R v Lasike [2006] TOLawRp 18; [2006] Tonga LR 191 (28 July 2006)

IN THE SUPREME COURT OF TONGA

R

v

Lasike

Supreme Court, Nuku'alofa
Webster CJ
CR 99/2006

24-27 July 2006; 28 July 2006

Criminal law – rape charge – all elements not proved – not guilty

The defendant, a Noble of the realm, was charged with one count of rape contrary to section 118(1)(a) of the Criminal Offences Act and two counts of indecent assault contrary to section 124(1) of that Act. The offences were alleged to have occurred on 15 October 2005 in a room at a motel which was owned by the defendant. The complainant had been working as a receptionist for a few weeks at the motel. The prosecution claimed that it had been a classic scenario where an employer with power and status used his position to abuse and rape an employee. The defendant accepted that he had sexual intercourse with the complainant on the date and at the place alleged but denied that it was against her will. The defence was that what occurred in the motel room on the night in question was consensual. The defendant contended that had the complainant done anything to indicate that she did not consent to what was happening then he would have stopped.

Held:

1. The essential elements to be established to make out a charge of rape were: it was the defendant; who carnally knew -- i.e. had sexual intercourse (i.e. by his penis penetrating her vagina); the (female) complainant; against her will (knowing that she did not consent to the intercourse or being reckless as to whether she consented to it).

2. Carnal knowledge was a legal term for sexual intercourse, and for the purposes of the offence that was deemed complete on penetration. Under section 140 of the Criminal Offences Act, on the trial of any person on a charge of carnal knowledge it was not necessary to prove the actual emission of seed and the offence was deemed complete on proof of penetration only.

3. In relation to corroboration and the delay in making complaint and the absence of physical injury or damage to clothing, the court adopted and applied the law as stated in Teisina v R [1999] Tonga LR 145 (CA).

4. The court found that the necessary elements of these 3 counts had not been established beyond reasonable doubt and found the defendant not guilty as charged of Counts 1, 2 and 3 and acquitted him of the counts of rape and assault.

Cases considered:

Kaitamaki v R [1984] 2 All ER 435 (PC)

R v C [1992] Crim LR 642 (CA)

R v Court [1988] 2 All ER 221 (HL)

R v George (1956) Crim LR 52

Teisina v R [1999] Tonga LR 145 (CA)

Statutes considered:

Criminal Offences Act (Cap 18)

Evidence Act (Cap 15)

Counsel for prosecution: Mr Kefu
Counsel for defendant: Mr Edwards

Judgment

Preliminary

The defendant Hon Lasike pleaded not guilty to 1 offence of rape, contrary to section 118(1)(a) of the Criminal Offences Act, and 2 offences of indecent assault contrary to section 124(1) of that Act.

Evidence and submissions

On the application of Crown Counsel and with the agreement of Defence Counsel I made an order directing that the identity of the complainant and her evidence taken in the proceedings shall not be published in the Kingdom in a written publication available to the public, or be broadcast in the Kingdom.

I heard evidence for the prosecution from 10 witnesses, the complainant [referred to in this decision as AB]; Miss Malia Nive Letisi, formerly a receptionist at the Sandy Boyz Motel; Mr Siaosi Tupou Ha'apai Lasike, bar tender at the Motel and nephew of the defendant; Mr Subramani Sami, formerly Manager of the Motel; Mrs Adeleen Sauliloa Leaman, Executive Director of the Motel and an aunt of the defendant; Mr Tokaloni Emil Tu'uhetoka, builder and another nephew of Mrs Leaman; the de facto husband or partner of the complainant AB [to protect AB's identity, referred to in this decision as CD]; Inspector Lolesio Hausia, CID, who had interviewed the defendant; PC Patelesio Tu'itavuki, Police photographer; and Cpl Latu Lavaki, CID, in relation to the exhibits. The prosecution also produced a number of documentary and material exhibits.

At the close of the prosecution case on 26 July a submission of no case to answer was made for the defendant, but I did not uphold that submission.

The defendant Hon Lasike gave evidence himself; and the defence led evidence from Miss Muna Pahu, formerly a bar tender at the Motel. The defence also produced 2 documentary exhibits.

On completion of the evidence, on 27 July the Court made a site visit to the Motel. The Court then heard closing submissions in support of their respective cases for the defence and prosecution.

Indictment

The offences with which the defendant was charged were:

RAPE, contrary to section 118(1)(a) of the Criminal Offences Act (Cap 18).

Hon Lasike of Kolofo'ou, on or about 15 October 2005, at Nuku'alofa, you did rape AB by carnally knowing her against her will.

INDECENT ASSAULT, contrary to section 124(1) of the Criminal Offences Act (Cap 18)

Hon Lasike of Kolofo'ou, on or about 15 October 2005, at Nuku'alofa, you did indecently assault AB when you kissed her neck and breasts against her will.

INDECENT ASSAULT, contrary to section 124(1) of the Criminal Offences Act (Cap 18)

Hon Lasike of Kolofo'ou, on or about 15 October 2005, at Nuku'alofa, you did indecently assault AB when you licked her vagina against her will.

The burden is on the prosecution in a criminal trial to prove beyond reasonable doubt every element of the offence alleged.

Essential elements of rape

Section 118 of the Criminal Offences Act provides:

Rape.

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

(a) against her will, or ...

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

(2) ...

(3) For purposes of sub-section (1) a man commits rape if at the time of sexual intercourse with a woman he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it. ...

Carnal knowledge is a legal term for sexual intercourse, and for the purposes of this offence that is deemed complete on penetration: Kaitamaki v R [1984] 2 All ER 435 (PC). Under section 140 of the Criminal Offences Act, on the trial of any person on a charge of carnal knowledge it is not necessary to prove the actual emission of seed and the offence is deemed complete on proof of penetration only.

There was no dispute on the law in this case, though the prosecution referred to Teisina v R [1999] Tonga LR 145 (CA) in relation to 2 aspects. I quote the relevant passages.

In relation to corroboration the Court of Appeal stated:

"[It was] submitted that it should be implied from s 11 of the Evidence Act (Cap 15) that the evidence of the complainant must be corroborated. That is not so. Section 11 provides that in criminal proceedings for sexual offences, evidence that the person, at or shortly after the crime was committed, voluntarily made a statement relating to its commission, may be given, not as corroboration, but as showing that the person's conduct is consistent with his or her evidence at the trial. The Chief Justice was correct when he said that there was no requirement for corroboration of a complainant's evidence in the law of Tonga. The common law applies.

Though corroboration of the evidence of the complainant is not essential in law, it is the practice to warm the jury against the danger of acting on his or her uncorroborated evidence, particularly where the issue is consent or no consent: Archbold Criminal Pleading Evidence & Practice (38th Ed) 2888 and the cases there cited. However this issue does not arise here once the two written statements of the appellant are admitted, since, as the Chief Justice found, they provide corroboration of the complainant's evidence."

(p 149-150)

In relation to the delay in reporting the matter to the Police, which in this case the defence accepted was not necessarily fatal to the complaint, it was stated (at p 150):

"We do not accept that submission [that the complainant should have gone to the Police immediately]. It is perfectly understandable that a young girl, having been raped and sexually assaulted, should choose to go straight to the house where her mother was, rather than go to the police station. The taxi driver came from the same village as the appellant and knew him personally. That the complainant elected to make no complaint to him does not give rise to any inconsistency in her evidence.

The complainant did later that morning make a complaint to her friend Seilose who had been with her at the party the previous night. She told that friend that she had been raped. Her friend gave evidence of that complaint in the same terms. That evidence was admissible pursuant to s 11 of the Evidence Act as showing that her doing so was consistent with her evidence at the trial."

And in relation to physical injuries the Court Of Appeal said:

"Evidence of Resisting

[It was] submitted that the Chief Justice was justified in rejecting the evidence of the appellant only if there were some evidence to corroborate the complainant's account of sexual intercourse without consent in the form of medical evidence of injuries or bruising, or evidence of damaged clothing. We do not accept that submission either. Sexual intercourse without consent or belief of consent can and frequently does occur without physical injury or damage to clothing. The issue was entirely one of credibility. The Chief Justice was entitled, for the detailed reasons he gave, to accept the evidence of the complainant and reject the evidence of the appellant."

(p 150)

The essential elements to be established in this case to find that there has been rape are that:

it was the defendant;

who carnally knew –ie had sexual intercourse (ie by his penis penetrating her vagina);

the (female) complainant;

against her will (knowing that she did not consent to the intercourse or being reckless as to whether she consented to it).

In this case the defendant accepted that he had sexual intercourse with the complainant on the date and at the place alleged, but denied that it was against her will.

Consent may be absent even where there is no force, fear of force, or fraud – ie submission does not disprove consent.

Essential elements of indecent assault

Section 124(1) of the Criminal Offences Act provides:

Indecent assault.

124. (1) Any person who shall commit an indecent assault on any female shall be liable on conviction thereof to imprisonment for any term not exceeding 2 years.

An assault (in this sense meaning deliberate physical contact) is indecent if right-minded persons would consider the conduct so offensive to contemporary standards of modesty and privacy as to be indecent (R v Court [1988] 2 All ER 221 (HL)); ie it is objectively capable of being regarded as indecent (R v George (1956) Crim LR 52; R v Court).

R v Court was considered in R v C [1992] Crim LR 642 (CA), in which it was held that where an assault was indecent in itself, it was unnecessary to establish a specific indecent intent.

The essential elements to be established in this case to find that there has been an indecent assault are that:

it was the defendant;

who intentionally assaulted the complainant;

and that the assault, or the assault and the circumstances accompanying it, are capable of being considered by right-minded persons as indecent;

the defendant intended to commit an assault of that kind;

Again the essential issue in this case is whether the complainant consented to what occurred.

Grounds of decision

Complainant's evidence

The complainant AB had been working as a receptionist for a few weeks at the Sandy Boyz Motel, which is owned by the defendant, Hon Lasike, when the alleged incident took place on the evening of Saturday 15 October 2005. Her evidence about the essentials of the alleged incident was as follows:

She gave evidence that in the evening the defendant told her to come with him while he took another member of staff home. When they returned he told her to turn off the air-conditioning in Room 10, while he was standing at the door of that room, though she said she clearly recalled that she had checked all the rooms that evening and all the air-conditioners were turned off, because there were no guests. When she went into the room she stood on a table and turned off the air-conditioning, but as she did so the lights in the room were put off and the door closed. She could hear the defendant's breathing, because he is a very big person, and he touched her. She said she could clearly make out that it was him, as the walls in the room were white and he had on black clothing, although no light came into the room. She said that he pulled her shirt, then the buttons on it became torn and he threw her on the bed.

The complainant said that she fell on the bed, lying on her back, and the defendant got on top of her. He had tried to kiss her, but she moved her head from side to side, then he started on her neck. He had sucked her breasts after kissing her neck.

She said her hands were on the side and he was keeping them down, but she said in answer to the next question that her hands were level with her head, he held her wrists. She said he also had her legs pinned down with the lower part of his body. She said she told him to stop many times, but he did not say anything. She also tried pushing his shoulders and chest away when her hands became free, but was not able to do that. His hands were touching her head, as he was trying to kiss her. Then she kicked him in his stomach with her right foot and he fell down, but got up again and held her onto the bed once more. She said she had tried to stand up so that she could get up, but was held by the defendant when she was just getting up from the bed.

She said he pushed her skirt up and pulled her underwear down; and he hooked her legs with his arms, one leg to each arm, and his head between her legs. He had then licked her vagina: she did not consent to that and she had wriggled around but he was very strong in holding her legs. Then she felt him getting on top of her and the lower half of his body was naked. He inserted his penis into her vagina. She had cried because she was very sad because she did not consent to what he was doing. She said she told him to stop and she would tell her partner CD and was not coming back to work, but he said nothing as he was having sexual intercourse. She said she was trying to push him on his chest. She said he had sex with her for about 3 minutes. She said she was calling out the name of Malia Nive, another receptionist, many times, but she did not come.

The complainant said she then heard a sound as if someone was trying to open the door. The defendant jumped down and she got up off the bed and opened the door. She noticed her cellphone lying there beside the door. She had held her clothes and tried to do up the buttons on her shirt, but she still had her skirt and her underwear on the lower part of her body, as the defendant had pulled her underwear down and while they were having sex it was down at her legs and did not come off completely, as it was round her ankles. She said that when she opened the door and the light came in she looked back and saw the defendant sitting on the bed.

The complainant went through into the ladies toilet and called Malia Nive on her cellphone. After about a minute Malia Nive came and the complainant hugged Nive and cried and said she was only grateful what happened was to her and not Nive, because Nive was still a virgin.

Burden on prosecution

In any criminal case the burden is on the prosecution to prove the case against the defendant beyond reasonable doubt. That means that the prosecution must make the Court sure of it: nothing less than that will do. If after considering all the evidence the Court is sure that that defendant is guilty, it must return a verdict of 'Guilty'. If the Court is not sure, the verdict must be 'Not Guilty'.

To that extent I do not accept the submission for the prosecution that the main issue before the Court in this case is who is telling the truth. The principle issue is and remains whether the prosecution has established the essential elements of the offences alleged beyond reasonable doubt – and especially in this case whether the complainant consented to what happened.

Assessment of complainant's evidence-in-chief

I have to say that in this case I began to have some doubts about the evidence of the complainant AB herself, even during her evidence-in-chief, ie before she was cross-examined for the defence. My first doubts related to her description of her alleged struggle with the defendant: she described being pinned down by the defendant, who is a large man, but at the same time the complainant said that at one point she kicked him in the stomach with her right foot and he fell down, but got up again. She did not enlarge on these aspects, but I have difficulty envisaging how she managed to kick him that way in the stomach if she was constantly pinned down; and also why, if he fell down, she did not seize that opportunity to get out of the room.

The complainant said that her hands were on the side, pinned down by the defendant, then in her next answer demonstrated them as being in a hands-up position, level with her head, which did not seem consistent.

She said that her shirt was torn in the struggle as the defendant pulled her by the front of her shirt, and there was certainly 1 button off the shirt near the neck (but only 1) and no other tears to the buttons, although a small tear lower down the front (and she accepted in cross-examination that the shirt was not torn). So the state of her shirt was not entirely consistent with her evidence of the alleged struggle.

The complainant's black skirt, which was about knee-length, was made of thin material, with a lining. She said that the defendant had pulled her skirt up and her underwear down, but her underwear had not come off completely and was down round her ankles. It is difficult to envisage how any sexual intercourse occurred in those circumstances. It is also difficult to see how the defendant could pull the complainant's skirt up and her underwear down if his hands were occupied holding her hands down.

I also had in mind that while the defendant is a large, well-built Tongan man and undoubtedly stronger than the complainant, she is herself a tall, well-built young woman. Although not as tall nor as big as the defendant, she is not a slip of a girl.

After the incident the complainant said she thought of going to the Police, but did not do so – though the Central Police Station can only be about a hundred yards from the Motel. She said she wanted her partner CD to know about it, which I found strange as she had given evidence that she was not still living with CD after an argument over the phone on the morning of that day, and he had gone to his sister's in Vaini: she described it as a minor misunderstanding, but that did not tally with her saying that she was not still living with him.

While the Court must not speculate, it also appeared at least a possible inference that, if the complainant had split up that morning with her partner, that evening she may have wanted to be loved or, as was later submitted for the defence, that what happened may have been done to get sympathy from her partner, or to get him back.

Then the complainant described how later that evening, about 15 minutes after she had returned to the front desk of the Motel, the defendant returned and she went with him alone to buy meat for them for Sunday's meal and then dropped him off at a kava club at Fasi and returned to the Motel. Then she slept at the Motel until 5 am. Even though the defendant is a Noble and was the complainant's employer, it seemed inconsistent with her allegations that he had forced her to have sexual intercourse with him against her will, that she was willing to go out alone with him again at night only an hour or so after the alleged incident. If the complainant had been raped in a forcible manner as she described, I considered it inherently improbable that she would have done that, even with her employer who was a Noble.

On her own evidence the complainant was not a shy virgin, who only knew Tonga, but a mature young woman of around 25 at the time, who had been at Brigham Young University in Hawaii, then spent 2 years as a Mormon missionary in San Francisco, and who had been in a de facto relationship with CD for around 18 months at that time (and this June gave birth to a child) – so I inferred that she could have made an excuse or refused to go with the defendant if she had wished.

I did not accept that the complainant may have felt under any duress or undue influence of the defendant (because he was a Noble) that would have prevented her from going to the Police that night. It was important that her allegations in evidence were of a forcible rape (though she did not say she was hit), but her subsequent behaviour was not at all consistent with that. I accept that delay in going to the Police may not be fatal to the prosecution case, but it does not help it.

For the same reasons I found it even more inconsistent with the complainant's allegations that the following day she ate a meal with the defendant, Malia Nive and Siaosi Lasike and then they all played cards. The complainant's explanation for doing that was "I was trying to make Lasike not think I was dissatisfied with what he had done so that he would not do what he did to me again". That explanation did nothing to dispel my doubts about the alleged incident.

The complainant had the defendant's phone no entered in her cellphone, and received a call from him on Monday 17 October, with the inference that she was accustomed to making or receiving calls to or from him, although it is possible that these were connected with work.

The complainant did not go to the Police until 10 days later, on 25 October, after her partner had gone with her to see a lawyer, Mr Sifa Tu'utafaiva: that struck me as most unusual and inconsistent with the gravity of the allegations in the indictment.

All the above is simply a narration of aspects of the complainant's own evidence-in-chief, before she was cross-examined, that raised a number of doubts in my mind about the nature of the alleged incident and the credibility of the complainant. In brief her evidence about what happened in Room 10 appeared, even at that stage, not entirely consistent in itself and thus inherently improbable.

Assessment of complainant's evidence in cross-examination and re-examination

Further inconsistencies and matters raising doubts emerged in the cross-examination of the complainant:

The complainant had said earlier that she was afraid of the defendant when he dismissed 2 employees, but in cross-examination she said that gradually she felt comfortable with him, because he was not like that.

Although she had earlier said that the intercourse lasted about 3 minutes, she said the whole incident lasted for up to half-an-hour, and it seems somewhat inconsistent for a struggle between the 2 of them to last as long as that.

The complainant accepted that after the incident Malia Nive had told her they should leave work and that money was not important; and that she had told her to go to the Police, but she did not want to because she wanted to inform her partner CD first, which would tie in with the defence submission that she may have been seeking his sympathy.

The complainant also accepted that on the Saturday evening she had gone to see the defendant at Fasi a further 2 or 3 times (in re-examination she said to take him a music book and then cigarettes), which she had not mentioned in her evidence-in-chief. That was a further inconsistency with her allegations of rape and indecent assault.

Though the complainant had made no mention of it in her evidence-in-chief, she accepted, after some prevarication, that she had just recalled that she had seen her partner CD on the Saturday evening and called out to him to stop, but he did not do so as he was very angry. She denied that he said he was going to come and hit her.

The complainant accepted that when she saw Mrs Leaman, who is the aunt of the defendant and an Executive Director of the Motel, on Monday 17 October, that was the first time she had used the word "rape" to describe what had happened to her. Even taking into account Tongan sensibilities on talking about rape, that rather contrasts with the situation in Teisina v R where the complainant told her friend that she had been raped (p 146,150). She also accepted that she had told Mrs Leaman she had no injuries (which contradicted her earlier evidence of bruises), she said because she did not want to show Mrs Leaman her body. She also said she had not subsequently told the Police about the bruises; and said in re-examination that they were no longer visible on her body at that time. Later re-examination elicited that the bruises were above her breasts and on the sides of her stomach, done by the defendant with his mouth, apparently so-called love bites, which if true seem inconsistent with a scenario of rape.

There were also a number of inconsistencies, mostly minor, between what the complainant said in evidence before this Court and the Magistrates' Court. But the major inconsistency was that she said that during the incident she had called out to Malia Nive, which she had not mentioned in the Magistrates' Court and which she claimed she had just recalled, which did not seem credible.

It also transpired from the site visit that the switch to the air-conditioning could easily be reached standing on the floor (even by a person smaller than the complainant), which cast doubt on her evidence that she stood on a table to do so.

All these matters reinforced my doubts about the complainant's evidence, so that overall I very much regret that I was unable to accept her as completely credible and reliable all her evidence, including particularly her evidence about the alleged forcible rape and indecent assaults. I could not accept that the inconsistencies in her evidence were all minor.

Other prosecution witnesses

I regret to say that aspects of the evidence of the other prosecution witnesses, whom I generally accepted as credible and reliable, except to some extent Malia Nive and the complainant's partner CD, only increased my doubts about the complainant's allegations.

In Malia Nive's evidence she said that when the complainant went alone to the defendant with his music book later in the evening of the incident she was away 20-30 minutes, which seems a long time to make a delivery to a place within 5 minutes of the Motel. Once again the fact that the complainant went at all to the defendant alone after the alleged rape is inconsistent with what she alleges. I did not accept the submissions for the prosecution that the complainant did so because she was overawed by the defendant and under his influence to do what he told her.

Malia Nive also gave evidence, contradicting the evidence of both the complainant and later her partner CD, that when they eventually stopped CD that evening at the Peace Corps building, the complainant told him to take her home, but he told her to go or he would "beat the shit out of her". All 3 were prosecution witnesses and the contradictions cast further doubt on the truthfulness of the complainant's evidence as a whole.

Malia Nive said, and this was also confirmed by Siaosi Lasike, that when they played cards with the defendant on the Sunday they were all (including the complainant) laughing, joking and happy. Once more that does not seem consistent with the conduct of a rape victim in the presence of her alleged assailant within 24 hours of the alleged incident.

Malia Nive also said that the complainant had not told her exactly what had happened to her, but she had told her to bring charges. She confirmed that they had driven past the Police Station on the Saturday evening.

Mr Sami said that the complainant had asked him for $350 for a house the previous week; and that on the Sunday after the alleged incident she had seen him and told him that something bad had been done to her by the defendant and had been very quiet and distressed. That appeared inconsistent with the complainant's demeanour earlier in the day when she had been playing cards and laughing and joking with the defendant.

Mrs Leaman said that the complainant had told her in English "I was raped by Lasike" and had cried, but she had no bruising. Mrs Leaman had advised the complainant to go to the Police, but she said she was sorry for the defendant's wife Luolua, who was a nice woman; and that she had not told her family because they would send her to the Police.

Tokaloni said that on the Monday, when he asked the complainant what happened, Nive said "Ouch, Ouch, Ouch" and they all laughed. They had all laughed again after the defendant had phoned the complainant while they were having lunch. Again that appeared to be another inconsistent mood swing by the complainant.

While the complainant's partner CD denied saying near the Peace Corps office that he would beat her up, he said that on the Saturday she had sent him text messages, which I found strange as she had not specifically mentioned in her own evidence.

No witness gave evidence about hearing the complainant shouting when she was in Room 10. Nor was there any evidence that the door to Room 10 had been locked during the incident.

The prosecution led no medical evidence of any kind.

These further aspects of the prosecution evidence increased my doubts about the truthfulness of the complainant and her allegations against the defendant. For all these reasons, therefore, I had considerable doubts about the complainant's allegations of rape and indecent assault.

On the other side it has also to be said that several responsible prosecution witnesses, who because of their position or relationship to the defendant I would have expected to support him, (ie Mr Sami, Mrs Leaman, and Tokaloni Tu'uhetoka) gave the clear impression from their evidence that they either assumed or knew privately that something improper had occurred between the defendant and the complainant. Mr Sami appeared to have accepted when the complainant saw him in a distressed state on the Sunday and said that something had happened to her, done by the defendant, that she needed support and took her home; and he also phoned Mrs Leaman and told her that something had happened to the complainant. Mrs Leaman said that she had gone to see the complainant and had tried to comfort the complainant, though she expected rape in Tonga to have involved violence; and she had never heard the defendant's side of the matter as that would have been contrary to Tongan culture. Tokaloni had taken the complainant for lunch because he had told Mrs Leaman that he felt sorry for her after he had heard what had happened from other people.

While these pieces of evidence have to be seen as to some extent supporting the complainant's story, on their own they are no substitute for solid evidence about the alleged incident itself. And as that was lacking, they cannot bolster the weak foundation to these allegations.

Defence evidence

The defendant gave evidence himself. I shall narrate for the record the essential points of it.

The defendant said that on the day before the incident, Friday 14 October, the complainant had asked him if he could assist her as she needed $350 for the rent of a house, to be repaid by deductions from her wages, and he told her that he could do so the following week, as the money had already been drawn for the wages for that week. (The complainant had denied in cross-examination that she had spoken to the defendant at all about money.)

In relation to the incident, he accepted that immediately before it the complainant had come with him in the Motel's minibus to drop off Muna. He said that he had noticed that the door to Room 10 was open, the lights were on and the air-conditioning on, so he called to the complainant to see if there were guests in the room, and if not to turn off the lights and air-conditioning, as the bills were accumulating, and to check if any of the other rooms were the same. He had then walked past her to his office to get some tobacco and tidy up his desk, then gone to the back of the Motel towards his vehicle.

As he passed Room 10 he saw that the door was ajar and noticed the complainant lying on the bed. He had gone in and asked her what was happening and she had said to him that there was something she wanted to talk to him about, so he went in and closed the door. The complainant sat up at the foot of bed and he sat down beside her and asked her what was happening. She had not said anything but had just looked at him, they looked at each other and their eyes met. She had not said anything, but he had noticed that her thoughts were wandering elsewhere and just to break the silence he leaned towards her, she also leaned towards him and he kissed her cheek. She turned her face and her lips touched his and they kissed and went on kissing and she had hugged him. Then they lay down on the bed and kissed and he kissed her neck and asked her to remove the upper part of her clothes. She sat up, but did not say anything.

The defendant said the complainant got up and went to the air-conditioner and turned it off; and as she turned towards him it looked as if she was going to take her clothes off. She looked at the lights and he had gone and turned off the lights and closed the door, but did not lock it. She could not have locked the door because she was on the other side of him (ie away from the door). At the time the room was dark, but the door to the bathroom was open, letting in the light from the parking area outside. The defendant had seen the complainant taking off the upper part of her clothes and they laid down on the bed and he kissed her and she kissed him. He kissed her neck and her breasts, but did not do anything. He had got up and taken off his trousers and she took off her skirt and her underwear.

The defendant denied that he had kissed the complainant's vagina at any time. He said she took off the lower part of her clothing and they made love; and after that they lay there facing each other kissing. Then he told her that he would go outside to make a telephone call and smoke, as smoking was not allowed in the rooms. He had put on his clothes and done that.

The defendant said that the complainant had not done anything to indicate that she did not want him to kiss her or her breasts, or have intercourse with her, but if she had, he would have stopped. He said that the incident was nothing that was planned, it was a spur of the moment thing.

The defendant said that it was unfortunate that the complainant had said that they had wrestled for half an hour, because if that had happened her clothes would have been torn, something would have changed in the room and she would have scratched him or he her.

Record of interview of defendant

In his closing submissions Crown Counsel referred to the defendant's answer to Question 6 of the Record of Interview:

Q 6: Are you married?

A 6: I am very sad about what has been the alleged against me. And I strongly deny these allegations. It has very much degraded my reputation in the work that I do and my daily life. That is the end of my answer, if there is anything else I shall explain in court.

Crown Counsel submitted that the defendant had never mentioned in the record of interview or the preliminary inquiry that the intercourse with the complainant had been by mutual consent, but submitted that an innocent man would have provided that answer right from the start. He submitted that Answer 6 seemed to say that the incident had never happened, but now the defendant said that the incident had happened, but had been consensual.

I did not accept that submission, as under the law of Tonga the right of a defendant to silence is a fundamental part of the legal presumption of innocence: a defendant is entitled to sit there without saying anything throughout the entire criminal process and see if the prosecution proves the case against him. It is essential for the rights and freedoms of individuals accused of crimes that the Court respects this right to silence.

Conclusions on evidence

I have to make it clear, with the greatest respect to Hon Lasike, that I approached this case on the basis that the laws of Tonga apply to Hon Lasike as they do to other people in Tonga. I reached my decision on the evidence before me, and not on the basis of his position in the Kingdom. Under the judicial oath prescribed in clause 95 of the Constitution the Judges of the Supreme Court must be impartial, and under clause 82 the Court must uphold the Constitution.

But I also have to make it clear that in a criminal trial it is not a question of the Judge taking a decision on the balance of probabilities between the two sides. It is absolutely clear that the ultimate question for the Court is whether the prosecution has proved the charges beyond reasonable doubt – ie to make the Court sure of them.

As I have explained above the prosecution did not succeed in doing that in this case because, for all the reasons given above, the evidence did not establish that what occurred between the complainant and the defendant was done without the complainant's consent.

The issue is not whether I believed the defendant, but whether I believed the complainant and the other prosecution evidence. At the end of the day I had reasonable doubts about that: particularly and mainly about the complainant's description of the struggle and alleged forcible rape that went on in Room 10, but also because, in a case where consent was a key issue, I had doubts about whether that was corroborated or substantiated by her subsequent conduct.

Both Counsel accepted that in the circumstances all 3 counts stood or fell together.

I further have to say that on all the evidence I was unable to accept that it was established, in the words of the opening submission for the prosecution, that this was a classic scenario where an employer with power and status used his position to abuse and rape an employee. The complainant may have felt anxious and nervous in the presence of the defendant at the start of her employment, but it was very clear that by the date of the alleged incident, in her own words gradually she felt comfortable with him, to the extent of driving alone with him on the night of the alleged incident, both before and after the alleged incident; and remarkably laughing and joking when eating and playing cards with him the following day.

Overall for all those reasons I therefore had a reasonable doubt that the complainant's allegations of rape and indecent assault had been established. It is therefore my duty to find the defendant not guilty of all 3 counts and dismiss the charges.

Questioning of defendant

I should add that I was disturbed by one aspect of the evidence of Inspector Hausia in relation to the record of interview of the defendant. The caution given before that interview, at which the defendant's Counsel was present, was:

"I wish to ask you some questions about the allegations brought against you. You are not obliged to answer any of the questions put to you, but the questions and answers will be taken down in writing and will be used as evidence."

Despite that, at the end of the interview Inspector Hausia asked Question 10 "Why do you not answer the questions I have put to you, instead you say that you will answer in court?".

For the information of Police officers I must make it clear, not for the first time, that it is a fundamental part of the legal presumption of innocence that a defendant has a right to silence and is not obliged to answer questions from the Police, as stated in the very words used in the formal caution used on this occasion. It is essential that Police officers do in practice respect this right to silence.

Overall conclusion

I therefore found that the necessary elements of these 3 counts had not been established beyond reasonable doubt and I find the defendant not guilty as charged of Counts 1, 2 and 3 and acquit him of these counts of rape and assault.