Rex v Fonua [2002] TOSC 3; CR 198 2000 (31 January 2002)

IN THE SUPREME COURT IN TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY

NO.CR.198/00

BETWEEN:

REX
Prosecution

AND:

MOSESE LAVAKI FONUA
Accused

BEFORE THE HON MR JUSTICE FORD

Counsel: Miss Simiki for the Crown and Mr Veikoso for the accused.

Dates of hearing: 23, 24 and 25 January 2002.
Date of judgment: 31 January 2002.

JUDGMENT

The accused is facing one charge of rape and another of indecent assault. Crown counsel told the court that the indecent assault charge had been laid in the alternative. It is alleged that on 17 June 2000 at Tokomololo the accused did rape the complainant against her will.

The complainant is the fourth child of a family of seven children from Popua, Tongatapu. She was 15 years 2 months old at the time of the alleged offence. The court was told that the complainant's father had gone to the USA in 1991 and has never returned. He has had no contact with the family.

In October 1999 the complainant's mother, who would then have been about 39 years of age, commenced having an affair with the 33 year old accused and they lived together as husband and wife in the family home at Popua. On the night of 16 June 2000 the family, apart from three of the children, had attended a wake at Pili for the mother's uncle. The following morning at about 7 or 8 a.m. the mother told the accused to drive the children back to Popua. He proceeded to do so. After the children were dropped back at their home, the complainant collected some dressings or make-up for her mother and got back into the van with the accused to return to Pili. It is the Crown's case that instead of driving to Pili the accused drove the van to a bush allotment in the Tokomololo area where he proceeded to rape the complainant.

As in any criminal case the onus of proof lies on the Crown throughout the trial and it is an onus of proving beyond reasonable doubt every constituent element of the charge. There is no obligation on an accused to prove anything, nor is there any obligation on an accused call evidence or to give evidence.

In her opening address, Miss Simiki told the court that the Crown anticipated difficulties in the presentation of its case because the complainant had refused to give evidence at the preliminary inquiry in the Magistrates' Court and the evidence would be that the family had made strenuous efforts prior to the trial to have the charges withdrawn. When the complainant was called to give evidence in this court she totally refused to cooperate. After taking the oath, she was not even prepared to volunteer her name. She told the court that she did not want to speak about anything. Upon the Crown's application, the complainant was declared a hostile witness but she continued to remain totally uncooperative. After being informed of the legal position in relation to contempt and following a brief adjournment, the complainant told the court that the only reason she did not want to speak about the matter was, "because I have forgiven the accused". Crown counsel then asked what she had forgiven him for but no answer was forthcoming. There was no attempt made to cross-examine the witness by defence counsel and the complainant then left the witness box.

In his closing address, Mr Veikoso submitted that the Crown could never succeed in establishing a charge of rape if the victim did not give evidence. Crown counsel took issue with this submission and placed reliance on the following passage from the judgment of Chief Justice Hampton in R v Fa'aso [1996] Tonga L.R. 36, 38:

". . . The interviews are of importance here, the Crown relying on them as showing alleged confessions by the accused to the crime charged. Those matters take on special significance in a case such as the present one where the Crown has chosen not to call the complainant to give evidence. From what I was told at the Bar she is out of the country. That is unusual but not unique; unfortunately it is not unheard of for trials to take place, for example in murder and rape cases, where obviously no complainant is available. So it comes back to the basic matter of what evidence has been called in front of me, the weight I can put on that evidence and whether that evidence is sufficient to satisfy the requirement of proof, as I have already explained it, that is on the Crown at all times."

The fact that this submission was advanced by counsel for the accused was all the more surprising because, although he did not act at the trial, Mr Veikoso took the Fa'aso case on appeal ([1996] Tonga L.R. 42) making the identical submission to the Court of Appeal, namely, that the conviction for rape in that case could not stand because the complainant had not given evidence. The Court of Appeal considered the arguments presented by counsel but rejected his submission as being "obviously wrong". The court went on to confirm that an accused's confession alone can be sufficient to justify a conviction where the court is satisfied that the confession is "reliable and cogent evidence" and there was no requirement that confession must be corroborated.

In this case, the accused was interviewed by a very experienced police officer, Inspector Halatanu, and he agreed to make a full statement to the officer. There was no challenge made on the voir dire to the admissibility of the statement and in any event I am completely satisfied that it was given voluntarily and that it constitutes, in the words of the Court of Appeal, "reliable and cogent evidence". In his statement to Inspector Halatanu, the accused outlined how he had taken the children from Pili back to their home in Popua in his van early on the morning of 17 June. The translated series of questions and answers then continue:

"Q. 22 WHERE WERE YOU WHEN THEY GOT OFF?

A. I WAS STILL IN THE VAN, ABOUT TO RETURN TO PILI.

Q. 23. AND DID YOU RETURN TO PILI?

A. YES.

Q. 24. WAS THERE ANYONE ELSE RETURNING WITH YOU IN THE VAN TO PILI?

A. YES, S. (the complainant).

Q. 25. WHEN YOU LEFT POPUA, DID YOU GO TO PILI?

A. NO, I WAS DRIVING AND WE DROVE ALONG VUNA ROAD AND AT THE BYPASS INTERSECTION WE WENT AROUND HALALEVA UP TO MAILETAHA AT THE TAUFA`AHAU ROAD WE TURNED AND DROVE TO LOMAIVITI TO THE TAX ALLOTMENT OF VIENA TU'INUKUAFE.

Q. 26. WHEN YOU ARRIVED AT VIENA TU'INUKUAFE'S TAX ALLOTMENT WHAT HAPPENED THEN?

A. WE ARRIVED THERE AND I REACHED OUT AND GOT HOLD OF THE LITTLE GIRL AND TOOK OFF HER PANTS AND I KISSED HER AT THE SAME TIME I TRIED TO HAVE SEXUAL INTERCOURSE WITH HER. WE DID HAVE SEXUAL INTERCOURSE, IN WHICH I INSERTED MY PENIS INTO HER VAGINA. I KNEW I PENETRATED MY PENIS INTO HER VAGINA MANY, MANY TIMES, MORE THAN 20 TIMES. WE HAD SEX UP TO WHEN I EJACULATED MY SEMEN.

Q. 27. WHEN YOU CAME FROM POPUA TO RETURN TO PILI, DID YOU RETURN TO PILI?

A. NO.

Q. 28. WHAT WAS THE REASON FOR YOU NOT RETURNING TO PILI?

A. WHEN WE LEFT POPUA WITH S. I HAD ALREADY DECIDED THAT I WILL DO SOMETHING TO HER.

Q. 29. FOR WHAT REASON DID YOU THINK LIKE THAT?

A. I WAS DRUNK, AS I WAS DRINKING HARD LIQUOR DURING THE WAKE UP TILL DAYBREAK WHEN I WENT AND TOOK THE CHILDREN TO POPUA.

Q. 30. WHEN YOU DROVE FROM POPUA TO THE BUSH AT PEA, DID S. TELL YOU ANYTHING?

A. YES, WE DROVE ALONG AND AT MAILETAHA S. ASKED ME WHERE WE WERE GOING.

Q. 31. WHAT WAS YOUR ANSWER?

A. I TOLD HER WE WERE GOING TO GET A BOTTLE OF LIQUOR FROM (LOMAIVITI).

Q. 32. BETWEEN POPUA AND PEA HOW MANY TIMES DID S. ASK YOU WHERE YOU WERE GOING?

A. THREE TIMES.

Q. 33. THE ANSWERS YOU GAVE S. THAT YOU WERE GOING TO GET A BOTTLE OF LIQUOR, WAS THAT THE TRUTH OR NOT?

A. NO, I WAS LYING. I SAID THAT SO SHE WOULD THINK IT'S THE TRUTH.

Q. 34. THE TAKING OFF OF S's PANTS, WHO TOOK THEM OFF?

A. SHE TOOK THEM OFF BECAUSE I TOLD HER TO.

Q. 35. WHAT IS THE SEQUENCE OF EVENTS OF WHAT YOU DID TO S.?

A. WE ARRIVED AND PARKED THE VAN AT VIENA TU'INUKUAFE'S TAX ALLOTMENT, I REACHED OUT AND LOCKED THE VAN'S DOOR, THEN I TOLD HER THAT WE WOULD HAVE SEXUAL INTERCOURSE. I THEN KISSED HER AND TOLD HER TO TAKE OFF HER PANTS. SHE SAID NO BECAUSE SHE IS AFRAID AND SHE CRIED AND TOOK OFF HER PANTS. I LAID HER DOWN INSIDE THE VAN AND HAD SEXUAL INTERCOURSE. AFTER THAT I SUCKED BOTH HER BREASTS AND I LICKED HER NECK.

Q. 36. HOW MANY TIMES DID YOU HAVE SEXUAL INTERCOURSE?

A. ONCE.

Q. 37. S's DEMEANOUR, DID SHE CONSENT?

A. NO.

Q. 38. ABOUT S's VIRGINITY, WAS SHE STILL A VIRGIN OR NOT?

A. ALL I KNOW IS THAT SHE WAS HAVING HER MONTHLY PERIOD, BECAUSE WHEN SHE TOOK OFF HER UNDERWEAR (PANTIES) A BROWNISH COLOURED PIECE OF CLOTH FELL OFF WHICH WAS BLOODSTAINED AND SHE TOLD ME THAT SHE WAS HAVING HER PERIOD.

Q. 39. WHAT WAS THE COLOUR OF S's PANTS?

A. SHE HAD ON LONG BLACK TROUSERS, I DO NOT KNOW THE COLOUR OF HER UNDERWEAR.

Q. 40. AFTER THE SEXUAL INTERCOURSE WHERE DID YOU GO?

A. I RETURNED WITH S. IN THE VAN TO PILI.

Q. 41. DID YOU TELL ANYTHING TO S. AFTER THE SEXUAL INTERCOURSE?

A. YES, I TOLD HER NOT TO TELL HER MOTHER."

After the accused had been charged with rape by Inspector Halatanu and had had the charge read out to him he voluntarily wrote in his own handwriting:

"Yes, it is true what I have been charged with, I was drunk and I do regret what happened and what I did."

The complainant's mother was called as a witness for the Crown. She said that she could recall the complainant and the accused arriving back at Pili at about 9 or 10 a.m. and she noticed wetness around her daughter's eyes. The mother said that the complainant told her to come back home with them and she did. When they arrived home, the accused said that he was going to cut down some fau. The mother went inside the house and slept until later in the day. In cross-examination the mother confirmed that at no stage on the trip home or after their arrival had her daughter complained to her of rape.

The Crown also called the complainant's elder sister, Laina. She had been to the funeral also and she described how the accused had brought the children home to Popua early on the morning of 17 June. She said that she and the complainant were in the front of the van and her two brothers were in the back. She said that after they had been dropped off at home, the complainant went back in the van with the accused to take some dressings or make-up for her mother while she had gone inside and gone straight to sleep. Laina told the court that when she awoke later in the afternoon the complainant told her how she and the accused were supposed to have gone straight back to the funeral but they ended up in a tax allotment and the accused had forced her to have sex. She told Laina that she had not said anything to her mother. Laina told the complainant to go to the police and complain and she agreed to do so. Laina arranged a taxi. When they arrived at the police station, Laina lodged a complaint with the male police officer on duty and then the complainant was interviewed on her own by a female police officer, Constable Hakalo, of the prosecution unit.

Constable Hakalo told the court that she began taking a statement from the complainant about 4 p.m. on 17 June. She said that the complainant was crying and visibly distressed. She told her that she had been raped by the accused who was having an affair with her mother. The constable then rather impressively recounted what she had been told by the complainant without any reference to notes. No objection was taken to this evidence. Indeed, in cross-examination the police constable's recollection was challenged by counsel for the accused and she was asked by Mr Veikoso to read out to the court the whole of the written statement which the police had obtained from the complainant. The witness did so but no further challenge was made to the accuracy of the account which she had already given to the court.

In her statement to the police, the complainant had said that when they arrived at the bush allotment she thought the accused was going to get some bark for weaving but he leant over and locked the door on her side of the van and told her to take her clothes off. She asked why he was doing this to her and he said, "to show my love to you all". She tried to open the van door but could not do so and she also tried to call out but the accused put his hand over her mouth and said that she would be killed. The accused asked her for a kiss. She said that she was not going to kiss him and then she said, "if you love me don't do such a thing to me because it is not love". The complainant then told the police how the accused took off her long trousers and her underwear and proceeded to rape her. She said that after the intercourse he told her not to tell her mother.

After taking the complainant's statement, Constable Hakalo took her back to her home to see about the clothing she had been wearing earlier in the day and later she took her to Viola hospital where she was examined by a Dr Tevita Vakasiuola. Dr Vakasiuola told the court that he examined the complainant just before 8 p.m. on the evening of 17 June. He described her as a very shy young girl who looked quite distressed. The doctor produced the written report of his examination. He had noted in the final paragraph:

"Vaginal penetration which is consistent with the history of being raped."

The doctor had a swab taken and tested for the presence of sperm but none was detected. He said that he did not expect to find sperm given the large amount of blood present from the girl's period. In any event, to establish a charge of rape, there does not have to be a full act of intercourse in the sense of there being ejaculation by the male.

Dr Vakasiuola told the court that he was certain that there had been vaginal penetration because the hymen had been freshly torn within the last 24 hours. The doctor was rigorously cross-examined about his failure to mention the torn hymen in his written report. He freely acknowledged that the omission was an unfortunate oversight on his part. In partial explanation he told the court that he was the only doctor on duty that Saturday evening and he was working under a lot of pressure with people waiting and the police wanted to take his report away with them. I have no difficulty whatever in accepting the doctor's explanation in this regard and also his findings. He had a clear recollection of the particular examination and I have no reason to doubt his reliability.

The medical evidence, in conjunction with the accused's own admissions to the police, satisfy me beyond doubt that the accused did have sexual intercourse with the complainant on the morning of 17 June 2000. The issue that then arises is whether the Crown has established that the complainant did not consent to the intercourse. Under this head, counsel for the accused made a number of detailed submissions. He relied first upon the failure of the complainant to give evidence confirming that she had not consented. I have already dealt with the effect of the complainant's failure to give evidence and I reject the notion that the various elements making up a charge of rape cannot be established unless the complainant gives evidence.

Counsel then referred to the absence of any evidence of force or violence. He submitted that had the complainant suffered bruising or injury or tearing of her clothing then that would have been evidence of rape but the absence of such evidence was consistent with the girl having consented to intercourse.

Rape is not necessarily sexual intercourse by force. It is penetration without consent and without a belief, on reasonable grounds, that there is consent. "Consent" in this context means a consent given by a woman who is able to understand the significance of what is to happen and who is able to make an informed and rational decision as to whether she will consent or not.

Any consent must be a freely given one. It is important to distinguish between a consent that is freely given and submission to what the woman may regard as unwanted, but unavoidable, intercourse. Submission by the woman because she is frightened of what might happen if she does not give in is not true consent at all. Equally, submission because she feels powerless or trapped is not true consent. The fact that a woman does not protest or physically resist, or ceases to do so, is not of itself to be taken as consent.

As is stated in Archbold 2001, Criminal Pleading Evidence & Practice, para 20.26:

"It is not, however, necessary to support a charge of rape that there is evidence that the complainant demonstrated her lack of consent or communicated it to the accused; the minimum requirement is evidence of lack of consent in fact, which might take many forms; the most obvious is the complainant's simple assertion, which may or may not be backed up by evidence of force or threats . . ."

In the present case I am completely satisfied that the Crown has proved this element of the charge. The most cogent evidence comes from the accused's own statement to the police, in particular question 37 where he was specifically asked:

"Q. S's DEMEANOUR, DID SHE CONSENT?

A. NO."

As part of his submissions under this head, counsel for the accused also placed considerable reliance upon the failure of the complainant to make what he referred to as an "early complaint" about the rape to her mother as soon as she saw her at Pili. After hearing all the evidence, I am satisfied that the failure to complain to the mother was a perfectly understandable reaction. The accused, after all, was standing in the place of the complainant's father. He was the breadwinner for the family. He was the mother's de facto husband. One can imagine the myriad of thoughts and pressures that must have been going through the complainant's mind as she contemplated what she should do. The older sister told the court that she believed that if the complainant had told her mother what had happened then her mother would have beaten her up. That evidence did not surprise me in the least.

In the witness box, the mother presented as a very formidable woman indeed. She showed no sympathy or compassion over her daughter's plight. Inspector Halatanu told the court that about the week after he had taken the statement from the accused he had had a visit at his home from the accused and some other people, including the complainant's mother, requesting him to withdraw the charges. In her evidence, the mother told the court about significant gifts of money, food and fine mats that the accused and his family had made to her since 17 June 2000. She said towards the end of her evidence that, "there is nothing that can compare to the love and generosity which the accused has done for us". Although the accused has now apparently recently married someone else, the complainant's mother said in answer to her final question under cross-examination, "I speak on behalf of the family and we have nothing against this person".

Given the mother's extraordinary attitude, it is not difficult to imagine the enormous pressures which the 15 year old complainant would have been under on 17 June 2000. Sadly, those same pressures obviously endured down to the days of the trial.

The actions of the accused and his family in bestowing gifts on the complainant's family since 17 June 2000 may be something that is relevant to penalty but they cannot exculpate him from the crime he has committed. I am satisfied that the Crown has established all the necessary elements of the charge of rape and the accused is accordingly convicted on Count 1. It is not necessary for me to consider the alternative, Count 2.

NUKU'ALOFA: 31 JANUARY 2002.

JUDGE