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Crown v Pou [2014] TVHC 3; Criminal Appeal 02.2013 (21 February 2014)

In The High Court of Tuvalu
HC.Crim. App. case no. 2/13
At Funafuti

Criminal Appellate Jurisdiction

Between:

Crown
Appellant

v

Semi Pou
Respondent

BEFORE THE JUDGE

Ms. Laigane Italeli for the appellant.
Ms. Filiga Taukiei for the respondent.

The purpose of a Preliminary Inquiry (as it is called in Tuvalu: in other places known as Committal Proceedings) is simply to decide whether on all the evidence for the prosecution the defendant could be convicted. The court holding the Preliminary Inquiry makes no other decision

In this case the learned Senior Magistrate sitting on an outer-island held a Preliminary Inquiry into two charges against the respondent, rape and indecent assault. He appears to have thought corroboration presumably of the alleged victim's evidence, was required. There was none.

Both counsel on appeal submit that corroboration is not required. They relied on the decision of the learned Chief Justice in Regina v Kauapa [2011 TVHC8, Criminal Appeal 3 of 2010 21st March 2011]. The learned Chief Justice said:

"In any case where a 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..."

I respectfully agree with the Chief Justice and emphasise his words "helpful and sensible". These words do not amount to a requirement in law. The learned Senior Magistrate has erred.

The learned Senior Magistrate was also concerned with some uncertainty as to where the incident took place. I accept the submissions of counsel that this is a matter which should be decided at trial in the High Court.

The learned Senior Magistrate erred in finding the respondent had no case to answer and should have committed him for trial.

The appeal is allowed.

Date 21st day of February 2014.

Hon. Robin Millhouse QC
JUDGE OF THE HIGH COURT OF TUVALU