Li v Rex [2006] TOCA 7; AC 02-2006 (16 August 2006)

IN THE COURT OF APPEAL OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA

AC 02/2006

BETWEEN:

KALUSETI LI
Appellant

AND:

REX
Respondent

Coram: Burchett J
Salmon J
Moore J

Counsel: Mr Veikoso for the Appellant
Ms Simiki for the Respondent

Date of hearing: 10 & 11 August 2006
Date of judgment: 16 August 2006

JUDGMENT OF THE COURT

Introduction

[1] This is an appeal by Kaluseti Li against conviction and sentence. The appellant was convicted on 17 March 2006 of four counts of attempting to have carnal knowledge of a girl under the age of 12 years (s 121 of The Crimiffences nces Act (Cap 18)) and four counts of indecent assault on a child under the age of 12 years (s 125(1) of The iminalminal Offences ActThe Magistrate CoArts Act (Cap 11). The was conducted by Chief Justice Webster who sentenced the athe appellant on 7 April 2006 to six years imprisonment on each count of ating to have carnal knowledge of the girl and four years imrs imprisonment on each count of indecent assault on a child but ordered that all sentences were concurrent and were to be backdated to 17 March 2006.

[2] At the trial, ten prosecution witnesses gave evidence. They included the complainant (then aged 13). The appellant called three witnesses and gave evidence himself. A record of interview was admitted into evidence though its tender was challenged and was the subject of a voir dire.

[3] The essential facts found by the trial judge (resulting from his acceptance of the complainant's account of events and having regard to other evidence) were that on Friday 3, Monday 6, Tuesday 7 and Wednesday 8 September 2004, the complainant, then aged 11, was in the appellant's house. There he took off her clothes, kissed her, draped her legs over his shoulders, licked her vagina and "put his thing to her thing" and that sometimes a white liquid came out of the appellant's penis and the appellant used the bedsheet and wiped his penis. In the context of considering whether carnal knowledge or attempted carnal knowledge had been established, his Honour said:

[carnal knowledge] requires proof of penetration (which means penetration however slight) and while both the complainant in her evidence and the [appellant] in his interviews said that he inserted his penis to her vagina, that is not fully supported by the medical evidence. So while I consider that something like that may have happened between the two, albeit incompletely, there is a reasonable doubt raised by the absence of medical evidence of penetration...... I thus find that the charges of carnal knowledge were not proved.

But I believe the evidence of the complainant and the defendant's statements to the Police, taken with the medical evidence, do establish beyond reasonable doubt that the defendant put his penis to the complainant's vagina and so attempted to have carnal knowledge of her. .......

....... I find that it was established beyond reasonable doubt from the complainant's evidence of the [appellant's] actions and his own answers to the Police that he intended to have sexual intercourse with the complainant and that in putting his penis to her vagina he did something which was more than mere preparation.

[4] At the beginning of the hearing of the appeal, counsel for the appellant applied for bail. Bail was sought so the appellant could work to earn enough to be able to obtain a transcript of the trial proceedings. It was an unusual application. Ordinarily, bail is not granted to a person appealing against conviction for a serious offence. In the usual course, an application should be made for transcript in accordance with the Court of Appeal Rules 1990: see Order 8 rule&#. There may be case cases where it would be in the interests of justice for the Court to provide a transcript to an impecunious appellant without charge. However, in this appeal, it is noarents that the appellppellant iant is prejudiced by not having the transcript. Accordingly the appeal has been heard without the transcript and no question of granting bail remains for consideration.

The grounds of appeal

[5] In this appeal, various grounds were raised which put in issue the reception of certain evidence and the evaluation of other evidence. The sentence was also challenged. The notice of appeal was structured in a way that did not clearly separately identify the grounds. In addition, some of the grounds appeared to be repetitive. However reading the notice of appeal as a whole, the following are the issues that have been raised.

Issue 1 - The appellant's confession was obtained involuntarily, the admission of the appellant's record of interview was contrary to ss 20, 21 and 22 of The Evidence Act (Cap 15) and the trial judge misconstrued ss 21 and b>

[6] T[6] The appellant was taken into custody on 20 September 2004. He was iiewed by police on 21 and 22 September 2004 and a formal real record of interview was taken on 23 September 2004. During the course of the trial objection was taken to the tender of the record of interview, answers to charges and confession statements of 23 September 2004. A voir dire was conducted. The appellant did not give evidence in the voir dire though his counsel now relies on evidence given by the appellant later in the trial to demonstrate that the record of interview should not have been admitted.

[7] The trial Judge made a ruling on 9 March 2006, admitting into evidence the documents to which objection had been taken. The appellant's counsel submitted to the trial judge that the appellant had been interviewed on 21 and 22 September 2004 and had denied the charges but these interviews were not recorded in a proper manner. They were only recorded in a police "diary of action". A submission made to the trial judge and repeated in this appeal, was that the appellant wished to be released from custody to look after his daughter and her child who were sick. It was in those circumstances, he made the confession. Evidence apparently given by the appellant during the trial, but importantly, not given during the voir dire, was that the appellant was told, in effect, that he would be detained in custody unless he confessed. It was submitted in this appeal that the record of interview should not have been admitted because of the appellant's evidence.

[8] This ground faces several difficulties. The first is that the appellant did not give evidence during the voir dire. No explanation has been given in this appeal as to why he did not. The voir dire was conducted for the purpose of enabling the trial judge to determine whether the record of interview should be admitted into evidence. His Honour was entitled to act on whatever evidence was adduced by both parties. The appellant cannot now point to evidence given later in the trial (not given for the purpose of resisting the admission of the record of interview) to establish that the trial judge erred in admitting it.

[9] The second difficulty confronting the appellant is that the evidence that was given during the voir dire by a police officer and accepted by the trial judge, was that the officer and the appellant had gone with the appellant to his home and nothing untoward was evident concerning the daughter and her child. This was done to give effect to a direction of the Magistrate who had made an order permitting the appellant to continue to be remanded in custody.

[10] Section 21 of The Evidence Act (Cap 15) prevents evidence being given in any criminal proceeding of any confession if it appears to the Court to have been caused by any inducement, threat or promise of a specified character. The trial judge considered the section and it is quite clear he did not misunderstand its effect. It did not operate in the appellant's favour because the trial judge concluded beyond reasonable doubt that there was no inducement, threat or promise. On the evidence before the trial judge, that conclusion was plainly open.

[11] Section 22 facilitates the admission into evidence of a confession but with the proviso that the Court has a discretion to refuse to admit the evidence if the confession was made to a police officer when the accused was in custody. The trial judge rejected a submission of the appellant's counsel that the proviso mandated that the Court refuse to admit a confession made by an accused in custody. The submission was based on the Tongan text of the proviso. First, the trial Judge accepted that the Tongan text was permissive and did not require the confession to be rejected. We have no reason to doubt this conclusion. Secondly, the English text plainly confers a discretion to admit a confession obtained from someone in custody, and that text prevails: see s 11(2) of The Consolidatiidation Act 1988.

[12] This ground is not made out.

Issue 2 - The trial Judge gave no,nsufficient, weight to the appellant's evidence on oath that he did not insert his penis inis into the complainant's vagina or indecently assault her.

[13] As noted earlier, the trial was conducted by Chief Justice Webster without a jury. His Honour was the trier of fact and had the benefit of observing all witnesses including the complainant and the appellant. In his lengthy and detailed reasons for judgment, his Honour noted that the appellant denied in evidence at the trial, the matters he had confessed to the police in the record of interview conducted on 23 September 2004. That is, his Honour noted the appellant's denial that he had tried to have sex with the complainant but his Honour went on to say he did not believe the appellant's denial. There was ample evidence justifying the rejection of the appellant's denial. It is unnecessary to repeat all the evidence referred to by the trial judge. It is sufficient to note that the appellant did not deny making the statements to the police confessing to the substance of the offences charged, but sought to explain the confession on the basis that he gave the answers so he could be released from custody to look after his daughter and her son who were ill. His Honour was entitled to reject this explanation on the basis of evidence from the police that at about the time the confession was made, the appellant's daughter and her child were observed to be in good health.

[14] This ground is not made out.

Issue 3 - The trial Judge gave no, or insufficient, weight to the complainant's statement on oath that she made a false complaint against the appellant and to the fact that the complainant's evidence that she spoke to Mrs Lesili Mu’a about the incidents, was denied by Mrs Lesili Mu’a.

[15] An assertion was made by the appellant's counsel in the appeal that the complainant gave evidence at the trial that she made a false complaint against the appellant. Counsel for the Crown denied that the complainant gave such evidence. The trial Judge did not record in his reasons that the complainant gave this evidence, which would have been significant evidence. It is extremely unlikely that the evidence was given and not noted by his Honour in his reasons. It would be inappropriate for us to proceed on the basis that such evidence had been given by the complainant in the absence of the appellant establishing it had been. We note that the appellant’s counsel did not maintain his assertion in reply.

[16] As to the evidence concerning Lesili Mu’a, the complainant did say that she told Lesili Mu’a at her house that the appellant had put her on his bicycle but, as noted in the trial judge's reasons, the complainant did not give evidence that she told Lesili Mu’a the other things that the appellant had done to her. Apparently a submission was made at trial by counsel for the appellant, which is repeated in this appeal, that the complainant's evidence was that she had told Lesili Mu’a about all the things the appellant had done to her and Lesili Mu’a had denied at the trial the complainant told her about these things. The trial judge noted in his reasons that the submission, when made at trial, was not supported by the evidence. That is, the complainant did not give evidence she told Lesili Mu’a about all the things the appellant had done to her (other than putting her on her bicycle). It would be inappropriate for us to proceed on the basis that the complainant gave more extensive evidence (about telling Lesili Mu’a about all the things the appellant had done) in the light of the trial judge’s finding to the contrary and in the absence of material establishing she had.

[17] This ground is not made out.

Issue 4 - The trial judge relied on evidence from the complainant about dealings with her uncle though he did not give evidence, contrary to s 88 of The Evidence Act.

[18] The trial judge accepted that the complainant had said in December 2005 or January 2006 in front of two witnesses called by the accused at the trial, Vika Lolohea and ukia, that the stories abou about the appellant taking her were not true as the kids had made her tell the story. While the complainant admitted saying these things to those two women, she explained that her uncle had told her not to tell anyone else that it (the events involving the accused) had happened. The trial judge accepted the complainant's explanation. He was entitled to do so. It was a credible explanation to be assessed in the face of the other evidence corroborative of the complainant's account pointing to the appellant's guilt.

[19] Section 88 oThe Evidence Act (C/i>(Cap 15) provides that when it is sought to prove any fact by evidence of an oral or written statement made by the person not called as a witness, such evidence is cahearsay evidence. Section 8ion 89 requires that hearsay evidence not be admitted subject to certain exceptions. However ss 88 anare not directed to alto all evidence a witness might give about something said by another person who was not called as a witnesey are directed to evidence of a particular type, namely hearsay evidence. What is hearsay rsay evidence and what is not, was described by the Privy Council in Subramaniam v Public Prosecutor [1956] UKPC 21; [1956] 1 WLR 965 at 969:

Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in a statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact it was made.

[20] In the present case, the complainant's evidence about what she was told by her uncle, simply proved that the statement was made. That is, it was evidence that certain things had been said to the complainant by her uncle. It was evidence she had direct knowledge of because the statement was made to her. It was not evidence to prove that something the uncle had said was true. It is not hearsay evidence and falls within the second type of evidence discussed by the Privy Council in Subramaniam v Public Prosecutor. Sections 88 and 89 did not apply to the complainant's evidence about what she was told by her uncle and the Crown was not obliged to call the uncle.

[21] This ground is not made out.

Issue 5 - The trial judge erred in concluding that attempted carnal knowledge was proved beyond reasonable doubt given that he was not satisfied carnal knowledge was proved beyond reasonable doubt

[22] In his confession, the appellant admitted to inserting his penis into the complainant's vagina on at least one occasion. The complainant gave evidence that afterwards her vagina hurt and she was in pain. It is not clear whether this evidence related to one or a number of occasions. However the trial judge was not satisfied beyond reasonable doubt that the appellant was guilty of carnal knowledge (involving penetration of the vagina however slight) because the medical evidence (arising from a medical examination two weeks after the incidents) was neutral on whether there had been penetration. However the complainant also gave evidence that the appellant had put "his thing to her thing" (meaning his penis to her vagina) on each of the occasions when there had been a sexual encounter (as alleged in the charges). In his confession the appellant accepted that he had tried to have sexual intercourse with the complainant. It was open to the trial judge to conclude, as he did, that something like that which the appellant confessed to and the complainant gave evidence about, had happened between the two, albeit incompletely. It was open to his Honour to conclude that the appellant had attempted to penetrate the complainant's vagina on each of the occasions there had been a sexual encounter and he had done so by putting his penis to her vagina.

[23] When an accused is charged with an offence constituted by certain conduct, it is open to a judge or jury to convict a person of attempting to commit the offence where complete commission of the offence charged is not proved: see s 13(a) of The Constituti>n (Cap 2) and s 6 of TheCriminal Offe Offences Act. In the present matter, the trial Judge said, correctly, that the case before him was not dissimilar to a case considered by the High Court of Australia: Hd v R (1993) 117 ALR 19LR 193. In that matter the accused had been charged with having sexual intercourse with a girl aged 13. Four of the charges concerning sexual intercourse, involved allegations of digital penetration of the child's vagina. The accused was convicted of attempt by the jury. The complainant gave evidence of having seen and felt the accused place his fingers in her vagina but the medical evidence raised doubts about whether the finger could have penetrated the vagina. The High Court concluded that it had been open to the jury to find that all the ingredients, including intent, of each of the offences involving digital penetration had been made out. Their Honours went on to say that it was an obvious possibility that the jury might conclude that, while they were satisfied that all the other ingredients had been established, they entertained a reasonable doubt about whether, when resistance was encountered at the vaginal entry, the appellant applied sufficient pressure to effect penetration of the vagina itself. The High Court concluded that the jury was entitled to find the appellant guilty of the alternative offences of attempt. In the present matter, the trial Judge correctly observed that Holland v R was not dissimilar.

[24] This ground is not made out.

Issue 6 - Because of s 30 of the Interpretatct (Cat (Cap 1), the appellant could not be prosecuted and punished for an act which constituted an offence under two or more Acts.

[25] There ihort answer to this ground. Section 30 of The Interpretapretation Act (Cap 1) concerns offences under two or more Acts. The appellant has been prosecuted and punished for acts constituting offences under the one Act, namely The Criminal Offences Act, and not offences under two or more Acts. The section has no operation. Even if it might operate in relation to charges brought under ss 121 and ) of The > Criminal Offences Act, it is clear that the charge under the first section (carnal knowledge proved as attempted carnal knowledge) concerned the specific act of the appellant of attempting to penetrate the complainant's vagina while the charge under the second section (indecent assault) concerned other acts of the applicant including licking the complainant's vagina. The two charges do not concern the same act for the purposes of s 30.

This groundround is not made out.

Issue 7 - The penalty was excessive

[27] The appellant was conv of four counts of attempted carnal knowledge of a girl. The maximum punishment was ten yean years. The trial Judge sentenced the appellant to six years on each count. The appellant was also convicted on four counts of indecent assault on a child. The maximum punishment was seven years. The trial Judge sentenced the appellant to four years on each count. All sentences were to be served concurrently. As the trial judge noted, they were serious offences committed by a man of mature years, the complainant was very young, the offences involved (to an extent) an abuse of trust and the appellant had pleaded not guilty. His Honour took into account factors in mitigation including that the appellant had no prior convictions for sexual offences. It was open to the trial Judge to impose the sentences he did. Some submissions were made in this appeal as if this Court were considering afresh what was an appropriate sentence. Our role is to consider whether an error was made on the part of the trial Judge. Only if error was demonstrated would we consider what was an appropriate sentence. In the present case, the appellant has not demonstrated error on the part of the trial Judge. The sentences his Honour imposed were not excessive and all relevant considerations were taken into account.

[28] This ground is not made out.

Conclusion

[29] The appellant has not established any ground of appeal. The appeal should be dismissed.

Burchett J
Salmon J
Moore J