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R v Tongia [2004] TOLawRp 81; [2005] Tonga LR 478 (8 November 2004)

IN THE SUPREME COURT OF TONGA

R

v

Tongia

Supreme Court, Nuku'alofa
Ford J
CR 32/2004

6-8, and 28 October 2004 (at Neiafu) and 5, 8 November 2004 (at Tongatapu); 8 November 2004

Criminal law – alibi evidence brought – not sufficient – accused convicted

During the early morning hours of Saturday 27 September 2003, someone entered the dwellinghouse of Tauakipulu 'Ikimaka ("Pulu") at Pangaimotu, Vavau, and attacked Pulu's 22-year-old daughter, Mele, (the complainant) while she was sleeping. The complainant was punched on the head three times, had two of the fingers on her right hand bitten, and was indecently assaulted. The accused, a neighbour, was charged with one count, respectively, of housebreaking, common assault, bodily harm and indecent assault. He denied the charges and contended that the police apprehended the wrong man. He called evidence in support of his alibi defence.

Held:

1. Evidence of an alibi defence was inadmissible without the leave of the judge unless the accused gave written notice of such defence to the prosecution within seven days of the accused's committal for trial. The notice was to contain details of the place in which the accused stated he was at during the relevant time and the addresses of the various witnesses he intended to call. Such notice was not given and counsel for the accused did not seek leave from the Court to call his alibi witnesses until the trial had commenced. The Court granted the accused leave to call his alibi witnesses and at the same time gave leave to the Crown, if necessary, to seek an adjournment of the trial. An adjournment was not sought.

2. The Court found that none of the alibi witnesses were able to speak about what the accused had done after he walked up to his pigsty.

3. The complainant's evidence was corroborated by a statement the accused made to the police on the Monday morning following the incident. There was a lengthy hearing on the voir dire as to the admissibility of the statement in question and the Court ruled that, as it did not infringe section 21 of the Evidence Act (Cap 15), it was admissible.

4. The Crown proved the necessary elements of each charge against the accused beyond reasonable doubt. He was convicted accordingly on each count.

Statute considered:

Evidence Act (Cap 15)

Counsel for Crown: Miss Simiki
Counsel for accused: Mr Vaipulu

Judgment

The accused is charged with one count, respectively, of housebreaking, common assault, bodily harm and indecent assault. It is alleged that during the early morning hours of Saturday 27 September 2003, he entered the dwellinghouse of Tauakipulu 'Ikimaka ("Pulu") at Pangaimotu, Vavau, and attacked Pulu's 22-year-old daughter, Mele, (the complainant) while she was sleeping.

The particulars in the indictment state that the offending occurred on or about 26 September 2003. The evidence clearly established, however, that that incident occurred in the early morning hours of Saturday 27 September.

In her closing submissions this morning, Miss Simiki sought leave to amend the particulars to show the date as 27 September. Crown counsel submitted that up until then she had assumed that the words "on or about" would has been sufficient to cover the situation.

Mr Vaipulu opposed the amendment but he was unable to point to any prejudice or injustice to the accused and, in the circumstances, I allowed the amendment the Crown sought.

The particulars in the indictment state that the accused assaulted Mele by punching her on the head three times; that he caused bodily harm by biting two of the fingers on her right hand and that he also indecently assaulted her. The accused denies the charges and contends that the police apprehended the wrong man. He called evidence in support of his alibi defence.

The first witness for the Crown was the complainant's father, Pulu. He told the Court that his house at Pangaimotu is known as the "hurricane house" because it was built from Cyclone relief funding following the destruction of his previous home by Cyclone Isaac in 1983. The house is very basic. A police diagram produced in evidence shows that it measures 7.3 metres x 4.8 metres. It comprises of two rooms -the living room and a bedroom. Pulu said that on the night of Friday 26 September 2003, he had gone to a kava party. His wife was away in Tongatapu at the time and, of his eight children, only two were staying in the hurricane house that night --Mele and her 11 -year-old sister, Fiaola. A 27-year-old son, Nesiasi, was sleeping in a boys hut on Latu Lahi's property next door.

52-year-old Latu Lahi figured prominently in the case. She, obviously, has a particular fondness for the complainant's family and she appears to have assumed a protective role for the two girls whenever their mother was away. She said in evidence, for example, that the father would go to kava clubs every night of the week and on those nights she would stay with the girls and sleep with them. She has one adult daughter herself who was living in Neiafu at the time.

It was clear from Latu's evidence that she felt considerable remorse and responsibility for what had happened because on the particular night in question she had gone to a church concert and was sleeping at her own home when the incident occurred.

Returning to Pulu's evidence, he said that while he was at the kava party, a neighbour came and told him to go home because someone had entered their house.

When he came out of the kava hall, the neighbour told him to get a car. He asked why and the neighbour told him that his daughter Mele had been injured and she needed to go to hospital.

Pulu said that when he arrived home, Mele was crying and he could see that her hand was covered in blood. He asked her what had happened and she told him that a man had come inside the house. Pulu said that he then asked his daughter whether she knew the man and she had answered, "no". He asked if the man was drunk and again she replied, "no". She then asked her father to take her to hospital.

The neighbour, who had called Pulu out of the kava party arranged for another member of the kava group, Uili, to provide a vehicle and they all then set out for the hospital in Neiafu. Travelling in the vehicle were the driver, Uili, the complainant Mele, her 11 -year-old sister Fiaola, Latu Lahi, Pulu and the neighbour who had called him out of the kava party.

Latu accompanied Mele when she entered the hospital to have her injured fingers treated. On the way home from the hospital, Mele asked the driver to stop at the police station because she wanted to lodge a complaint. They arrived at the police station at approximately 3 a.m.. Latu again accompanied Mele and Mele began making her complaint to police officer Hungalu.

Pulu had also entered the police station. He could overhear his daughter making the complaint. He told the court that he was curious because he was aware that his daughter knew who her attacker was but, for some reason, she did not want to tell him the name. Pulu was not asked to expand on this statement.

As the interview progressed, officer Hungalu asked Mele if she knew who had entered her home and she told him directly that it was Sateki Tongia, the accused. At that point her father stopped her. Pulu told the court that he stopped her because he did not think for a moment that it could have been Sateki and he believed that Mele must have been mistaken. Pulu explained that Sateki was his neighbour. He had been the person who had called him out from the kava hall and arranged the transport they were travelling in. At that point in time, Sateki was still sitting with the others in the car outside the police station.

Pulu told the court that he asked Mele three times to stop making her complaint because she might be mistaken. The police officer then asked Pulu to leave her alone so that she could complete the complaint. Pulu did so.

The police took no action against the accused on that particular night. The vehicle and its occupants returned to Pangaimotu. Nothing was said to the accused on the way home to arouse his suspicions.

Pulu said that when he arrived home he asked Mele why she was so sure that her assailant had been Sateki. Mele told him that after the attack she had turned on the outside light and had seen the man running away from house and she could tell from his clothing and the way he ran that it was their neighbour, Sateki.

In her evidence in chief, Mele told the court that she had been watching videos in her home on the Friday night and she had fallen asleep around 10 p.m.. She explained that she and Fiaola slept under the same blanket on the floor in the living room close by the door leading into the bedroom. They had separate pillows. Her parents slept in the bedroom and her brother slept in the hut on Latu's property.

Mele said that she was later awoken by the attacker who punched her three times towards the back of her head. She said that she could tell immediately from the punches that it was a man. At that point, she explained, the attacker was standing or sitting around her head area. The room was completely dark. Mele could not see the man but she stood up and began to struggle with him. She said that he kept punching her on the shoulders and upper arms. She was crying and struggling with him. Mele described how the man then tried to open her thighs and do something to her. She demonstrated to the court the movements of the attacker, which form the basis of the indecent assault charge.

Although Mele did not explain the precise movements that saw her end up on the floor again, that somehow happened because her next description to the court was of the man sitting on her stomach. Mele said that she then tried to feel his face in the dark but he bit two of the fingers on her right hand. She explained that the biting gave her extra strength and she was able to throw the man onto the floor and while still crying she began to yell out for her father. By this time the younger sister, Fiaola, had awoken and had ran into the bedroom.

Mele said that as she called out for her father, the man jumped up and ran outside the house. At the same time, she ran to the door after him and turned on the switch to both the living room and the outside light. She saw the man running away with his back to her. She estimated that he was about four to six metres away when she first saw him and she immediately recognised him as the accused, Sateki.

Earlier in her evidence Mele had explained that because the accused was an immediate neighbour she saw him virtually every day and sometimes several times in the course of a day. He would often visit their home to watch videos with her father. Mele was asked in evidence in chief why she was sure that her attacker was Sateki and she replied because of his hair and his body. She also described his clothing. The complainant's description of her attacker and her evidence in general was convincing.

When the complainant was asked in evidence why she had not immediately told her father that it was the accused who had attacked her she explained that she was aware of her brother's volatile temperament and she was sure that if she had told her family before telling the Police that it was the accused then her brother would have fought with the accused.

As in any criminal case, the onus rests upon the Crown throughout to prove all the essential elements of each charge beyond reasonable doubt. There is no onus on an accused person to give or call evidence.

In this case, the accused did not give evidence himself but evidence was given on his behalf. His defence essentially was one of alibi. His case, through those witnesses, was that on the Friday night in question he had been at a kava club at 'Utungake and after he had been dropped off back at Pangaimotu in the early hours of the Saturday morning he had walked straight home.

Under section 108 (2) of the Evidence (Cap 15), evidence of an alibi defence is inadmissible without the leave of the judge unless the accused has given written notice of such defence to the prosecution within seven days of the accused's committal for trial. The notice is to contain details of the place in which the accused states he was at during the relevant time and the addresses of the various witnesses he intends to call. Such notice was not given in the present case and counsel for the accused did not seek leave from the Court to call his alibi witnesses until after the trial had commenced.

Defence counsel need to be mindful of the notice provision relating to a defence of alibi. The purpose of the requirement is to prevent prejudice to the prosecution by ensuring that the Crown has adequate opportunity to investigate the alibi story and make any necessary inquiries in relation to the alibi witnesses.

When notice under section 108 (2) has not been given the justice of the case can often be met by granting leave subject to allowing the prosecution additional time to investigate the circumstances alleged in the alibi defence. Leave, however, will not be granted as of right and the Court will want to be satisfied that there will be no resulting prejudice.

In the present case, I granted Mr Vaipulu leave to call his alibi witnesses but at the same time I gave leave to the Crown, if necessary, to seek an adjournment of the trial. In the event, an adjournment was not sought and, given the fact that time was at a premium during the recent Court Session in Vava'u, that was a fortunate outcome.

The first alibi witness called for the defence was Sateki Afu. Sateki told the Court that he had been with the accused at the kava party and they had both been dropped off at the four corner intersection at Pangaimotu at approximately 1:20 a.m. or 1:25 a.m.. He said that they had each then walked to their respective homes. The witness admitted in crossexamination, however, that as they had had to walk in opposite directions to their homes, he could not be certain that the accused might have gone elsewhere.

The accused's wife, Velonika, told the court that she had been awake when the accused arrived home. She did not wear a watch herself but she had asked him the time and he had replied 1:15 a.m.. She said that her husband then took some food out of the cooler to eat and while he was eating she heard a dog barking up around their pigsty. She said that her husband asked her to give him a torch and he then walked off to see why the dogs were barking. The witness said that when her husband left the house she stood up to close the door and as she did so she looked over towards the complainant's house and she could see that the living room light was on. Velonika then went to bed and stayed there.

The next witness subpoenaed on behalf of the accused was the complainant's brother, Nesiasi. He confirmed that on the night in question he had been sleeping in the boy's hut on Latu's property and Latu had woken him and told him that Mele was crying because a man had beaten her up. He said that he then ran over to their home and on the way he met the accused outside the house. The accused had asked him what had happened and he told him that a man had entered their home. Both Nesiasi and the accused then walked inside the house together and they saw Mele crying.

That evidence was consistent with the evidence that had been given earlier by Latu and Mele. They had both told the court that the accused and Nesiasi had entered the house about the same time and the accused had then walked over to inspect Mele's injured fingers. Mele told the court that she had immediately pulled her hand away from him. Latu said that she had noticed Mele very deliberately pulling her hand away when the accused endeavoured to examine her injured fingers.

Nesiasi gave his evidence on 28 October 2004. Mr Vaipulu applied to have him declared a hostile witness upon the grounds that approximately two weeks previously, i.e. after the trial had commenced, he had told the accused's wife that he had met the accused on the night in question at the pigsty. I allowed Mr Vaipulu to cross-examine the witness and Velonika was then recalled by consent to give her version of the conversation.

I need not detail the evidence given but it was conflicting and I am not satisfied that Nesiasi had, in fact, mentioned to the accused's wife that he had met the accused by the pigsty. All he had confirmed to Velonika was that he had met the accused on the night in question but the meeting was outside Pulu's house --not at the pigsty.

The trial was then adjourned so as to have the evidence of another defence witness, Mateo Taufa, taken at Nuku'alofa. Mr Taufa's evidence was taken on 5 November 2004. Mateo told the court that he had been at the kava club with the accused and they had been driven home together. After being dropped off on the main road at Pangaimotu, Mateo had walked home with the accused. He lived only a short distance further along the same road as the accused.

Mateo told the court that when he arrived home he obtained some food to eat and when he looked across at the accused's house he could see the accused sitting in his doorway also eating food. Mateo said that he finished his meal approximately 10 minutes after arriving home and he then went to bed. He said that at that point, the accused was still eating his meal in the doorway.

Even accepting the evidence of this witness and the accused's wife, however, it still does not account for the movements of the accused after he walked up to the pigsty. A diagram drawn by Mateo showed the pigsty to be on a side road or track between the accused's house and the complainant's home. The accused's wife said that after her husband walked up to the pigsty, she went to bed and stayed there. She was not asked and gave no other evidence about her husband's movements during the rest of the night. It was clear, however, that he had gone to the kava hall to fetch Pulu and he had then driven into Neiafu with the others when the complainant was taken to hospital. Velonika did not say whether she was aware of these matters or not.

My conclusion on the evidence is that the accused's wife must have been mistaken when she told the Court that she had seen the living room light on in the complainant's home while her husband was walking up to the pigsty area. If she was not mistaken then I simply do not believe that aspect of her evidence. None of the alibi witnesses were able to speak about what the accused had done after he walked up to his pigsty. I have no doubt that it was at that point in time that he made the impulsive decision to enter Puiu's home.

As indicated earlier in this judgment, I found the complainant an impressive and reliable witness. In fact, I was impressed with all of the Crown witnesses with the exception perhaps of Fiaola who, perhaps understandably because of her young age, seemed a little confused at times.

As it happens, the complainant's evidence was corroborated by a statement the accused made to the police on the Monday morning following the incident. There was a lengthy hearing on the voir dire as to the admissibility of the statement in question but in the end I ruled that, as it did not infringe section 21 of the Evidence Act (Cap 15), it was admissible.

In his police interview, the accused admitted going to Pulu's house after returning to Pangaimotu from the kava party. He said that he was very drunk from drinking Tongan kava and it was a sudden idea he had to enter Pulu's house and have sex with Mele. He knew that Pulu was at a kava club and that Mele's mother was down in Tongatapu. He admitted struggling with the complainant and biting her fingers but he denied punching her; trying to take off her pants or touching her between the thighs. It is significant, however, that the complainant was not cross-examined on her evidence about the indecent assault and what she told the court was convincing.

I am satisfied, therefore, that the Crown has proved the necessary elements of each charge against the accused beyond reasonable doubt. He is convicted accordingly on each count.