Rex v Sailosi [1994] TOSC 2; CR 913 1994 (16 May 1994)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION

Criminal Case No. 913/94

Between

REX
(Plaintiff)

-v-

'ASIPELI SAILOSI
(Defendant)

LEWIS J.

Mrs. Taumoepeau for the Plaintiff
Mr. Hola for the Defendant

Trial: 12th and 13th May 1994.
Judgment: 16th May 1994.

JUDGMENT

'Asipeli Sailosi is charged that he on the 6th of March,, 1993, committed three breaches of the Criminal Offences Act of TONGA, namely

• Rape (in that he on the 6th March 1993 raped Lupe Loutongo at FOLAHA) s 118.
  
• Indecent Assault (in that he on 6/3/93 indecently assaulted Lupe Loutongo at FOLAHA) s 124 (1)
  
• Assault (in that he on 6/3/93 assaulted Lupe Loutongo at FOLAHA with intent to Rape her)
  

The prosecution allegation of Rape by the accused in count 1, must leave the court satisfied beyond reasonable doubt that on the 6th March 1993 at Folaha

• The accused
  
• had sexual intercourse involving actual penile penetration of the vagina of Lupe
  
• without the consent of Lupe to the act or being reckless as to whether she was in fact consenting, and
  
• that the accused did not believe on reasonable grounds that Lupe was consenting to sexual connection.
  

As to the offence of indecent assault count alleged its 2, at the conclusion of the evidence the court must be satisfied beyond reasonable doubt of each of the following elements:-

• that there was an assault. That is an intentional application of force by 'Asipeli to Lupe directly
  
• that the assault was carried out in circumstances of indecency.
  
• "indecent" means that conduct which would be considered by ordinary Tongans to be indecent, and that the assault was neither accidental nor consensual that there was no consent to the assault."
  

As to the offence of assault with intent to commit Rape Count 3

• the Crown Prosecutor must prove the elements constituting assault in Count 2 and in addition prove
  
• that the accused intended to Rape Lupe.
  

I mention that on 16 November 1993 Dalgety J as he then was made 5 orders. Inter alia, Order 5 provided:

"5. Defence Counsel (a) do lodge in process at least two weeks prior to the commencement of the Trial the original (which failing a copy) of all documentary evidence to be relied upon at the Trial, together with an inventory thereof; (b) do deliver a copy thereof to the Crown Counsel; and (c) at the Trial do make available a further copy thereof for the use of witnesses."

With respect to Dalgety J., in my opinion the order involves a fundamental misconception of the Criminal Law as I presently understand it to be. I consider the order to offend against the right of an accused person to remain silent in criminal cases. I revoke that order. I have not proceeded on any material evidence obtained by virtue of the existence of the order.

On the crown case the 3 offences charged represent 3 incidents in one continuous transaction over a period of about three hours between the accused and his alleged victim.

The Accused has pleaded not guilty to each count and by the conduct of his defence and in his sworn evidence he admits having has sexual intercourse with Lupe Loutongo but claims that his sexual acts and sexual touchings of her were with her consent. Implied in his defence is that any “assault with intent” did not occur. Indeed he has pleaded not guilty to that charge.

The following is a narrative of events about which I am satisfied beyond any reasonable doubt from the whole of the evidence. The narrative represents my conclusions as to the credit of witnesses. I bear in mind that the crown carries the onus of proving each element of each charge beyond reasonable doubt and that the accused carries no such onus. Indeed no onus of proof at all.

I come straight to the point. I do not consider what 'Asipeli says about the charges to be a reasonable possibility in any of the 3 charges.

I am satisfied beyond any reasonable doubt that the Crown Prosecutor has proved the defendant guilty of each count. I say so for the following reasons.

It is true that there is no evidence which is in the legal sense corroborative of the evidence of the complainant Lupe. There is simply no independent evidence which confirms Lupe's evidence in a material particular. There is however some equivocal evidence which is consistent with the Account given by Lupe e.g. the Medical evidence of Dr. Semisi Fonua Latu that she had sustained bruising on the left wall of the vagina consistent with the introduction of a blunt instrument into the vagina.

Nevertheless, I am still convinced that what the complainant and the other witnesses say about the charges is true, and there is no rule of law or practise which precludes a conviction or convictions in the absence of corroboration in a case such as this.

The central issue is, of course, the question of Lupe's, consent to 'Asipeli's sexual handling of her and penetration of her vagina by his penis. To determine that question it has been necessary to consider the weaknesses as well as the strengths of the Crown case.

The principal weaknesses of the crown case properly drawn to my attention by Mr. Hola in his address revolves around Lupe's failure to make an early complaint, her failure to attempt to escape, her failure to resist his forcing himself on her and her having requested him to take her to "Likio" her companion in the Police Station at Nuku'alofa in the very motor vehicle where some of the sexual acts were carried out.

One needs to consider the 2 principal witnesses for a resolution of this question. Lupe was, at the time, a woman in her mid-fifties who was experiencing breathlessness and frailty as a consequence of suffering 23 or so years of Diabetes. At the time of the offences against her, I am satisfied that she was alone save for 1 year old grandchild VIKA in a quite deserted rural area with no neighbours whose attention might be attracted by her screaming. [I do not accept it as reasonably possible that the neighbouring house was occupied as the defendant has it.]

'Asipeli on the other hand was a fit man of 53 years or thereabouts, affected to some extent by alcohol who on any version of events was interested in having sexual intercourse with Lupe. (I have considered his intoxication. I am satisfied he was intoxicated, but I am satisfied that he was not so affected by alcohol so as to be incapable of formulating an intention to rape and assault his victim - one only has to look at his actions and what he later said about the matter to Police.)

As to her fleeing him - to where could she have run? VIKA was there and had to be cared for - there were no neighbours. There was just nowhere for her to have run.

As to her resisting him - her frailty was no match for his strength. To have hit him with the coconut husk would have perhaps invited more gratuitous violence on his part - and she needed to prevent any further injury to her body so she placed it under her head in the way she described.

What of the fact that she sought a lift from 'Asipeli to the Police Station at Nuku'alofa? How could she have travelled for assistance without his transport? Her sworn evidence (which I unhesitatingly accept) is that she was anxious that Likio might side with 'Asipeli and she would be left wronged with nowhere to turn so she asked 'Asipeli to take her with the young child to Likio. What had she to fear from him? He'd attempted sex and failed to ejaculate and appeared to have stopped his aggression. The evidence from 'Asipeli that the fare to Nuku'alofa was to be sex creates no doubt in my mind about the truth of this unhappy business. I accept Lupe's account of events entirely. 'Asipeli's evidence in my view is not true.

That Lupe remained in 'Asipeli's company until 'Asipeli left Bhagwan's house to get more beer after which she divulged what had happened to Nia simply makes 'Asipeli's behaviour the more callous.

Likio having appeared to accept Lupe's account then left it open to her to make a complaint, and complain she did to the officers at Vaini Police Station. I accept the complaint was a late one but I accept Lupe's reason for not complaining until she had ascertained Likio's attitude.

Those matters have been considered I now turn to what I see as being the most compelling aspect of the evidence advanced by the Prosecution namely a confession by the Accused to the investigating officers of highly relevant facts.

The evidence of Inspector Kaufusi and the evidence from Exhibit P1 and the exchanges read into the transcript by the Inspector from the "Record of Interview" MF P2, are quite unambiguous and conclusive. The evidence is evidence of unrefuted non-consensual sexual intercourse between 'Asipeli and Lupe at the time and place in question, given by 'Asipeli of his own free will.

The accused did not give evidence denying the accuracy of the record of interview he merely complained that the officers had "left out" some thing, he said that had told the Police Officers

• that sex was the fare for giving Lupe a ride to Nuku'alofa
• that he at Lupe's request had twice returned to the tax allotment after setting out for Nuku'alofa to secure the dogs
• that he and Lupe had parked near the Huahua Restaurant, and gone to the wharf and discussed sex.
  

I consider that it is plainly not reasonably possibly that 'Asipeli told the Police of those topics and the Police Officer's left them out. I consider that evidence to be recent invention by 'Asipeli.

In summary, the crown submits that the acts of non-consensual intercourse between the accused and Lupe constitutes rape. It is not suggested that 'Asipeli mistakenly and subjectively believed that Lupe was consenting to intercourse. Mr Hola was at pains to present Lupe as a companion in to intercourse - an instigator. Indeed the accused's instructions to counsel clearly were that she was of loose morals - for example that she lived with another while still married to her former husband and against that background urged that I ought to be persuaded that she was at least passive to the suggestion of sex and at best enthusiastic and encouraging of 'Asipeli that it should take place.

I rejected those submissions they, are worthless and unworthy in my opinion. As to count 1, I am satisfied that 'Asipeli raped Lupe.

As to count 2, the Crown Prosecutor case is that on a number of occasions 'Asipeli licked Lupe's vagina without consent and that in so doing committed the offence of it decent assault. I so find.

As to count 3, the Crown Prosecution allegation is that by lifting Lupe's head with the palms of his hands at her jaw and by the general force used 'Asipeli committed the offence of assault with intent to commit rape. I so find. In respect of the allegations against the accused I am satisfied beyond the reasonable doubt of each of them and I find the accused guilty of counts 1, 2 and 3.

'Asipeli Sailosi you have been found guilty of rape, indecent assault and assault with intent to rape. I record a conviction in respect of each of those offences.

You are 54, you have no relevant prior convictions you are the father of 4 children, 2 of your 5 grandchildren are dependant on you. In the past you have been a useful and hard working member of the community, these offences are out of character, you have 2 employees in your employ, you operate your own workshop. To some extent your activities were driven by alcohol consumption. You admit these actions were bad you told me that you will not re-offend. That it happened spontaneously.

On the other hand you treated the victim violently. She was 55 at the time and living alone on a tax allotment in a deserted rural area. She had the care of her one year old grandchild. You came to see her husband you said and when you found that he was not there you took advantage of this frail woman. You injured her neck and her wrist and you raped her. In my opinion this one of the most serious crimes in the laws of Tonga. As for the charge of rape you will be imprisoned for 4 years; as for the charge of indecent assault you will be convicted, and I impose no penalty. To the offence of assault with intent to commit rape, I impose nor penalty. I treat the rape as being the most serious of all. The indecent assault and the assault went along with the rape.

NUKU'ALOFA, 16th May 1994.

LEWIS J.