Kapeli v Rex [2002] TOCA 4; CA 12 2002 (23 July 2002)

IN THE COURT OF APPEAL OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY

Case No. Cr 110/2001
Cr. App. 12/2002

BETWEEN:

TOMASI KAPELI
Appellant;

AND:

REX
Respondent.

Coram: Burchett J
Tompkins J
Beaumont J

Counsel: Siosifa Tu’utafaiva for appellant
‘Ofa Pouono for respondent

Date of Hearing: 22 July 2002
Date of Judgment: 23 July 2002

JUDGMENT OF THE COURT

[1] The appellant was charged that on 12 June 2001 he indecently assaulted the complainant, and that on the same day he assaulted her. He pleaded not guilty. Following a trial before the Chief Justice, he was, on 21 May 2002, found guilty of indecent assault. As the common assault charge arose out of the same events, no verdict was given on that count. He was sentenced to 18 months imprisonment, 9 months to be served, the balance suspended for 2 years.

[2] The appellant has appealed against conviction. The Crown appealed against the sentence on the ground that it was inadequate. That appeal was withdrawn.

Undisputed evidence

[3] The events leading to the alleged offence are set out in detail in the judgment of the Chief Justice. The following is an outline of the undisputed evidence.

[4] The appellant is aged 62. He lives in a large two storied house at Lolomotu’a, where he frequently held kava parties, normally with his friend Liku Pole, who arranged the kava and a girl to act as tou’a. The complainant had previously acted in that capacity, but her mother did not want her to go again. On the evening of 21 June 2001, she did go again with her friend Manu Kaho Tu’ipolutu, not telling her mother where she was going.

[5] After the girls had eaten some food, they were given some alcohol by the appellant. The kava was mixed and the two men started to drink it. There was a stereo playing and the two girls were dancing. They were given some more alcohol, then the complainant stopped drinking.

[6] At about 1 am, by arrangement with the taxi driver Ma’ake Taufu, the taxi returned. The complainant spoke to him, saying that she was going inside to get Manu. It is at this stage that the evidence of the complainant and the appellant differs.

The complainant’s account

[7] She says that when she went inside the house after the taxi had returned, the appellant asked her to stay, she said they must go, the appellant grabbed her by the wrist, pulled her into a room on the ground floor, shut and locked the door and turned out the light, then turned it on again and slapped her on the side of the head. She was shouting and swearing, he held her down, punched her on the back of the head which knocked off her hairgrip. He told her to be quiet and at one stage produced a pocket knife and held it at her face.

[8] It was then she said that the indecent assault occurred. After he unzipped her trousers, he held her down with one hand and with the other inserted first a thumb then two fingers into her vagina, then, after removing her sanitary pad as she was having her period at that time, licked her vagina. While this was occurring she was screaming and pleading with him to stop. They stood up. He gave her some money, saying it was $100, which she put into her pocket.

[9] She and the appellant went upstairs. She joined Manu and the appellant rejoined Liku at the kava bowl. After a little time the complainant went down to the taxi, called to ask Liku to take Manu home, and left. She first told the taxi driver to take her to the Central Police Station, then to her brother’s house. During the drive, she was distressed and crying. When asked by the taxi driver why, she told him that that was how drunken people behave. Her brother persuaded her to go to her mother, where he took her. She told her mother that she wanted her brothers to do something to the appellant because he had taken her virginity by forcing her and fondling her. She was taken to the Police Station where she was questioned by Inspector Fusimalohi.

[10] She was then taken to the hospital where she said that when the doctor arrived she was too sore to be examined and she struggled. The doctor advised that she should rest. She was taken back to the appellant’s house by the Inspector. On the way, she told the Inspector about the hairgrip. She said that when they went to the room, she saw that the bedcover had been removed. She identified the hairgrip that the police found in the room as hers.

[11] After the return to the house, she was taken to the hospital and examined. No evidence of that examination was given.

The appellant’s account

[12] After the appellant was arrested by Inspector Fusimalohi, he accompanied the Inspector to the Police Station. The appellant, in the course of a lengthy interview, denied that anything improper had occurred. He has maintained that denial consistently since. In his evidence, he described the events of the evening. He denied he ever went into the room with the complainant, he did not slap her nor use a knife nor give her money. She had, he insisted in his statement to the Police and in his evidence in court, made it all up.

[13] There was, therefore, a complete conflict between the account of the complainant and of the appellant. The issue the Chief Justice was required to determine was not which account was to be preferred. It was whether, having regard to his assessment of the credibility and reliability of the complainant and the appellant, viewed in the light of all the evidence, he was sure beyond reasonable doubt that the complainant’s account of what occurred in the room was correct.

The other evidence

[14] Manu had seen the complainant go to see the taxi driver when he returned. She also noticed the appellant go downstairs shortly after. When the complainant did not return, she went to the taxi driver, who told her that the complainant had gone back inside to fetch her. She went back upstairs but neither the complainant nor the appellant were there. Later, the complainant joined her upstairs. Shortly afterwards, the complainant went downstairs again, called to Liku to take Manu home and the complainant left in the taxi. She heard no screaming or shouting.

[15] The taxi driver Ma’ake Taufu described his taking the two girls to the house and his return to the house at about 1 am with a passenger, Sione, the complainant coming out to him and saying that she was going to fetch Manu, Manu coming to him half an hour later asking for the complainant, she leaving to find the complainant, his waiting for another half hour and his departure with the complainant. He said that in the taxi she was distressed and crying. When he asked the reason she replied that that is how drunken people behave.

[16] The complainant’s brother Manase Hala’api’api gave evidence that the complainant was crying when she came to his house. She said she had been forced by a man and he had given her money to shut her up. It was his impression that she wanted him and his brothers to attack the accused. Instead he persuaded her to go to her mother.

[17] The complainant’s mother, ‘Ana Tule Hala’api’api, described the complainant coming to her that night, crying and upset. When she asked the complainant why, the complainant said that she had lost her virginity because the appellant had forced her and fondled her. The complainant had with her $90, four $20 notes and one $10 note. She took the complainant to the police.

[18] The Inspector gave evidence of the initial complaint by the complainant and her description then of what occurred. He said that she told him that the appellant had forced her to take off her pants with a knife at her throat. He told of her reference to the hairclip when they were in the car going back to the house. He described finding the hairclip in the room. It was as a consequence of this that the decision was made to arrest the appellant. The Inspector told the officers to leave the hairclip where it was found. Unfortunately, it was not subsequently retained by the police.

[19] Liku was called to give evidence by the appellant. He spoke of the first time he took the complainant to the appellant’s house. She had asked him if the appellant was rich and how she could get money from him. Liku told her that she could get him to touch her and she could then bring charges. He told the court that he said that because he was a relative of hers and wanted to protect her. He described the situation when he arrived at the house. The women were already drinking. He noticed the complainant going downstairs two or three times but did not know why. He recalled the complainant calling up to him that he should take Manu home as she, the complainant, was leaving.

Reasons for the verdict

[20] In his judgment, the Chief Justice set out the evidence for the prosecution and the defence in considerable detail. The following is a summary of his findings and conclusions.

• [a] He 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 breakdown, recovered herself very quickly.
  
• [b] He accepted that while corroboration was not required, it was important to seek confirmation of her evidence in the evidence of other witnesses.
  
• [c] He referred to the evidence of complaint, noting that she did not complain at the first two opportunities, namely to Manu and the taxi driver. When she did complain to her mother she failed to say anything about the knife or the blows that were struck.
  
• [d] He noted that minutes after the attack, Manu noticed no signs of distress. He referred to the taxi driver’s evidence about her distress and her response when he inquired about it.
  
• [e] He was critical of the Inspector’s evidence, concluding that in some respects his recollection was faulty. He was also critical of the failure of the police to make an effective search of the room and the house on the night or the next day. The police, he said, had a duty to investigate the offence properly and, in this case, they failed to do so.
  
• [f] He described the lack of medical evidence as most unfortunate. That evidence could have been of the utmost importance.
  
• [g] He accepted as true the evidence of Manu and the taxi driver of the length of time which elapsed from the departure of the complainant downstairs to speak to the taxi driver. It was long enough to cause Manu to go down and look for the complainant.
  
• [h] He found two other matters in evidence that helped to confirm the complainant's account. The first was the finding of the hairgrip and the evidence of the Inspector that the bed cover had been removed by the time the police arrived. The second was the money that the complainant claimed was given to her by the appellant. She had said she was told by the appellant that it was $100. When she was with her mother she had $90 with her.
  

[21] He expressed his conclusion in these terms:

“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.”

Grounds of appeal

[22] Section 17 of the Court of Appeal Act (cap 9) sets out the grounds on which the Court of Appeal can allow an appeal against conviction. The ground relevant to this appeal is that the verdict is unreasonable and cannot be supported by the evidence.

[23] Section 385(1)(a) of the New Zealand Crimes Act 1967 contains an identical ground for allowing an appeal against conviction. It was stated in R v Ramage [1985] 1 NZLR 392 (CA), at p 393 that the statutory test that a verdict is unreasonable or cannot be supported having regard to the evidence will be satisfied:

“if the Court is of the opinion that a jury acting reasonably must have entertained a reasonable doubt as to the guilt of the applicant. It is not enough that this Court might simply disagree with the verdict of the jury.”

[24] Later judgments of the New Zealand Court of Appeal have approved the dictum of Edwards J in R v Allandale and Dennett (1905) 25 NZLR 507 (CA), at p 508, that:

“this Court cannot interfere with the verdict of a jury in a criminal case unless it is satisfied that the verdict is such as twelve reasonable men, giving due weight to the presumption of law in favour of the prisoner's innocence, could not properly have found. All questions of the credibility of witnesses, and, within the above limits, of the weight to be attached to their evidence, are for the determination of the jury and must be held to have been determined by their verdict.”

Where the trial was before a Judge alone in the High Court, the same general principles apply, and an appeal is not an occasion for the Court of Appeal to retry the case: R v Connell [1985] NZCA 34; [1985] 2 NZLR 233 (CA); R v Walters [1993] 1 NZLR 533 (CA).

[25] Applying these principles to the present case, accepting that issues of credibility and weight were for the Chief Justice, the issue becomes whether the verdict he reached was one that, giving due weight to the presumption of innocence, he could not properly have found.

Submissions for the appellant

[26] The appellant’s principal submission is that the Chief Justice erred in accepting the evidence of the complainant and other Crown witnesses. Counsel for the appellant advanced the following detailed submissions in support.

• [a] The complainant’s account of what occurred as given to her mother and to Inspector Fusimalohi and in court was inconsistent in material respects.
  
• [b] The complainant failed to complain on the first two opportunities available to her, namely to Manu and to the taxi-driver, Ma’ake.
  
• [c] It is not credible that the complainant could have been shouting with all her strength, crying and yelling for more than half an hour in a room that was not said to be soundproof, without her being heard by Manu, Liku or Ma’ake.
  
• [d] The complainant’s evidence that she wanted to tell her family before she went to the police is not consistent with the evidence of her brother or her mother. Nor was the claim she made to her mother that she did not want to go to the police because her vagina was painful.
  
• [e] The complainant’s claim that she was not drunk on the night and could remember the events well was inconsistent with other evidence.
  
• [f] The complainant told Inspector Fusimalohi that the knife was held at her throat. She told the court that it was held at her face twice, but that did not stop her from calling out.
  
• [g] There was no evidence to confirm that the complainant lost her virginity on the night the events were alleged to have occurred.
  
• [h] There were motives for the complainant to make up a story against the appellant, namely disobeying her mother, as an excuse for getting drunk at the house to which her mother had told her not to go and as a way to get some money or a motor vehicle from the appellant.
  
• [i] It is not credible that the appellant licked the complainant’s vagina when she was having her period and after he had removed her sanitary pad.
  
• [j] The failure of the police to take possession of the hairgrip.
  

[27] The appellant further submits that the trial was unfair in three respects.

• [a] The failure of the Crown to call the doctor who examined the complainant at the hospital. That his report was missing was not a proper reason.
  
• [b] The failure of the Crown to call the taxi driver’s passenger Sione when he was in the taxi when the complainant was picked up at the house.
  
• [c] The failure of the Crown to call Liku, making it necessary for the defence to do so.
  

Conclusion

[28] We have set out the appellant’s submissions in detail to make it clear that we have considered all of the submissions advanced on his behalf. Despite the many and detailed submissions, we are satisfied this appeal cannot succeed for the following reasons.

[29] On a trial before a judge alone, the trial judge is not required to set out in detail in his judgment every matter to which he had regard in reaching his verdict. In R v Connell (above) Cooke J, delivering the judgment of the New Zealand Court of Appeal, said:

“Further, what the Judge sitting alone delivers is intended to be a verdict. It need not be supported by elaborate reasons. . . Careful consideration is an elementary need, but not long exposition.

. . .

But in general no more can be required than a statement of the ingredients of each charge and any other particularly relevant rules of law or practice; a concise account of the facts; and a plain statement of the Judge's essential reasons for finding as he does. There should be enough to show that he has considered the main issues raised at the trial and to make clear in simple terms why he finds that the prosecution has proved or failed to prove the necessary ingredients beyond reasonable doubt. When the credibility of witnesses is involved and key evidence is definitely accepted or definitely rejected, it will almost always be advisable to say so explicitly.”

The Chief Justice’s judgment complied with these requirements.

[30] The issue of the complainant’s credibility was entirely a matter for the Chief Justice. Most but not all of the specific matters to which counsel for the appellant referred were commented on by the Chief Justice in his judgment. Despite that, he reached a clear conclusion on her credibility. As he found, her account was to some extent confirmed by other evidence such as the finding of the hairgrip in the room where the assault is alleged to have occurred, the removal of the bedspread, the evidence of the taxi driver of the time that elapsed between when the complainant said she was going to get Manu and when Manu came to him looking for her and she finally appeared, her distress and the money she had when she went to her mother.

[31] We agree, as did the Chief Justice, that the Crown should have called the doctor who carried out the examination at the hospital. However the defence did not object at the trial to the failure to call the doctor. Had it done so, it was open to the Chief Justice to require the prosecution to call this witness: see Archbold Criminal Pleading Evidence and Practice (2001) paragraph 4-276. Counsel for the appellant was told at the trial by the prosecution that it did not intend to call the doctor. Mr Tu’utafaiva, who was also counsel at the trial, told us that he did not object because he did not know what the doctor would say. But once he knew that the doctor was not being called, there was no reason why he could not have interviewed the doctor to find out. Then, there was nothing to stop the defence from calling this witness or the taxi driver’s passenger Sione.

[32] There is no obligation on the Crown to call every possible witness, as long as the existence of possibly relevant witnesses is known to the defence. The duty of the prosecution to call witnesses is summarised in the New Zealand text Adams on Criminal Law CA 368.08 (May 2002) in this way:

“However, [the obligation to call witnesses] does not require the Crown to call all possible witnesses who could give testimony as to the facts. Although there are dicta suggesting this in some English cases (eg R v Russell-Jones [1995] 3 All ER 239, 245), the better view is that the prosecution does have a discretion (R v Fuller [1966] NZLR 865 (CA), at p 868). The obligation on the prosecution is to call witnesses who can establish the facts necessary for the prosecution case: R v Cook [1997] 1 SCR 1113; (1997) 146 DLR (4th) 437; (1997) 114 CCC (3d) 481 (SCC). Thus the Court should have due regard to the prosecutor's discretion as to the manner of presenting the Crown's case. The Court should not usually interfere unless the prosecutor has acted from an improper motive, or unfairness to the accused will result if the witness is not called by the Crown: R v Apostilides [1984] HCA 38; (1984) 58 ALJR 371 (HCA); R v Cook (above); R v Wilson [1997] 2 NZLR 500; (1997) 14 CRNZ 607.”

[33] We are in full agreement with the Chief Justice when he criticized the Crown for failing to call the doctor. Clearly he should have been called. The reason the Crown gave, that it did not have a report, was not a valid reason. His evidence could have been decisive. However, it has not been demonstrated that this failure on the part of the Crown resulted in the trial being unfair. We have no indication of what his evidence would have been had he been called. The result of this omission by the Crown was that the Chief Justice was required to reach a verdict without any medical evidence. Nor has there been demonstrated any unfairness to the defence through the prosecution not calling the taxi driver’s passenger Sione or through the defence calling Niku rather than the Crown.

[34] We are also in agreement with the Chief Justice when he criticized the poor standard of the police investigation. There can be no excuse for its failure to secure the room where the offence was alleged to have occurred, its failure to retain the hairclip that was found there and its failure to carry out a thorough search of the premises on the night, or even the next morning.

[35] Having regard to the Chief Justice’s findings on credibility, justified as it is by the supporting evidence, we are left in no doubt that the verdict of guilty was a verdict he could properly have found. Accordingly, the appeal is dismissed.

Burchett J
Tompkins J
Beaumont J