R v Hopoate [2002] TOLawRp 13; [2002] Tonga LR 81 (4 April 2002)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

Cr 230/2001

R

v

Hopoate

Ward CJ
8 February, 28 March, 3 April 2002; 4 April 2002

Criminal law – sexual assault of child – evidence of child

The accused was charged with indecent assault of the 12 year old daughter of his de facto partner. He contended that the girl had made up the story because she did not like his living with her mother. He claimed that there was a formal requirement for corroboration.

Held:

1. Where there was an allegation of a sexual nature by a young girl the court would always look with particular care at the complainant's evidence. The court was satisfied beyond reasonable doubt that the complainant was speaking the truth.

2. There was no formal requirement for corroboration but ample corroboration did exist. The accused was convicted accordingly.

Counsel for prosecution: Mr Fusitu'a and Miss Simiki
Counsel for accused: Mr Fifita

Judgment

The accused is charged with indecent assault of a 12 year old girl, A, in February 2001, contrary to section 124(1) of the Criminal Offences Act. In view of the age of the girl, I directed that the case should be heard in camera and she must not be identified.

At that time, the accused with living with O, the mother of the alleged victim. They already had a child and, in February 2001, it was still a small baby.

The prosecution case is that the accused and his de facto wife were staying on an 'api in Lapaha. They were using a tent and they had their baby with them as well as A and her 10 year old brother, S.

The girl told the court that, one Monday morning, O went to the road near the 'api to stop the car of the headmaster of the children's school in order to excuse the children from attending school that day. A had been asked by her mother to look after the baby and she was sitting with it beside the tent. The accused was in bed. The baby cried and he told S to go and find a ripe coconut for the baby.

As soon as S left, the accused came and sat behind the girl with his legs on either side of her. He took the baby from her and put it to one side and then tried to force the girl's legs apart. She was sitting with them bent up with her knees on her chest but he forced them apart. The girl alleged that he whispered, "Come on" when she resisted. Once he had opened her legs, he was able to pull down her skirt and pants sufficiently to put his hand inside and push his finger into her vagina.

She called to S and he returned. The accused stayed sitting behind her but pulled up her clothing to where it had been previously. He asked the little boy why he had no coconut and sent him off again. By the time he next returned the girl was crying.

At that time she told him that the accused had done something to her. Shortly afterwards her mother returned and the girl repeated the complaint to her. The mother challenged the accused and his response was to stand, pick up a bush knife and say in an angry tone, "What's that?" At that, the girl remained silent.

The brother gave unsworn evidence in which he confirmed that he had returned and seen his sister crying with the accused sitting behind her with his legs spread out. He told the court that his sister had told him that Aisea had done something to her.

He also confirmed the girl's complaint to her mother and the reaction of the accused to the allegation. He said the accused was angry and his sister then remained silent.

The prosecution also called the mother. She estimated that she was away about ten to fifteen minutes and, on her return, she did not see any sign that A had been crying. She confirmed that A had complained to her after she had returned from the road but not until she had been in the tent for some time breast-feeding the baby. It was when she came out again that her daughter said she had brought a bad man. She was asked why she said that and she replied he had touched her vagina.

Although the mother told the girl that she would make a complaint to the police, she did not do so. The family moved to Longolongo and it was only then that A's older sister went with her to the police station and made the complaint.

The accused was arrested and interviewed. In it he admitted the indecent assault.

It should be mentioned that he challenged that admissibility of that interview and there was a trial on the voir dire. He told the court that he was threatened by the police officer as he entered the police station and continued to be so frightened that he simply agreed with what the officer put down.

I ruled the statements were admissible. In his evidence the accused repeated his claim that he had been threatened and that the answers were not his. He had, however, written the short statement under caution himself. When asked by counsel for the prosecution, he told the court he could not read but he was able to write the words dictated by the officer. He also agreed that, whilst at the police station and before the interview – a time when he was still frightened by the original threat – he was playing cards with the officers and shared a meal with them. He was not put in a cell. I do not believe his evidence that he was threatened or frightened and I am satisfied beyond any doubt that the statements he made were voluntary and accurately recorded by the officer.

The interview was on 5 May 2001 and he agreed he knew the reason he had been brought to the police station was because of a complaint by A and that the complaint was that he had touched her between her legs. He was asked what he meant by 'between her legs' and replied, "Her vagina". He was asked why he did it and replied, "I just wanted to touch it."

The accused gave evidence on oath and said that, on the day in question, the baby had gone outside and played in the mud. He called to the other children to come and get the baby but A did not and so he threw something at her and she started to cry. He went back to sleep but was awoken when the baby again went outside. He went himself and picked her up and took her inside the tent. It was then that O returned. She came into the tent and they played cards for a time before she went outside to get some food. It was then that A made the allegation and O spoke angrily to the accused about it.

He denied the allegation and pointed out to the court that he regarded A as a daughter and an older sister of his own baby. He would never in those circumstances have considered doing such a thing. His case is that A has made this up because she does not like him living with her mother. It is certainly correct that A and her sister do not like his relationship with their mother and A described her feeling to him as one of hate.

The defence called the oldest married sister of A. It was she who, when she first heard the allegation, took A to the police and made a complaint. She believed it but told the court that, when A was asked about it later by members of the family, she said it was not true. As a result she and her mother went to the police station to withdraw the complaint. They arrived there as the accused was playing cards with the officers prior to being interviewed. The officer refused to accept their request to withdraw the complaint. As they did not have the complainant with them, he was clearly right to take it no further. The complainant has never tried to withdraw it.

In the witness box, the complainant consistently asserted that her account was true.

In a case such as this where there is an allegation of a sexual nature by a young girl the court will always look with particular care at the complainant's evidence. I do not accept Mr Fifita's suggestion that there is a formal requirement for corroboration in such cases but there is, in fact, ample corroboration in the admission made by the accused to the police. I also consider the evidence of the brother S confirms aspects of the girl's evidence as does the recent complaint to the brother and the mother. It is right that her evidence of exactly how the accused interfered with her clothing was inconsistent with her earlier accounts but I am satisfied that was a misunderstanding of the exact words used. I accept her account in court that he pulled down her skirt and pants and did not take them off.

However, the first question must be whether the evidence in credible. I am satisfied beyond reasonable doubt that the complainant was speaking the truth. I accept the unsworn testimony of her young brother was also truthful. Whist I accept that parts of the evidence of the mother were credible and accurate, her evidence was very clearly coloured by her affection for the accused.

I am not sure of the truth of the evidence of the older sister and so I take it in the accused's favour that the complainant did in fact retract her account when questioned by the family. However, the circumstances at the time and the youth of the girl would have made it a daunting experience. It was done at a time when she and the family knew the accused had just been arrested and the pressure on such a child would have been intense. However, I must judge the case on the evidence given in court. Whilst such a retraction, if made, would suggest inconsistency in the complainant's account, it does not change my view of her testimony and its truth.

I do not believe the accused.

I am satisfied beyond reasonable doubt that the accused did do the things described by the complainant. I am equally satisfied that the prosecution has proved there was no consent, it was an assault and was undoubtedly indecent. He is convicted as charged.