IN THE HIGH COURT OF TUVALU

CRIMINAL JURISDICTION

CASE NO: 235/01

R

v

LOPATI IAKOPO

Sa'aga Talu for the appellant
Ese Apinelu for the respondent

Hearing: 22 September 2003
Judgment: 24 September 2003

Judgment

The accused is charged with indecent assault, contrary to section 133(1) of the Penal Code. The alleged victim is a child, three years old at the time, and the prosecution case is that the accused committed the assault whilst she was sleeping.

The child's mother had been at work and on her way home called in at the house of her father where the little girl had been for the day. On her arrival she saw her father and the accused sitting in chairs asleep. The accused was still holding a can of beer and the mother joked with some women in the kitchen about the two men having passed out. They replied that they had been noisy but were now quiet.

The little girl was sleeping on the floor next to the chair where the accused was sitting and the witness decided she would go home first and then come back to collect her daughter.

The conversation wakened her father and, as she looked towards him, she saw the accused withdraw his hand from the little girl's pants. He was no longer holding the can of beer and it was the same hand he used to touch the little girl. She was still asleep and her mother noticed she moaned in her sleep. She also noticed the dress was pushed up. The mother was very angry. She shouted at those present, picked her child up and took her home.

As she left the house she swore at the accused and criticised her father. The accused asked, "What's up? What's the problem?" and the mother replied "Why are you doing this to my daughter?" The accused made no reply.

The mother took her child home and returned to the house. She was still angry and chased the accused out. She then went to the police station and lodged her complaint.

The prosecution also called an eight- year- old girl. She would have been six at the time of this incident and had been at the house playing with the victim. She gave unsworn evidence and told how the little girl had gone to sleep on her grandfather's leg. She saw the accused lift her from his lap and place her on the floor next to his own chair. She told how she saw the accused spit on his hand and then rub the private parts of the sleeping girl. She went to the kitchen and told her mother but she took no notice and continued telling stories with her companions. She was still by the kitchen when the mother returned to the house and the child saw the accused remove his hand. She was standing by the kitchen and saw the incident through the door of the house.

She agreed in cross-examination that she had told the police of the main incident but had not mentioned the spitting by the accused.

The accused gave evidence on oath and told the court that he had been fishing the night before. By the time he arrived at the house where this incident happened, he had drunk two beers. He sat with the little girl's grandfather drinking but, after two beers, he fell asleep. He woke to hear the mother of the little girl shouting abuse. He was confused and did not know what was happening and so he said nothing. Later he agrees he was chased out of the house. He denies the allegation.

He pointed out that there were other people in the house at the time and he remembers the girl who gave evidence. He saw the children playing and then went to sleep. He did not lift the little girl off her grandfather's lap and denied she had been on his lap at all.

I remind myself that the burden remains on the prosecution throughout to prove the case beyond reasonable doubt. The accused needs to prove nothing. I also bear in mind that the unsworn evidence of the young girl must be considered with extra care and certainly should not be relied on without some confirmation by other sworn testimony. It was confirmed in part by other evidence and I found her a credible witness.

Having said that I found the mother a convincing witness. Her account of what happened was not shaken in cross-examination. The child gave evidence which accorded with the mother's account in important particulars. One such was the question of the view she had back into the house when she says she saw the accused withdraw his hand. It was suggested to the mother that she could not have seen through the window and she agreed that was the case. However, she insisted she saw through the door. The child was asked the same question and also explained that she was looking through the door from a position just outside the kitchen. The evidence of the earlier part of this incident as recounted by the child gives substantial support to the evidence of the mother.

The accused was not so convincing. He was strong in his denial of the incident and I bear in mind that, if his account is correct, there is little more that he could do but to say he knows nothing about it. Also if he was waking from a deep sleep, he would not be quick to understand what was the cause of the mother's anger. However, this was a serious allegation and, by the time the mother returned and renewed her abuse of him, he would have understood but still said nothing to deny the incident. It should be remembered that this is not a situation covered by an accused's man's right to remain silent.

However, I am satisfied beyond reasonable doubt that the mother and the child were speaking the truth and I do not believe the accused's denials. This was an assault and it was clearly accompanied by elements of indecency. The accused is convicted as charged.

Dated this 24th day of September 2003.

THE COURT.