Rex v Li [2006] TOSC 9; CR 214.2004 (17 March 2006)

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

CR 214/04

REX

-V-

KALUSETI LI

HELD BEFORE HON CHIEF JUSTICE WEBSTER sitting alone at Nuku’alofa on 6, 7, 8, 9, 10 & 13 March 2006

Counsel:
Prosecution: Ms Simiki
Defence: Mr Veikoso

RESERVED DECISION GIVEN ON 17 MARCH 2006

Preliminary

The defendant Kaluseti Li pleaded not guilty to 4 offences of carnal knowledge of the same girl under 12, contrary to section 121 of the Criminal Offences Act, and 4 offences of indecent assault on a child under 12 (on the same girl) contrary to section 125(1) of that Act.

Evidence and submissions

With the agreement of Counsel, the trial was heard in camera under section 141 of the Criminal Offences Act. On the application of Crown Counsel and with the agreement of Defence Counsel I also made an order directing that the identity of the complainant and her evidence taken in the proceedings shall not be published in the Kingdom in a written publication available to the public, or be broadcast in the Kingdom.

I heard evidence for the prosecution from 10 witnesses, the complainant Y (now aged 13), who gave evidence on oath; Pita Kelepi Katoa (aged 9), of Manuka, who gave unsworn evidence; the complainant’s mother Z; Ms Kalisi Langi, then Vice-Principal of Navutoka Government Primary School; Ms Falekihetoa Fatai, shopkeeper, Navutoka; Cpl Semi Ve’ehala, then stationed at Mu’a Police Station; Ms Losili Liu Masima, then 2nd Vice-Principal of Navutoka Government Primary School; Ms Sepiuta Mu’a, Navutoka; Dr Semisi F Latu, Senior Medical Officer i/c Obstetrics & Gynaecology, Vaiola Hospital; and Mrs Lesili Mu’a, Navutoka. The prosecution also produced a number of documentary exhibits. The defendant Mr Li gave evidence himself; and the defence led evidence from Mrs Vika Lolohea, Navutoka; Mrs X, Navutoka (a relative of the complainant); and the defendant’s daughter Ms Lilio Li.

The unsworn evidence of the little boy Pita Katoa was received under section 116 of the Evidence Act, as in my opinion he was possessed of sufficient intelligence to justify the reception of the evidence and understood the duty of speaking the truth. It was corroborated by other material evidence from the complainant herself (who gave evidence on oath) in support of it implicating the defendant; ie confirming from some other source that the witness was telling the truth in some part of his story which goes to show that the defendant committed the offences with which he is charged: DPP v Hester [1972] 3 All ER 1056,1073-4 (HL).

There was also a voir dire on the defence challenge of the admissibility of the record of interview, answers to charges and confession statements dated 23 September 2004. In that I heard evidence from Cpl Ve’ehala and the countersigning officer, former Detective Constable Latiume Fungavai. The accused himself did not give evidence in the voir dire. That ruling, in which I held these documents to be admissible, is appended to this decision.

On 10 March after all the oral evidence had been heard a site view at Navutoka and Manuka was conducted, including the site of the complainant’s home, the shop, the Government Primary School, Mrs Mu’a’s home, the defendant’s home (and its interior) and the site of the defendant’s bush allotments.

On completion of the evidence in the main trial, on 13 March I heard closing submissions in support of their respective cases for the defence and prosecution. As no submissions were made at that stage on the possibility of convictions for attempted carnal knowledge, I heard further submissions on that on 17 March.

Indictment

The offences with which the defendant was charged were:

CARNAL KNOWLEDGE OF GIRL contrary to section 121 of the Criminal Offences Act (Cap 18).

Kaluseti Li on or about 3/6/7/8 September 2004, you carnally knew Y who was under the age of 12 years by inserting your penis in to her vagina.

INDECENT ASSAULT ON CHILD contrary to sections 125(1) of the Criminal Offences Act (Cap 18).

Kaluseti Li on or about 3/6/7/8 September 2004, you indecently assaulted Y who was under the age of 12 years by using your tongue to lick her vagina and doing other things.

The burden is on the prosecution in a criminal trial to prove beyond reasonable doubt every element of the offence alleged.

Essential elements of carnal knowledge of girl

Section 121 of the Criminal Offences Act provides:

Carnal knowledge of girl.

121. Any person who carnally knows any girl under the age of 12 years shall be liable on conviction thereof to imprisonment for any period not exceeding life.

Carnal knowledge is a legal term for sexual intercourse, and for the purposes of this offence that is deemed complete on penetration: Kaitamaki v R [1984] 2 All ER 435 (PC). Under section 140 of the Criminal Offences Act, on the trial of any person on a charge of carnal knowledge it is not necessary to prove the actual emission of seed and the offence is deemed complete on proof of penetration only.

The requirement of penetration can be satisfied by any penetration however slight, without penetration of the actual vagina: R v Lines [1844] EngR 333; (1844) 1 Car & K 393 (174 ER 861); Holland v R 117 ALR 193,197 (HC); Papadimitropoulos v The Queen [1957] HCA 74; (1957) 98 CLR 249, 255. It is not necessary to prove rupture of the hymen to prove rape: R v Hughes (1841) 2 Mood 190 (169 ER 75); R v McRue [1838] EngR 873; (1838) 8 Car & P 641 (173 ER 653); The People (Attorney General) v Dermody (1956) IR 307. (Halsbury’s Laws (4th Ed Reissue) Vol 11(1) para 516; Archbold 2005 para 20-24; Archbold 2003 para 20-24)

The case of Puloka v R (Tonga Court of Appeal 30.3.92), to which Mr Veikoso referred, had no relevance to the law on unlawful carnal knowledge as it was an appeal against sentence after a plea of guilty.

The essential elements to be established in this case to find that there has been carnal knowledge of a girl are that:

it was the defendant;

who had sexual intercourse (ie by his penis penetrating her vagina);

with a girl who was under the age of 12 years;

whether or not she consented to the act;

or whether or not he reasonably believed that the girl was of or above that age.

Under section 123 it is no defence to a charge under section 121 to prove that the girl consented to the act or that the person reasonably believed that the girl was of or above the age of 12 years.

Attempt to have carnal knowledge

Under section 122 an attempt to have carnal knowledge of a girl is a separate offence:

Attempt to have carnal knowledge.

122. Any person who attempts to have carnal knowledge of a girl under the age of 12 years shall be liable on conviction thereof to imprisonment for any term not exceeding 10 years.

Attempt is defined in section 4:

Definition of attempt.

4. (1) An attempt to commit an offence is an act done or omitted with intent to commit that offence forming part of a series of acts or omissions which would have constituted the offence if such series of acts or omissions had not been interrupted by the voluntary determination of the offender not to complete the offence or by some other cause.

(2) A person who attempts to commit an offence by any means shall not be acquitted on the ground that by reason of the imperfection or other condition of the means or by reason of the circumstances affecting the person against whom or the thing in respect of which the crime was intended to be committed it was not possible to commit the crime according to his intent.

Illustrations

A points a gun at B believing it to be loaded and meaning immediately to discharge it at him. A is guilty of an attempt to harm B although the gun is not, in fact, loaded.

A puts his hand into B's pocket intending to steal. A is guilty of an attempt to steal although there is nothing in the pocket.

The relevant definition of an attempt to commit an offence is thus that it is an act done with intent to commit that offence, which would have constituted the offence if it had not been interrupted for whatever cause. Before a defendant can be convicted of an attempt the Court must be sure that he intended to commit the offence, and that, with that intention, he did something which was more than mere preparation for committing that offence.

Under section 6 a person charged with the full offence may at the trial be convicted of the attempted offence:

Conviction for attempt on charge of offence

6. Where the complete commission of the offence charged is not proved but the evidence establishes an attempt to commit the offence, the accused person may be convicted of this attempt and punished accordingly:

Provided that after a conviction for the attempt the person so convicted shall not be liable to be tried again for the offence which he was charged with committing.

That provision essentially echoes Clause 13(a) of the Constitution.

The essential elements to be established in this case to find that there has been attempted carnal knowledge of a girl are that:

it was the defendant;

who did an act with intent to have sexual intercourse (ie by his penis penetrating her vagina);

with a girl who was under the age of 12 years;

whether or not she consented to the act;

or whether or not he reasonably believed that the girl was of or above that age;

and the defendant’s act would have constituted carnal knowledge if it had not been interrupted for whatever cause.

Essential elements of indecent assault on child

Section 125 of the Criminal Offences Act provides:

Indecent assault on child

125. (1) Any person who shall commit an indecent assault on any child under the age of 12 years shall be liable on conviction thereof to imprisonment for any term not exceeding 5 years.

Consent no defence

(2) It shall be no defence to any prosecution for an indecent assault on a child under the age of 12 years to prove that he or she consented to the act of indecency.

An assault (in this sense meaning deliberate physical contact) is indecent if right-minded persons would consider the conduct so offensive to contemporary standards of modesty and privacy as to be indecent (R v Court [1988] 2 All ER 221 (HL)); ie it is objectively capable of being regarded as indecent (R v George (1956) Crim LR 52; R v Court).

R v Court was considered in R v C [1992] Crim LR 642 (CA), in which it was held that where an assault was indecent in itself, it was unnecessary to establish a specific indecent intent.

The essential elements to be established in this case to find that there has been an indecent assault on a child are that:

it was the defendant;

who intentionally assaulted the complainant;

who was under the age of 12 years;

and that the assault, or the assault and the circumstances accompanying it, are capable of being considered by right-minded persons as indecent;

the defendant intended to commit an assault of that kind;

whether or not she consented to the act of indecency.

The evidence

Although the complainant Y’s mother Z said that she was born on 14 December 1992, her birth certificate records that she was born on 13 December 1992. Whatever the actual date of the complainant's birth, I was satisfied beyond reasonable doubt that at the time of the alleged offences in September 2004 she was under the age of 12 years old.

I have to start by saying that I found that many of the witnesses were not telling the complete truth, or were embroidering and adding to their evidence, so that all their evidence was not all credible and reliable. But through it all I discerned clear reliable evidence from which I was able to draw conclusions beyond reasonable doubt as to what had actually happened.

Aspects of the evidence which would lead me to being sure that the defendant committed the offences with which he is charged are as follows:

I found the core of the evidence of the complainant, although it had various shortcomings - as set out below – credible and reliable. It left me with the clear view that there had been sexual interaction between the defendant and her, even although she had subsequently added to her description. The complainant spoke of the defendant taking her on his bicycle to his house and there taking off her clothes and draping her legs over his shoulders; and she also said that afterwards her vagina hurt and was in pain. She also gave evidence about a white liquid coming out of the defendant's penis and, in a telling piece of evidence which she is unlikely to have picked up elsewhere, she said he used the bedsheet and wiped his penis. Although the defendant denied that there was a bed and said there was only a mattress, on the site view at the defendant’s house it was plain that there was a bed of the height indicated by the complainant. It was also clear at the site view that the complainant’s description of the approach to the defendant’s house was accurate.

I was unable to accept the evidence of the defendant’s daughter Lilio (who was very unhappy and ill at ease when giving evidence, so that I regretted I was unable to accept her as a credible and reliable witness) that she had been at the defendant’s home each morning of the alleged incidents and had seen nothing of them.

The complainant did not give direct evidence about being afraid of what the defendant was allegedly doing to her, though she did say in cross-examination that she told the 2 teachers that she was afraid when the defendant took her to his house (but that was not put to either of the teachers in evidence). But she did tell the teachers that the defendant said they were going to do something bad, which was then followed by him “inserting his thing to my thing”.

Nor did the complainant give evidence about having tried to avoid the defendant after the first alleged incident, and as she was not in a home situation where she was under some kind of compulsion to keep meeting the defendant, I inferred that if she had wanted to she could easily have gone to school another way after the first alleged incident. Taken with the evidence that the complainant did not tell anyone else voluntarily about what had allegedly happened between her and the defendant (and she was afraid of telling her teachers about it), and that when she did tell someone else under pressure it was 11 days after the first incident, I therefore inferred that in reality the complainant, despite her young age, did not actively object to what the defendant was doing. That certainly supports her evidence of what occurred, but beyond that it is not really relevant to these charges, as the offence of carnal knowledge of the girl under section 121 does not depend on whether or not the girl consented and absence of her consent is not a necessary ingredient of it. Likewise under section 125(2) it is no defence to the offence of indecent assault on child to prove that the child consented to the act of indecency.

The complainant did say in evidence that she had told Lesili Mu’a at her house near the school that the defendant had put her on his bicycle, but she did not give evidence that she had told Lesili the other things that the defendant had done to her (as submitted by the defendant’s Counsel in his closing submissions). In any event that was not specifically put to Lesili in her evidence by either Counsel.

In corroboration of the complainant’s evidence, there were the records of interviews of the defendant by the Police, his answers to the charges and confession (Exhibits 3 – 6), which he admitted saying. While the defendant gave general statements of having committed crimes against the complainant, in particular he said the following:

First interview:

Q. 13. And what were those bad things?

I took Y and I tried to have sex with her (carnal knowledge).

Q. 14. Kaluseti is it true that you took Y and you tried to have sexual intercourse (carnal knowledge) with her?

Yes.

Q. 15. How many times did you take Y?

Only three times.

Q. 17. When you took Y, where did you take her?

I took her home.

Second interview:

Q. 4. Did you at any time give Y any money?

Yes.

Q. 5. How much did you give her?

As I recall, I gave her 50 seniti.

Q. 6 Kaluseti do you recall the day you inserted your penis into Y’s vagina and she told you that it hurt?

Yes.

Q. 7 Was this during the day or night?

Day.

Q. 8 Did anyone know of it?

No.

I regret that I did not believe the defendant's denial of these in evidence, nor his evidence that he only gave these answers so that he could be released from custody to look after his 18- or 19-year old daughter (born in 1985) and illegitimate son of around 3. The defendant later said his son was around 1, but that did not tally with his evidence about the son going to kindergarten and I could not accept it. I accepted the evidence of Cpl Ve’ehala that the girl and the baby had been well and not sick on the day the defendant was arrested; and it transpired from the daughter Lilio’s evidence that after a day or so they had moved away from the defendant's house at Manuka to the home of her uncle in Afa. While the defendant no doubt wanted to be released, he is a mature man and there was no suggestion that he had been ill-treated while in custody, so I believe that he must have known that his answers would be treated seriously and that he would have been very unwise to have confessed to such serious crimes if he had not committed them.

It is appropriate to repeat the passage which I quoted in my ruling on the admissibility of the statements in this case. In R v Rennie [1982] 1 All ER 385 (CA) the Chief Justice of England said (at p 388 h):

“Very few confessions are inspired solely by remorse. Often the motives of an accused are mixed and include a hope that an early admission may lead to an earlier release or a lighter sentence. If it were the law that the mere presence of such a motive, even if prompted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confession would be rendered inadmissible. This is not the law. In some cases the hope may be self-generated. If so, it is irrelevant, even if it provides the dominant motive for making the confession. In such a case the confession will not have been obtained by anything said or done by a person in authority. More commonly the presence of such a hope will, in part at least, owe its origin to something said or done by such a person [in authority]. There can be few prisoners who are being firmly but fairly questioned in a police station to whom it does not occur that they may be able to bring both their interrogation and their detention to an earlier end by confession.”

I also have to record that the defendant was not called to give any such evidence during the voir dire, so that such evidence was not before me when I decided to admit these documents, although as it turned out it would not have made any difference to my decision as I did not believe it.

In addition the defendant in evidence actually admitted meeting the complainant Y on 2 occasions and giving her money, which the shopkeeper Falekihetoa Fatai gave evidence of having seen occurring on 1 occasion (although I was unable to accept her evidence that on that occasion she saw the defendant lifting Y onto his bicycle).

Then there was the evidence of the little boy Pita Katoa that one morning when he went on to the defendant's house to call his elder brother, he saw Y waiting outside the fence of the defendant's house. The site visit on 10 March showed that the defendant's house was about 1 mile from the complainant's house and in the opposite direction from the school to the complainant's house.

There was also the crucial evidence of Sepiuta Mu’a, who knew the complainant well because she came to their house (which was near the school), that on a Wednesday morning she had been waiting for a bus on Taufa’ahau Road beside the beach around 10.00 am when the complainant came along from the direction of Manuka (where the defendant's house is) and then went on a bus with her into Nuku'alofa and back.

Finally, the complainant had been absent from the school on the 4 days on which the offences are alleged to have occurred, which the School Register (Exhibit 2) showed was out of character for her.

However there were also contradictory aspects of the evidence:

There was the complainant's embarrassment at demonstrating the part of the body where the incidents had taken place, so that she finished up pointing to the bottom as the site of the defendant's penis and said it was on the upper part of his body; and the surprising and unbelievable evidence about the defendant covering her with a black cloth to take her into his house in broad daylight. For whatever reason, in evidence the complainant appeared unable to recall how the defendant put his penis to her vagina.

The Medical Report (Exhibit 8) and evidence from Dr Semisi Latu of the medical examination on 22 September showed that there was no damage to the complainant’s vagina or the vaginal opening, and the hymen, fourchette, perineum and anus were intact, the only injury being a small abrasion at the posterior commissure (ie outside the vagina and right below the vulva), which might have been caused by a blunt object or the complainant sitting on something hard, or even her scratching. Dr Latu's evidence was that if the penis of a grown male had been inserted into the complainant's vagina there would have been bleeding and the hymen would have been intact, but that at that young age a penis might be inserted to leave the hymen intact if it had been inserted slowly, gradually, carefully and continuously in stages (as the vagina would dilate without any damage to the hymen). Unfortunately the medical examination was only conducted 2 weeks after the last alleged incident, so that if there had been any immediate medical evidence it was lost and not recorded.

The first time the complainant admitted that something had happened was on Tuesday 14 September, which was 6 days after the last alleged incidents on Wednesday 8 September and 11 days after the first alleged incident on 3 September. And that was not a truly voluntary statement by the complainant in terms of section 11 of the Evidence Act, but was obtained on the questioning by 2 of the teachers at the Government Primary School, Navutoka after the complainant's mother had complained about her being absent from school and about stories of the defendant giving her money and noodles. The complainant's admission was therefore not an immediate statement made soon after the incidents to the first person to whom she could make a such an intimate statement.

Then there was the evidence that around December 2005 or January 2006 the complainant Y, in the hearing of 2 witnesses, Vika Lolohea (who lives near to her house) and Mrs X (who is married to her mother's brother), said that the stories about the defendant taking her were not true as the kids had made her tell the story. In evidence the complainant admitted saying that it to these ladies, but said that her uncle had told her not to tell anyone else that it had happened, which I accepted as an explanation.

Conclusions on evidence

On consideration of the contradictory aspects that I have mentioned above, they are not sufficient to cause me reasonable doubt that something sexual happened between the complainant and the defendant.

The direct and circumstantial evidence which I took into account in reaching that view was as follows:

The defendant’s admission to the Police and in evidence that he had twice met the complainant at the shop and given her money, which is the kind of approach frequently adopted by men who prey on young children, who are known to seek out children who are loners. The defendant’s evidence about that was corroborated by Falekihetoa Fatai. There was also Kalisi Langi’s evidence in cross-examination that she had observed that the complainant “normally does not hang around with other children”, carrying the inference that she was indeed a loner.

The little boy Pita Katoa’s unsworn evidence (corroborated by the evidence of the complainant herself) that one morning when he went on to the defendant's house to call his elder brother, he saw Y waiting outside the fence of the defendant's house. I was unable to accept the evidence to the contrary of Lilio Li, who was not a credible witness.

The site visit on 10 March showed that the defendant's house was about 1 mile from the complainant's house and in the opposite direction from the school to the complainant's house, so it was very much out of her way; and also that in cross-examination the complainant had given an accurate description of its approaches and surroundings.

There was also the crucial evidence of Sepiuta Mu’a, who knew the complainant well because she came to their house (which was near the school), that on a Wednesday morning in the week in question she had been waiting for a bus on Taufa’ahau Road beside the beach around 10.00 am when the complainant came along from the direction of Manuka (where the defendant's house is and in the opposite direction to the complainant’s own home) and then went on a bus with her into Nuku'alofa and back.

The evidence from the School Register (Exhibit 2) that the complainant, out of character, was absent from school on Friday 3, Monday 6, Tuesday 7 and Wednesday 8 September 2004, the days when the offences were alleged to have taken place.

All that evidence supports the complainant’s account of having been taken to the defendant’s house on the days in question.

Then there was the evidence of the complainant herself about what happened inside the defendant’s house. I accepted her accounts of how the defendant 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 defendant's penis and, in a telling piece of evidence which she is unlikely to have picked up elsewhere, she said he used the bedsheet and wiped his penis. Although the defendant denied that there was a bed and said there was only a mattress, on the site view at the defendant’s house it was plain that there was a bed of the height indicated by the complainant in evidence.

The acts of a 52-year old man removing the clothes of a young girl aged 11, kissing her and kissing her vagina, and the circumstances accompanying them are very clearly capable of being considered by right-minded persons as so offensive to contemporary standards of modesty and privacy as to be indecent.

I accepted that evidence of the complainant because some of the detail was corroborated by the defendant in his statements to the Police as set out above and in general it had a ring of truth about it, even although the complainant’s evidence was not all reliable - she admitted in evidence to lying, and at times, such as her evidence about being covered by the defendant in a black sheet, her evidence was not credible. Although she admitted saying in recent months in the hearing of her neighbour Vika Lolohea and Mrs X (who is married to her mother’s brother) that the stories about the defendant taking her were not true as the kids had made her tell the story, I accepted as credible her explanation that her uncle had told her not to tell anyone else that it had happened. I inferred that the complainant’s difficulties in demonstrating in evidence the part of the body where the incidents had taken place (so that she finished up pointing to the bottom as the site of the defendant's penis and said it was on the upper part of his body), and appearing unable to recall how the defendant put his penis to her vagina, were due to her embarrassment at being asked to do so in public.

As mentioned above, there was no direct evidence about the complainant being afraid of what the defendant was allegedly doing to her, nor about her having tried to avoid the defendant after the first alleged incident, and I inferred that if she had wanted to she could easily have gone to school another way after the first alleged incident. Taken with the evidence that she did not tell anyone else voluntarily about what had allegedly happened between her and the defendant (even although he had told her not to tell her ), and that when she did tell someone else under pressure it was 11 days after the first incident, I therefore inferred that in reality the complainant, despite her young age, did not actively object to what the defendant was doing. But that it is not really relevant to these charges, as the offence of carnal knowledge of a girl under section 121 does not depend on whether or not the girl consented and absence of her consent is not a necessary ingredient of it. Likewise under section 125(2) it is no defence to the offence of indecent assault on child to prove that the child consented to the act of indecency.

The defendant’s Counsel made lengthy submissions on the effect in this case of section 11 of the Evidence Act, which provides:

Evidence of complaint in sexual offences.

11. In all criminal proceedings for rape or other sexual offences in order to corroborate the testimony of the person injured by the commission of the crime which forms the subject of the charge, evidence that such person at or shortly after the crime was committed voluntarily made a statement relating to its commission may be given. Such statement shall not in anywise be considered as constituting additional or independent evidence of the crime but only as showing that the person's conduct is consistent with his evidence at the trial.

Illustration

A is tried for the rape of B. Evidence may be given that a complaint was made by B shortly after the time when the offence is alleged to have been committed, and also of the particulars of such complaint so far as they relate to the charge against B.

Defence Counsel’s submissions were to the effect that the result of section 11 is that, as in this case the complainant had not made her statements shortly after the alleged crime was committed, nor voluntarily, the whole complaint could not be admitted. I cannot accept these submissions, as the purpose of the section is to allow on an optional basis evidence [“evidence ... may be given”] of a complaint by a victim shortly after the incident to show that her conduct was consistent with her evidence at the trial, not to exclude the whole complaint if that did not occur. However I do find that the first statement about the alleged offences by the complainant was made on 14 September, ie 11 days after the first incident, and it was neither made shortly after the time when the first offence was alleged to have been committed, nor was it made truly voluntarily, as it was given when the complainant was under pressure to provide a reason for 4 days absence from school. So that evidence does not truly corroborate the complainant’s evidence.

However the evidence of the complainant was corroborated by the detail in the defendant's statements to the Police as set out above, and I did not accept his denials of the facts of these in evidence before this Court.

The essential elements to be established in this case to find that there has been an indecent assault on a child are that:

it was the defendant;

who intentionally assaulted the complainant;

who was under the age of 12 years;

and that the assault, or the assault and the circumstances accompanying it, are capable of being considered by right-minded persons as indecent;

the defendant intended to commit an assault of that kind;

whether or not she consented to the act of indecency.

I thus accept and believe the complainant’s evidence that the defendant kissed her and licked her vagina on 4 occasions, which, as she was clearly under 12 at the time, amount to indecent assaults to which she was not able to give consent. I therefore find it established beyond reasonable doubt that these constituted indecent assaults on a child.

Turning to the allegation of carnal knowledge, there was the Medical Report (Exhibit 8) and evidence from Dr Semisi Latu of the medical examination of the complainant on 22 September. There was no damage to the vagina or the vaginal opening, and the hymen, fourchette, perineum and anus were intact, the only injury being a small abrasion at the posterior commissure (ie outside the vagina and right below the vulva), which might have been caused by a blunt object or the complainant sitting on something hard, or even her scratching. Dr Latu's evidence was that if the penis of a grown male had been inserted into the complainant's vagina there would have been bleeding and the hymen would have been intact, but that at that young age a penis might be inserted to leave the hymen intact if it had been inserted slowly, gradually, carefully and continuously in stages (as the vagina would dilate without any damage to the hymen). Unfortunately the medical examination was thus only conducted 2 weeks after the last alleged incident, so that if there had been any immediate medical evidence it was lost and not recorded.

The position about the allegations of carnal knowledge is thus different. Under section 140 of the Evidence Act that requires proof of penetration (which means penetration however slight) and while both the complainant in her evidence and the defendant 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 (on the same kind of basis as the not dissimilar case of Holland v R 117 ALR 193, referred to above). 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. Q & A 13 & 14 of the record of the first interview (Exhibit 3) in fact use the words “tried to have sex”. It is therefore open to the Court to convict him for attempts to have carnal knowledge under section 122.

The relevant definition of an attempt to commit an offence in section 4 of the Criminal Offences Act is that it is an act done with intent to commit that offence, which would have constituted the offence if it had not been interrupted for whatever cause. I find that it was established beyond reasonable doubt from the complainant’s evidence of the defendant’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.

The essential elements to be established in this case to find that there has been attempted carnal knowledge of a girl are that:

it was the defendant;

who did an act with intent to have sexual intercourse (ie by his penis penetrating her vagina);

with a girl who was under the age of 12 years;

whether or not she consented to the act;

or whether or not he reasonably believed that the girl was of or above that age;

and the defendant’s act would have constituted carnal knowledge if it had not been interrupted for whatever cause.

These elements have all been established beyond reasonable doubt, so in each case I found the defendant guilty under section 122 of an attempt to have carnal knowledge of the complainant.

For all the reasons given above, I also find that the 4 counts of indecent assault on a child have been proved beyond reasonable doubt and I find the defendant guilty of these 4 counts.

Conclusion

I therefore found that the necessary elements have been established beyond reasonable doubt and I find the defendant guilty as follows:

Count 1: Attempt to have carnal knowledge of girl;

Count 2: Indecent assault on child;

Count 3: Attempt to have carnal knowledge of girl;

Count 4: Indecent assault on child;

Count 5: Attempt to have carnal knowledge of girl;

Count 6: Indecent assault on child;

Count 7: Attempt to have carnal knowledge of girl;

Count 8: Indecent assault on child;

R M Webster MBE
Chief Justice

17 March 2006

R v KALUSETI LI CR 214/04

RULING ON ADMISSIBILITY OF RECORD OF INTERVIEW, ANSWERS TO CHARGES AND CONFESSION STATEMENTS GIVEN AT NUKU’ALOFA ON 9 MARCH 2006

In a voir dire Counsel for the Accused has challenged the admissibility of the record of interview, answers to charges and confession statements dated 23 September 2004.

I emphasise that this is the sole question with which the Court is dealing at present. The Court is not concerned with the truth of the Accused’s answers or of the confession at this stage.

There has been evidence in the voir dire from the Police officer who took statement, Cpl Semi Ve’ehala of Mu’a Police Station and the countersigning officer, former Detective Constable Latiume Fungavai. The accused himself did not give evidence in the voir dire. I have to say immediately that in relation to their evidence about these events I had no hesitation in accepting Cpl Ve’ehala and DC Fungavai as generally credible and reliable witnesses who had followed Police procedures carefully and thoroughly.

The principal objection put forward by the Accused’s Counsel Mr Veikoso to the interview, confession etc is that the Accused had been in custody since 20 September and had twice (on 21 and 22 September) been interviewed and denied the charges, but these interviews were not recorded in the proper manner, the only record being in the Diary of Action. It was only when the Accused was interviewed on 23 September that a formal record was made. Mr Veikoso also submitted that the Accused made the admissions so that he could go home and look after his daughter and her child.

The Police Diary of Action recorded as follows:

21.9.04 0830

18. Cpl Ve'ehala talked with the suspect Kaluseti Li, regarding what happened, the allegations against him and he said that I should interview the girl again because they only met twice and he usually gave her some money.

21.9.04 0910

19. DPC Fungavai put Kaluseti Li into jail. He was asked if he needed anything and he said no.

21.9.04 1330

21. Cpl Ve'ehala took the victim Y to the hospital to be examined and the doctor Dr Semisi Latu instructed to be brought over on 22.9.04 at 0830 hrs - 0900 hrs.

22.9.04 1230

29. Cpl Ve'ehala spoke with Dr Semisi Latu regarding the result of the examination and he told me that the hymen was still intact but there is abrasion in the posterior commissure of Y. He also told me that he would give me the report tomorrow.

22.9.04 1300

30. Sgt Naufahu, Cpl Ve'ehala, Pc Fungavai talked with suspect about the complaint and he still denied the facts put before him.

23.9.04 1830

34. Cpl Ve'ehala Pc Fungavai, started legal proceedings regarding Kaluseti Li in recording the Record Of Interview, So called Confession, Charge Form.

23.9.04 2050

38. Cpl Ve'ehala, Pc Fungavai, completed the work regarding Kaluseti Li and he was released.

Both Cpl Ve’ehala and DC Fungavai knew the Accused as they both lived in the Eastern District not far from the Accused’s home at Manuka. They said that before the interviews the Accused was cautioned, told he was not obliged to answer any questions, which they said he knew, and he gave his answers voluntarily. That evidence was not seriously challenged in cross-examination and there was no contrary evidence from the Accused.

Other relevant history was that the Accused had been arrested at Mu’a Police Station on 20 September (when he went there to complain because some women at Manuka had gossiped about him) and that same day was taken by Cpl Ve’ehala before Magistrate Lokotui, who accepted that the Accused should be remanded in custody for 24 hours so that evidence could be gathered without being tainted; and for his protection from the complainant’s family. The Accused had told the Magistrate that he had a daughter sick at home with a 3 year old child and he wanted to go and see them, so the Magistrate ordered Cpl Ve’ehala to carry out the things that were needed to be carried out. Cpl Ve’ehala had then gone with the Accused to his home and found his daughter playing with other children and she had said she and the other child were fine; but nonetheless Cpl Ve’ehala arranged with a neighbour Palolo Maka that she would look after the children, and would contact the Police if there was real concern, but she had not called the Police. The following day the Accused had been taken back to the Magistrate, who had ordered him to be kept in custody for a further 4 days (although he was actually released before then on 23 September). Again that evidence was not seriously challenged in cross-examination and there was no contrary evidence from the Accused, so I find that there was no reason for any real concern on the part of the Accused.

Under the law of Tonga and section 21 of the Evidence Act (Cap 15):

“No evidence shall be given of any confession in any criminal proceeding if the making of the confession appears to the Court to have been caused by any inducement, threat or promise relating to the charge and proceeding either from the prosecutor or from some person having authority over the accused person and sufficient in the opinion of the Court to afford the accused person reasonable grounds for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in regard to the proceeding against him ... .”

What section 21 stops is a confession where there was inducement which gave the accused reasonable grounds for supposing he would gain an advantage or avoid an evil and no acceptable evidence from either prosecutor or defence has emerged of likely advantage or evil.

Even the most gentle threat or slight inducement will taint a confession: R v Smith [1959] 2 All ER 193; Archbold 2005 para 15-350 etc.

By Section 107 of Cap 15 the burden of proving any fact, necessary to be proved in order to enable evidence of some other fact to be given, rests on the person who wishes to give the evidence, in this case the prosecution. Similarly under section 108 in a criminal case the burden of proving that the accused does not come within any exception lies on the prosecution. In other words the prosecution have to prove beyond reasonable doubt that there was no inducement or threat which caused the accused to make the confession.

With reference to the main objections of Accused’s Counsel to the unrecorded interviews on 21 and 22 September, it is certainly desirable that in serious cases all questions and answers put to an accused should be recorded in writing – but that was done in the Diary of Action in this case, although not in full formal manner. But under section 22 (d) and (e) of the Evidence Act (set out below) this in itself is not an objection to the statements being admitted, though it is a factor which the Court can consider in the general picture along with all other relevant factors in deciding whether to exercise its discretion under section 22.

I also have to say that the Accused’s statement on 21 September does not seem to me to be a complete denial, but his reference to giving the complainant money on 2 occasions is clearly something which the Police were under a duty to investigate further before returning to the Accused. I see nothing wrong in the Police speaking to the Accused again on 22 September after the complainant had been examined by Dr Latu, and then carrying out a formal interview on 23 September when Dr Latu’s written report was to hand. Because the Accused denied something, that did not mean that the Police had to leave the situation like that, especially when they were still collecting other evidence. The whole picture I have from the evidence in the voir dire is of the Accused being questioned firmly and fairly, as described in R v Rennie (below).

There was no evidence at all about why the Accused changed to making admissions, nor evidence which I accepted that the Accused was forced to sign; was threatened to make him sign; was suffering from being in custody; was affected by custody. There have been no allegations or evidence whatever of ill-treatment by the Police.

Nor was there any acceptable evidence that the Accused was told he would be released if he confessed, although that was what in fact what happened. While the Accused may have wanted to return home, I accepted the evidence that his daughter was fine and that Cpl Ve’ehala had made arrangements for the children to be looked after and for the Police to be contacted if anything was required for them.

So I find beyond reasonable doubt that there was no inducement, threat or promise within the terms of section 21, not even the most gentle threat nor slight inducement in terms of R v Smith.

In R v Rennie [1982] 1 All ER 385 (CA) the Chief Justice of England said (at p 388 h):

“Very few confessions are inspired solely by remorse. Often the motives of an accused are mixed and include a hope that an early admission may lead to an earlier release or a lighter sentence. If it were the law that the mere presence of such a motive, even if prompted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confession would be rendered inadmissible. This is not the law. In some cases the hope may be self-generated. If so, it is irrelevant, even if it provides the dominant motive for making the confession. In such a case the confession will not have been obtained by anything said or done by a person in authority. More commonly the presence of such a hope will, in part at least, owe its origin to something said or done by such a person [in authority]. There can be few prisoners who are being firmly but fairly questioned in a police station to whom it does not occur that they may be able to bring both their interrogation and their detention to an earlier end by confession.”

and at p 389 e:

“How, in particular, is the judge to approach the question when these different thoughts may all, to some extent at least, have been prompted by something said by the police officer questioning him.

.... [the judge] should understand the principle and the spirit behind it [the law] and apply his common sense; and, we would add, he should remind himself that “voluntary” in ordinary parlance means ‘of one’s own from will’ “

Doing exactly that, it is quite clear that the accused’s interview, answers to the charges and statements were voluntary and may be admitted. I believe the accused was questioned fairly in the Police Station.

In conclusion I find no evidence of inducement, threat or promise relating to the charges and so there is no reason for these statements to be inadmissible under section 21.

Mr Veikoso further submitted that the statements should not be admitted in terms of the proviso to section 22 of the Evidence Act, under which a confession made in custody to a police officer in answer to questions by him may in the discretion of the Court be refused. The exact terms of section 22 are:

“When confessions are admissible.

22. It shall be no objection to the admissibility in evidence of a confession that it was made-

(a) under a promise of secrecy; or

(b) in consequence of a deception practised on the accused person for the purpose of obtaining such confession; or

(c) when the person making it was drunk; or

(d) in answer to questions which the person making the confession need not have answered; or

(e) without any warning having been given to the person making it that he was not bound to make such a confession and that evidence of it might be given against him:

Provided always that where a confession is alleged to have been made to a police officer by the accused person while in custody and in answer to questions put by such police officer, the Court may in its discretion refuse to admit evidence of the confession.”

Section 22 says among other things that a confession may be admissible even if no warning was given that the accused was not bound to make a confession (although that was not the case here) and even if the accused need not have answered the questions. However the proviso is added that where a confession is made to a police officer in answer to questions when the accused is in custody, the Court has a discretion to refuse to admit evidence of the confession.

In this Court the then Chief Justice laid down that the test which should be applied in exercising that discretion is that in section 76 of the English Police & Criminal Evidence Act 1984: see R v Pailate [1989] Tonga LR 109; (see also R v Fainga’anuku 38-67/88). That test is in essence that the prosecution must prove beyond reasonable doubt that (even if the confession may be true) there was no oppression; and that nothing said or done was likely to render the confession unreliable.

Counsel for the Accused appeared to submit that the Tongan text of the proviso to section 22 meant that if an accused gave a statement while in custody it could not be admissible, but I accepted the submission by Crown Counsel that the Tongan version used the permissive words ‘e ngofua rather than the mandatory kuopau and so gave the Court a discretion.

In any event under section 11(2) (Construction of Revised Edition and of references to enactments affected) of the Laws Consolidation Act 1988:

“(2) In the event of any doubt arising with respect to the meaning of any passage in the Revised Edition, or of any difference existing between the English text and the Tongan text of any such passage, the English text shall be held to give the true meaning of such passage.”

The Revised Edition means the Laws of Tonga 1988 Revised Edition. Section 21 of the Interpretation Act is not applicable here because this issue does not concern “the section which the accused person is charged with violating”.

For the reasons already given I am satisfied beyond reasonable doubt that there was no oppression; and that nothing said or done was likely to render the confession unreliable. I believe for admissibility purposes the confessions are reliable for the reasons already given in relation to section 21. I therefore decline to exercise the discretion under section 22.

I thus allow the record of interview, charges and answers and confessions as admissible, though of course that will still leave open the question of their evidential value or weight.

R M Webster MBE
Chief Justice

9 March 2006