A father and his daughter accused of having sexual relationship were acquitted of both counts because the Crown’s only key witness failed to appear at the Nuku’alofa Supreme court.
The father and his daughter were charged with two counts of incest by a female person contrary to section 33 of the Criminal Offences Act.
They had been also accused of committing domestic violence contrary to section 132(1) of the Criminal Offences Act and Domestic
The witness was another daughter of the man.
The court was told the witness launched a complaint with Police after she allegedly saw the couple committing incest.
However, the witness did not comply with her subpoena and was unavailable to give evidence.
Justice Charles Cato said: “I gained the impression that her non-attendance had been foreseen as a possibility before the trial.”
It said because that was the only evidence against the male accused, the Crown offered no evidence and the father was acquitted and discharged on both counts.
The Crown indicated, however, that it had sufficient evidence to proceed against the female accused and so the trial continued against her.
“It became apparent to me when the Crown opened its case that it depended entirely on two statements made by the female accused which were in statement form and not made under caution as required by section 148 of the Police Act if the police officer had sufficient evidence to charge the person at the time questioning commenced,” Justice Cato said.
However, the female accused’s lawyer, Sifa Tū’utafaiva objected to the admissibility of both statements.
Mr Cato said the accused should have been cautioned before making either of her two witness statements.
He said it was only after the accused had declined to agree to be a witness against her father that it appears Police focused on her as a suspect and cautioned her.
“She then responded by denying allegations of incest.
“In these circumstances, I upheld Mr Tu’utafaiva’s objection and ruled the statements inadmissible, the consequence of which meant that there was no evidence against the accused sufficient to support the charges and she was acquitted,” Mr Cato said.
The prosecutor did not seek a court order at the beginning of the trial to compel the eye witness to come to court and give evidence.
Mr Cato said: “ In any event, I would have been unlikely to have issued a warrant, in the absence of any other evidence against the male accused. To have issued a warrant for the witness to attend would have meant an indefinite delay in the closure of the case. In any event, even if located and brought to court, it would be problematic whether she would give evidence against her father and the prosecution were aware of this fact.
“I was asked later, after it had become likely that the two statements would not be admitted, for a bench warrant to compel the witness to attend but I declined to do so for the same reasons. There was as in the case of her father no evidence before the Court after the statements had been ruled inadmissible that justified holding her longer, and in my view, it would have been similarly unfair to her to have done so.
“I was informed that there were two other family witnesses who had also not answered subpoenas, for whom the prosecution also sought warrants, but this only compounded uncertainty in the resolution of the case.
For the same reasons, I declined warrants for them to be compelled to attend.”
