R v 'Anitoni [2018] TOSC 10; [2018] Tonga LR 75; CV 73 of 2017 (9 February 2018)

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

CR 73 of 2017

BETWEEN: R E X
- Prosecution

AND: SEMISI MOTULALO ‘ANITONI

- Defendant

BEFORE THE HON. JUSTICE CATO

Mr ‘Aho for the Prosecution
Mr Mo’ale for the Defendant

V E R D I C T

1. The accused, Semisi ‘Anitoni, was charged with 6 counts of abetment to sodomy contrary to sections 8(a) and 136 of the Criminal Offences Act; and six counts of abeting an indecent assault on a child contrary to section 8(a) and 125(1) of the Criminal Offences Act.
   
2. The case against the accused who was aged about 19 at the time of the offending was dependent on my believing beyond reasonable the evidence of the complainant A, a child aged about ten at the time of the offending in or about 30th July 2016 and aged 11 at the time he gave his evidence which I ruled could be given on oath. The Crown opened and the case against the accused as particularised in the indictment on the indecency charges( oral sex) was that he had commanded A to have oral sex with 6 boys aged between 10 and 12. It was alleged that he had videoed these acts from his phone, and later was present and also recorded each having anal sex with him. The case against the accused on the abetment to sodomy charges was that he had encouraged the others by recording the activity and laughing about it.
   
3. It seems that the accused and another had entered a small hut at the residence where the complainant had gone to visit a friend who lived at the premises where they had moved the lawns. It was approaching dark. A said a group of young men in the hut were sniffing petrol and he joined them in sniffing some. A said that the accused had removed his pants and smacked him and then had thrown his pants away which had been given back to him by another boy. He said later that oral sex had taken place with the boys and then, aside from two named boys, the rest had performed acts that amounted to sodomy on him, although he did not use those words. He said that the accused was present throughout and had recorded the activity on the phone. He had been laughing.
   
4. Importantly, in the context of this case, he had not said in his evidence that the accused had been involved in ordering him to perform oral sex on the boys , as the Crown had alleged was the case in its particulars and in opening. It emerged that A had made a complaint to the police a few days after the offence. It had come to the knowledge of his mother that something had happened and she had asked A what it was about. As a consequence of their discussion, a complaint was made shortly after to police. A very detailed statement was made by A which alleged against the accused greater involvement in criminal activity, namely that he also had oral sex with A, and had been involved in other action which A did not give evidence about at trial.
   
5. It emerged in the course of the trial after he had said that two boys had not performed sodomy on him that he had said they had in a revised statement that had been taken from him by the Officer in charge of the case, Detective Vaai only a few days before the trial. It came to my notice during the course of the cross-examination of the accused by defence counsel, Mr Moale, that the complainant A had made a very detailed statement implicating the accused including an allegation that the accused also had taken part in oral sex with him. I asked Detective Vaai why the accused had not been asked about this in his interview and he said it was because the complainant had told him later that had not happened. I accepted what the officer had to say about this because otherwise I would have expected the accused to be asked about it and, in any event, I would have expected the prosecution to have included a charge of serious indecency against the accused as a principal based on an allegation of his having oral sex with A , also. I was concerned about this and A’s evidence generally after it had emerged that he had changed his evidence from his recent statement to say that two of the boys, he had earlier nominated in his statement as having sodomised him, had not in fact sodomised him. Nor had A said, as he had in his earlier statement taken a couple of days before the trial by Detective Vaai, that the accused had told him to have oral sex with the boys. I asked the officer why he had felt it was necessary, in any event, to take a further statement from A shortly before the trial and he candidly admitted that it was because A’s recall of what was in his earlier statement was limited. The original statement was taken shortly after the incident on the 8th August, 2016 but, even allowing for the passage of time and the complainant’s age, I became concerned about the reliability of A. I formed the view that Detective Vaai had felt the need quite properly to take another statement from the accused because he had been concerned about the complainant’s inability to recall what he had told police earlier in July 2016, and consequently I am also concerned about my ability to rely on A’s evidence to the required legal standard of proof.
   
6. A witness gave evidence of being one of the offending boy’s brother and the accused showing him a phone recording in which he said he saw his brother and two others sniffing petrol. There was no recording he saw of sexual activity but he may not have looked at the entire recording. He told the accused to delete the recording which he did.
   
7. The accused, in his record of interview, entered into on the 9th August, 2016 denied an allegation put to him that he had forced the children to have A suck them saying that was a lie. He said that he had been eating with a number of the boys when the boys had gone to the hut. He had cleaned up and gone to the hut also where he had seen A sniffing petrol. He had gone back out and taken firewood and had then returned to the hut and saw A sucking a boy’s penis. He took a video of this with his telephone. He had got up and used a slipper to hit A on the bottom. He said he took the video as a joke. In my view, his actions in hitting A’s bottom could be viewed as chastisement but put at its highest for the Crown his admission of recording only a single act of oral sex in progress cannot without more be regarded as sufficient to amount to wilful encouragement to others and A to engage in either that act of oral sex which he says he happened upon as it was occurring.
   
8. I also learned from the officer that, although two children had been charged with sexual offences, that the charges the boys had ultimately pleaded guilty to were assaults. The accused had also only been charged with an assault by police after his interview and not with any sexual offending. The assault charge had been based on his admission to hitting the accused on his buttocks with the slipper.
   
9. It was said that the accused had been present with a third party who had entered the room with him. That third party was not called. Nor were any of the children to confirm any aspect of A’s account concerning sexual offending. I appreciate the later would have posed problems for the prosecution including a possible need to indemnify any of those involved in sexual offending against prosecution in the light of the fact that they had been charged with assault. However, at the end of the day, I am left in doubt as to the reliability of the complainant’s account for the reasons I have given, although in the light of the accused’s admission that he saw oral intercourse occurring with one boy when he entered the hut on a second occasion I am satisfied that that act took place, and the sexual offending may well have been more extensive as A said. Given, however, the apparent changes and inconsistencies in A’s evidence from the outset of the prosecution, an absence of any supporting and independent account of what had taken place in the hut, the fact A had engaged in sniffing petrol as well, the absence of any medical evidence as to anal sexual abuse, and the absence of a reliable recording of the alleged sexual offending, I am left in a reasonable doubt on the sodomy charges. I acquit the accused on counts 1-6 of the indictment.
   
10. I had already indicated to Mr Aho that, in any event, no prima facie charge of the oral indecency charges had been established as the complainant had never said that the accused had commanded him to have oral sex with the boys as the particulars had alleged. The accused had admitted only that he had happened in on oral sexual activity taking place. He had declined any suggestion that he had encouraged boys to participate in sexual activity. I declined to allow Mr Aho to make an amendment to allow a more general basis for abetment or secondary participation in the charges of oral indecency, (namely that by his actions in recording sexual activity and laughing about it he had given encouragement to the others to participate in these unlawful acts), at the conclusion of the Crown case, because by then the complainant had given his evidence and had not, as the particulars alleged, said that he was commanded by the accused to give oral sex to the other boys. There was no obligation on the defence to put in issue any wider basis for secondary participation given the precise nature of the particulars, and, in my view, it was now too late for the Crown to amend on these charges. However, at the end of the day for the reasons I have given in para 9 I am unable to rely on the evidence of the complainant‘s account of events beyond a reasonable doubt. For these reasons the accused is entitled to be acquitted on counts 7-12 of the indictment also.
    
11. Verdict-not guilty on all counts. The Accused is discharged from the indictment.
    

C. B. Cato
DATED: 9 FEBRUARY 2018 J U D G E