Teisina v Rex [1999] TOCA 5; CA 03 1999 (23 July 1999)

IN THE COURT OF APPEAL OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY

CA. No 3/99
CR. No. 230/97
BETWEEN

TEVITA TALIFATONGIA TEISINA

Appellant
AND

REX

Respondent.

Coram
Burchett J Tompkins J Beaumont J

Counsel
Teisina Fifita for Appellant
‘Aminiasi Kefu for Respondent.

Date of Hearing :15 July 1999
Date of Judgment :23 July 1999

JUDGMENT OF THE COURT

The appellant was charged with abduction, rape and indecent assault of the complainant on or about 21 September 1996. Following a trial before the Chief Justice, he was, on 18 January 1999, acquitted on the abduction count. He was found guilty on the rape and indecent assault counts. He was sentenced to three and half years imprisonment on the rape conviction, and one year imprisonment on the indecent assault conviction, the sentences to be concurrent. He has appealed against both convictions and against sentence.

The Chief Justice made an order pursuant to s 119 of the Criminal Offences Act (Cap 18) that there should not be any publication of the complainant's name nor her evidence. That suppression order remains in force during and following this appeal.

Factual background

The complainant with others went to a party in Vaini. The appellant, who at that time was not known to her, arrived with others. Later in the evening the appellant, the complainant and three others left in the appellant's vehicle to drive to Nuku'alofa. The complainant said that by that time she was very drunk. For part of the journey she was asleep.

The vehicle broke down. The three passengers other than the complainant pushed the vehicle to start it. When it started the appellant drove off with only the complainant in the vehicle with him, leaving the others behind.

The complainant went to sleep again. When she awoke the vehicle was stationary. The following was her account of what occurred, as found by the Chief Justice. She asked the appellant why he was not taking her home. He said she would have to pay the fare. She said she had no money. He eventually said that the fare would be what he wanted. He then forced sexual intercourse on her, she resisting throughout. Prior to the sexual intercourse, he had pushed his finger into her vagina a number of times, despite her protests and her attempts to stop him. When sexual intercourse was concluded, he said he was sorry. They drove to the Queen Salote Memorial Hall, where they stopped, she said because she thought there might be a friend close by who might be able to help her. The friend was not there. When the appellant finally dropped her off, she walked to a house nearby, where her mother was staying. She told her mother what had happened. Her mother, who had not wanted her to go to the party, was angry and spoke harshly to her. Later that morning she told a friend, Seilose, with whom she had been at the party, what had happened. Seilose gave evidence of this complaint.

The appellant gave evidence. His account of the events at the party and leaving to drive to Nuku'alofa was substantially the same as hers. But after the breakdown, he said she told him to drive on. The complainant moved closer and made advances to him. She took off her clothes. He described the consensual sexual intercourse that followed. After chatting for ten minutes, they had sexual intercourse again. When they reached her home they exchanged telephone contacts and she kissed him as she left.

On 24September1996 the appellant was arrested. He was interviewed by a police officer. Following the oral interview, he wrote out two short written statements which amounted to confessions.

It is apparent from these conflicting accounts of the events that the substantial issue at the trial on the rape count was whether the Crown had proved beyond reasonable doubt that, at the time intercourse took place, the complainant was not consenting, and the appellant knew that she was not consenting or was reckless as to whether she was consenting.

The judgment in the Supreme Court

The Chief Justice made the following findings and reached the following conclusions.

• He was not satisfied that the appellant: made the answers recorded in the interview, or signed them, freely and willingly. The whole of the interview was excluded.
  
• The two written statements were admitted. The Chief Justice did not believe that the appellant was forced in any way to make those statements.
  
• There is no requirement in the law of Tonga that an accused must be told that he had a right to have a lawyer present when being interviewed. That the appellant was not informed that he had that right was not a reason for excluding the two written statements.
  
• There is no requirement in the law of Tonga that the evidence of the complainant in a sexual case must be corroborated. In any event it was corroborated by the two written statements of the appellant.
  
• The evidence of the complainant was credible and accurate. She was very drunk. She did not consent to the appellant's advances.
  
• He rejected the account the appellant gave to the Court. His written statement that the charge was true and his admission of remorse related to his knowledge that he had committed the offences with which he was charged, namely rape and indecent assault.
  
• Because of the complainant's drunken state, she did not know she was being taken away. For that reason, and because the appellant had formed the view that the complainant liked him, he may have felt she would agree. For these reasons he was acquitted on the first count of abduction.
  
• He was satisfied beyond reasonable doubt that the appellant had sexual intercourse against the will of the complainant, and that he was aware that she was not consenting at the time he committed the offence. He was therefore convicted on the second count of rape.
  
• He was satisfied beyond reasonable doubt that prior to the sexual intercourse, the appellant assaulted the complainant indecently and she did not consent. He was therefore convicted on the third count of indecent assault.
  

Counsel for the appellant challenged the convictions for rape and indecent assault on several grounds. We refer to each in turn.

The written statements

Counsel for the appellant submitted that the Chief Justice erred in admitting the written statements as corroborative evidence. Without them there was no corroboration of the complainant's evidence.

The first written statement was made at 1232 hrs on25 September 1996. It is on a printed form headed "Written Statement: of Charges Form". Written in handwriting are the charges of rape and indecent assault. In answer to the question "Do you wish to say anything?" the appellant. has written in Tongan words which translate as "It is true." He signed the statement.

The second statement was made seven minutes later It is partly printed, partly hand written. It commences by saying "I Tevita T. Teisina wish to make a statement ..." It contains the usual caution followed by a statement in Tongan which translates as: "This incident only happened because the girl came close to me. I feel remorseful." It is signed by the appellant and witnessed by a police officer.

Mr Fifita submitted that the Chief Justice, having found that the interview should be excluded because he could not be satisfied that the appellant made the answers recorded in the interview freely and willingly, should similarly have excluded these two written statements, because the conclusion that the appellant did not answer the interview freely and willingly must also have applied to the written statements.

The Chief Justice dealt with this issue; in these terms:

"The two written statements are different [from the interview]. I do not believe the accused was forced in anyway to make these statements. He was no longer alone with the officer who had threatened him and I do not believe the officer dictated them for him to write in front of two other officers. I am satisfied beyond any doubt that they are voluntary and they are admissible"

This is a finding of fact that the Chief Justice made having heard the witnesses, including the police officers concerned and the appellant. It was a finding that on the evidence he was entitled to make. There is no reason to disturb his conclusion.

Mr Fifita submitted that the statements should have been excluded because the police had an obligation to inform the appellant of his right to have a lawyer present during the interview, particularly when the appellant was in custody, and they failed to carry out that obligation.

He cited in support the decision of Webster J in R v Vaiangina [1990] TLR 118. Webster J set out relevant principles to be extracted from the Judges' Rules. One was that at any stage of the investigation every person should be able to communicate with and consult a lawyer, provided there is no unreasonable delay and the administration of justice is not hindered. We, with respect, agree with that statement. Any person being interviewed by the police has the right to ask to consult a lawyer and, if that request is made, the person must be given a reasonable opportunity to do so.

He also cited the decision of Miles J in the National Court of Justice of Papua New Guinea in Schliebs v Singh [1981] PNGLR 364, 367. Miles J held that the law in that country was that, if the opportunity to consult a lawyer or friend is not extended to the accused, the confessional material may be regarded as unfairly obtained, depending on the circumstances, and may be excluded from admission into evidence. However, this right arises, not from the common law, but from express provisions of the Constitution of Papua New Guinea. Clause 42 (2) provides that a person who is arrested or detained

"(b) shall be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice....; and

(c) shall be given adequate opportunity to give instructions to a lawyer of his choice in the place where he is detained,

and shall be informed immediately on his arrest of his rights under this subsection."

Similarly, in New Zealand, the New Zealand Bill of Rights Act 1990 provides in s 23(1) that any person arrested or detained under any enactment -

"(b) Shall have the right to consult and instruct a lawyer without delay and to be informed of that right..."

In England the obligation to inform a person of the. right to consult: a solicitor is contained in the Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers; 11(1) Halsbury's Laws of England 4^th, Edition §722.

In each case, therefore, the obligation of the police to inform an arrested or detained person of his or her right to consult a lawyer arises from an express provision in a constitution, statute, or code, not from the common law. There is no such express provision in the Constitution of Tonga, nor in any enactment. We accept that there may be circumstances when fairness may require the interviewing officer to advise or even encourage the person to be interviewed to seek the advice of a lawyer, or to have present during the interview a lawyer, family member, or friend. This could be the case, for example, if the person being interviewed were young or suffering from a physical or medical disability. No such circumstances were present in this case. There was no obligation on the police officer to inform the appellant of his right to consult a lawyer.

Mr Fifita submitted that it should be implied from s 11 of the Evidence Act (Cap 14) that the evidence of the complainant must be corroborated. That is not so. Section 11 provides that in criminal proceedings for sexual offences, evidence that the person, at or shortly after the crime was committed, voluntarily made a statement relating to its commission, may be given, not as corroboration, but as showing that the person's conduct is consistent with his or her evidence at the trial. The Chief Justice was correct when he said that there was no requirement for corroboration of a complainant's evidence in the law of Tonga. The common law applies.

Though corroboration of the evidence of the complainant is not essential in law, it is the practice to warn the jury against the danger of acting on his or her uncorroborated evidence, particularly where the issue is consent or no consent: Archbold Criminal Pleading Evidence & Practice 38th Edition § 2888 and the cases there cited. However this issue does not arise here once the two written statements of the appellant are admitted, since, as the Chief Justice found, they provide corroboration of the complainant's evidence.

Alleged inconsistency

Mr Fifita, submitted that the Chief Justice erred in failing to recognise inconsistency in the evidence of the complainant. More particularly he submitted that where the complainant left the appellant was closer to the police station than to the house to which she went. If she had acted consistently, she would have reported the matter to the police then. Further, there was evidence that a taxi driver had asked the appellant and the complainant, when they had stopped by Queen Salote Memorial Hall, if they needed help, and received a negative response.

We do not accept that submission. It is perfectly understandable that a young girl, having been raped and sexually assaulted, should choose to go straight to the house where her mother was, rather than go to the police station. The taxi driver came from the same village as the appellant and knew him personally. That the complainant elected to make no complaint to him does not give rise to any inconsistency in her evidence.

The complainant did later that morning make a complaint to her friend Seilose who had been with her at the party the previous night. She told that friend that she had been raped. Her friend gave evidence of that complaint in the same terms. That evidence was admissible pursuant to s 11 of the Evidence Act as showing that her doing so was consistent with her evidence at the trial.

Evidence of resisting

Mr Fifita submitted that the Chief Justice was justified in rejecting the evidence of the appellant only if there were some evidence to corroborate the complainant's account of sexual intercourse without consent in the form of medical evidence of injuries or bruising, or evidence of damaged clothing. We do not accept that submission either. Sexual intercourse without consent or belief of consent can and frequently does occur without physical injury or damage to clothing. The issue was entirely one of credibility. The Chief Justice was entitled, for the detailed reasons he gave, to accept the evidence of the complainant and reject the evidence. of the appellant.

The acquittal on the abduction count

Mr Fifita submitted that the finding that the appellant thought that the complainant liked him, which resulted in his acquittal on the abduction count, means also that the appellant believed that the complainant: had consented to go with him and have sexual intercourse. It means no such thing. What it does mean is that she left the party and accompanied the appellant in his vehicle willingly. It does not mean that, having done so, she must also have consented to the sexual advances that the appellant made: to her or that he had reasonable grounds for believing that she was so consenting. The sexual advances occurred later, well after she, had consented to go with him. There is no inconsistency in her agreeing to go with him, believing he was going to take her home, and his being aware later that she was resisting his sexual advances.

The appeal against conviction

For the reasons we have set out, none of the grounds advanced on behalf of the appellant on the appeal against the convictions has been made out. It is accordingly dismissed.

The appeal against sentence

Mr Fifita submitted that the sentence of three and a half years for the rape conviction was excessive because it, failed to take sufficient account of the delay that occurred between the commission of the offence in 1996 and the trial and sentencing in 1999. During that period the appellant had married and had two young children who, at the time of sentencing, were one year and eight months, and four months old.

In imposing sentence, the Chief Justice said that he took the starting point for an offence of this kind to be a term of imprisonment: of :five years. He reduced that to three and a half years to take into account the delay and other mitigating factors. In our view, he was correct in both respects. The appellant, in raping and indecently assaulting the complainant in these circumstances, particularly taking advantage of her state of advanced intoxication, committed serious offences for which a sentence of five; years or even more was appropriate. By reducing that sentence to three and a half years, the Chief Justice made a reasonable allowance for the delay that had occurred. Indeed, even allowing for that factor, the sentence could be regarded as lenient.

The appeal against sentence is dismissed.

Burchett J, Tompkins J, Beaumont J.