Rex v Hopoate [2001] TOSC 15; CR 238 2000 (3 May 2001)

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

NO.CR.238/00.

REX

-V-

'AISEA HOPOATE

BEFORE THE HON. JUSTICE FORD

Counsel: Mr Pouono for the Crown and
Mr Foliaki for the accused

Dates of hearing: 19 and 23 April 2001
Date of judgment: 3 May 2001

JUDGMENT

After taking the oath and telling the Court that she was only 13 years of age, the complainant in this case was asked her occupation to which she replied, "domestic duties". Her mother said that she left school about a year ago because they could not afford school fees - just one of the many sad aspects of this unfortunate saga.

The accused, who is 28 years of age, is charged with one count of indecent assault on the complainant by touching her breast and her vagina with his hand. The offence is alleged to have occurred on an unknown date in August last year. The accused pleaded not guilty and the matter proceeded to a defended hearing.

The background to the case is that the accused, who had been a very close friend of the complainant's older brother, then befriended her mother, 'Ofa, and some two years ago they commenced living in a de facto relationship in the family home at Talasiu. The accused and 'Ofa now have a 14 months old child and 'Ofa is pregnant again expecting their second child. It appears that 'Ofa's husband, the complainant's father, moved to the United States about ten years ago and he has not returned. The complainant was the fourth child out of the six children of the marriage relationship.

The complainant said in evidence that when she was sleeping at night she would feel 'Aisea, the accused, touching her vagina and also her breast and he would use his foot to fondle her vagina. She said that this happened in August 2000 during the period that the accused was living in a de facto relationship with her mother. She said that she woke her mother up and told her what had happened but her mother told her to keep quiet about it otherwise her older brother might beat her up.

Some time after that, and I found the evidence too unreliable to try and pinpoint the date, the complainant moved next-door to stay at Mele's place. Mele Kepu is her mother's aunty. Prior to then, the complainant's mother, 'Ofa, and the accused had moved to live in a hut in the bush at Lapaha but the complainant had continued living on her own in the house at Talasiu. Mele, who gave evidence for the Crown, said that the house the complainant was living in was in a bad state of repair and she felt sorry for her having to live like that and so, about a month after Ofa and the accused went to live in the bush, she invited the girl over to live with her. Some of her grandchildren also lived with her.

Mele said that three days after the complainant moved in, she (Mele) went to the lagoon with some lady friends to gather some seafood and when she returned home she saw that the complainant's arms were covered in bruises. The complainant told her that her mother had been around and had beaten her up because she would not go and live with her and the accused in the bush. Mele then asked the complainant why she would not go and live with her mother in the bush and the complainant told Mele that it was because her mother beat her up. At that point, Mele told the complainant that she would take her to the police station and she could then tell the police why she did not want to go and live with her mother. Mele took her to the police station at Mua that same day and she remained with her while the complainant explained the situation to the police and also made a formal complaint to the police about the actions of the accused back in August.

Mele said in cross-examination that the complainant had told her on either the first or second day after moving into her home what the accused had done to her but, when asked, Mele said she did not take the complainant to the police station to make a formal complaint at that point in time because she had been busy and had other things to do.

In summary, Mele's evidence was that the complainant had been living on her own next-door for about one month after her mother and the accused had moved out to the bush at Lapaha and then she invited her to move in and live with her. Three days after that she arrived home from the lagoon and was told that the complainant's mother had been around and assaulted her. She, therefore, took the complainant to the police station that same day so that she could tell the police why she did not want to go and live with her mother and she could also report what the accused had done to her in August which was something that Mele had apparently been told about by the complainant sometime over the previous two days.

Mele is 63 years of age but even making allowance for her age, I found her recollection as to dates to be extremely vague. She had no idea when the events which she had described to the Court actually took place. She did not know when the complainant came to stay with her or when she took her to the police. She was not asked any questions at all in her evidence in chief about dates but when the topic was explored in cross-examination she said that she was certain that everything happened sometime this year, i.e. 2001, whereas the complainant had said that the offending took place in August 2000 and the police evidence was that the accused was first spoken to about the complaint on 23 October 2000.

Rather surprisingly, the only police officer called to give evidence was unable to tell the Court when the complainant made her complaint to the police. Exactly when a complaint is made to the police in an indecent assault case is always a relevant factor and, quite frankly, the police officer who gave evidence should have been familiar with that rather fundamental aspect of the evidence. The same officer attempted to produce a statement taken from the accused but, after a hearing on the voir dire, I had no difficulty in concluding that the statement had been made by the accused only after he had been seriously threatened by the police officer concerned.

It was significant that there were apparently two other police officers present at the relevant time but neither of them came forward to dispute the accused's story about the threats. The Court was told that one of the officers was ill and the Crown, therefore, made application for an adjournment for his evidence to be taken. That was on Thursday 19 April. The adjournment was granted and the trial resumed on Monday 23 April. The police officer concerned still did not appear at the hearing. A medical certificate produced by the Crown had expired on Friday 20 April. There was no explanation given as to the non-appearance of the other officer. In other words, the officer who took the statement challenged on the voir dire was left on his own when it came to the court case and, as I say, I had no difficulty in reaching the firm conclusion that the statement in question was inadmissible because it was taken in breach of section 21 of the Evidence Act (CAP. 15).

As in any criminal case, the onus of proof is on the Crown and it remains on the Crown throughout. The Crown must establish every element of the offence beyond reasonable doubt. The accused does not have to give evidence - he does not have to prove a thing. In this case The accused elected to give evidence and he denied the complainant's allegations. He said that he had first heard the rumours about a year beforehand about him doing something to the complainant and he said that she had started them because she hated him for living with her mother.

The mother, 'Ofa, was then called by the defence and she denied absolutely that the complainant had ever said anything to her about the accused having touched her. 'Ofa said that the first time she heard of the allegation was when she was told by Mele. She said that she was the complainant's mother and if the accused had done anything to her like she claimed then she should have come and complained to her but she reaffirmed that no complaint of this nature had ever been made to her by her daughter about the accused. 'Ofa said that later her son had asked his sister, the complainant, why she had said these things about the accused and the complainant had told him that it was because she hated the accused. There was no objection to this hearsay evidence. 'Ofa said that she was aware that the complainant did not like her getting another man into the house to take her father's place.

'Ofa was not cross-examined and the failure to cross-examine may be treated by the Court as an acceptance by the Crown of the truth of her evidence; in particular, her evidence that the complainant never woke her at night and complained about the accused's conduct.

Although it is not necessary in cases of this nature for the Crown to establish corroboration, I must say that this is one case where, because of the sharp conflict in the evidence, the Court did look for the comfort of independent corroboration but there was none. The girl's complaint to Mele, whenever it was in fact made, was not capable of constituting the necessary corroboration of her evidence. Confirmation of the evidence of a witness is worthless coming from the witness herself unless it comes within the recent complaint rule which allows evidence of the complainant's visible distress witnessed independently.

The complainant, for her part, appeared to me to be telling the truth but appearances are not enough - I need to be satisfied beyond reasonable doubt. The evidence the girl gave about the alleged indecent assault was extremely brief and encompassed little more than what I have set out earlier in this judgment. She was not asked, for example, to explain the sleeping arrangements in the house and there was later a conflict of evidence on this important point. Nor was she asked how she could be certain that the incident took place in August 2000. She said that she complained to the police about a week after the incident but that evidence is inconsistent with the evidence given by Mele and, as I have already observed, the police witness was unable, in any event, to tell the Court exactly when the complaint was first made to the police.

I accept that many young victims of unwanted sexual activity may not complain straight away because of embarrassment or guilt and the Court must be careful to make allowances for such conduct. On the other hand, the charge the accused is facing is a serious one and before finding him guilty, I need to be satisfied beyond reasonable doubt that the Crown has proved all elements of the offence. In the present case, faced with the strong denials from the accused and the unchallenged evidence of the complainant's mother denying that the girl had ever complained to her, I simply cannot, in the absence of independent corroboration, be so satisfied.

I, therefore, find the accused not guilty of the offence with which he has been charged and he is hereby discharged.

NUKU'ALOFA: 3 MAY 2001.

JUDGE