R v Angilau [2024] TOCA 10; AC 22 of 2023 (28 May 2024)

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

AC 22 of 2023
[CR 39-42 of 2023]

BETWEEN
REX
- Appellant

AND
1. KALAUTA ANGILAU
2. HATENI KAUFUSI
3. TU’IFUA ANGILAU
4. ANDY FUKUFUKA
- Respondents

JUDGMENT OF THE COURT

Court: Harrison J

de Jersey J
Heath J

Counsel: Mr. Fifita for the Appellant
Respondents in person

Hearing: 21 May 2024
Judgment: 28 May 2024

Introduction

[1] The Attorney-General appeals with leave granted by Dalton J on a question of law following the acquittal by Cooper J of Kalautu Angilau, his brother, Tu’ifua Angilau, Hateni Kaufusi and Andy Fukofuka at a Judge alone trial in the Supreme Court in June 2023 on 11 charges of serious violent offending.

[2] The question of law for our determination is whether the Judge was correct when he directed himself that it would be dangerous to accept without corroboration the evidence of a complainant where he was found to have lied about a central issue. Our determination of this question will not in any way affect or invalidate the acquittals.^[1]

Supreme Court

[3] The prosecution case was that one evening the four accused abducted Taniela Hikila in a motor vehicle on a pretext of taking him shopping. He was placed between the Angilau brothers in the rear seats of two cars successively driven around Tongatapu by Mr Kaufasi and Mr Fukofuka. While seated in that position, Mr Hikila was repeatedly punched by the Angilau brothers and stabbed in his thigh by Kalauta. He suffered cuts and bruises to his face and puncture wounds to his leg.

[4] The accused then chained Mr Hikila to a pandanus tree. He was able to escape and make his way to his brother’s house. He was later hospitalized to treat his injuries.

[5] All the defendants represented themselves at trial. None of them gave evidence in their own defence and only Tu’ifua cross-examined Mr Hikila

[6] Mr Hikila gave evidence at trial about the events which proved the principal elements of the charges of assault and unlawful detention. In examination in chief and cross examination by Tu’ifua, he said the attack was in reprisal for a complaint he had made to the Police which implicated Tu’ifua in receiving stolen “perfume”, which we infer is a reference to illicit drugs. He identified each defendant by their first names (but not their surnames); their villages of residence; the driving roles performed by Mr Kaufusi and Mr Fukofuka; and seating arrangements in the rear seats of the vehicles with the Angilau brothers and the participation of each separately in inflicting his injuries. Mr Hikila’s brother gave evidence of his condition after the attack. A medical report from the hospital was also produced by consent.

[7] The Judge in his reasons for verdict found:

“[Mr Hikila] was cross examined only by Tu’ifua Angilau, denied the existence of a bag [said to contained illicit drugs]. During his evidence his demeanour appeared to be extremely guarded. One might characterize it as withdrawing into himself in the witness box and with poor eye contact. He gave the impression of someone who was being evasive.”

[8] In reliance on the English authority of R v Makanjuola,^[2] the Judge directed himself it would be dangerous to accept Mr Hikila’s uncorroborated evidence about a central issue in the case, namely the events leading to his detention and assault and why it had happened. He then found.

“Reviewing Mr Hikila’s evidence in the round especially (i) the patent untruth as to the reasons for his abduction, (ii) the substantially different account given in respect of illicit drugs at the scene, (iii) avoiding giving evidence at all until an arrest warrant was issued for him, and (iv) his demeanour in Court, forces the Court to conclude that the only evidence of who the alleged culprits were was given by a tainted witness, one who was inherently unreliable.

[9] Cooper J found that “There was no evidence that linked any defendant to a relevant scene.”. However, in direct contradiction of this finding he later found that “Tu’ifua Angilau through his cross examination had put himself at the scene and so identification was no longer an issue as far as he was concerned.” However, the Judge held that in view of his finding that Mr Hikila had lied on oath in telling the police that the dispute concerned perfume, his evidence fell into a category where the Court must exercise special care when receiving it. The only corroborating evidence was not as to identity, but the fact of his detention...” He acquitted all defendants on that ground.

Decision

[11] We are satisfied that Cooper J erred in his direction. The law of Tonga does not require a Judge to direct a jury that it would be dangerous to accept the uncorroborated evidence of a witness whom the jury is satisfied has lied at trial. Our reasons can be stated shortly.

[12] Historically the law only required a corroboration direction in trials of defined classes of crimes, principally of sexual offending^[3]. That statutory requirement was expressly repealed in 2016. Section 11 of the Evidence Act of Tonga as amended now provides that where an accused person is on trial for sexual offending, no corroboration of the complainant’s evidence shall be necessary for the defendant to be convicted. Judges were no longer required to give warnings on the absence of corroboration.

[13] However, section 11 (2) expressly reserved to a Judge the right to comment on the absence of any other evidence in a particular case of sexual offending. In Makinjuola, decided in the wake of the abolition of the corroboration rule in the United Kingdom in sexual offending trials, Lord Taylor LCJ gave some guidance to judges on the matters to be included in a direction when exercising the discretionary right to comment in circumstances analogous to section 11 (2). His observations were limited to that type of case and had no wider application to the general law on credibility directions to a fact finder, contrary to the Judge’s assumption.

[14] In this case, if Cooper J was correct in his premise Mr Hikila had lied at trial, it was open to him to have directed himself that he should approach his evidence with care when deciding on the credibility of his identification of the defendants. He could have given himself the orthodox warning on lies including an acknowledgment of the possible reasons for a witness to lie.

[15] However, even though the Judge wrongly directed himself that corroboration was required, he apparently overlooked his express finding that Tu’ifua’s cross examination had elicited Mr Hikila’s confirmation of his presence. Mr Hikila’s adoption of Tuifua’s self-incriminating propositions that they were together in the back seats of the two cars meant that, in the Judge’s own words, “...identification was no longer an issue as far as he was concerned”. As Mr Fifita advised us, Tu’ifua did not dispute Mr Hikila’s account of his participation in the offending. His challenge was limited to where the Angilau brothers and Mr Hikila were sitting in the back seat which was irrelevant to proof of his involvement. Any issues about the credibility of the complainant’s version of the reasons for the attack were thus rendered moot. The Judge had no rational basis for rejecting Mr Hikila’s undisputed evidence on identification and Tu’ifua’s criminal participation in the charged offences.

Result

[16] Our answer to the reserved question of law is that the trial Judge erred in directing himself that it would be dangerous to accept without corroboration the evidence of a complainant whom it was satisfied had lied on an issue in the trial. The Judge’s error was directly material to his verdicts of acquittal of all four defendants.

[17] It is appropriate to record other aspects of the Judge’s reasoning and approach to his verdict which cause us disquiet.:

(a) the underlying dispute between the parties said to have generated the defendants’ attack on Mr Hikilau was not a central issue in the trial – it went to the question of motive but was not an element of any of the charges. Proof of a motive may provide a helpful framework when evaluating guilt but it is irrelevant to establishing an ingredient of an offence charged.

(b) we are unable to understand the evidential basis for the Judge’s finding that Mr Hikilau lied at trial. He apparently relied on a statement made by Mr Fifita in opening that the reprisal attack was motivated by a dispute over illicit drugs. However, Mr Hikila did not refer to this allegation in evidence in chief and denied it when questioned by Tu’ifua. The prosecutor’s statement was not evidence, and no inconsistency with shown with any evidence given at trial.

(c) the Judge’s reliance on demeanour to discredit Mr Hikila is unsustainable and, in the Tongan context, most unfortunate. The fact that a witness appears guarded, withdrawn or introverted is not of itself an accurate guide to credibility. Nor is a failure to make eye contact. There may be cultural or other reasons for the emergence of those characteristics in the witness box. Demeanour of itself is a notoriously unreliable measure of a witness’s credit.

(d) Mr Fifita advised us that the Judge prohibited him from asking Mr Hakila to point out whether any of the defendants present in Court participated in the attack. The Judge would nor allow a dock identification. While that prohibition may be appropriate in some cases, it had no application here. And an inability to give the surname of an alleged assailant where the complainant knows the person only by his first name does not compromise the integrity of his evidence.

_______________________
Harrison J

______________________
de Jersey J

______________________
Heath J

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^[1] Section 17 D of the Court of Appeal Act.
^[2] R v Makanjuola [1995] 3 All ER 730
^[3] Sections 125 and 126 of the Evidence Act now limit the requirement for corroboration to two classes of cases. – the crime of perjury and the evidence of an accomplice.