Rex v Falamoe [2001] TOSC 8; CR 068 2000 (19 February 2001)

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

NO.CR.68/00

REX

-V-

UILI FALAMOE

BEFORE THE HON. JUSTICE FORD

COUNSEL: Miss Simiki for the Crown and
Mr Tu'utafaiva for the Accused

Date of Hearing: 22, 23 January, and 5, 8, 9 February, 2001.
Date of Judgment: 19 February, 2001.

JUDGMENT

At Loni's video shop they had a name for the complainant. They called her "Tomboy" because she often wore shorts and talked like a boy. Her real name is Tilia. She is now eleven years of age having been born on 25 January 1990.

The Crown's case is that on 15 and 22 January 2000 Tilia was indecently assaulted by the 53 year-old accused. It is alleged that he took her from Lonis, where she had been playing video games, to an old deserted house behind another video store in Railway road where the offending took place. The Crown then says that on the following Saturday, 29 January, the accused again approached the complainant and directed her to the deserted house but on that occasion two employees from Lonis followed him and they fetched the complainant back before anything happened; they took her to Lonis and then the police were called.

That was the case as summarised by the Crown in opening.

Tilia, the complainant, was the Crown's first witness. She was questioned by the prosecutor and by the Court prior to giving evidence and I was satisfied that she understood the difference between truth and falsity and that she had the ability to understand what it means to make a commitment to tell the truth. I, therefore, directed that her evidence was to be given on oath.

The complainant told the Court that she had been in Loni's video shop only on about three occasions. She wasn't sure of the exact dates but they were three Saturdays in a row in January before the start of the 2000 school year. She said that she remembered seeing a person who she described as the "rape man" (who she identified as the accused) when she was in the video store. She was asked if she understood "rape" and she answered "no". She was then asked what she meant by "rape" and she replied "when a man or a boy takes me sexually." The significance of that answer emerged later in the evidence.

The complainant said that on the first occasion she had walked out of Loni's and was on her way home at about 1 p.m. when she noticed a boy she knew on the footpath across the road .While she was watching him, she saw the accused, who was also across the road outside the Dateline bookshop. She said that the accused beckoned her and so she went over to him. He asked her to go with him to Navutoka but she refused. She said that he then asked her to go to a place near JJ's video store on Railway road but again she refused. The complainant said that at that point the accused stood up from the chair that he had been sitting in and took her by the hand and he led her across the road and down the street to the deserted house at the back of JJ's video store. Once inside, the accused shut the door and then he proceeded to pull down the zip of his trousers and he also took her pants off. She said that he then licked her "thingy" with his tongue and she explained, and by pointing demonstrated, to the Court that by "thingy" she meant her vagina area.

She said that at that point they were both sitting on the floor. She had her legs apart because he had told her to sit like that. The complainant then described in details which I need not go into the next actions of the accused and she told how he ejaculated on the area of her private parts. There was no suggestion of any penetration of the vagina. Afterwards they both left the hut and the complainant said that the accused gave her two pa'anga. She said she saw him go over and get on a bus and she went back to Lonis to spend the money on the machines.

After acknowledging that she did not tell anyone what had happened, she was asked by Crown counsel why that was and she responded that it was because the accused had said to her that if she ever spoke to anyone about what had happened he would kill her and she said that she believed him.

The Court was then told by the complainant that the following Saturday the same thing happened. She described the events in detail; about how the accused attracted her attention and beckoned her when she was going to play the video games at Lonis and she went to him outside the Dateline bookshop and he then grabbed her by the right hand and told her not to speak to anyone or he would assault her and he then proceeded to take her to the hut behind JJ's video store. Again, he pulled down her pants and took out his "thingy". She told how on this occasion he licked both her breasts. She described how she saw the "same thing" coming out of his thingy as she had seen on the previous occasion. She said that afterwards the accused did not say anything to her but he gave her five pa'anga and she went to play the games at Lonis. She did not notice where the accused went.

The complainant then told how on a subsequent Saturday, again she was not certain of the date, she was at Lonis playing the video games and she noticed the accused at the door nodding for her to go with him and she did but she described how on that occasion a boy called To'a and a woman called Fehi'a who both worked at Lonis picked her up and took her back to Lonis and kept her there while Fehi'a rang the shop manager and later the police arrived.

The complainant also gave evidence about how she had been at Lonis on an earlier occasion in 1999 playing the machines when the accused came up and paid for tickets to take her and a boy who was playing the games with her to a movie in the adjoining Finau theatre. She said that the accused sat next to her and had his hand on her thigh while they watched the movie but nothing else happened. She said that she did not recognise the man again when he approached her in January but she said that the lady at Lonis, Fehi'a, had told her that it was the same person.

The Crown then called Fehi'a Fe'amoeata. She is 31 years of age and she has been working at Lonis for some four years. Fehi'a told how on a date which she later identified as 25 April 1998, the accused had come into Loni's with another woman and the woman, Mapa Feao had signed up for video hiring membership giving a false telephone number which Fehi'a instantly recognised as the number of one of the local taxi companies. Fehi'a assumed that the man with her (the accused) was Mapa's father. He did not sign up for membership or give a name but he returned the video the following day and Fehi'a recalls him coming into the shop on some subsequent occasions to hire videos but she was unsure about dates. Fehi'a said that on one of those occasions when the accused had come into the shop to take out a video using Mapa's membership card she was astounded when one of her work mates told her that the man's name was Uili Falamoe. In evidence, that was unchallenged, Fehi'a said that she knew the history of this person and she knew that he had gone to prison for raping women. After getting confirmation of his name from another acquaintance she said that she was afraid to go to the video shop when he was around because he made her feel uncomfortable and she always kept a careful watch when she saw him either inside the shop or outside. Fehi'a said that she knew the complainant, Tomboy, who often came into the video shop to play the games and on one occasion she had noticed Uili together with the little girl.

Fehi'a said that one morning she noticed Uili sitting at a table outside the Dateline bookshop when Tomboy was inside the video shop and she called Tomboy over to the window and pointed Uili out to her and she asked the complainant if she knew the man across the road and she said that it was her uncle. Fehi'a said that she told the complainant that person was not a respectable person and she told her that if that person ever gets a chance with children he would do something bad. She said that she told the complainant that if anything happened she will get pregnant if she follows this man. Later in cross-examination, Fehi'a agreed that her statement in the Magistrates' Court at the depositions had been correct. There she had said:

"I asked her if she knew the man. She said, yes it's her uncle. Then I told her, no, the man is not a good man if he takes you he will rape you."

That statement helps explain the complainant's understanding of the word "rape" which I refer to earlier in this judgment.

Fehi'a explained that she took a particular interest in the complainant after seeing her with the accused. She said that she would have noticed the accused in the games room when the complainant was there about four times and she had noticed him outside the video shop and she had seen the little girl looking across at him. Fehi'a then described how one Saturday morning, which turned out to be 29 January 2000, the security officer at Lonis video shop, To'a, told her to look outside the window and she did and she noticed Uili. A short time later she and To'a left the shop to go and buy some sugar. As they were walking down the footpath the complainant walked past them going in between them and then she noticed Uili showing directions to the little girl. Fehi'a said that she saw the complainant cross the road heading in the direction of JJ's video shop but she lost sight of her when a vehicle blocked her vision. Meanwhile, she noticed the accused also walking in the direction of JJ's video shop. Fehi'a said that she went into JJ's shop and asked the employee whether she had seen Tomboy and then To'a went outside and came back and said that Uili had gone to a house at the back of JJ's video store. Fehi'a then asked him if he had seen anyone else in the area and To'a said that he had seen the Tomboy. Fehi'a then told To'a to go back and get the girl and he did so.

Fehi'a said that she gave the complainant a very angry look and asked her where she had been. Her answer was that the man had told her to go inside the house to get a video machine and a transformer (there was evidence that old video and television parts were stored on the verandah part of the disused house). Fehi'a then took hold of the complainant's hand and said that they would go and get some shopping and they did so. When they got back to Loni's video shop she sat her on a chair and gave her a bottle of coke. At that point she noticed Uili outside the door of the shop and so she told Tomboy to hide under the chair. Uili then came into the shop and asked for a video and Fehi'a immediately said, without checking, that it was out and he then walked out of the shop. Fehi'a telephoned Loni's manager, Samuela Vea, and reported what had happened. Mr Vea told her to keep the girl in the shop while he contacted the police.

Fehi'a said that while waiting for the police to arrive she asked the complainant what she had been doing with this man. She said that at first the little girl hesitated and so she said "don't lie to me, because I know". She then said that the complainant told her that Uili had kissed her. Fehi'a asked her if she had gone with Uili before and she had said yes. She asked her how many times and the little girl said two times. Fehi'a said that she told the complainant not to lie it must be more than that and the complainant said, "not really, maybe three times". Fehi'a asked her what they had been doing and the complainant told her that he had kissed her and sucked her breasts. Fehi'a then asked her whether he had taken her pants off and she said, "yes". She then asked her if he had done anything else and at that stage the police arrived and she told the little girl to go to the police. The witness said that during this time the complainant looked afraid and shy and she could tell that she was not comfortable.

As with any criminal case, the Crown has the onus of proving every element of the offence beyond reasonable doubt. To establish the charges in this case the Crown has to prove four elements:

1. There was an assault, the intentional touching of the body of another person;
   
2. That the touching was indecent according to commonly accepted community standards;
   
3. That the accused knew the touching was indecent in that sense;
   
4. The complainant was aged 11 or less at the time.
   

There is no onus on the accused to prove anything. Nor does he have to give evidence. He has the right to remain silent. In this case the accused elected to give evidence.

The case for the accused was that there had only ever been two contacts between him and the complainant. The first was when he paid for her and the boy to watch the movie at the cinema adjacent to Lonis video on a date during the Heilala festival in July 1999 and the second occasion was on the 29th of January 2000 which was the date when the security officer from Lonis video store fetched the complainant from the area around the deserted house behind JJ's.

Counsel for the accused said in his opening that the explanation as to why the complainant made the false complaints was that Fehi'a had effectively put the words into her mouth because of her predisposed intense dislike of the accused. Counsel also placed reliance on the fact that apparently the complainant had to make two visits to the police station in relation to her complaint. On the first occasion she was sent home because of her crying and she was asked to come back when she had settled down. There was also some rather vague evidence about a beating the complainant had received from her brother, who happens to be a police officer, after he found out what had happened. It was submitted that all these events are sufficient in themselves to cause the complainant to make false complaints against the accused.

The accused's story was quite remarkable. He confirmed that he was 53 years of age and said that he had been in prison for about 30 years mainly for rape and indecent assault offences. He said that in 1984 he had been sentenced to prison for a total of 28 years for having committed two rape offences and he remained in prison up until 4 July 1998 when he was discharged on the occasion of His Majesty's birthday jubilee. He said that since his release he has lived at Navutoka. He fills in his days mainly by going fishing but when he is not fishing his other interest is watching videos and occasionally he goes to the movies.

The accused denied the two charges he is facing. He said that on 15 January 2000 he went fishing with his friends Samuela Folau and Atelaite Folau and others at Onevai Island to obtain a supply of seafood for a mutual friend, Sione Manu, to take with him to Hawaii. He said that on 22 January he did come into town. He explained that on Friday 21 January he had bought a TV from an Indian man (whose name he could not recall) who lived next door to JJ's video for $150 but when he took the TV set home it did not work and so he brought it back on the Sat. He came into town on the first bus at about 7 o'clock and waited all morning but the Indian man did not arrive and he returned home to Navutoka in the afternoon. He said that he came back to town on the Monday and on that occasion the Indian gave him a replacement TV set.

The accused said that he had seen the complainant only twice. The first occasion was when he bought tickets for her and the boy to go to the movies in July 1999 and the second occasion was on 29 January 2000. He said that at about 11 a.m. that day he had gone to Lonis to try to hire a video and then he walked in the direction of JJ's video store hoping to see the Indian man. He said that as he was walking around the street he noticed the complainant standing beside the Teta Tours building. He did not recognise her but he said that as he walked by she called out to him, "Hey man give me some money". He told her that he only had "faikakai" (a Tongan pudding) and he invited her to share it with him. He said that she agreed and started following him to the Indian man's place and then she ran off towards JJ's. When he later asked her why she had ran off, she said that she had seen the guy from Lonis's following her. The accused then described how he had seen the man from Lonis take the complainant away. He, therefore, ate the faikakai on his own.

Although the accused is not obliged to make any statement to the police, on this occasion he made a selective statement. He told Inspector Hia about taking the girl and the boy to the movie in July 1999 and he told him about his movements on the 29th January 2000 but in response to a very detailed series of questions about his movements on 15 and 22 January 2000 the accused replied, "I will speak later in Court". But the accused's description of his movements on 29 January in his account to the police differs from what he told the Court in that he told the police inspector that he first saw the complainant that day inside Loni's video store. He said that he saw her and six other children at the game machine and the complainant saw him and he just smiled at her and then he went to the Indian's place and he told how the complainant approached him and asked for some money.

In his statement to Inspector Hia, the accused said nothing about going fishing on the 15th. He was asked if he came to town on Saturday 15 January and he replied, "I'm not sure but I do remember I came to town on those Saturdays in a row trying to get my TV." On the final day of the hearing counsel for the accused sought leave to call alibi evidence about his movements on 15 January 2000 and after hearing submissions, I granted the request. He then called Mr and Mrs Folau. To a large extent they contradicted each other. Mr Folau was adamant that the accused was fishing with them on Saturday 15 January whereas Mrs Folau was just as adamant that the accused had not gone fishing with them on the Saturday. Although she could not recall what the date was, I took her to be referring to the same Saturday. I preferred Mrs Folau's evidence. She appeared to be the more reliable witness of the two.

Counsel for the accused made forceful submissions about the danger of relying on the complainant's evidence given that from an early stage the witness Fehi'a from Lonis had put the image in the complainant's mind of the accused being an "evil man". I have had very careful regard to that submission but at the end of the day I am left satisfied beyond any doubt at all of the guilt of the accused on both counts. Despite the ordeal of the child complainant having to give evidence on oath, in my opinion she handled herself extremely well. Although her statements about the accused being her uncle and about the number of times she visited Lonis were not correct, her evidence in relation to the substance of the complaints was relatively unshaken. I also found Fehi'a to be a reliable witness although she must have been honestly mistaken about the date of her first meeting with the accused because the Crown accepts that he was still in prison on 25 April 1998.

The accused is, therefore, convicted on both counts.

Finally, I think it is appropriate for the Court to publicly acknowledge the caring and responsible attitude played in this sad saga by the witness Fehi'a Fe'amoeata, the employee from Lonis video store. In her final address, Crown counsel said that Fehi'a had acted as she did, not out of spite or hatred for the accused, even given her open dislike for the man, but rather in a "big sister" role trying to prevent the child from danger and harm. I agree with that analysis of the situation. The complainant was indeed fortunate that Fehi'a cared.

Nuku'alofa: 19th February, 2001

JUDGE