms&d Ms Hosking to go tooffice. Ms. Ms Hosking has gividence as toas to why she thought she was asked to go there, and her speculation as to the reason may be wrong. But tct thhave nsider ider is that she was asked by Mr Rasm;Rasmussen to go bachiso his office, and tand there is no explanation from Mr Rasmuss to why. Certainly,inly, propositions have been put, but I am unpersuaded that they mean that there is a reasonable doubtr&#16mussen's favour. our. There is no explanation.
[32] The absence of any explanation dion does not establish what Ms Hoskinitively alleges, but but it raises a question which then has to be assessed by considering the positive evidence that comes forprosecution. And in relation to that, which is the second and critical point, is the evideevidence from Ms Hosking herself in aes of s of statements. When I refer to statements I am talking about oral statements she made to people, and then a written stat of her own, which is a diary – or a diary entry, I suppose one could call it; then then more formal statements to Police. I am talking about all of those things. I will tabulate, as best as I can recall it, the sequence of what I am calling statements which followed what Ms Hosalleges occurred in Mr&# Mr Rasm's office.
[33] The] There is what she said to her nephew, Steven Emile, for whom Mr Rasmusss acting, and Vaine aine Tuteru, Steven's partner who had been at the Court. Mr Wiles undedably has contrasted the lihe limited amount of information that Ms Hg apparently imparted on t on that occasion, with more detailed information in other statements later made.
[34] In relation to the evidence as to what was said by Ms Hosking on thast ocn, that that is to Steo Steven Emile and Vaine Tuteru, I do not find the absence of some detail persuasive, in support of the de contention that I cannot rely on to the necessary standard everything that Ms Hoskingsking said everythinything that she said over what is in fact a very short period of time following what she alleged occurred in the middle of the day on the 15<sup>th [35] I should have perhaps provided a brief iief indication of timing. The assaults that Ms Hosking alleges took in Mrin Mr Rasmussen's office wround 1und 1.00 pm in the afternand over a er a period of time which on the evidence I heard – I am not saying the assault occurred over this period – but it was oves over a period of time in his office of aroundt maybe 20 minutes. That rhat really is not a matter in contention and that was at around 1.00 pm on the day, 20th July 2020. The discussion with Steven Emile and Vaine Tuteru – I cannot recall the time as I am sitting here – but i not very much later in the afternoon.
[36] At around 3.20 pm – this is the nexe next discussion – Ms Hosking managed to contact her best friend, Roimata Tangaroa, by phone, having rung her earlier and asked her to call back. What Ms Hoskaid to her best friend iend is, in the context, or in the manner that I have described, consistent; not necessarily all the detaaybe new pieces of evidence, but they do not persuade me that the evidence, because of the the differences in detail, taken as a whole is unreliable, let alone lacking in credibility. These are statements, particularly the one to her best friend, when, according to Ms Tangaroa's evidewhich I accI accept, her friend was in distress.
[37] Later in the day she spoke to her father and made the essence of the allegation to him. He wanted to take action and get advice from a relation, Mr Norman George. There is a diary entry made by Ms Hosking that evening, which is much more detailed. But the fact that there is more detail there – for example, contrasting it with the discussion, first, with Steven Emile at around about 2 pm in the evening, or whr it was; the expansion of n of the detail does not provide an indication of unreliability, let alone indicate to me an absence of credibility.
[38] The next day, 16 July, there is a reasonably detailed statement to a Police officer. I do not intend to go into all of this, but my broad conclusion, considering it in its totality, does not persuade me that the evidence that was then given by Ms Hosking is unble evidence. nce.
[39] In coming to the conclusion about the critical evidence that the Crown must rely on, and that is to say, of course, the evidence of Ms Hosking; I have, as I am required to do, taken into account all of the other evidence that I have heard, including the careful cross-examination of other prosecution witnesses by Mr Wileaking all of that evidence into account does not diminish tish the conclusion I have reached that the critical evidence in this case – and it ultimately turns on the evidence of Ms Hoskid that of Mr Rasm;Rasmussen in rt of thef the events that occurred in his office, because no one else can give any direct evidence of that – does not diminish, in my judgment, the cilityreliability of whof what Ms Hoskaid herself.

[40] I just want to come back and indicate that, in addition to the critical evidence of the complainant herself, I consider the evidence of Ms Tangaroa, her best friend, is of some considerable importance because of the timing of it. It was within two to two-and-a-half hours of the alleged assaults, and it is detailed. It occurred long before others were spoken to by Ms Hosking, anch led to the dehe defence contentions of a growing elaboration – these are my words, not the way the defence put it – a growing elaboration by Ms Hg of the allegations ss mass making against Mr Ra60;Rasmussen. [41] I am I am very conscious of the fact there is a reasonably substantial body of other ece. And when talking about evidence I am always including ting the cross-examination by Mr Wiles, on f of Mr Rasm;Rasmussen, as well e pthe positive evidence advanced by the defence; which, of course, includes, critically, Mr Rasn's own statementhe Po Po Having weighed all of this I am satisfied, as I as I must be, that Mr Rasmussen is g is guilty of the two charges he faces. [ddendum].
[42] I am very conscious, as a Judge always hays has to be, of the care that is required to be taken in relation to theral parties to a case. And I have to constantly remind mysd myself of the need for the prosecution to prove a charge beyond reasonable doubt. I am satisfied to that standard, taking account of all of the circumstances and, at the heart of it, the people involved in this case.</sup>

ADDENDUM

[43] This is an addendum to paragraph [41]. At this point in my oral remarks there was reference to conviction. There had been no discussion with counsel as to whether formal entry of conviction should be deferred. In discussions that followed my decision, Mr Wiles requested that conviction not to be entered. There was no opposition from Mr Williams and I agreed. Conviction has not been entered.

________________________

Peter Woodhouse, J