Regina v Kauapa [2011] TVHC 8; Criminal Appeal 3 of 2010 (21 March 2011)

In The High Court of Tuvalu
At Funafuti
Criminal Appellate Jurisdiction

HC. Crim. App. 3/10

Between:

Regina
Appellant

V

Sei Kauapa
Respondent

L Italeli for appellant
I Isala for respondent

Hearing: 15 March 2011
Judgment: 21 March 2011

Judgment

[1] The respondent in this case appeared before the learned Senior Magistrate on a charge of attempted rape, contrary to section 130 of the Penal Code. He pleaded not guilty and, following a trial, was found not guilty.

[2] The Crown appeals against that acquittal on the grounds that the learned Senior Magistrate:

1. erred in law in finding that it is the duty of the prosecution to prove its case "beyond reasonable grounds without any doubts";
   
2. erred in holding that corroboration of a victim's evidence was necessary in cases of this type;
   
3. erred in fact and in law in finding the prosecution had not discharged its burden of proof beyond a reasonable doubt in light of his findings on the evidence and the credibility of witnesses.
   

Ground One

[3] The wording used by the magistrate when directing himself on the burden and standard of proof, is identical to that used by the Senior Magistrate in the case of R v Taimi Munatuu; CApp 2/10, which came before me on appeal on the same day as this case. It is not necessary to repeat what I said in that case save to point out that it amounts to a sufficient misdirection to require me to allow this appeal.

Ground Two

[4] The victim in this case was ten years old at the time of the trial and only eight years old at the time of the offence. In his judgment the learned Senior Magistrate set out her evidence in some detail and concluded, "The court thinks that this witness Pedro is trustworthy but it will treat her evidence with great caution." Later, he states, "In any criminal case of attempted rape, it is not safe to convict the accused on the evidence of the victim alone unless evidence is corroborated by an independent witness. Of whether the corroborative evidence is truly made by an independent witness or not is a matter to be determined by the trial court."

[5] In any case where a very young child is giving critical evidence and, in particular, where that evidence relates to a sexual offence, it is always helpful and sensible to look for any evidence which supports or confirms the child's account. However, the magistrate misdirected himself when he stated that corroboration is required before the evidence can be safely considered. That misdirection further added to the burden the prosecution bore in order to prove its case.

Ground Three

[6] Counsel for the Crown based her submission in respect of this ground on the proposition that the verdict is quite simply contrary to the weight of the evidence. I feel there is considerable force in that submission. The Magistrate was faced with a young witness he considered trustworthy and another witness, Pedro, who saw the incident and described it in such detail that it very clearly supported the child's account and would have been sufficient even if corroboration, in the sense of being evidence from an independent source linking the accused to the crime, was still required. The Magistrate concluded his account of that witness's evidence with the statement, "The court regards Pedro as the trustworthy witness. He is telling the truth and his evidence seems to be telling the truth."

[7] It appears from the judgment that the respondent made an unsworn statement. Having described the respondent's case, the Magistrate commented, "The court does not regard the accused, Sei, as telling the truth in his evidence."

[8] Having read the account of the evidence in the judgment, it is very hard to understand quite how the magistrate, even applying the misdirections referred to in grounds one and two, could have come to the conclusion that the charge was not proved.

[9] If this Court accepts the magistrate's finding on the credibility of the various witnesses, it is not possible to reach any conclusion but that the accused was guilty.

[10] The appeal is allowed and the acquittal is set aside. The case is remitted to the learned Senior Magistrate with a direction that he enters a verdict of guilty to attempted rape and passes sentence accordingly.

Dated: 21st day of March 2011.

________________
Hon. Gordon Ward
CHIEF JUSTICE