Rex v Faupula [2003] TOSC 42; CR 145 2002 (3 October 2003)

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

NO. CR.145/2002

REX

-V-

SOANE FAUPULA

BEFORE THE HON. MR JUSTICE FORD

COUNSEL: Mr Pouono for the Crown and
Mr Fifita for the accused on the first day of the hearing and
thereafter Mr Kefu for the Crown and the accused in person.

Date of hearing: 13 November 2002, 2, 3 July, 23,24,25,26
(part day) September and 3 October 2003.

Date of judgment: 3 October, 2003.

JUDGMENT

There are a number of unusual features to this case, not least of all the fact that, apart from the initial day of the hearing in November 2002, the accused, who faces one count of rape, one count of grievous bodily harm and one count of bodily harm, has conducted his own defence and, with one or two exceptions, he has handled his case with commendable skill.

The bodily harm charge

The bodily harm charge is completely unrelated to the other two charges and I will deal with that first. The accused is charged with causing bodily harm to his niece by hitting her on the back of the head with a broom. The background circumstances to this particular alleged offence are rather tragic. The accused's niece, Nina, has an obvious mental disability which she has apparently suffered from since birth. The nature of her illness was not explored before the court. She gave her evidence clutching onto her caregiver from the Alonga Center for people with mental disabilities. She told the court that she was 14 years of age but it transpired that she was born on 26 March 1976 which would make her 27. Nina was born illegitimate and her mother, the accused's sister, apparently migrated to New Zealand when Nina was still very young leaving her in her family's care.

The accused lives on an allotment at Houmakelikao. He and his wife live in an ‘api at the back of the allotment. There is another ‘api in the front of the allotment. In the front ‘api lives the accused's father, his brother and sister-in-law, Ha'ahao, his brother's two young daughters and the accused's own son Kalisi. At the time of the incident, 10 February 2002, Nina was also with the family in the front ‘api. The evidence was unclear, but it appeared that she lived at the Alonga Centre during the week and on weekends she would be allowed out to live with the family.

The day in question was a Sunday. At approximately 8:00 p.m. that evening the accused and his wife were watching television at their home when they heard crying noises coming from the front ‘api. The accused went to investigate. The main witness for the Crown in relation to this charge was his 39-year-old sister-in-law Ha'ahao who was the complainant. She, without any objection, ended up giving evidence twice in the case. Towards the end of 2002 the Crown made application to the court for her evidence to be taken prior to trial on the grounds that she was proposing to migrate to New Zealand. On that occasion she said that the accused came to their home at approximately eight o'clock in the evening and picked up a broom with a shortened handle some 2 ft. in length and told Nina that he would beat her. He then proceeded to assault Nina in her bedroom.

The witness said that she could hear Nina crying and calling out her name from the bedroom saying, "I'm injured, I'm going to die, stop beating me." She said that the accused's father and her two daughters were in the house at the time and the father simply responded by saying "kill her then." Ha'ahao did not know of any reason for the attack. She said nothing about any crying noises coming from her home beforehand. I have included that observation in the narrative because that was the evidence given subsequently by the accused and it was not disputed by Crown counsel.

Ha'ahao said that Nina had been with her in the living room in her house for about one hour prior to the attack and when the accused entered, she had ran off to her bedroom. Ha'ahao said that it was dark but she could see that Nina was sitting in her room facing the bedroom door trying to shield her head while the accused was beating her with the handle of the broom. In her estimation, the attack lasted for about five minutes and the accused then left.

Ha'ahao said that she was surprised when Nina then came out of her bedroom with, as she put it, "her whole face covered in blood and it was across her clothes." The witness said that at that point she ran outside because she had a heart problem and the blood was too much for her to look at. At the time of the incident, Ha'ahao's husband had been visiting the neighbours.

When the hearing then resumed in July 2003 with a different Crown prosecutor and minus the defence attorney, Ha'ahao was called as the second witness for the Crown. On that occasion, she described again how she witnessed the accused attacking Nina with the broom handle. In cross examination the witness explained that she had not been able to raise sufficient funds to migrate to New Zealand. The following further exchange then took place:

"Q. Do you remember saying in November last year under oath that you did not see me assaulting Nina but today you say that you saw me assaulting Nina so which one of those two statements is true?

A. My statement today is the truth.

Q. So the one you gave on oath back in November last year is not true?

A. (No answer)

Q. You gave a statement on oath here on 13 November last year where you said you saw me assaulting Nina?

A. Yes.

Q. So you gave that statement and it was false and you gave it on oath last year?

A. Yes."

This particular passage in the evidence was not followed up in re-examination, perhaps because Crown counsel had not been present at the earlier hearing but, obviously, it was a disturbing admission in terms of the witness's credibility.

The Crown called evidence from a Medical Officer who confirmed the nature of the injuries the victim had sustained. In his submissions this morning the accused referred to the Medical officer’s evidence and contended that it was equivocal as to the exact cause of the injuries. In his report the medical officer concluded that the wound to the back of the head was consistent with the use of a blunt object. In evidence he told the Court that strong force would have been required to cause the wound. I am satisfied that the injury described was, in fact, caused by the short handled broom produced as an exhibit.

The Crown also called evidence from Inspector Halatanu, the police officer in charge of the case. Inspector Halatanu produced the police documentation which included a "Record of Interview" in which the accused admitted assaulting Nina with the small broom. The accused had said that he held the coconut sticks and hit Nina's head with the handle. In explanation, he told the police inspector that he had heard Nina swearing and making too much noise from the other house.

The accused elected both to give and call evidence. He denied that the statement given to Inspector Halatanu was given voluntarily. He said that it was "forced" but I do not accept that submission. It transpired that the accused had been a police officer for some eight years, working in the Criminal Investigation Department for three of those years and in the Prosecutions Department for another year. He was, therefore, fully aware of all his rights. I am satisfied that the statements he made to the police were given voluntarily.

In evidence the accused said that after hearing the yelling and shouting, he had approached the front house. He said that he spoke to the two children and asked them what was happening and they just looked at the direction of Nina's room. When he then entered Nina' room he saw his son with his foot bleeding badly and Nina was standing behind him holding a broom. He could see that she was having a fit. He said that he spoke softly to Nina trying to calm her down but as soon as she heard his voice she ran and hid under the bed taking the broom with her. The accused said that he then tried to coax her out from under the bed but she thought that there was another man in the room trying to hit her and she believed that the accused had a knife. The accused continued by saying that it took him about 20 to 25 minutes to persuade Nina to come out from under the bed and she then stopped crying and kissed him. At that point, the accused said, he was intending to take her across to his own house but before they got outside, his wife entered the room and mentioned that Nina was injured. The accused then told his wife, "to go and dry it off". He said that he did not notice any blood on Nina but he was told about it by his wife.

In cross examination, it was put to the accused that his son, Kalisi, denied being in the bedroom when the accused had entered. He was also shown the dress that Nina had been wearing with extensive dried bloodstains still visible. The accused had no explanation in relation to his son's evidence but his explanation for not having seen any blood at the time was that Nina had long hair almost down to her waist and he also made the observation that after she had emerged from under the bed, the top half of her dress was dishevelled and her breasts were exposed. The accused speculated that Nina must have injured her head on a bolt or something similar during the period she was struggling under the bed.

The accused also called evidence from his wife and son. Seventeen-year-old Kalisi told the court that he had been in the bedroom with Nina. He had been doing his homework and Nina had been lying on the bed. She suddenly stood up and beat her head against the wall. He told her to stop and she turned around and hit him with the broom opening up an old wound on the side of his knee. He then ran out of the house crying. He said that he did not know what happened after that and it was not until sometime later that he found out about Nina's injuries. He had not seen his father enter the room. Kalisi said that Ha'ahao and his grandfather had been outside the house at the time but Ha'ahao had come back inside again after Nina had attacked him.

The accused's wife told the court that sometime after he had gone to the front house, she had decided to go over to find out what was going on. She then described in evidence in chief what happened when she entered the front house:

"A. . . . . I then came and spoke to Ha'ahao's children - one is about ten and one is about eight; they were the only people inside the living room together with you and Nina.

17. Where was my father and our son?
    

A. They were outside.

Q. Did you see them?

1. I'm not sure whether I saw them or not but at least they weren't inside the house. You then called me to come. I saw you coming with Nina. That's when I heard your brother's two children say you assaulted Nina with the broomstick. That's when I heard Nina crying saying "blood, blood".
   

Q. Was there sufficient light?

A. Yes.

Q. Where were you standing and where was I standing?

1. I came through the door to the bush side and you were inside the house trying to calm Nina down and that's when you told me -- said to me to go and take Nina and wipe -- try to wipe the blood off her head or do something about her head."
   

Q. How long was it after I had left our house?

A.. Two minutes.

Q. Do know how long two minutes is?

A. Yes.

Q. Did you go inside the room?

A. Yes.

Q. What happened?

A. I led Nina out of the house and washed her hair.

Q. Where did you go with Nina?

1. To the water tap. While I was washing her hair my brother-in-law came and told me to leave Nina for him.
   

Q. What were you washing?

A. Blood.

Q. Was Nina injured?

A. Yes.

Q. What part of her head?

A. The back of her head.

Q. Was there any blood on her forehead?

A. Yes."

Later, after a lunch break, the witness recanted on the "two minutes" estimate and indicated that the time lapse would have been more like half an hour. The prosecutor suggested that she had changed that part of her evidence because she had talked to the accused during the lunch break. The witness denied that allegation and gave an explanation for the variation in her time estimates which I am prepared to accept.

As with any criminal case, the onus is on the Crown to prove all the elements of the offence beyond reasonable doubt. The Crown's principal witness, Ha'ahao, came across as a credible witness apart from the strange admission she made in cross examination which I have referred to earlier. I describe the admission as "strange" because in her evidence in chief back in November she had, in fact, described how she had seen the accused holding the broomstick beating Nina. Why she should, therefore, appear to recant her earlier evidence in cross examination on this occasion is rather puzzling. As I have also indicated, Ha'ahao made no mention in her evidence of either Kalisi or Nina making any yelling or crying noises prior to the incident and I am satisfied that there was noise of this type coming from the front api which attracted the attention of the accused and his wife. For these reasons, I have found it necessary to seek corroboration of Ha'ahao's evidence.

As it turns out, I find ample corroboration of Ha'ahao's evidence in the accused's own statement to the police and in the evidence given by his wife. I have no doubt that the accused did attack Nina with the small broom in the way Ha'ahao described. Despite his denials, it is obvious from his wife's evidence that he was fully aware of the injury he had caused to Nina's head and of the bleeding. I am satisfied that the Crown has established all the elements of the charge beyond reasonable doubt and the accused is convicted accordingly on the bodily harm count.

The rape and grievous bodily harm charges

The other two charges relate to an unsavory incident on or about 4 October 2002. The case for the Crown is that the two complainants, 'Asaeli and ‘Olivia, were engaged in sexual intercourse on the ground in front of a motor vehicle, which was parked at the far end of Sopu beach, when 'Asaeli was suddenly struck on the back of the head with an iron bar. He was injured but he was able to run away eventually arriving at a house in Sopu from where he telephoned the police.

In the meantime, the attacker, who had had his head covered with some type of clothing, threatened 'Olivia with the iron bar. He told her to remove the rest of her clothing, which she did, and he proceeded to lick her vagina. He then told her to get inside the car. She sat in the front passenger seat. The attacker folded down the back of the seat and made ‘Olivia lie on her side facing towards the doors. He then drove the vehicle to a bush allotment where he proceeded to commit further acts of indecency on the girl including rape.

The male complainant, 'Asaeli, explained in evidence how he had been drinking with two other male friends at Sopu beach on the night in question when they were joined by ‘Olivia who had been drinking in another vehicle parked further along the road. He had never met her before. 'Asaeli was driving a white rental car, registered number R243. The registration number assumes some significance later on.

After 20 minutes or so of further drinking, 'Asaeli dropped his two male friends off back in town at the Billfish bar and restaurant and he and ‘Olivia returned to Sopu beach but on this occasion they drove to the far end of the beach, virtually to the end of the road. They parked by the foreshore facing the ocean. The witness said that they then alighted from the car and were having sex on the ground when he was hit on the head with a metal bar. 'Asaeli said that when he stood up he could see that he was bleeding from his head injuries. His attacker was standing in front of him still holding the metal bar. He had his head covered and he told 'Asaeli not to run or he would kill him.

Despite the threat, 'Asaeli ran off down the road towards town. After approximately five minutes he heard a car coming from behind him. He turned around and he could see that it was his rental car being driven by the man who had assaulted him. The attacker still had his head covered. 'Asaeli was not able to see the girl. The vehicle sped past him. 'Asaeli told the court how he had gone to a house in Sopu and called the police. He was then taken to hospital for treatment.

Later, at approximately 7 a.m. that same morning, 'Asaeli was at the police station making an official complaint when he heard a voice coming from one of the adjacent rooms. He immediately recognized the voice as that of his attacker. He told the police officer who was taking his complaint about the voice and he went to the next room to see who it was. He identified the man as the accused. He said that the accused had been making a statement to the police when he first recognized his voice.

For her part, 21-year-old ‘Olivia confirmed the circumstances surrounding the assault. She said that she did not know exactly where the rape took place because she had been unable to see where the vehicle had been driven to after it left Sopu but it was somewhere on a bush allotment under a mango tree. The complainant said that after they had parked under the mango tree, the man told her to sit up and he came around to her side of the car and took off his clothes. He then climbed into the car, licked her private parts again and moved on top of her and started copulating, fondling her breasts as he did so. The complainant described how there was both penetration and ejaculation. She said that she tried to struggle and she moved her head to avoid him when he tried to kiss her but she was afraid of him. The iron bar was sitting on the driver's seat.

After intercourse had taken place, the attacker fetched something out of the trunk of the car and then sat in the driver's seat and asked ‘Olivia for her name and telephone number. She gave him a neighbour's number, 24147, and she gave her name as "Ana". At that stage, the assailant still had the covering over his head and at no time was ‘Olivia able to get a proper glimpse of his face.

The complainant told the court how the rapist then proceeded to drive the rental vehicle to the Blue Pacific nightclub. He alighted from the car and removed the covering from around his head which ‘Olivia described as "a little skirt". He threw it at her and told her to put it over her face. He then walked around to the trunk of the vehicle and at that point ‘Olivia got out of the car and moved to the front bonnet. At the same time, another vehicle came along and she was on the verge of calling out for help but instead she moved around to the driver's seat and tried to get a glimpse of her assailant's face. He turned his back towards her, however, and headed for the bush. The evidence was that the accused lived in the area of the Blue Pacific nightclub.

‘Olivia drove the rental vehicle back into town. She did not go immediately to the police station to complain. She said that she was planning to do that when it became daylight. It appears, however, that the police, who by this time had received 'Asaeli's complaint, were searching for the rental car and some time later ‘Olivia was stopped by a patrol vehicle close to the centre of Nuku'alofa. She described in evidence her movements up until that point in time and, although her lack of an immediate complaint is somewhat surprising, I accept her explanation for the delay.

The accused submitted this afternoon that the absence of an immediate complaint was evidence that the complainant had consented to having sex with the man and so, therefore, it was not rape at all. I reject that proposition. For one thing it was never put to the complainant in cross-examination but more importantly, after listening to her evidence, I have no doubt that she never at any stage consented to what the rapist was doing to her.

‘Olivia was taken to the police station where she proceeded to lodge her complaint of rape. She described the approximate age of her assailant, his clothing and his build. She said that he had the voice of an older man. ‘Olivia was taken to hospital for a medical checkup. The medical report confirmed recent sexual intercourse.

The witness then explained to the court how after she had given her initial statement to the police, two police officers went away and eventually came back with the accused. ‘Olivia was still at the police station when they returned and she was able to hear the man's voice from another part of the Charge Office. She immediately recognized the voice as that of her assailant. She was then able to see the person face-to-face for the first time and she identified him in court as the accused.

The police officer who carried out the smart piece of detective work in linking the accused with the crime was 27-year-old constable Tevita Hakalo. Constable Hakalo knew about the assault on 'Asaeli and he had taken a statement from ‘Olivia. He had asked her if she could identify the person who had forced her and she had replied, "No" but she had said that if she heard his voice again then she would be able to recognize it.

Constable Hakalo said in evidence that after listening to ‘Olivia's complaint, he began to think of the accused as a suspect. In cross examination the constable was asked by the accused why he had linked the crime with himself. The police constable indicated that he had made the connection because of hearsay rumours he had heard around the police station but he did not go into any further details. The constable admitted that he knew the accused was a former police officer and he accepted that he had never previously been the subject of a complaint of bodily harm or rape.

Whatever the real explanation, after listening to the complainant's version of the rape, the police constable was able to link the accused with the crime and he and another officer proceeded to visit him at his home. They arrived at approximately 7:00 a.m. The accused was in bed asleep. There was a debate as to whether one of the policeman had woken the accused or whether they had asked his son to wake him up. Whatever version is correct, the significant happening occurred a little while later when the accused was talking to the other police officer. Constable Hakalo had observed a pair of blue jeans hanging on the clothesline which appeared to be similar to the clothing identified by the complainant. He walked over to the clothesline, in full view of the accused, and he noticed that part of the jeans were still wet. He then went through the pockets and he removed several half fullscap sized pages that had obviously been torn out of a diary.

The pages were folded together. They were for the days from 6 to 15 (inclusive) of March 2000. The pages were blank apart from the page for 13 March which listed what appeared to be 13 registration numbers of motor vehicles and alongside each number had been written various comments. Entry number 12 caught the constable's attention. It recorded the number "R 243" and alongside had been written the comment, "kai pali rest bonet". The number R 243 was the registration number of the white rental car involved in the incident. The court was told that the Tongan words "kai pali" mean "licking vagina".

The last entry on the same page also caught the constable's attention. It read: "22147 Ana". That was the same information that ‘Olivia had given to the rapist -- her neighbour's phone number and the false name, "Ana". The accused was then taken into custody and eventually charged. Several days later the police returned to his home with a search warrant and they recovered the old diary that the pages had been torn from.

The accused made a statement to the police in which he denied any involvement whatsoever in the assault on 'Asaeli or the rape of ‘Olivia. He said that on the Friday night in question he had gone on his bicycle to a kava club following which he had bought a curry meal arriving back at his home shortly after 2 a.m. He denied that the blue jeans or a white T-shirt which the police had taken from his property belonged to him. He said that he had never seen the jeans before and he suspected that the white T-shirt was one that had belonged to his wife. The female complainant had identified these items of clothing as those worn by the rapist. When the police interviewer asked the accused about the diary, his response was, "I do not know anything but I will speak only in court."

The accused elected to give evidence in his trial. Again, he confirmed having no involvement in either the assault or the rape. He denied being anywhere near Sopu on the night in question. He admitted that the diary was his but he denied that he had written the particular entries on the torn out page for 13 March and he denied that the jeans belonged to him. He explained that the clothesline on the allotment where the jeans had been hanging belonged not to his family but to the front house.

Not surprisingly, the accused was closely cross examined by Mr Kefu on all aspects of his evidence, in particular the diary entries. He said that the diary had been given to him by someone. He was asked about a number of entries which appeared on the pages for the end of December and it was put to him that they also appeared to record car registration numbers with comments written alongside. He was referred to an entry written on the page for 22 December where alongside the number had been written in English the words, " Small red cab at Colier 2 came bend the front back, both pretty small half naked, suck." Other entries contained similar comments.

The accused admitted making the entries. It was put to him in cross examination that he acted like a "Peeping Tom". He admitted the allegation. He said that this was what he usually did. When he went to the foreshore and people were having sex; he would put it in his diary. He commented that he is usually the person involved in the sexual activity.

Mr Kefu continued to challenge the accused over his denial that he had made the relevant entries recorded on the diary page for 13 March. In the end, after persistent questioning, the accused said that he "could not confirm" whether it was he who had written the entry. He added the comment that there were over 100 pages in the diary.

The Crown also called credible evidence from a taxi driver who had known the accused prior to the events in question. He recalled how the accused had arrived at his taxi rank not far from his home at around 5:00 a.m. on the morning of Saturday 5 October and he asked the witness to take him to Sopu. At Sopu, in the area where the initial assault on the complainants had taken place, the accused retrieved a jacket, a pair of running shoes, a book and his bicycle. The taxi driver said that the accused had also looked unsuccessfully for a bottle of liquor. The bicycle was placed in the boot of the taxi. On the way back to his home, the accused stopped off at Ma’ufanga and purchased a curry meal. The taxi driver said that he would have dropped him back at his home sometime before 7:00 a.m.

Under cross examination, it was put to the taxi driver by the accused that all the events he had described had taken place in the early hours of the Friday morning and not on the Saturday morning as he had claimed. The witness was adamant, however, that the events had occurred early on the Saturday morning exactly as he had described. He also reminded the accused that as they were driving along Sopu road the accused had pointed out places where he had been drinking. He also pointed out a spot where he said that he had tried to have sex with a woman but had not been able to. I am satisfied that the taxi driver was telling the truth.

I have considered carefully all the submissions ably presented today by the accused but I have been left in no doubt, whatsoever, that the Crown has succeeded in establishing all the necessary elements of the two charges. In the end, the evidence against the accused was quite overwhelming. Under a searching cross examination he came within a hairs breath of admitting to the crucial diary entries. Despite his rather what in the end were weak denials, I have absolutely no doubt that the accused was, in fact, the author of all the diary entries. Given the sinister connotations of many of the entries highlighted by Crown counsel, he is perhaps fortunate not to be facing additional charges.

As it is, the accused is convicted on the charges of rape and grievous bodily harm.

NUKU'ALOFA: 3 OCTOBER, 2003

JUDGE