Polutele v Rex [2004] TOCA 11; CA 13-2003 (30 July 2004)

IN THE COURT OF APPEAL OF TONGA
NUKU’ALOFA REGISTRY

ACTION NO. AC. 13/03

BETWEEN:

‘AHOIA POLUTELE
Appellant

AND:

REX
Respondent

Coram: Burchett J
Tompkins J
Salmon J

Counsel: Mr. Fifita for the Appellant
Mr. Kefu for the Respondent

Date of Hearing: 20 & 26 July 2004.
Date of Judgment: 30 July 2004.

JUDGMENT OF THE COURT

[1] On the 18^th of August 2003, the appellant was sentenced to a total of fifteen years imprisonment on charges of attempted rape, abduction, grievous bodily harm and rape. The charges arose from two separate incidents and these will be explained by reference to their Cr. Numbers.

[2] Cr.22/02 involved a charge of rape in respect of a complainant N. The appellant pleaded not guilty to this charge. He was tried before Ward CJ on 30^th January, 2003 and was found guilty of the lesser charge of attempted rape. Sentencing was delayed when the Chief Justice ascertained that the appellant was also facing charges of abduction, grievous bodily harm and rape in respect of the complainant L. The appellant eventually pleaded guilty to these charges and was later sentenced in respect of all four. These charges have the Cr. Number 121/02. The appellant was sentenced to six years imprisonment on the charge of attempted rape. In relation to Cr.121/02, he was sentenced to five years imprisonment on the charge of abduction, seven years on the charge of grievous bodily harm and fifteen years on the charge of rape. The judge ordered that all sentences be served concurrently. The appeal is against conviction and sentence in relation to all charges.

Factual background Cr.22/02

[3] On the 29th of December 2001, the complainant N. was at a social function at which a fight occurred. The appellant was also at that function. He persuaded the complainant to get into his van on the pretence that he was taking her to a police officer’s house to make a statement, presumably in respect of the fight. The complainant did not know the appellant. He gave her a false name. The appellant did not drive to the police officer’s home; instead he went to a beach. He arrived there about 8:30 in the morning, took a machete from the van and took the complainant along the beach and up a small path inland. He told the complainant that she must do what he told her to do or he would cut her to pieces. She started to cry. The accused told her to drink two bottles of beer which he gave her while he also drank two bottles. She did not drink the beer. After the accused had finished his beer he started to undress the complainant. She asked him to stop but he continued. He forced her to lie down on the ground. He performed various indecencies upon her and then took off his own clothes. He attempted to put his penis into the complainant’s vagina, but apparently because of his drunken state he could not maintain an erection. The accused then lay down and slept, the complainant put on her clothes ran to the road and sought help. She then went to the police.

Cr.22/02 Appeal against conviction

[4] For the appellant Mr. Fifita argued that the complainant was forced to give evidence against her will. He submitted that there was no independent evidence to corroborate that of the complainant. He also submitted that the Court should not have granted a brief adjournment to enable the Crown witnesses to attend. We do not accept that any of these grounds has substance. It is certainly correct that the complainant wrote a letter to the prosecution in December 2002 expressing a wish to withdraw the charge against the appellant. She gave two reasons, first that it was her carelessness that led to this incident, and secondly, that she was now married and did not want anything to happen to her new family. The second of these two grounds seems to involve some concern that her family would be in danger if she gave evidence. She was served with a witness summons and required to attend. She did so and gave evidence.

[5] There is nothing improper in the prosecution requiring the attendance of the complainant. A criminal case is not a case just between the complainant and the accused. Criminal cases are brought by the Crown on behalf of the community. As to the claim that there was a lack of corroboration, in fact the appellant made a statement in which he admitted the essential facts of the charge on which he was convicted. That is obviously corroboration of the complainant’s evidence. In any case corroboration is not an invariable requirement in rape cases. The appeal against conviction is dismissed.

Cr 22/02 Appeal against sentence.

[6] Mr. Fifita claimed that the sentence was excessive. He referred to cases where a lesser sentence had been given by the court for rape and submitted that in those circumstances it was inappropriate that a sentence of six years should be given for attempted rape. We note that the maximum sentence for attempted rape is ten years imprisonment. We will return to the question of sentence later in this judgment.

Cr 121/02 The facts

[7] On the 14^th of June 2002, the complainant L. and a friend were persuaded to go drinking with the appellant and some friends of his. After they had finished drinking the appellant persuaded the complainant to get into his van and to start it, saying that he was too drunk to do so. He then told the complainant that he would take her back to her home. Instead of taking her home he drove in another direction. When the complainant discovered this she asked him to stop the van so that she could get out. The appellant refused to stop and hit the complainant on the head, knocking her unconscious. It is alleged that the appellant then took her to a small hut where he beat and raped her.

[8] During the night he went and got some sheets and clothes from a Mr. Tava. The appellant told Mr. Tava that there was a girl in the hut and showed him his hands which were covered in blood. The next morning the accused went and asked a boy named Sifa to have sex with the complainant and to stay with her. Sifa did stay with the complainant but did not have sex with her. When the complainant recovered consciousness in the late afternoon she discovered she was naked and was aching all over her body including in her vagina. Sifa gave her some clothes.

[9] The appellant came back and the complainant recognized him as the driver of the van. Sifa and the complainant were told by the appellant to go to a hut in a neighbouring allotment. There the complainant fell asleep and did not wake up until the next morning. The appellant arrived and asked Sifa, who had remained with her, whether he had had sex with the complainant. He said he had because he was scared, but in fact his evidence was he had not. The appellant told Sifa to take her to the sea to bath her. The complainant was too weak and in too much pain to do this. Eventually Sifa took the complainant to his sister’s house where she had a shower and then to her home.

[10] She was taken to hospital where she was admitted and later checked by a gynaecologist. The gynaecologist confirmed that vaginal injuries to the complainant had been caused by abnormal sexual activity. It was also discovered that the complainant had suffered a basal skull fracture as a result of which she may suffer long term complications.

Cr 121/02 Appeal against conviction

[11] The appellant claimed that he did not understand the effect of his guilty plea, and that he should be allowed to change his plea to not guilty. He claimed that he did not intend to admit committing the offences in respect of which he was charged, but did so because he thought a denial would not be believed. He further claims that the police forced a witness to give false evidence against him. This is a reference to the witness Tava.

[12] An affidavit has been filed by Mr. Tava He was interviewed by the police because he lives close to where the rape took place. He says in his affidavit that originally he told the police that he had not noticed any strange or unusual behaviour on the evening of the rape. He says the police took him to the station and told him to just say yes to their questions. He said he felt defenceless and did as the police said. He said that the police then rehearsed with him what he was to say at the preliminary hearing and he said what he was required to say.

[13] Mr. Kefu first elected not to obtain any response from the police to this allegation. He considered that the evidence from other witnesses was so strong that Mr. Tava’s evidence was not crucial. The crucial evidence, which he relied upon to prove rape was that of the complainant together with the evidence of Sifa, the doctors who treated the complainant, and two witnesses who gave recent complaint evidence.

[14] We considered these allegations against the police to be so serious that we adjourned the hearing to enable an affidavit to be obtained.

[15] We have now received two affidavits from the Police Officers concerned. We have also received two affidavits in reply – one from Mr. Tava and one from his brother. The principal Police affidavit confirms in some detail the facts as they were presented to the Supreme Court and subsequently to this Court. It makes it clear that Mr. Tava voluntarily gave information to the Police while helping them ascertain the boundaries of the allotment on which the offences occurred. It was as a result of this information that he was later asked to make a formal statement. There are some additional important details. The affidavit says that Mr. Tava identified a t-shirt and lava-lava that the complainant was wearing after the incident as belonging to him.

[16] The affidavit also includes allegations that the appellant’s younger brother attempted in various ways to persuade Mr. Tava not to give evidence. This led to a complaint to the Police Magistrate that Mr. Tava was being subjected to pressure by the appellant’s brother. The affidavit further states that the Magistrate required the brother to appear before him and ordered him to refrain from contacting Mr. Tava. The second Police affidavit confirms the first.

[17] Mr. Tava’s affidavit in reply repeats the claim of pressure from the police and denies any pressure or threats from the appellant’s brother. There is however no response to the claim that he identified clothing worn by the complainant nor does he comment on the evidence that the Magistrate ordered the appellant’s brother to refrain from contacting him. Mr. Tava’s brother’s affidavit really carries the matter no further.

[18] We prefer the evidence of the Police particularly given the failure by the appellant to respond to important material in the Police affidavits. However even if we were to put the evidence of Mr. Tava to one side we accept Mr. Kefu’s submission that the remaining evidence is sufficient to provide a more than adequate basis for conviction.

[19] We do not consider that there is anything in the other grounds raised by the appellant. We are satisfied that he was fully aware of the effect of his guilty plea. He has had sufficient experience of the justice system to know what is meant by a plea of guilty and to know the effect of such a plea in relation to a charge of rape. The interests of justice do not require that he be allowed to change his plea. The appeal against conviction is dismissed.

Cr 22/02 and Cr 121/02 The appeals against sentence

[20] In respect of both sentence appeals, Mr. Fifita submitted that the appellant had not been given an adequate opportunity to make a plea in mitigation. We do not accept that this is so. In relation to Cr 22/02, Mr. Kefu advised the court that immediately prior to the Judge commencing his sentencing remarks, he asked the appellant whether he had anything to say. In addition to this Mr. Polutele made submissions in writing in relation to all charges. Mr. Polutele has been convicted of rape on three previous occasions. In 1985 he was sentenced to two years imprisonment. In 1987, he was sentenced to seven years imprisonment. In 1994 he was sentenced to seventeen years imprisonment, fifteen for rape and two for indecent assault. That sentence was reduced to a total of eleven years on appeal to this Court (see Polutele v R [1998] Tonga LR 59). In respect of the third conviction he was pardoned in 1998, along with other prisoners serving long sentences, on the occasion of the King’s 80^th birthday.

[21] There are common elements in the two incidents forming the subject of these appeals. In each case there was deception used to get the complainant into the appellant’s vehicle and to take her to the place where she was raped, and in the first case the use of a false name, obviously to avoid being held responsible. In the first case there were threats of bodily harm. In the second case there was actual serious bodily harm. The complainant in the second case suffered very serious injuries. In the second case too there was the attempt to put Sifa in the position where he could be blamed for what had been done to the complainant. In relation to the first incident, what occurred was, as the Chief Justice said, very serious, and had it not been for the amount of drink taken by the appellant it would have been a complete rape. Each case too, evidences elements of premeditation.

[22] We consider Mr. Polutele to be a menace to the young women of Tonga. In our view the length of sentence imposed was entirely justified as were the sentences for the individual offences. We appreciate that in respect of the rape Mr. Polutele has received the maximum sentence. We consider that appropriate given the seriousness of the offending. Certainly 15 years is not excessive considering the totality of the offending. The appeals against sentence are dismissed.

Burchett J
Tompkins J
Salmon J