'Anitema v R [2023] TOCA 14; AC 6 of 2022 (31 July 2023)

IN THE COURT OF APPEAL
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

AC 6 of 2022
[CR 66 of 2021]

BETWEEN:

JOSHUA HALAFIHI ‘ANITEMA
Appellant

AND

REX
Respondent

Coram: Randerson J
White J
Morrison J

Counsel: Ms A Kafoa for the Appellant
Ms T Kafa-Vainikolo - DPP for the Respondent

Hearing: 10 July 2023
Judgment:

JUDGMENT OF THE COURT

1. On 18 October 2021, the appellant, Mr Joshua Halafihi ‘Anitema stood trial before Whitten LCJ, sitting without a jury, charged with one count of rape contrary to s 118 of the Criminal Offences Act and one count of serious indecent assault contrary to s 124(1), (2), and (3) of the Criminal Offences Act. The indictment charged that both offences had been committed on or about 28 September 2020 at Nukunuku.
2. After a trial of five days in October 2021 and March 2022, he was convicted of both offences on 30 March 2022 by Whitten LCJ. He was sentenced to a term of imprisonment of seven years for his conviction of the offence of rape and to 18 months’ imprisonment for the offence of serious indecent assault, those sentences to be served concurrently. The final year of the head sentence was suspended for a period of two years on condition.
3. The appellant appeals from the convictions. There is no appeal against sentence.
4. The primary judge recorded (at [3]) that in aid of an order made pursuant to s 119 of the Criminal Offences Act the identity of the complainant was not revealed in his reasons. We have followed that course in these reasons. In the case of two additional witnesses we have used pseudonyms when referring to them in case use of their names might lead to the revealing of their identity.
5. An appeal in criminal cases before the Supreme Court lies to this Court under s 16 of the Court of Appeal Act. An appeal lies as of right only where any ground of appeal involves a question of law alone (s 16(a)). Otherwise, an appeal lies with leave of the Court of Appeal or upon the certificate of the trial judge that it is a fit case for appeal against conviction.
6. On 13 December 2022, the appellant obtained leave to amend the Notice of Appeal. It does not appear whether leave to appeal was also given, although counsel for the Crown advised the Court that she believed it had. For the reasons which follow, the appeal raises serious questions and leave to appeal should be given, if it has not been given already.
7. Section 17 of the Court of Appeal Act relevantly provides:

(1) The Court of Appeal on any such appeal against conviction shall allow the appeal if they think that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the Court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal:

Provided that the Court of Appeal may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal, if they consider that no substantial miscarriage of justice has occurred.

(2) Subject to the special provisions of this Act, the Court of Appeal shall, if they allow an appeal against conviction, either quash the conviction and direct a judgment and verdict of acquittal to be entered, or if the interests of justice so require, order a new trial.

8. Those provisions follow a form of appeal right which is common in Australia and formerly in New Zealand. In Tu’ivakano v R [2020] TOCA 8; AC 1 of 2020, this Court said:

“[44] In Heamani Lopeti v Rex [2019] TOCA 5 this Court held at [19] that:

‘In terms of s.17(1) of the [Court of Appeal Act], the correct legal ground relating to sufficiency of evidence is that the verdict is unreasonable having regard to the evidence. A verdict will be unreasonable if, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the accused is guilty: R v Owen [2007] 2 NZLR 37 at [5]’

[45] In relation to similarly worded provisions in Australia the High Court of Australia said in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 494-5; [1994] HCA 63:

‘It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence (Chamberlain v. The Queen [No. 2] (1984), 153 C.L.R, at pp. 618-619; Chidiac v. The Queen [1991] HCA 4; (1991), 171 C.L.R. 432, at pp. 443-444.). In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (Chidiac v. The Queen (1991), 171 C.L.R., at pp. 443, 451, 458, 461-462).”

9. In Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47, the High Court held that the principles in M v The Queen apply in the same way where the trial has been by judge alone as where the trial has been by jury. In Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728, the High Court said:

“[15] In each case, the court must conduct an independent assessment of the whole of the evidence to ask itself the question of fact whether it thinks it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty. In each case, the court "will conclude that it was not open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty if its own [assessment] of the evidence leads it to have a reasonable doubt that the accused was guilty, unless that tribunal's advantage in seeing and hearing the evidence is capable of resolving that doubt.

[16] Where the trial has been by judge alone, the reasons of the trial judge must be approached by the court of criminal appeal performing that function with circumspection lest the findings of fact made by the trial judge divert the court from undertaking the requisite independent assessment of the evidence. The court will be required to consider the arguments of the parties in the appeal and will be entitled to treat findings of fact made by the trial judge about which no issue is taken in the appeal as an accurate reflection of so much of the evidence as bore on those findings. But the question for the court in every case will remain whether the court's assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the trial judge can be taken to have had by reason of having seen and heard the evidence at trial."

10. This is the approach adopted in these reasons. In doing so, we have regard to the advantage of the primary judge in making credibility findings based on contested oral evidence (see eg Sena v New Zealand Police [2019] NZSC 55; [2019] 1 NZLR 575 at [38]).
11. Grounds 1 to 5 of the Amended Notice of Appeal assert grounds in support of a contention that the verdict was unreasonable or cannot be supported having regard to the evidence. Ground 6 asserts a miscarriage of justice.

Offence provisions

12. Section 118 of the Criminal Offences Act relevantly provides:

“118 Rape

(1) Any person committing rape that is to say any person who carnally knows any female —

(a) against her will;

...

shall be liable to imprisonment for any term not exceeding 15 years.”

13. Section 124 relevantly provides:

“124 Indecent assault

(1) Any person who shall commit an indecent assault on any person shall be guilty of an offence under this section.

(2) An offence under this section may be the offence of serious indecent assault or the offence of simple indecent assault.

(3) The offence of serious indecent assault —

(a) is punishable by a term of imprisonment for any period not exceeding 5 years;...”

14. There was no issue that if the indecent assault with which the appellant was charged occurred, it was serious.
15. No question of consent arises in this case. The complainant’s evidence was that she was indecently assaulted and then raped. The appellant’s evidence was that the events which the complainant described did not occur.

Evidence of the offences

16. The acts alleged were said to have occurred at Nukunuku Police Station where the appellant was then stationed as a probationary police constable. The complainant is female and, at the time of the alleged offences, was 18 years old.
17. The complainant’s evidence was that she had spent the nights of Thursday, Friday and Saturday, 24, 25 and 26 September 2020, at houses of friends. At about 9 or 10am on Sunday 27 September she was met by her father. Her father told her to get into his car and lectured her on not doing the right thing. He then left and came back with the police who effected her arrest and she was taken to the Nukunuku Police Station and charged. She was charged with drunkenness. The Nukunuku Police Station diary records that the complainant was arrested at 1153 hours on Sunday 27 September 2020 at the request of her father. It records that the complainant’s father had approached the police seeking help in relation to his daughter on the ground that she was very drunk and that he asked the police to keep her in a gaol cell until she was clear-headed as he feared for her safety. She was taken into prison cell 01.
18. The primary judge was rightly critical of the events which led to her arrest and detention.
19. His Lordship said that:

“[246] The artifice in this case of the Complainant being drunk (the fact of which was not supported by any of the evidence) as the basis for placing her in custody, when in truth, the relevant officers were acceding to a request by the Complainant’s father to lock her up to prevent the possibility of her leaving the family home again, was, with all due respect to those officers who deserve it, a reprehensible abuse of police power and violation of the Complainant’s Constitutional rights.”

20. We endorse those remarks.
21. A sketch map and photographs that were admitted as exhibits at trial showed that cell 01 was a narrow, spartan concrete cell with an L-shaped concrete block that could serve as a seat and over which was laid a rug to serve as a bed.
22. The cell door was a metal grille door that opened onto a narrow corridor. The gaps between the bars of the grille allowed anyone in the corridor to look into the cell, even though the door was shut. Across the corridor from cell 01 was a “Process Room”. One of the photographs tendered shows a direct line of sight through the grille door from the cell to a policeman standing in the Process Room. Standing with one’s back to the cell door from outside of the cell, a corridor led to the right to an office area and the rear of the front counter. The distance between the office area and the door of cell 01 was in the order of 5 metres. The corridor to the left of the door of cell 01 led past the process room and cell 02 towards female and male toilets and a bathroom.
23. The station diary records that at 1153 hours WPC Tahavalu escorted the complainant to the prison, searched her and took her to cell 01.
24. The complainant was the only person in police custody on the night of Sunday 27 – Monday 28 September 2020.

The Station Diary

25. The appellant commenced duty at 4.00pm on Sunday 27 September, together with SC Tutone, WPC Tukuafu, WPC Kolo, and PC Takafua. The station diary records that, at 5.15pm, Kolo escorted the complainant to the rest room and that, at 1845 hours, the complainant’s mother arrived at the station with a bag that contained clothes, a towel and some bath products. At 1852 hours, Tukuafu escorted the complainant for her bath. The complainant’s mother returned at 1903 hours. At 2040 hours the complainant’s father arrived with food. At 2047 hours, Kolo left the prison (meaning, we assume, a part of the prison) to feed the complainant. Her father left at 2049 hours. The diary states that, at 2100, “WPC Kolo returned from prison after feeding [the complainant]...”. The diary then records that, at 2125 hours, Tutone and the rest of the workers returned in a government vehicle to the station. The next relevant entry in the station diary is that, at 0423 hours on 28 September 2020, Tutone left to pick up SC Fa’oa for training and returned at 0450.
26. The diary contains four entries dated 29 September that are evidently wrongly dated as they record events that took place on 27 September in the middle of a sequence of entries dated 27 September and in a page headed 27 September. Counsel for the appellant submitted that the diary might have been fabricated.
27. We do not accept that submission. Counsel also, but inconsistently, relied on the absence of any record in the diary of the appellant’s attending on the complainant in her cell. But the diary is not a complete record of police and prisoner movements. All witnesses gave evidence of movements that are not recorded in the diary.

The complainant’s evidence

28. The complainant gave evidence of her mother dropping in food and clothes. She gave evidence that she had a shower and changed and then slept until a male police officer called her to come and have tea which they did at the “tea place”. Other police officers were then present. He asked if she wanted to call anyone and she was nervous and said “no”. This was the officer she later identified as the appellant.
29. She was then, according to her evidence, taken back to her cell by the appellant. She did not hear him lock the door. The door was barred with a bolt, but not locked. This is inconsistent with the entry in the station diary which states (as we understand the meaning of the English translation) that it was Kolo who took her back to her cell at 2100 hours.
30. The appellant was wearing a long shirt which had black and white stripes and a dark tupenu.
31. The complainant said that she fell asleep but woke up because she felt someone was standing outside her cell and when she was roused she saw it was the same police officer, but he had changed and was wearing a navy blue T-shirt. She could see that the hallway light was still on but was pretty sure that the front light was off. She said that when she woke up and he was standing outside her cell, it was “almost around ten to eleven”. She had no way of knowing this unless she was wearing a watch. The Lord Chief Justice reasoned that any watch would have been removed when she was searched and personal items removed (J [221(a)]).
32. The appellant told her that the others were asleep. He saw the bottle of drink that her mother had brought her and asked if he could drink it because his throat was dry from drinking coffee. She agreed and he came inside and took the bottle of drink from her. After conversation, including the asking of personal and inappropriate questions, the appellant asked if she wanted to call anyone and said that he could help her if she did wish to call someone. She asked if it was ok to call. “He said to come to the toilet to use the phone”. As they stood to come through the cell door, he turned around to kiss her, he touched her left breast with his right hand and then his right hand started to go down to her vagina but outside her clothes. She pushed his hands off. This happened very quickly. She could not say if it was deliberate.
33. There was a solid door between the corridor leading from the office area and counter to the cells. No evidence was given by any witness as to whether it was the practice to leave that door closed at night when there were prisoners in the cell. There is no evidence that it was not open.
34. The complainant’s evidence of what happened as she left the cell was as follows:

“Wit And then he turned around and went to turn off the lights to the hallway.

Ct He went around behind you or he ended up behind you?

Wit The front but he turned to go the other side. I walked from there towards the toilet the lights were off he was behind me I went slowly and reached to the back of the cell towards the toilet all the lights were off.

Pros After you slapped his hands he turned around to go to the other side and what did you see him do, did you know what he did when he went that way?

Wit I saw the lights off so I’m pretty sure he turned off the lights because it was on when I got out from the cell until he turned the other side and as I walked the lights were off.

Pros The lights of which area?

Wit First was the hall way and then the one at the toilet all the lights in the toilet.

Pros But before you exited the cell you saw the lights in the hallway and the toilet being turned off were they initially on or not?

Wit I’m not sure as we came up.

Ct So you’re walking slowly now towards the toilet and he’s behind you is that right?

Wit Yes.”

35. So far as the evidence reveals, there were four other police officers in the police station at 10 – 11pm on Sunday 27 September. None gave evidence that the lights down the hallway had been turned off or were already off.
36. The complainant said that the appellant told her to walk to the hallway and they both went to the first bathroom. We understand this to be a reference to the female toilet as shown on the sketch plan. The complainant said that she went into the cubicle to use the phone. The appellant asked for a number to call and the complainant told him that it was a Digicel number. She was going to call her friend, whom we refer to using a pseudonym, Hiva, who had a Digicel number. (Hiva had been arrested at the same time as the complainant but was released on Sunday night). The appellant told her he had U-Call, not Digicel. She was in the toilet cubicle.
37. The complainant described a second sexual assault. She said that the appellant touched her breasts, bottom and vagina outside her clothes. She also described being required to commit fellatio. The indictment charging serious indecent assault referred only to the accused having fondled the complainant’s vagina outside her clothes. But this evidence was not recent invention. The Crown’s Summary of Facts filed with the indictment alleged that the accused opened his tupenu and told the complainant to suck his penis, and that out of fear she complied. The complainant described the appellant’s underclothing. He was wearing white tights, not long, up to his knees. This was important evidence. The Lord Chief Justice found:

“[242] The third and final piece of evidence to which I now refer turned out to be, in my view, one of the most compelling in the case. It was rightly adverted to by the Prosecutor in submissions, although I consider it attracts far more weight.

[243] In recounting the events leading to the Accused telling her to suck his penis, the Complainant described the Accused as wearing white knee length tights under his tupenu. In denying the Complainant's evidence that earlier on the Sunday evening, during tea, he had consumed coffee (although she also mentioned tea), the Accused said that he did not drink coffee because it was against his Mormon religion. However, the Accused later agreed with the Prosecutor that it was also part of his religious observances to wear specific types of undergarments, including white knee length tights. If the Complainant fabricated her evidence, how then could she have known that the Accused wore white knee length tights? Mr Edwards did not address the subject nor was coincidence suggested. I agree with the Prosecution that the Complainant knew about the Accused's tights only because she saw them and that, on the evidence, the only way she could have seen them was in the circumstances of the assaults as she testified to them.”

38. Returning to the narrative of the complainant’s evidence, she said that the appellant told her to go to the cell so that he could “eat her like an animal”.
39. When they reached her cell, he sat on the bed. It was dark. He then raped her. It is unnecessary to describe the details. She did not call out or tell him to stop. She was terrified and froze. She was afraid he might do something to hurt or kill her. It happened quickly and she was “all blacked out”.
40. After the rape, the complainant stood up and he said he would look at the phone in the “domestic room” (also called the interview room), so she could use that phone. He led her to that room. It was adjacent to the front counter. The lights were off. There was no one around. She was looking at what she called the tea room. The lights were off at the counter and the domestic room. There was no noise.
41. They entered the room. He was looking towards the door where the “tea room” was. He told her to use the phone. She called her friend, Hiva. When asked if she had any idea what time this was, the complainant said “Twelve o’clock or one”. Although she did not have access to a watch or phone at the time, there was a clock behind the appellant and she was pretty sure it was around one “because I heard the rooster outside”. When asked whether she talked to Hiva, the complainant said:

“Yes, I asked her who dropped her off and she said my mum dropped her off to her house, not sure our church place or to her mum and I told her I’ll be out soon and she said okay to just call her and I hung up the phone”.

42. The complainant also said that the police officer (the appellant) was sitting opposite her during the phone call. She recognised “a police lady. She was the one who handed over my clothes at the start”. She said that the police lady came in wearing a green dress when she was on the phone with Hiva and went back the way she came. She did not tell Hiva what had just happened because the appellant was looking at her. She was nervous and scared to say it on the phone. She asked Hiva who dropped her off and told her she’d be out soon. She was returned to her cell and the appellant told her not to tell anyone and then left. She eventually fell asleep. She woke up the next morning.
43. The next morning (Monday, 28 September) the police came and called her to come to eat. She talked to a police officer, Talamai, whom she knew, who lectured her. She did not complain to him. She did not know him well. She was taken for a drive around Tongatapu with five police officers. She made no complaint to them because she did not know them well. On Monday, the complainant had a visit from her mother’s friend, whom we refer to as Mrs Latu (a pseudonym), and whose daughter was her best friend. She complained of the rape to Mrs Latu (see [71] below).
44. Thus the complainant’s evidence was that the sexual assaults and the rape occurred some time after the appellant entered her cell wearing a navy blue T-shirt at around 10.00 to 11.00pm and before she was taken to the tea room and called Hiva around 1.00am.
45. In cross-examination, the complainant said that after she had been raped and the appellant had ejaculated outside her clothes, he asked for her towel to wipe himself. She agreed that there would have been some semen on the towel. She gave all of her belongings and the clothes she wore, and the towel to the police for examination.
46. The primary judge observed that facilities for forensic examination of the towel are not available in Tonga (at [178]). No police officer gave evidence of the towel or clothes being provided to them for examination, or of their having inspected the towel. The complainant did not say when she gave the towel and clothes to the police for examination, but it presumably was as late as when she was discharged from prison.

Evidence of Police Officers

47. There was no evidence that any of the police officers on duty were not in the police station during the period from 10.00pm to midnight. The station diary records that Tutone and “rest of the workers” returned to the station (presumably from a patrol) at 2125 hours.
48. Tutone gave evidence that he was on patrol with the appellant between midnight and 3.00am.
49. None of the police officers was asked what he or she was doing between the hours from 10.00pm to 1.00am. Kolo said that she checked on the complainant at about 4.00 to 5.00am. The complainant was inside her prison cell and was fine and still awake. Kolo asked the complainant if she was OK or if she needed anything and the complainant said no, “she’s ok, she’s fine”.
50. Tukuafu said that she saw the appellant talking to the complainant. Initially she put the time as between midnight and 5am, but then said “at this time, at about 0500 hours” she was in the OIC room watching a movie on the computer. The appellant was walking about outside her office. He spoke to her three or four times and said that she had been awake for a long time. She heard a lock on the prison cell being opened. After a few minutes she went to check and passed the domestic room. The appellant and the complainant were in the domestic room and the complainant was whispering on the phone. She checked the prison cell and the complainant was not there. She went back to the OIC room. The appellant was wearing a dark navy blue coloured T-shirt. At this time Kolo was in the conference room.
51. Tukuafu was not cross-examined.
52. Tutone said that on his return from his patrol with the appellant at about 3am he went to sleep and was woken by Tukuafu to pick up an officer called Fa’oa. As he was walking to the parking area he noticed the appellant standing at the door of cell 01. The station diary records Tutone leaving at 0423. He saw the appellant wearing a white shirt “like light blue shades on it”. The lights were on.
53. Takafua also recalled seeing the complainant using the phone in the domestic room in the appellant’s presence. He estimated that the time was about 3.00am, after his return from patrol.
54. Kolo said that the reason she checked on the complainant at about 4.00 to 5.00am was because Tukuafu told her that the appellant had released her from the cell to use the telephone. The appellant was wearing a light coloured shirt that night and he did not change.

‘The appellant’s evidence about the offences alleged

55. The appellant denied taking the complainant to the bathroom. He denied the assault and the rape. He said he went on patrol two or three times. He said he came back from a second patrol at about 11.30pm to midnight. Initially he denied going on a further patrol, but when reminded by the primary judge of Tutone’s evidence of going on patrol with him at 12 and returning at 3, he agreed that was correct. He said that, before going on that patrol, he saw the complainant at about one o’clock when she asked if she could use the phone. Obviously, that would not be possible if he were then on patrol. He later agreed with the prosecutor’s mistaken statement that he had said that he had brought the detainee over to use the phone at 11.30 – 12.00. On the fourth day of the trial (after a lengthy adjournment) he put that time as about 11.00pm.
56. The appellant did not deny taking the complainant from her cell to the domestic room to use the telephone. He said he did so in response to her request to use the phone. He first checked the complaints book as to why she had been locked up. He said that both Takafua and Tukuafu walked past as he brought her out to use the phone.
57. The appellant also gave evidence of a second occasion he went to the complainant’s cell door. This was when Tutone was leaving to pick up Fa’oa. The complainant had pushed on her cell door and caught his attention. He went to the door and asked the complainant why she was not asleep. She said she had had enough sleep. He told her it was nearly daylight and then she could go home.
58. Although there is confusion in the appellant’s evidence as to when he was on patrol and when he took the complainant from her cell to the domestic room to use the phone, his evidence was consistent with his taking the complainant to the domestic room at about or after 11.00pm before he went on patrol and going to her cell door again at about 5.00am in response to her pushing on the cell door.

Consideration of the evidence of events at the police station

59. There is no corroboration of the complainant’s evidence that the lights had been turned off. The police station is small. There is only about 5 metres from cell 01 to the office area. Tukuafu saw the lights were on when the appellant was with the complainant in the domestic room. All the police officers who were asked said that the lights were on in the station. None corroborated the complainant’s evidence that the lights had been turned off.
60. The primary judge dealt with the question of lighting as follows:

“[226] The evidence in relation to the lighting outside the Complainant’s cell, and whether the lights were on or off at various times during the night, did not progress the only issue to which that evidence was directly relevant, namely, the Complainant’s identification of the Accused. Her evidence that there was sufficient light for her to see the Accused’s face and that she recognized his voice when he came to her cell, was never seriously challenged. She subsequently identified the Accused consistently from three sets of line up photographs. If any questioning on the point was directed to credit, it attracted little weight because, as mentioned, different officers came and went in that area at different times during the night.”

61. However, the question of lighting was not only relevant to the question of identification. Identification was not in issue. It was not the defence case that if the offences occurred, some other police officer committed them. The lights being on materially contradicted part of the complainant’s description of events. With the lights on, any police officer who was looking down the corridor from the office area could have seen the appellant take the complainant towards the female toilet. Any police officer walking down the corridor could have seen into the cell through the bars on the cell door. Although the light in the cell was not on, the cell was immediately adjacent to the corridor and only about 2 metres deep, so the light from the corridor would have extended into the cell.
62. In the Crown’s final submissions at trial, the prosecutor did not support the complainant’s evidence that the assault and rape occurred some time between 10-11.00pm and 1.00am. Accepting Tutone’s evidence that the appellant was on patrol between 12.00 and 3.00am the prosecutor submitted that the offences occurred between about 3am (when the patrol returned) and about 0423 hours (when Tutone left, having seen the appellant at the cell door). Takafua placed the time at which he saw the complainant using the phone in the domestic room at about 3.00am.
63. The primary judge did not make a finding as to when the offences occurred. His Lordship said:

“[221] Any discrepancies in the Prosecution evidence about the times of events on the Sunday evening in question are, in my view, of little moment because:

(a) there was no evidence that the Complainant (or any other officer) was wearing a watch or had any time keeping device such as a phone. No doubt all such belongings were removed from the Complainant when she was placed in custody;

(b) the Complainant’s only reference point for time was the clock on the wall of the domestic room (and there was no evidence as to whether it was working or telling the correct time) when she telephoned [Hiva] and hearing a rooster crow;

(c) the Complainant fell asleep on a number of occasions during the night;

(d) the station diary was admitted to being an imperfect record which had not captured all movements and events, or their times; and

(e) the recollections of secondary witnesses of events recounted days after they occurred, with no known reason at the time to commit them to memory, are notoriously inaccurate.

[222] The thrust of any criticism about the Prosecution evidence on time was clearly aimed at opportunity. The Accused himself posed a rhetorical question to the effect as to when could the alleged assaults possibly have taken place without being detected by one or other officers on the shift that night?

[223] It was common ground that from late on the Sunday night, various officers came and went from the station on patrols, others were asleep, at least one other was watching movies with earphones and others were engaged in various tasks in different rooms. The only constant in the evidence was that during the early hours of the Monday morning, the Accused was seen outside the Complainant’s cell and that he brought her into the domestic room to make a phone call. In my view, and in those circumstances, there was ample opportunity for the initial serious indecent assault, which according to the Complainant, took seconds, and the subsequent rape, which according to the Complainant, only took five or six minutes, to occur and without any other officer being aware of it.”

64. If the appellant’s evidence were accepted that he went to the complainant’s door twice – once to take her to make a phone call in the domestic room and secondly to respond to her shaking the cell door at about 5.00am – then there would be an innocent explanation for Tutone’s evidence of having observed the appellant at the complainant’s cell door before he left to collect Fa’oa.
65. There was evidence that, from the return of the patrol at about 3.00am, some officers were asleep. There was no evidence that any officers were asleep before midnight. There was no evidence that the clock was not working. If all the officers were awake and the lights were on, the appellant, who was on probation in the police force, was taking a huge risk.
66. But if the appellant’s evidence of having gone to the complainant’s cell twice is not accepted (and the primary judge rejected the appellant as a credible witness) then the prosecutor’s submission that the offences occurred after 3.00am is consistent with the weight of the evidence.
67. The complainant was not cross-examined about the second occasion of which the appellant gave evidence of going to the cell door. She said that she lay in her cell, scared that he might come back, and eventually fell asleep. We have concluded that the primary judge did not err in rejecting the appellant’s credibility. We accept the Crown’s submission that the offences, if they occurred, occurred after 3.00am on Monday 28 September. That time frame makes the possibility of the offences having occurred more probable.
68. Except for one important thing, considering only the evidence of the events at the police station, and leaving aside the impact of credit findings, the Crown’s case was not strong. The complainant’s evidence was that the offences occurred hours earlier than the Crown contended. Her evidence that the lights were off when the offences occurred was not supported by any police evidence and was unlikely. But her evidence as to the undergarment worn by the appellant was vital. It was confirmed by the appellant when he gave evidence. On the face of it, the only way the complainant could have known what the appellant was wearing under his tupenu was if the assault she described had occurred.

Evidence of complaints

69. Although the complainant did not give evidence that when she spoke to Hiva in the early hours of Monday morning she told Hiva she had been assaulted or raped, Hiva gave evidence that, at 2.00am on the Sunday night (meaning 2.00am on Monday morning) she was woken by a phone call from the complainant who asked her to contact her parents to tell them that something had happened to her and that “a police officer forced himself on her”. This was a different account from that which the complainant gave. The primary judge dealt with this discrepancy at [227]. Having observed both the complainant and Hiva give evidence, he accepted the Crown’s submission that, assuming the complaint to be true, it would be reasonable for the distraught complainant not to have recalled every word she said to Hiva and that Hiva could be expected to have the better recollection.
70. His Lordship noted that Hiva had given unchallenged evidence of having contacted the complainant’s parents the following day and being told to mind her own business. For reasons his Honour explained, and which are referred to below, his Honour accepted Hiva as a reliable witness of truth (at [228]).
71. Mrs Latu visited the complainant at the police station on the Monday evening. She had heard from the complainant’s mother that the complainant was remanded at the police station. She was taken to a conference room and a police officer fetched the complainant. The complainant looked worried and scared. She asked Mrs Latu to contact her mother. She said “please don’t be mad with me”. Mrs Latu said “tell me what it is”. The complainant said a police officer went inside her cell. Mrs Latu asked whether it was a male or female police officer. She said it was a male police officer, and then started talking. Mrs Latu asked the complainant “did he touch you?”. She said yes. Mrs Latu asked whether he fucked her and she said yes .
72. Mrs Latu left the police cell and told the complainant’s mother what she had been told. She did not advise the police because she did not trust them, and the incident happened in that same police station.
73. Hiva also gave evidence that on Thursday, 1 October she was tricked by the appellant into going to the Central Police Station in Nuku’alofa where the complainant was then in custody and was placed in custody with the complainant on a false charge of breaching curfew. There the complainant told her that:

“Wit She was telling me what had happened to her at the Nukunuku PS.

Ct Again, just tell us what she had told you.

Wit She told me she way lying back in her cell and she wanted to use the bathroom, she called out to the officers but no one responded but she saw this one officer was a male walking towards her. The officer then came, unlocked the cell and led [the complainant] to the bathroom. [The complainant] told me that when they entered the bathroom she thought that the officer was standing outside the bathroom, she was surprised when she turned around to close the door that’s when the officer pushed her in and did what he did to her.

Ct Are those the words she used ‘did what he did’?

Wit And attacked her and did what he did.

Ct Pushed her in, attacked her and did what he did is that what she said to you?

Wit [Not transcribed]

Pros Did she tell you anything else?

Wit No.”

74. The complainant was not released from custody on Monday 28 September. The reasons for this were unexplained. It appears that on that day she was taken for a drive with five other police officers in a police car around Tongatapu. The complainant described the drive as being from Nukunuku to the police station in town, then the police station at Longolongo and then to the one in town and from there through the sea road towards Popua and back to the police station.
75. The complainant did not make an immediate complaint to the police. She said she was scared and could not trust anyone. The complainant did not tell any of the police officers who took her for a drive what had happened.
76. The complainant said that the next morning, Tuesday 29 September, she was woken by SC Kava Fono’atu. He had been one of the police officers on the drive on the Monday.
77. Fono’atu gave evidence that, on the Tuesday 29 September (having corrected his initial evidence that the complaint was made on Monday), the complainant complained to him of having been assaulted. His description of the complaint was an almost verbatim repetition of the complainant’s evidence. He explained this by saying he had memorised an earlier statement that he had made on 1 October 2020.
78. Fono’atu said that the drive was on the Tuesday, not on the Monday, and was made after the complaint had been made. The intention was to take her to a safe house, but the police were unable to put her in the safe house.
79. Kava Fono’atu reported the complaint to police officer Taufa. Fono’atu told Taufa that the complainant had told him that she wanted to lodge a complaint against the appellant that she had been abused. Taufa later said that it was only later that he heard that the complaint was against the appellant. The complainant was released at 5.08pm on that day.

Admissions by conduct

80. The appellant gave evidence that the first time he came to learn that the complainant had lodged a complaint against him for rape and serious indecent assault was on the Tuesday. He said that on that day he was at home and received a missed call from the Nukunuku Police Station. He called the station and was asked to call Taufa on his cell phone. He did so. The first question Taufa asked him was if he had entered the prison cell. He said no. He was asked if he brought the complainant out to use the phone and he said yes. He was asked if there was anything else done on that night and he said no. Taufa told him that the complainant had made a complaint about abuse.
81. Hiva gave evidence that, on the Monday, she called the complainant’s mother and told her that the complainant wanted her parents to go to the police station to see her because something had happened. The complainant’s mother told Hiva that a police officer had just left their residence and had asked her (the mother) who Hiva was, and the police officer told the mother that she (Hiva) was advising the complainant and putting things in her head so that she could say stuff so that she (the complainant) could be released early. The complainant’s mother told her to mind her own business and let them solve their issues on their own, as a result of which Hiva later asked her own mother to contact the complainant’s parents.
82. This hearsay evidence was not objected to.
83. At J [204(a)] the primary judge used Hiva’s evidence that the complainant’s mother had told her that the police officer had told her (the mother) that Hiva was putting things in the complainant’s head, as referring to the appellant, and as being one of his actions consistent with his having his own prior first-hand knowledge of the rape, and of taking steps to head off a complaint (J [204(a)] and [206]).
84. The evidence on which the primary judge relied was inadmissible hearsay which would have been rejected, had objection been taken to it. Because it was not objected to, the primary judge did not err in having regard to it. One of the grounds of appeal is that the trial miscarried by reason of the incompetence of counsel. In our consideration of the evidence, we attach no weight to that evidence.
85. Hiva also gave evidence that later on the Monday she met the appellant at a one-way road. The appellant called out to her. She said that he asked her for her telephone number, which she gave to him, and he said he wanted to talk to her because he was the one working on the complainant’s case. She said:

“He told me that he wanted to help the girl but the officers at Nukunuku station are jealous of him and they might try to do something that would make him stuck (that is, get him into trouble)”.

86. Hiva also said the appellant told her he wanted to help “...because he wanted to release them”. He mentioned their having been unlawfully remanded and he asked if they were drunk and “we said no”. He said he felt sorry for the girl because he asked her some questions and she shared with him his personal life.
87. Hiva said that the appellant kept calling, saying he wanted to meet up to talk with the complainant. He first called her on the Monday evening saying that they (apparently Hiva and the complainant) should wait until he had started his shift when he would call again for her to come down to the police station if she would talk with the complainant. He told her that he wanted her to talk to the complainant, seeing that they were really close. He told her not to let anyone know that he had contacted her.
88. Hiva gave further evidence that he tried to call again on Tuesday at around 9am. She did not answer that call. She knew it was him because he had called her on the Monday and she had saved the number in her phone. They had another phone conversation on Wednesday. He called to ask if she knew that the complainant was still being remanded and she said she did not. This evidence is odd because the complainant was released on Tuesday. It was unchallenged. Hiva agreed that she would visit the complainant.
89. The appellant called her again on Thursday and asked if she knew that the complainant had already been released, that her parents had called, had beaten her up and taken her to hospital, and after that tried to place her in custody again in the Nukunuku police station but were not allowed and then placed her in custody in town.
90. The primary judge accepted this evidence. His Honour found that the contact that the appellant had with Hiva on Monday and then his repeated requests that she talk to the complainant about her complaint was consistent with his having his own prior first-hand knowledge that the Hiva complaint was against him and it involved rape. It was consistent with his knowing that because he knew he had committed rape (J [204(b)-(d)], [206]).
91. Hiva was not cross-examined on this evidence.
92. Mr Edwards SC, who appeared for the appellant, did not ask any questions of the appellant in his evidence-in-chief about Hiva’s evidence.
93. In cross-examination the appellant denied Hiva’s evidence. He initially said that he never contacted Hiva. On the Monday he returned home to sleep after a 16-hour shift. He said that he had records of the numbers called on Monday. The judge observed that they were not in evidence. The appellant said he had given everything to his lawyer. He was cross-examined on the fact that Mr Edwards had not cross-examined Hiva on that evidence.
94. At the conclusion of the third day of the trial, the appellant was under cross-examination. He had been cross-examined extensively about his counsel’s failure to cross-examine prosecution witnesses on matters about which the appellant later gave evidence. Some of those matters were of only minor significance. Others were important. The primary judge was sufficiently concerned about the failure of the appellant’s counsel to comply with the rule in Browne v Dunn (1893) 6 R 67, that his Lordship adjourned the trial and directed that all the Crown’s witnesses be available for further cross-examination on resumption of the trial. The trial was adjourned from 20 October 2021 to 10 March 2022.
95. On the resumption of the trial, the cross-examination of the appellant was completed. Mr Edwards did not seek to have any of the witnesses called for the Crown recalled for further cross-examination. This is the subject of ground 6 of the Notice of Appeal which contends that there was a miscarriage of justice by reason of the failure of the appellant’s counsel to cross-examine.
96. Returning to the narrative, when the trial resumed, the appellant repeated the evidence referred to at [93] that he had not called Hiva on the Monday. He said that he contacted Hiva once on the Tuesday. This was when he missed a call from a Digicel number. When he returned the call he was told that a girl had called using the speaker’s phone. He was told that the girl was Hiva and given her number. He called Hiva who told him she had got his number from his half-sister. Hiva asked when the complainant would be released. He told her the complainant should already have been released. Later that evening he missed another call from Hiva. He returned her call. She asked if he was working as she wanted to hitch a ride to Nukunuku. He told her he was not working.
97. On the appellant’s evidence he only spoke to Hiva on the Tuesday and the conversations were initiated by Hiva.
98. As noted above, Hiva gave evidence that during their Thursday conversation the appellant told her that, after the complainant had been released from hospital, her parents had taken her to the Nukunuku station to be put into custody again, but the police at Nukunuku did not allow it. She was then taken by her parents to Nuku’alofa and placed in custody at the central police station. The cell book of the central police station records the complainant having been placed into custody at the central police station at 0500 hours on Thursday 1 October.
99. Hiva was questioned by the primary judge about what Hiva’s mother had told Hiva about “[the appellant]’s having told her mother that he wanted Hiva to talk to the complainant to try to change her mind”. We give no weight to that evidence which was inadmissible hearsay.
100. Hiva gave further evidence that, after midnight on Thursday night, the appellant called her again and said that the complainant was in difficulty and wanted to talk to her. Lockdown was in force and the appellant told her that he would pick her up, which he did. When they arrived at the central police station, he called out to the person at the counter to lock Hiva up for breaking curfew. She was placed in a cell with the complainant. Again, the dates given are odd because the central police station cell book records Hiva having been placed into custody at 0520 hours on 1 October (a Thursday morning, not a Friday morning). She gave a false name (Mele Ongosia).
101. Hiva gave the evidence referred to above that the complainant told her that at the Nukunuku police station she was attacked by a male police officer who pushed her into the bathroom and “did what he did to her”.
102. Mr Edwards cross-examined Hiva about her evidence of the complainant’s further complaint. He did not cross-examine her on her evidence of the appellant’s repeated telephone conversations between Monday and Thursday that were capable of being construed as evincing a consciousness of guilt. Nor did he cross-examine her on her evidence of being tricked by the appellant into going to the central police station that was at least relevant to credit.
103. The appellant said that the first time he learned that a complaint had been made was before lunch on the Tuesday when Taufa telephoned him and told him that the complainant had made a complaint about abuse. He then gave the following evidence:

“Pros Can you recall [Hiva]'s evidence? She stated in her evidence that when she met you down at the one way road, you told her that it seems like the officers who were working with you in your shift were trying to make something up to get you in trouble, can you recall her evidence?

Def I remember her evidence.

Pros I put to you that the reason why you said these words to [Hiva] was because you already knew about the complaint, you didn't find out on Tuesday. I put to you that you found out on Sunday because you raped and indecently assaulted her?

Ct Ms Kafa before you go to that footage, perhaps you better ask the accused whether he agrees with [Hiva]’s evidence on that regard?

Pros What do you say about [Hiva] part?

Def I recall that but [Hiva]’s evidence is false. That day I had returned home to go to sleep after a 16 hour shift. I don't know where she would get or where I'd get the energy to come again to town and meet up with her, that's a lie, I went home to sleep. And I also remember in her evidence she stated that I called her that day but that's also a lie and I have records of the number that I called on Monday.

Ct Well they are not in evidence officer so, you're saying that you deny all of [Hiva]'s evidence about her saying you repeatedly contacted her during that week, is that correct?

Def I am denying that.

Ct You never contacted her, is that your evidence?

Def I never contacted [Hiva].

Ct Again something that wasn’t put to her during her evidence, was it?

Def Yes, but I had given everything all my stuff to my lawyer.

Ct You'll recall the end of her evidence was about the end of that week, where she said you arranged to pick her up and you took her to the central police station on the, for the purpose of her talking to [the complainant]? Because you were concerned about [the complainant]? You recall that evidence?

Def I remember.

Ct And you'll recall she went on to say that when you got to central police station you told one of the officers to lock [Hiva] up because she was out after curfew? What do you say to that evidence?

Def I heard that. That is not true.

Ct Any part of it?

Def None of it is true Sir. She stated here that after that night I left in a police vehicle but I didn't, the officers who were working on that shift knows that I didn't take a police vehicle. Her evidence that was recorded in her statements, she stated there that I left in a navy blue car none of that happened.

Ct What about asking the officers at central police station to lock her up for being out after curfew? Do you deny that or not?

Def I deny that, I never went and met or saw an officer eye to eye and told that officer to lock her up for breaking curfew.

Ct So if the records of central police station were examined to identify whether she was placed in a cell that night, they ought to also include reference to whichever officer brought her in on that charge, shouldn't they?

Def That is correct. If I was the officer who brought her, I would then have to fill in the cell book, place my signature in the cell book and plus, it would show on the cameras.

Ct So you say she just made it all up, is that correct?

Def Correct.”

104. That evidence unravelled on the resumption of the hearing when the cell book and station diary of the central police station were produced, which recorded the appellant as the arresting officer of Mele Ongosia. The cell book provided for the arresting officer to sign the entry. The entry recording “‘Anitema” as the arresting officer was not signed. But that was true for most of the entries.
105. When asked to explain the entry the appellant suggested that Hiva must have told the officer at CPS (Ofanoa) that the appellant had arrested her. He volunteered that Ofanoa had called him at 5.16am to ask whether he knew Mele Ongosia. He said he didn’t. Ofanoa told him that Mele Ongosia had said she was arrested by the appellant and a plain clothes officer who was not wearing uniform. He said he told Ofanoa that he didn’t know anyone like that. He said that he could place a time on the phone call from his telephone records.
106. The difficulty with this evidence is that, in Ofanoa’s entry in the cell book, the time of Mele Ongosia’s arrest is 05.20.
107. Ofanoa did not give evidence, but his absence was explained.
108. It is unsurprising that the primary judge placed weight on the entry in the cell book as objective corroboration of Hiva’s evidence in assessing her credibility and the appellant’s credibility.
109. The second matter that the primary judge regarded as an admission by conduct that betrayed a consciousness of guilt was based on evidence given by Taufa that, on the Tuesday evening, the appellant arrived at his house in a blue car and, referring to the complainant, said that it was “better to be fired from the force for being drunk than for rape”. He was not cross-examined on that evidence.
110. The appellant denied making the comment.
111. The appellant has given evidence on appeal that he provided Mr Edwards with records which would show that Taufa’s evidence that he came to Taufa’s house in a blue car could have been successfully challenged. He also said that he provided Mr Edwards with telephone records that showed his speaking to Taufa by telephone that day. Such evidence, if it had been adduced, might have weakened Taufa’s credibility.
112. But the remark, as reported by Taufa, is as consistent with innocence as with guilt. It was known that the complainant had made a complaint. So far as the evidence reveals, the identity of the alleged perpetrator had not been revealed to the appellant. On one view, it is unlikely that if the appellant knew he was guilty, he would have ventured such a comment.

Grounds 1 to 5 of appeal

113. Ground 1(i) – (ii) of the Notice of Appeal was that the primary judge erred because the complainant identified the appellant as having worn a dark T-shirt at the time of the offence, whereas he said that he was always wearing a light shirt and his evidence was corroborated by the majority of the police officers on duty. However, Tukuafu recalled seeing the appellant wearing a navy blue collared T-shirt.
114. She was not cross-examined. The primary judge was entitled to accept Tukuafu’s evidence in preference to that of the appellant and other police officers. In any event, even if the complainant were mistaken about the colour of the clothing that would not require rejection of her evidence of the assault and rape.
115. Ground 1(iii) – (vi) asserted that the appellant had gone on duty from 1.00 to 3.00am on 28 September; that at the time of the alleged offences the officers on duty were in the front office not far from the cells; that the cell door squeaked when it is opened and there was no noise from the cells at the time of the alleged rape.
116. The evidence was that the appellant went on patrol at midnight not 1.00am. There was no evidence that officers were on duty in the front office at the time the complainant said the assault and rape occurred. That was not put to any officer. Nor was there evidence that someone was not then on duty in the front office. We accept that if the events occurred at the times the complainant gave evidence, the possibility of their occurrence would be much reduced. Indeed they would have been impossible because the appellant was then on patrol.
117. But there was force in the Crown’s submission that the offences occurred later on the Monday morning, after the patrol returned. Although Tukuafu could not initially place the time of the complainant being taken to the domestic room any better than between midnight and 5.00am, she later appeared to place it closer to 5.00am. Tutone saw the appellant at the cell door before he left at 4.23am. Takafua also saw the complainant with the appellant in the domestic room when she was using the phone. He placed the time at about 3.00am. This was after he returned from patrol.
118. There was an opportunity for the offences to have been committed after 3.00am on Monday morning after the patrol had returned and some officers were asleep.
119. Ground 1(vii) – (x) were:

(vii) At about 4 to 5am on Monday morning 28 September 2020 Constable Kolo checked to see whether the complainant was in the cells. The complainant said she was fine. She did not appear to be upset and there was nothing about the complainant's voice that caused the officer any concern. (Refer paragraph 116 page 23 of verdict);

(viii) At this stage her conduct, mannerism and words deny that she was raped or indecently assaulted;

(ix) The subsequent change of story and claim of rape is incredible and false; and

(x) There was no medical evidence of any rape or assault.

120. The complainant gave no evidence of Kolo having checked on her in her cell at 4.00 to 5.00am. As noted above, Kolo’s evidence was that she checked on the complainant at that time and found her still awake. She asked the complainant if she was OK or needed anything and the complainant said no, she was OK and was fine. She was not upset. The primary judge recorded this evidence (at [116]). He did not express any doubt about it.
121. The complainant’s evidence was that she did not trust police officers. The primary judge accepted the complainant as a truthful witness. His Lordship said:

“[231] I found the Complainant to be a frank and forthright witness. She presented as a young, comparatively petite woman, polite and demure in manner, and, unsurprisingly for her age, somewhat naïve and relatively inexperienced. She was clear and consistent throughout her detailed evidence, none of which was damaged during cross-examination.

[232] As the Complainant herself explained during her evidence, she had much to lose and very little to gain by appearing in Court on this very serious matter. In that regard, I gained the very clear impression from observing the Complainant during her evidence that between the betrayal she felt at the hands of her father taking her to be placed in police custody over a disagreement about the level of independence she, then as an 18 year old, ought to have been allowed; and the fundamental breach of trust consequent upon her allegations of having been sexually assaulted and raped by a police officer, the Complainant's faith in society had been seriously damaged. Notwithstanding, throughout her evidence, the Complainant demonstrated a certain level of perhaps hard-earned maturity.”

122. The complainant’s failure to complain to Kolo and her apparent composure would be significant if the assault and rape had occurred before Kolo visited her cell. Even then, any failure to complain would be explicable by her distrust of police. In any event, if Kolo saw the complainant before the alleged assault and rape, then her observations and conversation with the complainant would not take the matter further.
123. Ground 2 was that:

“2. The Learned Trial Judge erred when he preferred to believe the complainant's evidence over the accused for the reason he set out in paragraph 173C page 37 of verdict:

Particulars

(i) The evidence of the complainant was conflicting and unreliable;

(ii) She had told Constable Kolo that nothing happened to her. She was alright;

(iii) The complainant is a suspected drug addict.”

124. The chapeau to this ground is misconceived. At para [173(c)] of his judgment the primary judge did not make a finding. He there recounted the prosecutor’s submission.
125. There were inconsistencies between the evidence given by the complainant and police witnesses and the station diary. These included:
     • the complainant’s evidence that after dinner the appellant took her back to her cell whereas the station diary recorded that Kolo did so;
     • Kolo said that she checked on the complainant in her cell between 4.00 and 5.00am, whereas the complainant made no reference to that and suggested she had fallen asleep;
     • as to the times at which the offences occurred;
     • her evidence that the lights were off.
126. But the fact that the complainant was mistaken in some parts of the surrounding detail does not mean that her description of the indecent assaults and rape could not be accepted as credible. The primary judge had an advantage, not enjoyed by this Court, of observing the complainant when she gave evidence. In the passages quoted at [121] his Lordship accepted the complainant as a credible witness. He did not palpably misuse his advantage as a trial judge in making that finding, which was substantially based on the quality of her evidence as well as aspects of her demeanour.
127. There was no evidence of the matter asserted in ground 2(iii). Ground 2(ii) is dealt with above.
128. Ground 3 referred to a finding by the primary judge as follows:

“[205] Further, the Accused's approach to the Complainant's parents (on the Wednesday or Thursday) with Tutone to tell them that that he never had sex with the Complainant and that he hoped the police would do a medical check, was unusual to say the least, for an innocent person who had nothing to fear. It was also consistent, however, with his other strained attempts to persuade others such as [Hiva] and Taufa that the complaint had nothing to do with him.”

129. This ground challenges the primary judge’s adverse credit findings against the appellant. We deal with those below. It suffices to say with respect to ground 3 that we do not place any significance on the appellant’s approach to the complainant’s parents. That approach was made after he had become aware that a complaint of abuse had been made against him, to assure them that he had done nothing untoward. That behaviour was equally consistent with guilt or innocence.
130. Ground 4 complained that the primary judge failed to give regard to various factual matters. We have fully canvassed those matters in these reasons.
131. Ground 5 complained that the primary judge erred in holding that the accused’s objection to the production of the station diary of the central police station was withdrawn. But the appellant did withdraw that objection as is acknowledged in the ground of appeal. The accuracy of the diary was challenged, but no submission was advanced in support of that challenge.

The appellant’s credibility

132. The primary judge gave a number of reasons for not regarding the appellant as a credible witness. The first was that he found that much of his evidence was recent invention. His Lordship drew this conclusion from Mr Edwards’ failure to cross-examine prosecution witnesses on matters about which the appellant gave evidence. His Lordship summarised the Crown’s submission as follows (at J [173]):

“(a) the Accused gave evidence, on numerous occasions, which was never put to relevant Prosecution's witnesses, nor were they challenged on it, thereby breaching the rule in Browne v Dunn (discussed further below), including his evidence that:

(i) he told Tukuafu that he would take the Complainant to use the phone, and that Tukuafu responded by saying 'yes';

(ii) he never approached Tukuafu (as stated by Tukuafu) saying to her that the night was different as she was awake for much longer.

(iii) Tukuafu's account of the clothes the Accused was wearing at the time. In fact, Mr. Edwards did not cross examine Tukuafu at all;

(iv) the Complainant asked him if she could be taken to see Latu Selu during their teatime (nor was that put to Officer Kolo or that the Accused told the Complainant's father about her request on the Thursday);

(v) the Complainant was the one who asked him to use the phone;

(vi) around 5 AM on the Monday, the Complainant tried to open her cell door, that he approached the cell door and asked her why she was not asleep, that she told him she had slept enough or that he then told her that it was nearly daylight so that she could soon go home;

(vii) the Accused phoned Taufa on the Tuesday morning during which, according to the Accused, Taufa asked him whether he went to the Complainant's cell, whether he took her to use the phone, and told the Accused that the Complainant had made a complaint about abuse. Taufa was never challenged concerning his account of the Accused visiting him that Tuesday evening and the conversation that took place where he jokingly said that it would be 'better to be fired for being drunk than for rape';

(viii) [Hiva] never contacted or met with him during that week, and her evidence of the Accused taking her to Central Police Station on the Friday morning was never challenged;

(ix) that the Accused said 'yes' to Tutone when he told the Accused he was going to go pick up PC Fa'aoa, nor was it put to Tutone that the Accused walked to follow him and that Tutone told the Accused to stay;

(b) despite the Accused making a number of references to what he considered to be inconsistencies between the evidence given by the Prosecution witnesses during the trial and their earlier statements to police, Mr Edwards never challenged those witnesses on their earlier statements, nor did he produce any of those statements or seek to tender them as prior inconsistent statements;

133. His Lordship continued:

“[182] I make the following observations and findings in relation to the Accused's evidence.

[183] Firstly, and perhaps most strikingly, the accounts of the evidence of the Prosecution witnesses summarized above will be seen to be notable by the lack of reference to much, if any, cross examination or of any responses by those witnesses to any contrary assertions put to them. That was because Mr Edwards did not cross examine on, or put to those opposite Prosecution witnesses, much if any of the evidence the Accused went on to give.

[184] The rule in Browne v Dunn is a general rule of practice by which a cross-examiner should put to an opponent's witness matters that are inconsistent with what that witness says and which are intended to be asserted in due course. The central object of the rule is to secure fairness.

...

[186] The question here then is whether this is a proper case in which the Court should accept the evidence of the Prosecution witnesses, if that evidence is otherwise credible, by reason of the fact that they were not challenged on such evidence nor was the Accused's evidence put to them so that they had an opportunity to respond to it?

...

[197] Further, by reason of the matters referred to in paragraphs 190 to 195 above, I am not satisfied that, where his evidence was relevantly inconsistent with that of the Prosecution witnesses, the Accused had instructed Mr Edwards as to that evidence, which was a clear indication of recent invention.”

134. Ground 6 of the Amended Notice of Appeal asserted that the trial had miscarried by the incompetence of Mr Edwards in not cross-examining the Crown’s witnesses notwithstanding the provision of written instructions during the period the trial was adjourned.
135. Ground 6 was as follows:

“6. There was a miscarriage of justice.

Particulars

1. the Appellant had given all his instructions to his counsel, in writing, well before the commencement of trial on 18 October 2021 and again well before the trial resumed on 10 March 2022;
2. the Appellant's Counsel did not cross examine on, or put to the opposite Prosecution witnesses, the evidence the Appellant went on to give (paragraph 183 of the Reasons for Verdict);

100. the list of breaches of the general rule of practice in Brown [sic] v. Dunn was so many that the Lord Chief Justice was sufficiently concerned about the possibility of a miscarriage of justice, and directed the relevant Prosecution witnesses to be recalled to enable the Appellant's Counsel to put his case to those witnesses but counsel did not.

(paragraph 187 of the Reasons for Verdict).

4. as a consequence of the breaches of the rule in Brown [sic] v. Dunn, the Supreme Court accepted the evidence of the Prosecution witnesses (paragraph 196 and 197 of the Reasons for Verdict); and His Honour found that the Appellant was not a credible witness and his evidence was unreliable.”

136. The evidence does not establish that relevant instructions were given to counsel before the commencement of the trial, but such instructions were given before the resumption of the trial.
137. The evidence provided on appeal confirmed what appears from day 4 of the transcript, namely, that Mr Edwards considered that only the evidence pertaining to the events surrounding the alleged assault and rape on the night of 27 and 28 September was relevant. It is evident that Mr Edwards did not understand that the evidence of Hiva and Taufa might be deployed as showing the appellant’s consciousness of guilt. In the case of Taufa’s evidence that would be correct. But Hiva’s evidence was that, on the Monday, before the appellant knew a complaint had been made, the appellant called her saying he wanted to help the complainant because other officers at the Nukunuku station might do something to get him into trouble. If said, that would betray a consciousness of guilt.
138. Nor did Mr Edwards apparently appreciate that his failure to cross-examine might be used by the Crown to attack the appellant’s credit.
139. The appellant’s telephone records were tendered at trial but as there was no evidence of which numbers were Hiva’s (or Taufa’s) the documents tendered had no probative value.
140. On appeal, the appellant gave evidence of instructions he gave to Mr Edwards during the adjournment. These included the telephone records for his mobile phone. He deposed that in her statement to the police Hiva said she had two mobile numbers which he identified. His telephone records, which he provided to Mr Edwards, showed no contacts to or from those numbers on any day except Tuesday.
141. That evidence, if tendered at trial, might have affected the trial judge’s assessment of Hiva’s credibility. But it is unlikely to have bolstered the appellant’s credibility. Quite apart from internal inconsistencies in his oral evidence, there remained the fact that the appellant’s credibility was weakened by his denial of having arrested Hiva on 1 October when the records of the central police station indicated otherwise.
142. There was also the unexplained fact of how the complainant could have known what undergarments the appellant wore unless he had exposed them to the complainant.
143. The appellant’s instructions to Mr Edwards were that he wore them because of his Mormon faith. He wrote:

“[The complainant] said she saw the long white tight of the accused when they went to the bathroom. I wonder how comes she knows the tight but not the trouser he wore. She could make it up, because every strong member of LDS church will wear that garments and it’s a proof that he or she is a covenant keeper.”

144. The appellant gave evidence in cross-examination that he was a member of the Mormon church who wore undergarments consisting of white short tights and a white singlet. He did not give evidence that he also wore “trousers” (or the equivalent Tongan word) under his tupenu.
145. A possible line of questioning of the complainant was whether she was or had become aware that the appellant was of the Mormon faith and that male adherents of that faith were expected to wear such garments. Any such line of inquiry would have been speculative and may have been counter productive. It could not be said that Mr Edwards was incompetent for not pursuing such a line of inquiry.
146. It is only in exceptional cases and only where there is a real likelihood of a miscarriage of justice that a conviction will be overturned on the ground of the incompetence of counsel (Kula v R [1996] Tonga LR 25; R v Clinton [1993] 1 WLR 1181 at 1186-7; R v Sungsuwan [2005] NZSC 57; [2006] 1 NZLR 730 at [64]- [66]; Nudd v The Queen [2006] HCA 9 at [9], [11]-[12], [24]; [2006] HCA 9; (2006) 80 ALJR 614).
147. Mr Edwards knew that the primary judge was concerned by his failure to comply with the rule in Browne v Dunn in his cross-examination of the witnesses called for the prosecution. That is why the trial was adjourned. The most significant matters were first, that the complainant was not cross-examined by its being put to her that she had tried to open her cell door at about 4.45am and that the appellant approached the door to ask her why she was not asleep (which might have explained the approach having been observed by Tutone). Secondly, Hiva was not cross-examined on her evidence of repeated approaches to the appellant from Monday 28 September up to her arrest, nor of having been tricked into accompanying the appellant to the central police station on 1 October.
148. It is not necessary to characterise the degree of incompetence evidenced by these omissions. The question is whether they have given rise to a miscarriage of justice.
149. A miscarriage of justice will have occurred if by reason of the incompetence of counsel, the accused has lost a chance of acquittal which would otherwise have been fairly open (R v Sungsuwan at [58], [69]; Alkhair v R [2016] NSWCCA 4 at [31(4)]; [2016] NSWCCA 4; (2016) 255 A Crim R 419).
150. One, but only one, of the reasons the primary judge rejected the appellant’s credibility was that where his evidence was inconsistent with the prosecution’s evidence and there had been a failure of his counsel to cross-examine, that was due to recent invention (at [183]-[197]). The primary judge was conscious of the caution that needed to be exercised in a criminal case before that conclusion could be reached. His Lordship cited Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937.
151. There, Kiefel CJ, Keane and Gleeson JJ said:

“[33] In R v Manunta ((1989) [1989] SASC 1628; 54 SASR 17 at 23), King CJ observed that an examination of an accused person which proceeds by reference to there being but one reason why a matter has not been put to a witness is "fraught with peril". As his Honour there observed, there may be many explanations for the omission which do not reflect upon the credibility of the accused. His Honour gave as examples defence counsel misunderstanding the accused's instructions or where forensic pressures may have resulted in looseness in the framing of questions. To these may be added the possibility that defence counsel has chosen not to advance certain matters upon which he or she had instructions because they were unlikely to assist the defence.

[34] Where there remains a number of possible explanations as to why a matter was not put to a witness, there is no proper basis for a line of questioning directed to impugning the credit of an accused. Except in the clearest of cases, where there are clear indications of recent invention, an accused person should not be subjected to this kind of questioning. The potential for prejudice to an accused is obvious.

[35] Proceeding on the basis of a mere assumption as to lack of instructions is likely to be productive of further unfairness in the course of the cross-examination. The assumption will inevitably lead to impermissible questions of the accused, put expressly or arising implicitly, as to the actual instructions he or she gave (See for example R v Birks (1990) 19 NSWLR 677). An accused person faced with questioning of this kind is likely to feel obliged to attempt to explain by reference to the instructions he or she in fact gave when in reality the accused carries no such onus. Questioning of this kind may result in the need for counsel or the solicitor for the defence having to disclose those instructions. This is a circumstance which should not arise.”

152. Gageler J said:

“[117] The present case furnishes an illustration. The irregularity that occurred at the trial was essentially one of unfairness. The unfairness lay in the prosecutor subjecting the appellant to a line of cross-examination and submission conveying an insinuation that parts of his evidence were the product of recent invention which, if the insinuation was to be dispelled by the appellant, had the practical effect of requiring the appellant to divulge the instructions he had given to his counsel (R v Birks (1990) 19 NSWLR 677 at 702; Llewellyn v The Queen [2011] NSWCCA 66 at [140]).”

153. Although not a ground of appeal, we have considered whether there was a miscarriage of justice by Mr Edwards’ failure to object to the prosecutor’s line of questioning.
154. Any unfairness in the trial by reason of that line of questioning only affects the primary judge’s conclusion that the appellant was guilty of recent invention. As indicated above, we would not accept this finding, particularly having regard to the evidence of Mr Edwards provided on the appeal. He took a mistaken forensic decision as the relevance of the evidence in question.
155. The primary judge gave additional and independent reasons for rejecting the appellant’s credibility.
156. Another reason for the primary judge’s rejection of the appellant’s credibility was accusations he made to Hiva (corroborated by his oral evidence) that other police officers at the Nukunuku police station were attempting to frame him. He also contended that the entry of Hiva’s arrest at the central police station diary was false. The primary judge found that:

[204] ...those statements by the Accused in fact betrayed a spiralling sense of conspiracy, paranoia and desperation which was consistent with his actions during the week in question. Specifically:

...

(b) the Accused told [Hiva] on the Monday that he was the one 'working on the Complainant's case' and that he wanted to help the Complainant but that the officers at the Nukunuku station were 'jealous of him, so they might do something that might get him in trouble';

(c) the Accused told [Hiva] on the Monday not to tell anyone that he had spoken with her;

(d) the Accused repeatedly asked [Hiva] to talk to the Complainant about her complaint;

...”

157. Another reason for the primary judge’s rejecting the appellant’s credibility was that initially he denied having had any contact with Hiva, but then gave details of his contact with her (J [208]).
158. Another reason was:

“[211] Finally, during re-examination, and once again for the first time, the Accused revealed that he had in fact driven to Central police station early that morning around the time that [Hiva] was recorded as having been arrested. Yet, the Accused still sought to distance himself from [Hiva]'s arrest by saying that he went to Central with Officer Tutone to take another officer there; something which was never put to Tutone. If the Accused's evidence (at its highest) were to be accepted, it would necessarily follow that [Hiva] must have walked into Central police station, told PC Ofanoa that the Accused had arrested her for breaching curfew, Ofanoa acted on that statement without any arresting officer present, and that [Hiva] submitted herself to being placed in custody. In my view, such propositions border on the absurd and I do not accept them.”

159. The primary judge concluded:

“[213] For those reasons, I find that the Accused lied about this issue and that he did arrest [Hiva] on the Friday morning in accordance with her evidence on this matter as corroborated by the Central police station cell book and station diary entries. In that regard, I am satisfied, on the evidence, that there was no innocent reason for the lie such as fear or panic, to avoid an unjust accusation, to protect another person, to avoid a consequence extraneous to the offence or out of forgetfulness: Rex v Hala'ufia [2014] TOSC 23 at [33]. If there was any reasonable explanation, Mr Edwards was at liberty to re-examine the Accused about it. He did not do so. And the evidence the Accused did give during re­ examination only compounded the lie.”

160. These findings are unimpeached and unimpeachable. They amply justify the primary judge’s rejection of the appellant’s credit.
161. At par [176] of his reasons, the primary judge said:

“[176] ... According to the Complainant, the Accused took advantage of her and sexually assaulted her. According to the Accused, his only contact with the Complainant on the night in question was, in effect, kind and accommodating. Accordingly, the central issue in the case is: who do I believe?”

162. Read in isolation this was an error. Even if the appellant was disbelieved and the complainant’s evidence was preferred the question would still be whether the offences were proved beyond reasonable doubt. The primary judge acknowledged this, saying:

“[178] There was no independent physical evidence directly corroborating the Complainant's evidence such as medical evidence of injury or other forensic evidence such as DNA on the Complainant, her clothing or the towel attributable to the Accused (the testing for which is not yet available in Tonga but is much needed). Even though corroboration of a Complainant's evidence is not required for a conviction on sexual offences, nor is any warning required in relation to any absence of corroboration,(Subsections 11(2) and (3) of the Evidence Act as amended by s.2 of the Evidence (Amendment) Act 2016; R v Sa'ili [2020] TOSC 48; Polutele v Rex [2004] TOCA 11 at [5]; Uhi v Crown [2013] TOCA 5 at [5]) out of an abundance of caution, I acknowledge that it 'can be dangerous' to act on the uncorroborated evidence of a Complainant. However, I also proceed on the basis that it is possible to do so if the evidence satisfies me beyond reasonable doubt that the Complainant is telling the truth (Rex v RVL [2015] TOSC 20 at [17]).

163. Having reviewed the evidence we are not persuaded that the primary judge erred in accepting the complainant as a credible witness as to the substance of her complaints, although not as to their timing. Nor are we persuaded that his Lordship erred in rejecting the appellant as a credible witness.
164. We are not persuaded that a miscarriage of justice occurred by reason of the appellant’s counsel’s conduct of the trial. At the forefront of that consideration is that there remains no explanation as to how the complainant could have been aware of the undergarments he wore under his tupenu that night if the complainant had not seen them, and no explanation as to how she could have seen them, unless he exposed them to her.
165. Any doubt arising from the complainant’s evidence as to the timing of the assault and the rape, and the brazenness of the offences occurring within the close confines of the police station in which four other police officers were then stationed, is assuaged by the primary judge’s credit findings.
166. For these reasons we make the following orders:
     • (1) If and to the extent necessary leave to appeal is granted.
     • (2) Appeal dismissed.
       

White J

Morrison J

Randerson J