Hafoka v R [2024] TOCA 3; AC 7 of 2023 (28 May 2024)

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

AC 7 of 2023
[CR 169 of 2021]

BETWEEN
SIOTAME HAFOKA

- Appellant

AND
REX

- Respondent

JUDGMENT OF THE COURT

Court: Randerson J
de Jersey J
Heath J

Counsel: Miss A. Kafoa for the Appellant
Mr. J. Lutui-DPP for the Respondent

Hearing: 22 May 2024
Judgment: 28 May 2024

[1] The appellant appeals against his conviction by a jury of rape, and two counts of indecent assault. The appellant’s case was that the sexual activity did occur but was consensual.

[2] A brief outline of the facts will suffice. The complainant wished to arrange a loan. Her parents suggested she approach the appellant. She did so, with prepared documentation. At his workplace, he locked the door, and forced her to the back of the shop, where he licked her vagina and raped her.

[3] She escaped on a pretext and went straight to the Central Police Station. She was then too distressed to give a statement, but was examined at the hospital. Her first statement was taken the next day, 3 March 2022.

[4] The appellant then handed himself in to the police. He gave a comprehensive account, claiming the encounter was consensual. He subsequently offered the complainant money by way of apology and requested she drop the charges. She at once reported this to the police.

[5] The appellant’s interview was followed by his being charged with rape and indecent assault. The charge sheet is in Tongan, with a caution in Tongan and English. It was attached to the record of interview, in which the appellant said that the sexual activity was consensual. On the charge sheet, following the caution, he wrote “Io Mo’oni”. The prosecution contended that was an acknowledgment of the truth of the charges. The defence position was that he was acknowledging the truth of the record of interview in which he denied lack of consent.

[6] In summary thereafter, the appellant secured the support of the complainant’s parents and her father gave evidence for the appellant at the trial. Before the jury, the appellant’s evidence was consistent with his police statement.

[7] It will be seen from this very brief summary that credibility and reliability issues played a large part at trial.

[8] The grounds of appeal are, in summary, that the learned trial judge:

1. erred in refusing to allow the appellant to put the complainant’s initial police statement of 3 March 2021 into evidence;
2. likewise, a later statement of 25 May 2021;
3. erred in his instruction to the jury by “diminishing” differences in the statement of 25 May from that of 3 March as being an “addition”, rather than denoting “a significant change, referable to trauma and emotional harm when there was no evidence of that”; and
4. wrongly told the jury that the appellant had confessed his crime to the police.
   

[9] As to grounds 1 and 2 above, while the Crown must adduce all relevant evidence for or against a conviction, a Prosecutor is not obliged actively to tender into the documentary evidence what are termed “prior inconsistent statements” except in accordance with the regime set up by section 143 of the Evidence Act. Rather, the Judge has a discretion to require the statement or other document into evidence^[1].

[10] The full terms of s.143 plainly accord a discretion to the trial Judge:

Cross-examination as to previous statements

“A witness may be cross-examined as to previous statements made by him in writing or reduced into writing relative to the subject matter of the proceedings without such writing being shown to him; but if it is intended to contradict such witness by the Evidence Act CAP. 3.06 Section 144 to 2020 Revised Edition Page 51 writing then before such contradictory proof can be given his attention must be called to those parts of the writing which are to be used for the purpose of contradicting him:

Provided always that the Court may at any time during the trial require the writing to be produced for its inspection, and may thereupon make such use of it for the purpose of the trial as it thinks fit”.

[11] The point of section 143 is that the author of such statements may reasonably be cross-examined about inconsistencies. And in this case the complainant was comprehensively cross-examined about her statements. The jury was aware of their existence and the complainant acknowledged the inconsistencies which she largely put down to stress. An example was her claim in evidence (not in the statements) of swearing and foul language during the incident. That departure was very much for the jury to assess. She said her statement of 3 March was given to her to sign when it was completed. She did not read it. She read the later statement. The learned trial Judge highlighted the inconsistencies and properly left it to the jury whether, as she claimed, she was under stress, or whether her claims were false.

[12] As submitted for the Crown, there was no “need” to have the written statements put into evidence: their ramifications were most comprehensively canvassed before the jury. The appellant did not lose a forensic advantage. There was no miscarriage of justice.

[13] The learned trial Judge gave an unexceptionable direction to the jury about the way they might approach assessment of the inconsistencies, and it drew on the ordinary experience of life, not dependent on any sort of expert analysis. He said:

“...She was given her statements to sign but not asked to read them before she did. The complainant told you she in shock she was shivering and shaken up and she felt that way right until the day she gave evidence to you. If you think her accounts are inconsistent you might consider why that might be. Just because she has not given a consistent account would not mean her evidence is untrue. Experience show inconsistency in accounts can happen whether a person is telling the truth or not. This is because if somebody has a dramatic experience such as the kind that is in this case then memory can be affected in different ways. It may affect the person’s ability to take in and later recall the experience. Also some people may over an event on in their minds and their memory may become clearer or can develop overtime. Other people may try to avoid thinking about an event at all and difficulty in recalling the event accurately. Your assessment of this factor will be influenced by the conclusion of the facts in this case. You must form a view on what happened in this case of all the evidence you heard. I’m explaining these points to you so you think about them in your deliberations. I’m not expressing any opinion. It is for you to decide if the complainant evidence is true. To answer this question, look at all the evidence. This includes any inconsistencies. You must decide what effects these have on their truthfulness. If you are sure that her account is true, then you can rely on it in reaching your verdict if you are not sure her account is true...”

[14] As to ground 3 above, it was within the learned Judge’s discretion to make the comment about the distinction between an addition and a significant change. And it is difficult in any event to quarrel with it. Notwithstanding the absence of actual medical evidence of trauma and emotional upset, they may readily have been inferred.

[15] In relation to the “confession”, the Judge did not direct the jury that the arguably incriminating statement was definitive. He was saying that the Crown position was that when charged, the appellant wrote on this charge form “Io, mo’oni” and suggested nobody would use those words unless they are guilty “(p13 summing –up). This possible issue arose essentially from counsel’s submissions. It was left entirely as a matter for the jury. This is the relevant part of the summing up:

“.. You know Mr Hafoka was interviewed by the police and he answered all the questions. You will take into account that interview when considering your verdict. After he was interviewed he was charged with rape and sexual assault. The evidence was after he was charged on his own free will he responded by saying “io mo’oni”. The prosecution case that was a confession to these cases. If you think that was a confession that would support the prosecution case. The defence case is those words were entirely inconsistent with his denials in interview”.

There was no objection to the summing-up.

[16] It remained for the jury to determine the verdict.

[17] The grounds of appeal are not established and we do not perceive any material risk of a miscarriage of justice. The appeal is dismissed.

______________________
Randerson J

______________________
de Jersey J

______________________
Heath J

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^[1] R v Beattie (1989) 89 Cr App R 302