Kupu v R [2024] TOCA 15; AC 20 of 2023 (14 November 2024)

IN THE COURT OF APPEAL OF TONGA

CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY
AC 20 of 2023
[CR 202 of 2019]

BETWEEN

VILI VUNI KUPU

Appellant

AND

REX

Respondent

Hearing: 24 May and 12 November 2024

Court: Randerson J

Harrison J

Heath J

Counsel: A Kafoa for Appellant
J Lutui, Director of Public Prosecutions, for Crown

Judgment: 14 November 2024

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REASONS FOR JUDGMENT (NO. 2) OF THE COURT
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The appeal

[1] Between 22 and 26 June 2020, Mr Kupu was tried on five counts involving indecent acts on a child (including one of rape) and domestic violence. The trial took place in the Supreme Court before Cato J, sitting alone. After hearing evidence and closing addresses, the Judge reserved his decision. In verdicts delivered on 30 June 2020, Mr Kupu was convicted on two sexual offences (one of indecent assault and the other of rape) and one of domestic violence. All charges involved a female complainant, then aged 12 years. On 24 July 2020, Cato J sentenced Mr Kupu to an effective sentence of imprisonment of eight years.
[2] Over three years later, on 7 November 2023, Mr Kupu sought leave to appeal against both conviction and sentence. The proposed appeal was based on evidence from the complainant, then aged 17 years, in which she retracted evidence that she had given at Mr Kupu’s trial. The complainant’s retraction was contained in an affidavit sworn on 19 September 2023 in support of the application for leave to appeal. Her evidence was supported by other witnesses, all of whom are part of Mr Kupu’s wider family.
[3] On 24 October 2023, on the basis of that evidence, Heath J gave leave to appeal out of time. The appeal was heard on 24 May and 12 November 2024. At the conclusion of the November hearing, we allowed the appeal for reasons to be given later. These are our reasons for making orders in terms of the result judgment delivered on 13 November 2024.^[1]

The retractions

[4] After leave to appeal had been granted, a police officer, Officer Havea, was provided with the complainant’s affidavit and asked to investigate potential perjury charges against the complainant. Officer Havea had been one of the officers involved in the trial before Cato J.
[5] Officer Havea quickly formed the view that the complainant had committed perjury either when she gave evidence at the 2020 trial or when she swore her affidavit of 19 September 2023. The complainant was arrested on 12 February 2024. She gave a recorded interview on 13 February 2024, in which she said that she had been induced by family members to retract her evidence so that Mr Kupu could be released from prison.
[6] As a result of what the complainant said at the recorded interview, two charges have been laid against the complainant: one of perjury in respect of the September 2023 affidavit and one of making a false statement prior to the 2020 trial. She has not yet been committed for trial. The Magistrates’ Court is awaiting a decision from this Court on Mr Kupu’s appeal.

The first appeal hearing

[7] The appeal initially came before this Court on 24 May 2024. In a judgment given on 28 May 2024,^[2] we adjourned the appeal pending receipt of a report from an independent counsel whom we requested be appointed to interview the complainant. In an order issued contemporaneously with that judgment, we directed:

2. Counsel appointed is requested to interview the complainant and, to the extent Counsel considers necessary, any persons she has named in her statements as influencing the making of the statements.
3. Counsel is requested to express a view to the Court about whether the evidence the complainant gave at trial was truthful including the reasons for that view.

[8] When we made our request for appointment of independent counsel, we harboured concerns about the possibility that something said by the complainant to the independent counsel might be used in evidence against her if either the perjury or false statement charge proceeded to trial. We decided to immunise the complainant against that possibility. In our judgment of 28 May 2024, we said:^[3]

[8] In deciding to appoint independent counsel, we have considered whether the complainant’s self-incrimination privilege might, inappropriately, be undermined. We raised this issue with Mr Lutui, Director of Public Prosecutions, for the Crown. He was disposed to agree that some form of immunisation was necessary. We consider that this issue can be addressed by making an order under the inherent jurisdiction of the Court that treats any admissions made as to the falsity of either the trial evidence or the affidavit of 19 September 2023 as inadmissible at future trial that alleges that false statements or evidence was given before or after the 2020 trial.

[9] We adopt the approach taken by Winkelmann J (in New Zealand). in R v Darwish.^[4] The Judge was then considering whether evidence given by an accused at a prior bail hearing should be admissible against him at trial. She relied upon the rationale for ruling voir dire evidence inadmissible in deciding that the accused’s affidavit evidence at the bail hearing could not be led at trial.^[5] In our view, the same rationale applies in the present case. If any incriminating statements made by the complainant to the independent counsel were admissible against her, the complainant’s so called “right of silence” might be significantly impaired at a later perjury or “false statement” trial.^[6] Accordingly, we exercise our inherent jurisdiction and direct that anything said by the complainant to independent counsel is inadmissible at such a trial.

(Footnotes retained)

[9] For reasons into which we need not go, it did not prove possible to have an independent counsel appointed. Accordingly, our attempts to have further information about the reasons for the complainant’s retraction of her original evidence and of the retraction itself was thwarted. Despite our concerns about mitigating the risk of re-traumatising the complainant while the appeal remained unresolved, we directed, on 22 October 2024, that the appeal be re-listed before the same panel on 12 November 2024 and that the complainant be brought before the Court for examination on oath in relation to the matters on which we had requested a report from independent counsel.

The second appeal hearing

[10] When the appeal resumed on 12 November 2024, we heard evidence from the complainant, now aged 18 years. At the commencement of the hearing, we explained the process that we intended to follow and cleared the Court of all persons present.
[11] First, we made it clear that the immunity granted on 24 May 2024^[7] extended to evidence that the complainant was to give on oath at the resumed hearing. Accordingly, nothing said by the complainant in oral evidence in this Court can be used against her in any criminal proceeding arising out of the retraction of her original trial statements and evidence.
[12] Although Mr Kupu was in Court, his counsel recognised the desirability of him being absent while the complainant gave evidence about whether her September 2023 retraction of her trial evidence was truthful. That stance removed the risk that we might consider that the complainant’s evidence before us had been compromised by any intended or unintended influence arising out of Mr Kupu’s presence.
[13] We asked Ms Kafoa, for Mr Kupu, to call the complainant, given that she had given affidavit evidence in support of Mr Kupu’s appeal. Mr Lutui, for the Crown, had the right to cross-examine. After completion of cross-examination, counsel for Mr Kupu could re-examine and any questions from the Bench could be put. Having explained that process, we asked for the complainant to be brought into the cleared Court to give her evidence. Prior to that, the complainant had been in a safe room within the courthouse so that she could not be seen or influenced by any person with an interest in the appeal.
[14] We deal briefly with the complainant’s evidence. She confirmed the truth of her affidavit of 19 September 2023 in which she stated that Mr Kupu did not commit the offences on which he had been found guilty. She acknowledged that her evidence at trial was untruthful. When asked about the interview in February 2024 with the police officer, the complainant said that (while this had not been recorded) she had been told that, if her affidavit evidence stood, Mr Kupu could be released from prison, but she could be jailed for perjury. While the complainant did not understand technical terms such as “perjury” she was adamant that was the gist of what was put to her by the police officer. Because we did not hear any evidence from the police officer to answer what the complainant said, we make no findings as to the truth or otherwise of her suggestion that she was wrongfully influenced by the Police to retract what she had said in her September 2023 affidavit.
[15] After hearing all of the complainant’s evidence, including that given in response to questions from the Bench, we formed the view that it would be unsafe to allow the convictions to stand. The events that have unfolded since the complainant made her September 2023 affidavit raise significant doubts about the safety of the verdicts, which were based almost exclusively on the evidence of the complainant, which the trial Judge had accepted as credible and reliable.
[16] Deliberately, we say no more about the evidence given by the complainant in Court. We have not heard evidence from witnesses who might be able to contradict her, so we cannot (and do not) make a final judgment on whether the September 2023 affidavit accurately states the true position. The reasons why the September 2023 affidavit was sworn and the subsequent retraction of it to the Police given are issues that would need to be explored at any re-trial, and determined by the trier of fact, whether a Judge sitting alone or a jury.
[17] While we are of the view that a re-trial is necessary, we acknowledge that a decision whether to proceed, given the time that has elapsed since trial and the fact that Mr Kupu has already served a significant part of his sentence, must be made by the Attorney-General. Although there may be countervailing public interest factors that justify entry of a nolle prosequi, that is something for the Attorney to decide. We offer no comment on that issue.
[18] At the conclusion of the 12 November 2024 hearing, we pronounced orders allowing the appeal and ordering a re-trial. Those orders are recorded in a result judgment given on 13 November 2024, and replicated in para [20](a)-(c) below.
[19] After making those orders, we heard submissions from counsel for Mr Kupu on bail. Mr Kupu has been in custody since 30 June 2020 when Cato J delivered his verdicts. That represents a term of about four years and five months out of an effective sentence of eight years imprisonment. While we are ordering a re-trial and have been told that it may be possible to schedule it at some time after April 2025, we consider that Mr Kupu is entitled to bail at this stage. Bail was granted on the terms set out in para [20](d) below.

Result

[20] For those reasons, we made the following orders on 12 November 2024:

• (a) Leave to adduce further evidence on the appeal, in the form of the affidavits filed and the oral evidence given by the complainant, is granted.
• (b) The appeal against conviction and sentence is allowed. The convictions and the consequential sentences are quashed.
• (c) A re-trial is ordered.
• (d) Mr Kupu shall be released on bail to a date to be fixed by the Registrar of the Supreme Court once the first call for the re-trial has been fixed. As a condition of bail, Mr Kupu shall not, directly or indirectly, associate or communicate with the complainant. Any other questions of bail shall be addressed in the Supreme Court.
  

[21] For the avoidance of doubt, the order made in the Supreme Court suppressing the name and any identifying particulars of the complainant remains in force.

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Randerson J

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Harrison J

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Heath J

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^[1] The orders are reproduced at para [20] below.
^[2] Kupu v R [2024] TOCA 9.
^[3] Ibid, at paras [8] and [9].
^[4] R v Darwish [2006] 1 NZLR 688 (HC).
^[5] Ibid, at paras [125]–[130].
^[6] Ibid, at para [126], citing R v Brophy [1981] 2 All ER 705 (HL) at 709.
^[7] See para [8] above.