Rex v Talanoa [2002] TOSC 31; CR 224 2001 (8 November 2002)

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

NO. CR. 224/01

BETWEEN:

REX
Prosecution

AND:

HANITELI TALANOA
Accused

BEFORE THE HON CHIEF JUSTICE WARD

COUNSEL: Mr ‘A. Kefu for prosecution
Mr S. Tu’utafaiva for accused

Date of Hearing: 28 - 30 October 2002
Date of Judgment: 8 November 2002

JUDGMENT

The accused is charged with rape of Lesieli Vala ‘Aho on 29 June 2001 at Fasi-moe-afi contrary to section 118(1)(a) of the Criminal Offences Act.

The alleged victim in this case, a young woman of 23 at the time, was living as man and wife with a Toni Lifai in a small corrugated iron house not far from the house where the accused lives with his wife, Mele, and their family. The house in which the complainant and Toni were living belonged to Toni’s uncle, Posikou Lifai, and he lived with his wife, Malia, in a house on the same ‘api and only a few feet from the house the complainant was sharing with Toni.

She and Toni had moved there earlier in the same year and the accused came to know her from that time. He was a friend of Toni’s and became a frequent visitor to the little house where she lived. The accused’s father in law, who lived with them, is Posikou’s older brother.

The prosecution case is that, on the night in question, the accused came to the house and suggested that he and Toni should go out to a drinking party. He then left and was followed shortly afterwards by Toni. The complainant, as was commonly her habit when alone in the house, went to sit with Malia in the latter’s house and listened to the radio. After a while she returned to her house and went to bed. She was wearing her underwear of a bra and pants. She lay on the bed, turned out the light and went to sleep.

She was awoken by the door being opened but, assuming it was Toni, took no further notice. It was, in fact, the accused and he sat beside her on the bed and spoke to her. She lay there as he talked until he suddenly grabbed her, pulled her to him and took off her underclothes. He then took off his trousers and lay on her. The complainant told the court that she was struggling but, despite it, he was able to lick her vagina for some time before he had sexual intercourse with her.

Although she agreed that the accused said nothing to frighten her, she was scared he would harm her if she screamed. However, she said that she struggled initially but he was too strong. After he had started sexual intercourse, she told him to stop or Toni might return and catch him. The accused stopped and suggested they should go outside and finish there.

The complainant put on a tupenu and the accused put on his trousers. As the complainant started to leave the house, the accused pulled her back by her hair and, as she was about to scream, put his fingers in her mouth. However, she was able to call Malia’s name and the accused ran off.

Posikou had taken their children to the Heilala Festival but had arrived back by this time and he and Malia ran out to find the complainant lying on the ground by their house. Malia described how she had heard her name called twice but that it had sounded as if the complainant had something in her mouth. When they came outside, she was lying on the ground, crying and only had on a tupenu. They asked her what had happened and she replied that Mele’s husband had forced her.

Posikou called the police and the complainant went with Malia to the police station where she made a complaint. She was not taken to see a doctor.

The accused was arrested on 10 July and taken to the police station. He was interviewed and following a challenge to the admissibility of his answers, there was a trial on the voir dire. At the end of the trial within a trial, the officers failed to re-appear to give evidence and so the court has heard nothing of the statements allegedly made by the accused. I refused prosecuting counsel’s request for an adjournment and he closed his case without that evidence. Some of the contents of those interviews were mentioned during the trial within a trial. They are not evidence in this case and I ignore them all.

The accused gave sworn evidence. He told the court that he had often joked with the complainant, asking her how many men she had had before Toni and about his, the accused’s, chances of taking her out or of having sex with her. He said her responses had sometimes been joking but on other occasions had been serious. The serious comments, he said, were only directed to being taken out by the accused and he had not taken them up previously.

However, on that evening when he went to their house to take Toni out drinking, he took some food for the couple and, whilst Toni was eating, the accused moved to the bed where the complainant was lying and asked her if there was a chance that evening. She replied that he should return after the drinks. He considered she was serious and that she intended to have sexual intercourse with him.

The two men went out and, at about 2.30 a m, when Toni left him and went to a nightclub, the accused remembered the complainant’s suggestion.

He entered the house, spoke to her and she turned towards him. He first suggested they should go to Tokomololo but she said it was too far and suggested they have sex there, as it would not be long before Toni returned. The complainant agreed, when it was put to her, that the accused had suggested they should elope to Tokomololo but she rejected any such suggestion and I accept there was no basis for him to consider she might have been interested in eloping.

The accused then described to the court in detail how he had undressed both her and himself, had licked her vagina and then started to have sexual intercourse. He said that, throughout, she was clearly enjoying it and was a perfectly willing partner. He pointed out that everything he did to her was reciprocated.

After he had been having sexual intercourse for about 15 minutes, the complainant said it was too long and Toni may turn up. She suggested they should go outside and finish there. He trusted her and put on his trousers and they both came out. He said he came out first and he was taken totally by surprise when she suddenly screamed. He was so shocked, he put his hand back to cover her mouth and his fingers went into her mouth. Once she had screamed, he decided to run away, as he did not want anyone to know what had happened although he did feel, shortly afterwards, that he had possibly made the wrong decision in the heat of the moment.

He later told his wife what had happened but she said there had already been a complaint made to the police.

The accused admits the sexual intercourse. His defence is that it was consensual or, even if not, that he believed on reasonable grounds that the complainant was a willing and consenting partner.

As in all criminal trials, the burden is on the prosecution to prove these were not the case and it must do so beyond reasonable doubt. There is no burden on the accused to prove anything.

The complainant impressed me as a quiet, careful and honest witness and I am satisfied beyond reasonable doubt that she was truthful and accurate. The accused on the other hand was confident and brash in his attitude. I did not find him credible in many aspects of his account and, where he differs from the complainant, I am satisfied beyond any doubt her account is the accurate version.

The complainant denied that there had ever been any previous comments by the accused about the accused having a chance and I accept that was the truth. I considered that her whole demeanour supported that conclusion and I simply did not believe the accused in that part of his evidence. That includes his suggestion that she effectively invited him back that evening.

Similarly, I accept her account that, when the accused first grabbed her, she struggled and that she continued to do so when he started licking her vagina. The accused’s account that she was an actively willing sexual partner is, I am satisfied beyond any doubt, a lie.

The complainant’s account was that, after the initial attempts to stop her attacker, she effectively gave up resisting because she was afraid. It was only after she was outside the house that she felt safe enough to shout for help. That I also accept is the truth.

The result is that, after the initial physical resistance, there was no attempt by her to stop the accused. She does not claim to have done so or even to have tried to say anything to dissuade him. I do not accept the accused’s suggestion that she was willing or that she showed any signs of enjoying the things he was doing. I accept her account that she simply passively allowed him to continue his attack on her through fear of the possible consequences of further resistance. When it was put to her in cross-examination that her attitude was such that he must have thought she was willing, she denied it vehemently but, when asked whether she thought her attitude may have lead him to believe she was consenting, she agreed it was possible. I considered those answers were a good example of her honesty and the care with which she answered the questions of counsel.

As I have said, I accept she was an honest and accurate witness. I have no doubt at all that she did not agree to this sexual intercourse and that the accused knew perfectly well from the beginning that she did not welcome his advances in any way. At the time he first grabbed her and when he started to lick her vagina, I am satisfied beyond any doubt that he was well aware of that and was determined to continue despite it. I am satisfied beyond any doubt that the complainant never consented to any of the things that occurred during the early hours of that morning and, had that been the only defence, I would have convicted him

However, the next question I must answer is whether, once she gave up resisting, he may have believed that his advances had, in effect, won her over. The test for the court is whether the circumstances were such that were reasonable grounds for a belief that she had stopped resisting and this was because she was, thereafter, a willing participant and, if so, whether this accused man may have believed that.

In view of the manner in which the complainant stopped showing any signs of resistance until she was outside the house and the considerable period of time over which both witnesses say these sexual activities continued, I am not satisfied that the prosecution has proved that the accused certainly did not believe that she had been sufficiently aroused to have changed her attitude from one of resistance to one of consent.

In those circumstances, I must acquit him of rape. However, by section 42(3) of the Criminal Offences Act and clause 13(d) of the Constitution, the court may still convict of a lesser offence if the evidence has proved it to the same standard. I am satisfied beyond any doubt at all that the accused’s initial attack on this young woman was carried out despite her clear lack of consent which he realised and that continued through most of the time he was licking her vagina. That is an indecent assault and I convict him of that offence.

I would also add that I am satisfied beyond any doubt that any misconception he may have held was dispelled as they left the house. I accept the complainant’s account that she left first and that he then pulled her back by her hair and subsequently tried to stop her shouting. Whatever had been his belief immediately prior to leaving the house, he, at that point, thought she was trying to run away and therefore realised then that she had not been willing whilst he had had sexual intercourse. That was, in fact, a further common assault but I do not consider it appropriate to add a conviction for that.

Therefore I acquit him of rape but convict him of indecent assault, contrary to section 124 of the Criminal Offences Act.

NUKU’ALOFA: 8 November, 2002.

CHIEF JUSTICE