Kupu v R [2024] TOCA 9; AC 20 of 2023 (28 May 2024)

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

AC 20 OF 2023
[CR 202/2019]

BETWEEN
VILI VUNI KUPU

- Appellant

AND

REX

- Respondent

___________________________________________________________________________

JUDGMENT OF THE COURT
___________________________________________________________________________

Court: Randerson J

Harrison J

Heath J

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

Hearing: 24 May 2024
Judgment: 28 May 2024

Introduction

[1] With leave, Mr Kupu appeals out of time against his convictions on two sexual offences (including one of rape) and one of domestic violence, all involving a female complainant aged 12 years. All three convictions were entered on 30 June 2020, following a trial in the Supreme Court before Cato J, sitting alone. On 24 July 2020, Mr Kupu was sentenced to an effective sentence of imprisonment of eight years.
[2] Leave to appeal out of time was granted by Heath J, on 24 October 2023. Leave was granted because the principal ground of appeal was based on new evidence from the female complainant, who is now 17 years old. On 19 September 2023, she swore an affidavit retracting her original complaint. Her affidavit evidence was supported by other witnesses, all of whom are part of Mr Kupu’s wider family. The complainant deposed that she had made false complaints against Mr Kupu after having been “badly beaten” by an aunt at a time prior to the complaint being made. While this was an explanation for the complaint put by Mr Kupu in cross-examination of the complainant and her aunt at trial, it was rejected by Cato J.
[3] In submissions filed in opposition to the appeal, the Crown disclosed that, following a Police investigation after receipt of the complainant’s affidavit of 19 September 2023, the complainant was arrested and charged with perjury. The Detective Senior Sergeant says that, in a recorded interview the following day, the complainant stated that she had been induced by family members (some of whom swore supporting affidavits) to retract her evidence so that Mr Kupu could be released from prison. We understand that there are two charges have been brought 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.
[4] We are left in an invidious position. In the space of just over six months, the complainant has both retracted her evidence at trial and the retraction itself. Mr Kupu’s appeal depends upon whether the complainant’s initial retraction of her trial evidence is sufficiently credible to make the convictions unsafe. It is clear that the complainant lied either in her trial evidence or her affidavit of 19 September 2023.
[5] A secondary ground of appeal is that Mr Kupu did not have legal representation at trial. In light of the initial retraction of evidence by the complainant, it is submitted that the absence of counsel to “direct and manage his case” led to a miscarriage of justice. Given the unusual circumstances of this appeal, we do not consider that there is any need to deal with this issue discretely.

The retraction issue

[6] On the material we currently have there appear to be two possibilities although there may be other matters of which we are presently unaware. The first is that the original retraction was inappropriately influenced by members of Mr Kupu’s family, in his interests rather than those of the complainant. Another is that the later retraction may have been brought about by the threat of being charged with perjury. In that regard, we have some concerns about the sequence of events set out in the Detective Senior Constable’s affidavit, in particular:

7. After having reviewed the [complainant’s] Affidavit, it became quite clear that [she] had committed perjury, either when she gave evidence under oath at the trial in 2020 or when she swore the Affidavit.
8. It therefore became necessary to make inquiries to ascertain whether [the complainant] committed perjury, in 2020 or 2023.
9. On 12 February 2024, [the complainant] was arrested.
10. On 13 February 2024, a recorded interview was taken from [the complainant] ...

[7] A number of options to deal with this perplexing situation were canvassed with counsel. Given the course we propose to take, it is undesirable to discuss those at this stage. We have decided, in these highly unusual circumstances to take the possibly unique course of appointing independent counsel to investigate the circumstances in which both retractions were made and to report to the court on the outcome of his or her investigations. An important factor in reaching this view is our desire (so far as may be reasonably practicable) to mitigate the risk of re-traumatising the complainant while this appeal remains unresolved. We emphasise this is a rare response to meet a unique factual situation, and our decision to act in this way should not be treated as any form of precedent.
[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.^[1] 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.^[2] 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.^[3] Accordingly, we exercise our inherent jurisdiction and direct that anything said by the complainant to independent counsel is inadmissible at such a trial.
[10] We hand down, together with this interim judgment, our request to the President of the Tonga Law Society to request nomination of a suitable counsel to act as independent counsel. It goes without saying that the appointee will need to be someone who has experience in criminal law, cultural values and the need for sensitivity in interacting with vulnerable witnesses. Our request is made under s 15(1)(a) of the Law Practitioners Act 1989 and Rule 5.1(e) of the Tonga Law Society, set out in Schedule 2 to that Act. Terms of reference for the independent counsel are contained in that order.

Outcome

[11] The appeal is adjourned, to a date to be fixed by the Registrar, to enable independent counsel to conduct his or her inquiries and to report to the court, in terms of our accompanying order. On receipt of the report, the Court will reconvene by video-link so that the issues arising on the appeal can be promptly determined. Leave to apply for further directions is reserved.
[12] The Registrar shall liaise with the DPP and independent counsel to ensure that he or she has the trial transcript, the other two statements at issue and any other materials from the Court file that may be required. Counsel for Mr Kupu should be kept informed about the materials supplied.

• [13] Mr Kupu shall remain in custody pending determination of the appeal.
  

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Randerson J

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Harrison J

_____________________________
Heath J

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^[1] R v Darwish [2006] 1 NZLR 688 (HC).
^[2] Ibid, at paras [125]–[130].
^[3] Ibid, at para [126], citing R v Brophy [1981] 2 All ER 705 (HL) at 709.