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R v Teafua [2002] TVHC 2; Case No 235 of 2002 (9 August 2002)

IN THE HIGH COURT OF TUVALU
CRIMINAL JURISDICTION

CASE NO: 235/02

R

V

TAULA TEAFUA

Hearing: 7 and 8 August 2002
Judgment: 9 August 2002

E Apinelu for prosecution
J Duckworth for accused

JUDGMENT

The accused is charged with Indecent Assault on a Female, contrary to section 133(1) of the Penal Code. The alleged victim is now 14 years old and the case was heard in camera at the request of both counsel.

The accused is, and was at the time of the offences, the girl's stepfather and the prosecution case is that he committed a number of similar assaults during 2000 and 2001 when his stepdaughter was 12 or 13 years old.

The girl gave evidence and explained that, although her mother married the accused in 1999, he only came to live in the same house as his wife and the complainant sometime in 2000. They were living, at the time, in the house of the complainant's aunt. The accused had visited the house frequently prior to moving in but the incidents that gave rise to this case only started once he was staying in the house all the time.

The arrangement was that the aunt slept in one room and the complainant slept in another room with her mother and stepfather. The complainant would lie on one side of her mother and the accused would sleep on her mother's other side. The complainant told the court that, when her mother went to sleep, the accused would reach across and touch her vagina with his fingers or his toes. She told the court that she could not waken her mother but, after the first time it happened, she asked to be able to go and sleep in her auntie's room. However, her mother did not want her to do so. Each time the incident was repeated, she said she complained to her mother as soon as she had an opportunity to speak to her alone but her mother did not seem interested. She said she also complained to others but did not say to whom.

The same pattern of events was repeated, in her words, 'so many times'.

She also told the court that her stepfather would sometimes bath her. At such times she would be wearing a sulu and he used his hand to rub her. She was not asked any further detail of this and gave none.

Eventually one morning in April 2001, the aunt told the court that she got up from her bed in the early morning and went into the other room to collect some clothes. As she entered, she saw the accused lying on his front on his bed apparently alone. She noticed that the mother was outside boiling some water.

She returned a few moments later and saw the accused in the same position but noticed that the complainant was under him. He was holding her in his arms and appeared to be attempting to kiss her. She was covering her face with her hands.

The aunt was shocked and went into her room without saying anything but emerged a few minutes later and both the accused and the complainant had gone.

The aunt subsequently spoke to the girl's mother but she said nothing. This witness stated that, after the events of that morning, she saw no more incidents but she had previously noticed the manner in which the accused and his stepdaughter used to bathe together. She clearly considered that was wrong but did not describe any further indecency than the fact they were bathing together.

The accused gave evidence on oath and denied all the allegations. He agreed he had bathed at the same time as his stepdaughter but denied anything more than that. He denied touching her and he also denied anything had happened as described by the complainant when they were in bed. He called no witnesses.

It appears he was interviewed by the police about this because he was asked about a passage in a statement he had made under caution. That was not produced in evidence but the passage he read out to the court was a clear denial of any indecency when they were bathing together. I do not know why this statement was not produced as part of the prosecution evidence in the usual way. When an accused person denies the allegations in his caution statement it should, even though self serving, still be put in evidence. If there is some problem about producing it, the prosecution should still supply it to the defence. I shall assume in the accused's favour that the whole of the statement was denial and so it would have been evidence of consistency in his account.

There was no mention in the indictment of the age of the alleged victim and the Court was not advised before she was sworn. When a witness is a child or young person, the court should always enquire as to the witness' understanding of the nature and effect of the oath. This was not done. I accept that most 14 year olds in Tuvalu would certainly understand the nature of the oath. In this case, having seen the demeanour of the witness and in the absence of any objection by the defence, I am satisfied the evidence was properly taken on oath.

At the conclusion of the evidence, I sought the assistance of counsel whether corroboration is required of the evidence of a minor. I am grateful to them for their assistance and I am satisfied there is no such requirement in Tuvaluan law. However, I bear in mind the particular difficulties that may arise with such evidence.

I found the complainant was a composed and careful witness. I considered the manner in which she gave her evidence was considered and restrained. I am satisfied she is credible. I also note the confirmation of some of her evidence by that of her aunt. Whilst the actual incident of which the aunt gave evidence was not mentioned by the complainant, I am satisfied it bore out the complainant's evidence that there was an intimacy in the conduct of her stepfather to her.

I did not believe the accused in his denials.

On the evidence as a whole, I am satisfied beyond reasonable doubt that the complainant gave truthful and accurate evidence and that the accused did carry out the indecencies described by the victim. I cannot be satisfied as to the exact frequency of the incidents or the period over which they occurred. More detailed questioning by the prosecution may have assisted but I am satisfied to the same standard that they did occur on a number of occasions from the time the accused moved into the house up to April 2001.

There is no suggestion of consent as the defence is a total denial of any indecent incident, but the evidence as a whole leaves the possibility that the girl did not necessarily object to all these advances. However, a girl of that age cannot consent to such acts.

The incidents in the house were assaults and they were undoubtedly indecent.

Whilst the events when they were bathing may well have offended local standards of decency, the evidence is not sufficient to prove indecent assault.

The accused is convicted of indecent assault in relation to the incidents in the house but I specifically do not convict him in relation to any allegation arising from the bathing.

Dated this 9^th day of August 2002

Gordon Ward
Chief Justice of Tuvalu